Her Majesty the Queen - v. -, 2011 SKPC 110

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 110 Date: June 29, 2011 Information: 32417426 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Graham Gunningham Appearing: Mr. B. Pashovitz For the Crown Mr. A. Fox, Q.C. For the Accused DECISION ON VOIR DIRE D.C. SCOTT , J Introduction [ 1 ] Graham Gunningham is charged with operating a motor vehicle while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1) (

b) of the Criminal Code . The charge arose from a motor vehicle accident which occurred on December 20, 2009 in Saskatoon. The accused was detained by a police officer at the scene. Because the police vehicle was not equipped with an approved screening device (ASD), the officer requested that one be delivered. Upon receiving the ASD, a demand was made for a breath sample and a “fail” reading was obtained. The accused was arrested, his rights were read to him and a breathalyzer demand was made. At the police station, the accused attempted unsuccessfully to reach three different lawyers. He ultimately spoke with Legal Aid duty counsel.

[ 2 ] The accused argues that the ASD demand was not made forthwith, contrary to s. 254(2) (

b) of the Criminal Code and therefore the ASD results were unlawfully obtained and could not form part of the reasonable and probable grounds for making a demand under s. 254(3) of the Criminal Code . In the alternative, the accused submits his rights under ss. 8, 9 and 10 (

b) of the Charter of Rights and Freedoms were breached. The accused also argues that at the police station, he was not afforded his right to counsel of choice, contrary to s. 10(

b) of the Charter . The accused seeks exclusion of the Certificate of Analyses. [ 3 ] Crown counsel argues that in the circumstances of this case, the ASD demand was made forthwith. Further, the Crown denies that the accused’s Charter rights were breached. [ 4 ] A voir dire was held during the course of the trial. This is the Court’s decision on the voir dire . Was the ASD demand made forthwith, as required by s. 254(2) of the Criminal Code ? If the ASD demand was not made forthwith, were the accused ’s

section 8 , 9 and 10(

b) Charter rights breached? Should the Certificate of Analyses be excluded? Facts [ 5 ] At approximately 2:58 a.m., on December 20, 2009, Cst. Dybvig and Cst. McAvoy were dispatched to the scene of an accident next to Jax Nightclub in Saskatoon. They arrived at 2:59 a.m. The accused’s truck had been driven into a building on the northwest corner of 24 th Street and Pacific Avenue in Saskatoon. Two passengers were with the accused at the time. [ 6 ] The accused approached Cst. McAvoy and identified himself as the driver of the truck.

The officer testified he could detect the odour of alcohol emanating from the accused and the accused was slightly slurring his words. At 2:59 a.m., Cst. McAvoy patted down the accused and placed him in the patrol vehicle. The officer testified he did so, because it was cold outside and because he was embarking upon a possible impaired driving investigation. [ 7 ] Cst. McAvoy had not signed out an ASD that evening and the patrol car was not equipped with one, so at 3:02 a.m. Cst. McAvoy radioed for an ASD to be brought to him. While waiting for the device to arrive, Cst.

McAvoy obtained the accused’s identification, ran the usual checks on the accused and asked when he had consumed his last drink. The ASD was dropped off at 3:10 a.m. and the demand was read at that time. The accused was asked if he understood. The procedure was explained and at 3:12 a.m. the accused provided a breath sample. A “fail” reading was indicated. [ 8 ] At 3:16 a.m. Cst. McAvoy read to the accused his Charter rights and asked if he needed a lawyer, to which the accused replied “yes”. The warning was read and the accused indicated he understood.

At 3:17 a.m. a breathalyzer demand was made. [ 9 ] The 25 year old accused testified on the voir dire . He recalled being dazed following the accident. He was patted down and placed in the police car, although he was not told why and was not informed of his right to counsel at that time. He acknowledged he was wearing a light sweater and that it was cold outside. During that time, paramedics checked his hand, which had been injured in the accident. He waited awhile, but could not say for how long, before being asked to blow into an ASD.

