R. v. Ferguson, 2015 ONCJ 181

ONTARIO COURT OF JUSTICE CITATION: R. v. Ferguson, 2015 ONCJ 181 DATE: 2015·04·08 COURT FILE No.: Regional Municipality of Durham 998 13 15148 BETWEEN: HER MAJESTY THE QUEEN — AND — Katelyn Ferguson Before Justice J. De Filippis Heard on 6 October 2014 & 17 February 2015 Reasons for Judgment released on 8 April 2015 Ms. P. Thompson .................................................................................... counsel for the Crown Mr. Y.

Tahmassebipour..................................................................... counsel for the Defendant De Filippis J.: [1] The defendant was tried on an Information alleging that on 8 December 2013, at the City of Pickering, she was in care or control of amotor vehicle at a time that her blood alcohol level was over 80mgs of alcohol per 100 millilitres of blood. This is an offence by virtue ofsection 253 of the Criminal Code. [2] At 1:22 AM, on the date and place in question, a motor vehicle driven by the defendant was stopped for speeding by P.C.Zaphiropoulous.

The latter testified that his attention was initially drawn to the vehicle because “few people pass a marked cruiser”. The defendant was the sole occupant of the vehicle. In speaking with her, the officer noticed a strong odour of alcohol on her breath,that her speech was slurred and she was confused about when she had her last drink of wine. The officer made a “roadside demand” andcalled for an approved screening device. P.C. Broadfoot arrived on scene with the device. After several unsuccessful attempts, thedefendant provided a suitable sample of her breath and registered a “fail”.

On this basis, she was arrested for the offence in question andsubjected to a breath demand. The Defendant was transported to the police station for that purpose, and eventually provided twosamples of her breath that resulted in truncated readings of 130. This is over the legal limit. [3] The Defendant claims the police violated her right to counsel, as set out in subsection 10(

b) of the Charter of Rights and Freedomsand applied to exclude the evidence of the breath readings pursuant to subsection 24(2). That is the sole issue at this trial.[1] [4]

Section 10 (

b) of the Charter provides that, “Everyone has the right on arrest or detention to retain and instruct counsel without delayand to be informed of that right”. What this means is well established. The police have these duties:

(1) Inform the person of the right tocounsel;

(2) Provide a reasonable opportunity to exercise this right if counsel is desired, and

(3) Curtail questioning and compulsion tomake a decision or participate in a process that could ultimately have an adverse effect at an eventual trial, until that reasonableopportunity has been exercised. The person detained or arrested must be reasonably diligent in exercising his/her right to counsel. See: R.v. Richfield (ON CA), [2003] O.J. No. 3230 (Ont.

C.A.). [5] Subsection 24(2) provides that “where ... a court concludes that evidence was obtained in a manner that infringed or denied any rightsor freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, theadmission of it in the proceedings would bring the administration of justice into disrepute”. [6] The Defendant must prove her claim. The standard of proof is on a balance of probabilities. I have concluded that the applicationshould be dismissed.

[ 7 ] The Defendant was advised of her right to counsel at the scene by means of the standard wording set out in the back of the police notebook. P.C. Broadfoot testified that she was told the following: I am arresting you for exceed 80 milligrams of alcohol in a hundred millilitres of blood. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid Lawyer.

If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-88- 265-0451 is a number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now. Do you understand? The Defendant responded that she understood and wished to call her father. The officer asked if her father was a lawyer. The Defendant explained that he was not and added that,“he’ll have the number for a lawyer”. [ 8 ] Much, but not all, of the relevant subsequent proceedings at the police station were recorded by video.

I have the benefit of a transcript of these proceedings. [ 9 ] At 1:53 AM, the Defendant was paraded before the booking sergeant. During this process, she asked several times to go to the bathroom and then added that her “kidneys really hurt”. P.C. Broadfoot interjected to say, “Is that because you need to go to the bathroom, is that why?”. The sergeant ignored this and ascertained that the defendant understood why she was arrested and her right to counsel. When asked if she would like to call a lawyer, she responded, “yes…I’m going to call my parents. I’d like to go to the bathroom first”.

After disclosing that she has a “kidney stone” she was permitted to go to the bathroom, at 1:58 AM. The defendant returned to the booking sergeant at 2:07 AM and the following exchange occurred between her and P.C. Broadfoot: Broadfoot: Are we calling mom and dad for a lawyer or you just want to talk to mom and dad? Defendant: I want to talk to my lawyer. B: Do you have a lawyer? D: I do. B: Who’s your lawyer? D: Do I have to tell you right now? I can call my parents to call the lawyer... B: If mom and dad don’t have information for a lawyer then you’re gonna have to consider other options.

D: Absolutely [ 10 ] In the next 20 minutes, P.C. Broadfoot , contacted the Defendant’s parents. During this time, the Defendant also texted a friend. At 2:25 AM, he informed the Defendant that he spoke to “Harold Ferguson at home…and your father told me he does not have a lawyer for you to speak to”. As he was about to explain the remaining options, the Defendant stated that she was “feeling overwhelmed by the situation” and added that she “wants a second opinion”. The officer replied that he cannot provide advice, only options.

The Defendant suggested her father be called again for the name and number of a lawyer. The officer refused to do so and this conversation followed: Broadfoot: Your options are any lawyer you want – lawyer of choice or duty counsel. Those are your options right now. Defendant: No, I (inaudible) lawyer, but just wait on that. I’m gonna wait for that. Qualified Intoxilyzer Technician (QBT): What are we waiting for? D: I’m gonna wait for me to get the ability to call my lawyer: B: Kay, I have given you your phone and you began text messaging your friends. Therefore you have lost the right to use your cell phone.

D: I have lost the right to tell them that I’m arrested (inaudible) to get them to get me a lawyer? B: That’s not what was happening but that’s okay. D: I (inaudible) I’m arrested to get me a lawyer. B: What did you ask me to do when I gave you your phone? D: To get my lawyer. You…Absolutely. I appreciate that. QBT: And you said you had a phone number on there…. D: No, I said (inaudible) Google. Let’s rewind the tape and … Absolutely, you told me to Google…. B: I? Kay, no, no… D: to get a lawyer. B: First, what happened was you told me ‘I have the lawyer’…

D: (inaudible) only one time it happened… B: Okay, first you said, ‘I have a number in my purse’ and I gave you your purse…then you said, ‘oh, its not in there its in my other purse, so I gave you the other purse. And then its not in there and you said, ‘oh, well its in my phone’ D: I did not say that. I did not say that at all….I said I will talk (inaudible) to get a lawyer. B: Hey, you’re here. And that’s not gonna change.

So you can sit and goof around and play the game, which is exactly what you’re doing right now, cause you’ve already wasted time, had to go to the bathroom, your kidneys miraculously healed themselves because I haven’t heard you complain about a kidney pain in the last twenty minutes but you were almost near death earlier. D: No, I said ‘my kidneys hurt’… ….. D: I just don’t know what to do. QBT: Nobody is going to give you those answers, you’re going to have to make the decision yourself …. D: Okay…but what should I do with this situation…should I call my parents. I just don’t know what to do.

QBT: No you won’t be able to call your parents, so rule that out. Your options... D: I feel like I’m in a deadline right now. I fell like I have no rights right now. QBT: Your rights are restricted , that’s for sure….cause you’re in custody. D: We’re not going to get into one of those debates...wait until you’re not impaired to blow, no, that’s not gonna happen. D: No, I just wanna wait until I’m ready to figure out what I want to do right now and I have the right to do that. I know my rights….I’m allowed to sit here and to wait until I figure out what I want to do right now.

I know that I want to talk to my lawyer but I don’t know… B: You keep saying ‘my lawyer’ but I don’t feel like you actually have a lawyer. D: My parents have a lawyer. QBT: They don’t cause we called. [ 11 ] After this exchange, the P.C. Broadfoot suggested the Defendant think about her options: Broadfoot: Tell you what. You take some time, think about what you want to do. We can put you in a cell and you can think about it. Defendant: Okay….. B: Okay over here to the left. How long do you want to think about it? D: Maybe like (inaudible) B: No, twenty minutes isn’t going to work. Straight in here.

D: What do you mean (inaudible) B: Straight in here. D: (inaudible) B: Get in the cell. I’m not (inaudible) [ 12 ] Six minutes later, at 2:38 AM, the Defendant was brought back from the cells. The discussion continued, as follows: Broadfoot: Okay, did you decide what you want to do? Defendant: I don’t think I have a time limit actually. B: Yeah, you do actually. D: What’s the time limit? B: Well you can talk to a lawyer whenever you want but the reality is you’re going to have to provide a sample of breath into that instrument. D: Absolutely. B: So we can call a lawyer for you afterwards, but we’re not gonna ….