After he failed the ASD test, he acknowledges he was advised of his right to counsel and that he understood his rights. Analysis [ 10 ] The accused was detained in the police vehicle at 2:59 a.m.; delivery of the ASD was requested by Cst. McAvoy at 3:02 a.m. and a demand was not made until the ASD arrived at 3:10 a.m., resulting in a delay of 11 minutes from the time of detention to the making of the demand. Defence counsel argued that because no ASD demand was made on the accused at the time he was secured in

the back of the police vehicle, the demand was not made forthwith in accordance with s. 254(2), rendering the test results inadmissible. [11] According to R. v. Rilling (1975), (SCC), 24 C.C.C. (2d) 81 (S.C.C.), once breath samples are providedunder s. 254(3) of the Criminal Code, the officer’s grounds for demanding the samples are irrelevant. The Certificate of Analyses whichestablished that the accused’s blood alcohol level exceeded the legal limits are admissible notwithstanding the ground for making thebreath demand was an illegally obtained fail result on an ASD (see also Hatzel, para. 10).

Based upon Rilling, which has not beenexpressly overturned by the Supreme Court of Canada, I would admit into evidence the Certificate of Analyses. [12] Alternatively, the Defence argued that because the accused was not advised of the reason for his detention, he was arbitrarilydetained contrary to s. 9 of the Charter. It was argued that because the ASD demand was not made forthwith, the accused ought to havebeen informed of his right to counsel and failure of the officer to do so, violated the accused’s s. 10(

b) Charter right. It was furtherargued that because the ASD demand was not made forthwith and the accused was not advised of the reason for his detention, his s. 8Charter right to be secure against unreasonable search and seizure was infringed. The accused therefore seeks exclusion of theCertificate of Analyses under s. 24(2) of the Charter. [13] Section 254(2) of the Criminal Code gives authority to a police officer to demand a breath sample for analysis at the roadside,if certain conditions are met. The

section requires that a sample of breath must be provided by the accused forthwith after the demand ismade, implying that the demand must also be made forthwith (R. v. Dewald (1994), (ON CA), 19 O.R. (3d) 704). Afail reading as a result of a lawful ASD demand can form the reasonable grounds for a breathalyzer demand under s. 254(3) of theCriminal Code. [14] A number of cases have considered the significance of the requirement that the ASD demand be made “forthwith”. According to Arbour J. in Dewald at para. 5: …it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver hasalcohol in his or her body. This is the only

interpretation which is consistent with the judicial acceptance of an infringement on the rightto counsel provided for in s. 10(

b) of the Charter. If the police had discretion to wait before making the demand, the suspect would bedetained and therefore entitled to consult a lawyer. The basis upon which the courts have held that Parliament may infringe on asuspect’s right to counsel is that there is no opportunity for the police to accommodate that right if the breath sample must be taken“forthwith”. It follows, in my view, that for the

section to maintain its constitutional integrity we must assume it also contemplates thatthere be no opportunity for the suspect to consult counsel before the demand is made. [15] Detention for roadside screening is a reasonable limit on the rights of individuals, under s. 1 of the Charter, so long as thedemand complies with the requirements of s. 254(2) of the Criminal Code (R. v. Thomsen, [1988] 2 S.C.R. 640). According to Fish J. inR. v.

Woods, 2005 SCC 42 , [2005] 2 S.C.R. 205, the word “forthwith” addresses the issue of unreasonable search and seizure,arbitrary detention and infringement of right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter (para. 29). In this way,Parliament has struck a balance between “the public interest in eradicating driver impairment and the need to safeguard individualCharter rights” (para. 29). [16] In R. v. Bernshaw, (SCC), [1995] 1 SCR 254 (S.C.C.), Sopinka J. for the majority, held that while thescreening test should be administered as quickly as possible, a broad

interpretation should be given to the meaning of “forthwith” (para.70) and a flexible approach should be adopted (para. 73). Such an approach was found to be consistent with the reasonable limit on anaccused’s right to counsel under s. 10(

b) of the Charter. [17] In R. v. Billette (2001), 2001 SKQB 150 , 205 Sask. R. 79 (Sask. Q.B.), the Court held that “forthwith” in thiscontext means as quickly as possible in the circumstances. In that case, where the actual length of time was unknown, intervening eventssuch as the officer’s warrantless search of the accused’s vehicle led the Court to conclude an unreasonable and unnecessary delayoccurred in making the demand. In those circumstances, the Court concluded the demand was not made forthwith. [18] There is no rule with respect to the exact number of minutes which must elapse before the demand falls outside the“forthwith” requirement—each case is dependent upon its circumstances.

[ 19 ] In this case, the delay of 11 minutes was largely due to the unavailability of the ASD. In R. v. Ritchie , [2004] SKCA 9, the Court held the delay was not unreasonable, where the time between the demand to provide a breath sample into an ASD and the taking of the sample was 11 minutes because the machine was not available. The Court held that “forthwith” in the context of s. 254(2) means “as soon as possible and before there is any realistic possibility that the subject could successfully contact counsel and get legal advice” (para. 17). [ 20 ] In R. v.

Janzen , [2006] SKCA 111, the Court held the demand was made and the test was administered forthwith, where officers first had to arrange for the delivery of a screening device from the police station and then prepare the device for the test, resulting in a delay of 10 minutes. The Court of Appeal interpreted “forthwith” to mean “without unreasonable or unjustified delay” (para. 4).

In Janzen , the Court held that in determining whether a roadside screening test had been administered forthwith, it is necessary to consider the circumstances of the case, including the length of the delay and the reason for it and to assess the matter having regard to the following factors (

i) the balance between Parliament’s objective in combating the evils of drinking and driving, on the one hand, and the person’s constitutional right to be free of unreasonable search or seizure on the other; and (ii) the fact that a person’s constitutional right to consult counsel is suspended upon demand to provide a sample of breath (para. 4). [ 21 ] In this case, the demand was not made until the ASD arrived, whereas in Ritchie and Janzen , the delay occurred during the period between the making of the demand and the arrival of the ASD. [ 22 ] The Defence relies on the Saskatchewan Court of Appeal decision in R. v.

Anderson , [2011] SKCA 13, where the Court held that a demand made 3 minutes after the accused was stopped and placed in the police vehicle was not made forthwith and therefore did not comply with the requirements of s. 254(2) . In that case, the officers stopped the accused’s vehicle at 1:11 a.m. The accused was asked to exit his vehicle and to take a seat in the police vehicle without being told why. Once in the police vehicle, the accused was asked his name and at 1:14 a.m. an ASD demand was made.

The Court of Appeal held that for those 3 minutes, the accused was arbitrarily detained contrary to s. 9 of the Charter . [ 23 ] At first blush, it appears that the decisions of Anderson , Ritchie and Janzen cannot be reconciled. However, the issues are distinct and the principles set out in Ritchie and Janzen still apply. [ 24 ] In Anderson , the Court found that a delay of 3 minutes before making a demand under s. 254(2) , constituted an arbitrary detention under s. 9 of the Charter .

The cases of Ritchie and Janzen however, did not deal with the timeliness of the demand, but rather with a delay of 11 minutes and 10 minutes respectively related to the delivery of the ASD once the demand had been made. In those circumstances, no Charter breach had been triggered. [ 25 ] Anderson simply confirms that once an investigating officer has a reasonable suspicion of alcohol in the accused’s body, the demand must be made thereafter as soon as reasonably possible. The time line thereafter to effect completion of the ASD testing process as set out in Ritchie and Janzen remains unchanged.

In the present case, the time line for completion is within the parameters set forth in Ritchie and Janzen , that being 11 minutes. Further, in Anderson , notwithstanding the arbitrary detention by reason of a 3 minute delay, the Certificate of Analyses was admitted into evidence. [ 26 ] I find Cst. McAvoy formed a reasonable suspicion that the accused had alcohol in his body when he detected the smell of alcohol on the accused’s breath, noticed a slight slur in his speech and placed the accused in the police vehicle.

There is nothing to indicate he could not have made the ASD demand at that point, even though the device itself was not yet present. Based on Anderson , I find the accused was arbitrarily detained for a period of 11 minutes until the demand was made at 3:10 a.m. contrary to s. 9 of the Charter . Further, because the ASD demand was not made forthwith, his right to be secure against unreasonable search and seizure contrary to s. 8 of the Charter was infringed. [ 27 ] The Defence argued that because the accused was detained, he ought to have been given an opportunity to contact counsel.

In Ritchie , the Court found that a delay of 11 minutes would not have provided a realistic opportunity for the accused to successfully contact counsel and obtain legal advice. Following the Ritchie analysis, I find that the accused’s s. 10(

b) Charter rights were not infringed. Remedy

[28] I have found a breach of the accused’s s. 8 and 9 Charter rights. I must therefore further assess whether the Certificate ofAnalyses ought to be excluded under s. 24(2) of the Charter. [29] According to R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the test under s. 24(2) requires an analysis of threefactors: (1) the seriousness of the Charter infringing state conduct; (2) the impact of the breach on the Charter protected interests of the accused; (3) society’s interest in the adjudication of the case on its merits.