[ 13 ] At this point the qualified intoxilyzer technician re-read the breath demand to the Defendant. This exchange occurred: QBT: So you have a right to speak to counsel however you’re not making any attempts to speak to counsel right now and that’s been the delay. D: I just want to talk with my lawyer. QBT: Who’s this…your lawyer? D: When I get it I will… QBT: So you don’t have a lawyer. You keep saying ‘my lawyer’; you don’t have the name… D: When I get it, absolutely. QBT: So what attempts are making to get it? D: When I get it I will give it to you.

B: Okay, So what’s going to happen is my partner is going to go inside the breath room…you want to do that now? D: Mm-mmm [ 14 ] P.C. Broadfoot testified that he provided the Defendant with her cell phone after she asked for it to obtain the name of her lawyer. The officer understood that this information was in her contact list. When he saw her sending text messages, he took the phone away as he believed she was only telling friends about being arrested.

When confronted with the aforementioned transcript in which the Defendant protested she was trying to contact a friend to obtain the name of a lawyer, he testified, “I didn’t feel that she was making an effort to get them to contact a lawyer for her….That was the way I interpreted it. So, I decided that it was about time to move along to something else…..So I said I’d Google a lawyer for her…and she said ‘Google me, A Lawyer’”. Having, correctly, interpreted the Defendant’s remark as sarcastic, the officer searched Google for “A Lawyer”. P.C.

Broadfoot conceded that this was “not helpful” and that he acted unprofessionally on this occasion and also when he told the Defendant she was ‘miraculously not feeling pain anymore”. He explained that he was frustrated by what he believed to be her deliberate delaying tactics. [ 15 ] He also testified that he did not put the Defendant in contact with duty counsel because he has been criticized “by the courts” in the past for doing so when the detainee had not requested it.

He was cross-examined about his reference to a “deadline” in conversation with the defendant and gave confusing testimony about whether a breath sample must be taken “forthwith” or “as soon as practicable”. In this regard, he also stated that “[access to a] lawyer always comes first”. [ 16 ] The Defendant is 26 years old. She testified that she asked the police to contact her father for a second time because she wanted to remind him that he had used a lawyer “for their Wills” and to obtain that contact information.

She added that she sent text messages to a friend who is a paralegal so she could provide the name of a lawyer and “tell me what to do in this situation”. In the days following this incident, her friend put her in contact with present Defence counsel. The Defendant testified that she realized the arresting officer thought she was playing games and this made her more nervous. [ 17 ] The Defendant acknowledged that although she told police about wanting to speak to “my lawyer” she did not, if fact, know one.

In this regard, she admitted that when she told police she wanted her cell phone “to speak to my lawyer”, she really wanted to contact a friend to obtain the name and number of a lawyer. The Defendant also admitted that she did not have contact information for a lawyer in her purse when she asked police for this item so she could find the name of “my lawyer”. She explained that she “did not mean for it to be a lie, I thought my Dad or a friend could get a lawyer and I kept asking the police what I should do”. [ 18 ] The Defendant stated that the police explained her options as “a lawyer, duty counsel, no lawyer”.

She testified that she did not understand the reference to duty counsel; that is, she “knew it was an option but not exactly what it was”. The Defendant added that she asked the officer “what I should do” but he refused to answer this question. The Defendant was asked what she did “not understand about the phrase, ‘You have the right to free advice from a legal aid lawyer’”, and replied, “I didn’t know what to do and wanted to speak to my lawyer or a lawyer. I was overwhelmed and didn’t know what to do”. [ 19 ] Defence counsel submits that P.C.

Broadfoot consistently displayed a cavalier attitude to his right toward the Defendant and her rights. It is argued the police failed to facilitate the right to counsel by not calling her father a second time and not allowing further attempts to contact her friend.

In addition, in these circumstances it is suggested the police should have reminded the Defendant of the option to speak to duty counsel. [ 20 ] The Crown submits that the Defendant’s difficulties stem from the fact that she repeatedly stated she had a lawyer of choice to contact; since this was not true, the Defendant was not diligent in exercising her right to counsel. Counsel adds that there is no duty on the police to force duty counsel on an unwilling detainee. [ 21 ] It is obvious that from the moment the Defendant was paraded before the booking sergeant, P.C.