Seriousness of breaches [30] According to Grant, there is a range of seriousness from “inadvertent or minor violations” to “wilful or reckless disregard” ofCharter rights. Good faith on the part of the police can be a mitigating factor, but “ignorance of Charter standards must not be rewardedor encouraged and negligence or wilful blindness cannot be equated with good faith” (R. v. J.K., 2010 ONCJ 232 , [2010] O.J.No. 2675 (Ont. C.J.)). [31] It is my view that the Charter breaches were moderately serious.

The Charter infringing conduct giving rise to the breacheswas the officer’s failure to make the demand 11 minutes earlier than he did. The accused was arbitrarily detained for that period of timeand a sample of his breath was obtained. However, the officer appeared to have acted in good faith. The officer placed the accused inthe police vehicle because he was investigating a possible drunk driving charge, but also because it was cold outside, the accused had nojacket on, he was injured and his vehicle was seriously damaged.

Nonetheless, the officer ought to have informed the accused why hewas placed in the vehicle and ought to have made the demand as soon as he formed the reasonable suspicion that the accused had alcoholin his body. Impact on accused [32] The Court in Grant held there is a range in the potential impact upon an accused, from “fleeting and technical to profoundlyinvasive”.

The more serious the effect of the breach on the accused’s Charter rights, the greater the risk that the admission of theevidence obtained as a result of the breach would bring the administration of justice into disrepute (J.K.). [33] There is little in the accused’s testimony upon which to determine the impact of the detention upon him. He testified that hewas unaware of how long he waited in the police vehicle as he did not have a watch.

During his time in the police vehicle, paramedicstended to injuries on his hand and he was kept warm. [34] The detention was of relatively short duration and there is no evidence that his bodily integrity or dignity were compromised. The taking of a breath sample is generally considered to be relatively non-intrusive (Grant, para. 111). I find the impact on the accusedto have been minor. Society’s interest in adjudication on the merits [35] Under this stage of the inquiry, reliability of the evidence and seriousness of the offence are factors to be taken into account.

The Court must consider whether the truth seeking function of the criminal trial process would be better served by admission of theevidence or by its exclusion (R. v. Perry, [2009] O.J. 4919 (Ont. C.J.). The Certificate of Analyses is reliable evidence. The offence ofdriving while impaired is a serious one, made more so by the accused’s egregious driving in this case.

Weighing and balancing of the factors [36] The purpose of s. 24(2) is to maintain the good repute of the administration of the justice system as a whole. In Grant, atpara. 111, the Court stated: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity isdeliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded,notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe interms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, thiswill often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [37] In this case, the breaches were moderately serious and the impact on the accused was relatively minor. The evidence soughtto be excluded is highly reliable and the offence is serious.

It is this Court’s view that on balance, the factors weigh in favour ofadmission of the evidence. [38] The arbitrary detention for 11 minutes can be attributed largely to waiting for the ASD to arrive. Officers who fail to equiptheir vehicles with an ASD risk the unlawful detention of individuals and the potential exclusion of evidence at trial (R. v. Hatzel, 2011SKPC 59 , [2011] S.J. No. 278 (P.C.), para. 24).

Nonetheless, in this case, the delay was of relatively short duration comparedto the 33 minutes in Hatzel. [39] Following Anderson, “the issue of impaired driving and the potentially serious consequences thereof, including endangeringthe lives of others, leads to inclusion of the evidence” (para. 29). I find the admission of the Certificate of Analyses would not bring theadministration of justice into disrepute. Was the accused’s s. 10(

b) Charter right to counsel breached at the police station? Facts [40] Once at the station, the accused was taken to the phone room, set up with a table and two small stools and equipped with aphone directory and a phone from which no calls can be made. Immediately outside the phone room is another phone mounted on thewall, connected to the phone inside the room. Typically, an accused provides the officer with a phone number, which the officer willdial. Once the call is answered, the officer will identify himself and tell the accused to pick up the phone. The officer will then hangup.

This was the procedure followed with this accused. [41] The accused wished to speak to his ex-girlfriend, “Coral”, who had worked for a lawyer. Cst. McAvoy contacted Coral. Sheadvised that the lawyer for whom she worked was not available and in any event did not do criminal law work. The accused began tolook at the yellow pages of the phone directory. He advised he wanted to speak with Mr. Jay Watson and provided Cst. McAvoy withthe phone number. Cst. McAvoy called that number and left a message, as there was no response. He then asked the accused what hewished to do.

The accused indicated he would like to try Mr. Chris Lavier and provided the number. Cst. McAvoy called that numberand left a voice mail message. Again he asked the accused what he wanted to do. Cst. McAvoy told the accused that he could look inthe phone directory for another lawyer or he could contact Legal Aid duty counsel. The accused then asked Cst. McAvoy to call LegalAid. The accused spoke with Legal Aid duty counsel for approximately 5 minutes. He was asked by Cst. McAvoy if he was satisfiedwith his contact with counsel, to which he replied “yes”.

He was asked if he wanted to speak with another lawyer, to which he replied“no”. The breathalyzer technician also asked if he had spoken with a lawyer and whether he was satisfied with his call. Once again theaccused said he was. [42] Cst. McAvoy testified there is usually a list of frequently called lawyers’ names and their phone numbers posted on the wallnear the phone used by the officers. He could not recall whether such a list was posted that evening. Neither did he recall whether Mr.Watson’s number was on the list.

[43] It was the accused who pointed out the number he wanted the officer to call. When the officer could not reach the lawyersselected by the accused, he did not suggest the accused look through the white pages. [44] The accused acknowledged that he was provided with a phone directory. He looked through the yellow pages and had avague recollection of the name Jay Watson, so asked Cst. McAvoy to call. He had no previous dealings with Mr. Watson; his name just“popped into his head”. When Mr. Watson could not be reached, he suggested Mr. Lavier at the same firm. When neither Mr. Watsonnor Mr.

Lavier could be reached, he acknowledged Cst. McAvoy asked him if he wanted to call another lawyer. The accused indicatedhe wanted to speak to someone, so he told Cst. McAvoy to call Legal Aid. [45] The accused testified that no suggestion was made by Cst. McAvoy to check the white pages for Mr. Watson or Mr. Lavier. The officer opened the phone directory to the yellow pages and the accused acknowledged that he did not think to look in the whitepages for an alternate phone number for Mr. Watson or Mr.

Lavier. [46] The accused had a very brief conversation with Legal Aid duty counsel and complains that counsel did not offer much help.Duty counsel did not ask whether the accused had been in an accident. Neither did he ask about whether a roadside sample was taken orthe timing of the demand. Analysis [47] Defence counsel argues the accused, while eventually given the opportunity to speak to Legal Aid, was not given anopportunity to speak with counsel of his choice. The accused expressed a clear desire to speak with Mr. Watson or Mr.

Lavier; theofficers knowing the accused had not reached either of their office numbers, took no steps to provide the accused with their after-hourscontact numbers or obtain their home numbers. Defence further argues the accused spoke with Legal Aid duty counsel because he had noother choice; the advice the accused received from Legal Aid duty counsel was minimal. [48] The Defence relies on R. v. MacLaren (H.K.) (2001), 2001 SKQB 493 , 212 Sask.

R. 204 (Q.B.), where the Courtheld that a detained person has a right to choose counsel and once that intention has been indicated police may not proceed as if it hadbeen waived. The accused in MacLaren indicated he did not have a lawyer, so the officer dialled the number for Legal Aid. The Courtfound that the accused was not given a reasonable opportunity to exercise his right to counsel. That is not the circumstance in thepresent case. [49] In R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429, the Supreme Court of Canada dealt with the issue of the right tospeak with counsel of choice.

The Court held that detainees who choose to exercise their s. 10(

b) Charter right to contact counsel triggerthe implementational duties of the police. Such duties require the police to facilitate a reasonable opportunity for the detainee to contactcounsel (para. 33). [50] The implementational obligations of officers are contingent upon a detainee’s reasonable diligence in attempting to contactcounsel. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend upon the context of theparticular circumstances as a whole (Willier, para. 33). [51] An accused has a right to counsel of choice.

However, if chosen counsel is not available within a reasonable time, theaccused should be expected to exercise the right to counsel by calling another lawyer. [52] In R. v. McCrimmon, 2010 SCC 36 , [2010] 2 S.C.R. 402, the Court held that where an accused expressed apreference for speaking with a particular lawyer, the police acted properly in inquiring whether he wanted to contact Legal Aid instead,when the preferred counsel was not available. [53] The principles in Willier and McCrimmon have been applied in two recent cases from our Court of Queen’s Bench. In R. v.Edgington, [2010] S.J.