Broadfoot thought she was stalling and over the course of events he became frustrated with her. However, I am not persuaded that this compromised the informational and facilitation duties imposed on the police by

section 10(

b) or undermined the Defendant’s efforts to exercise her rights. In coming to this conclusion I do not condone the officer’s occasional unprofessionalism, but, in the circumstances of this case, I am not troubled by it or his reference to a “deadline”. Moreover, since much of his testimony on point is confirmed by the video record and that of the Defendant, his demeanour does not raise issues of general credibility and reliability. [ 22 ] The proceedings at the police station about the right to counsel lasted for almost one hour.

During this time, the Defendant made several references to “my lawyer” and said she could access this lawyer through her father or by searching her purse and cell phone. The

police came to believe she did not have such a lawyer and her testimony at trial confirms this. The police interpreted her actions asdeliberate delay. This is a reasonable

interpretation; another one is that she simply dithered. In any event, it is clear the Defendant didnot know what to do in “this situation” and became sarcastic and stubborn as the police refused to give her advice and pressed her tochoose from the available options. That is, I have no doubt the police properly advised the Defendant of the right to counsel, that sheunderstood this, and that she was not diligent in exercising those rights.

These findings are supported by a fair reading of the videorecord and evidence at trial. [23] The Defendant did not waive her right to counsel; indeed, she repeatedly asserted that she wanted to speak to her lawyer. As such,after the police learned that the Defendant’s father could not provide the name of a lawyer, they were right to inform her that that therewere two options left – use duty counsel or find a lawyer. They were also correct in declining to advise the Defendant about this or otherdecisions she faced.

I am mindful that when her cell phone was taken away, the Defendant protested that she was trying to find a lawyerthrough friends. However, P.C. Broadfoot cannot be faulted for disbelieving her as she had stated ‘her lawyer’ could be found bysearching her purse and cell phone. This also proved to be untrue and was followed by the Defendant’s flippant remark when P.C.Broadfoot offered to search for a lawyer on the Internet. [24] I reject the Defendant’s trial testimony that she did not understand what duty counsel was. When initially given her right to counselshe stated she understood.

She was reminded about the option of duty counsel at the police station. She did not ask for clarification. That this cannot be attributed to shyness or nervousness is demonstrated by the occasionally blunt exchange between her and the officers. In any event, there is nothing in the record before me to suggest the Defendant did not understand that free legal advice was available toher from duty counsel. The police cannot be expected to act upon a detainee’s unexpressed desire: R v Zoghaib [2006] O.J. No. 1023(Ont. C.A.).

Having failed to take up this option, the police were right not to put her in touch with duty counsel: R v Davidson [2005]O.J. No. 3474 (Ont. S.C.). [25] As already noted, the law requires that a detainee be reasonably diligent in exercising her right to retain and instruct counsel. If thisis not done, the duties on the police are suspended. What constitutes reasonable diligence will depend on the context facing the detainee:R v Brydges (SCC), [1990] 1 S.C.R. 190 (S.C.C.). In this case, all that the Defendant needed to do was to be clear thatshe did not have a lawyer of her own.

Since she had not waived her right to counsel, this would have placed an onus on the police tofacilitate access to legal advice through duty counsel or private counsel, as requested by the Defendant. [26] The Defendant has not persuaded me that she was reasonably diligent. She understood the options available to her. She did notpursue the offer of duty counsel and, unable to find the name of a lawyer through her father, repeated the false claim that she had herown lawyer. Her lack of diligence is made abundantly clear by the final discussion about the right to counsel.

After the Defendant,having had a few minutes alone to think about her options, is asked what she wanted to do, she replied that she was not subject to a timelimit, reiterated her desire to speak to “my lawyer” and told the officers she would give them the name “when I get it”. [27] It is difficult to understand why the Defendant persisted in referring to “my lawyer” when she did not have one. Although notpleaded before me, I have considered the possibility that she meant she wanted a private lawyer, rather than duty counsel. However,such an

interpretation is inconsistent with the video record as a whole and contrary to the Defendant’s trial testimony that she did notknow what the reference to duty counsel meant. In any event, the Defendant was unwilling to make the required decision. [28] The Charter motion is dismissed. If follows that the defendant must be found guilty of the charge. Released: April 8, 2015 Signed: “Justice De Filippis”