No. 599 (Q.B.), an accused advised the arresting officer that he did not have a lawyer. In response, the officer

informed the accused about the availability of Legal Aid, who the accused contacted. The accused argued he was given insufficient time to decide which lawyer to contact and that the officer gave him only one choice, that being Legal Aid. The accused argued he ought to have been given more options. The Court found that the accused’s s. 10(

b) right to counsel had not been breached. It held that once the accused had decided to speak with someone from Legal Aid, it would not have been appropriate to do anything other than attempt to facilitate the accused’s communication with his lawyer of choice. The accused was advised of his rights, was given the opportunity to choose a lawyer, he chose and consulted the lawyer he had chosen. There was no breach of his s. 10(

b) right to counsel. [ 54 ] In R. v. Svennes 2011 SKQB 137 , a case upon which the Crown relied, an accused attempted to contact three lawyers unsuccessfully, before speaking with someone from Legal Aid. The accused had access to a telephone directory and the officer dialled the numbers provided to him by the accused. The accused testified that she did not think of looking in the white pages of the phone directory for the lawyers’ residential phone numbers.

The Court concluded that because the officer did what the accused would have done in the circumstances, in attempting to reach counsel, the officer fulfilled his implementational duty and there was no breach of s. 10(b). [ 55 ] In the present case, the accused expressed his desire to contact his friend’s employer. When that did not work, the officer provided the accused with a phone book. The accused asked to contact two lawyers. Cst. McAvoy complied with each of the accused’s requests. After each unsuccessful attempt, the officer asked if he wanted to contact another lawyer or Legal Aid duty counsel.

Eventually, the accused chose to speak with Legal Aid duty counsel. I find that the officer in this case was not directive in suggesting Legal Aid duty counsel, but rather reminded the accused of that option, as he was required to do. In any event, following the accused’s conversation with duty counsel, the officer asked the accused if he wished to contact another lawyer—the accused declined. [ 56 ] Defence counsel argued that Cst. McAvoy had access to Mr. Watson’s and Mr. Lavier’s home phone numbers and ought to have provided them to the accused.

However, there is no evidence that the officer had in his possession an after-hours phone number for either counsel. The accused was also required to exercise diligence in accessing counsel of choice. The accused had the telephone book available to him and could have referred to the white pages for alternate phone numbers for Mr. Watson and Mr. Lavier. Failure of Cst. McAvoy to suggest the accused look in the white pages does not amount to a failure to facilitate the accused’s right to contact counsel. Cst.

McAvoy complied with each request of the accused and was willing to continue attempting to contact counsel of choice, if the accused chose to do so. Cst. McAvoy did exactly what the accused would have done ( Svennes ). [ 57 ] Cst. McAvoy testified that there is usually a typed list of approximately ten lawyer’s names and phone numbers, along with phone numbers for Legal Aid and Court workers, posted by the telephone outside the phone rooms at the police station. Cst. McAvoy could not recall whether the list was posted on the evening in question.

An example of such a list was presented into evidence on the voir dire . One of the lawyers listed is Mr. Watson. The number listed is Mr. Watson’s business phone number. There appears to be no reference to his residential phone number or after-hours phone number included on the list. Mr. Lavier’s name is not included on the list. [ 58 ] At trial the accused expressed concerns that his consultation with Legal Aid duty counsel was unsatisfactory.

While the police were obliged to afford the accused a reasonable opportunity to contact counsel and to facilitate that contact, they were not required to monitor the quality of the legal advice once contact was made ( Willier , para. 41 ). In fact, to do so would have been an intrusion into the confidential nature of the solicitor-client relationship. Unless the accused diligently and reasonably indicated that the advice he received was inadequate, the officers were entitled to assume he was satisfied with his exercised right to counsel ( Willier , para. 42 ).

This is so, particularly where the accused expressly stated that he was satisfied to Cst. McAvoy and the breathalyzer technician. [ 59 ] It is my view, Cst. McAvoy fulfilled his informational and implementational duties to facilitate this accused’s right to counsel of choice.

He informed the accused of his right to contact counsel of choice, provided him with a phone directory, complied with every request made by the accused and when he was unsuccessful in reaching counsel, the officer informed the accused of the availability of Legal Aid duty counsel. [ 60 ] In the circumstances, I find there was no breach of s. 10(

b) of the Charter . Conclusion

[ 61 ] I have found that the ASD demand was not made forthwith, giving rise to a breach of the accused’s ss. 8 and 9 Charter rights. However, based upon Grant , I have determined that the Certificate of Analyses ought to be admitted into evidence. I have found no breach of the accused’s s. 10(

b) right to counsel at roadside or at the police station. [ 62 ] For the foregoing reasons, the Certificate of Analyses will be admitted into evidence on the trial proper. ________________________ D.C. Scott, J