2018 QCCM 240, 2018 QCCM 240

R. c. Mehta 2018 QCCM 240 MUNICIPAL COURT OF THE CITY OF MONTREAL CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N o : 116-147-703 DATE: October 22, 2018 ______________________________________________________________________ PRESIDED BY THE HONOURABLE GABRIEL BOUTROS ______________________________________________________________________ THE QUEEN Prosecutor-Respondent v. VIRAJ MEHTA Defendant-Petitioner ______________________________________________________________________ JUDGMENT ON A MOTION TO EXCLUDE EVIDENCE, PURSUANT TO SECTIONS 8, 9, 10(a), 10(

b) AND 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS ______________________________________________________________________ I. INTRODUCTION [ 1 ] This case raises two questions: whether a public security officer who detains a citizen is obliged to inform him of his right to counsel, pursuant to sec. 10(

b) of The Canadian Charter of Rights and Freedoms ( the Charter ); and what is the extent of a police officer’s obligation to ensure that a detainee’s sec. 10(

b) Charter right is fully and freely exercised? [ 2 ] Mr. Mehta is charged with having driven a motor vehicle while his ability to drive was impaired by alcohol, as well as while his blood alcohol level was over the legal limit. At the beginning of his trial, his attorney presented a motion to exclude the evidence that was obtained pursuant to the two alleged violations of his Charter rights. [ 3 ] Two police officers and the public security officer testified for the prosecution on a voir dire . Mr.

Mehta testified in defence, although his testimony was limited to the violation that is alleged to have occurred at the hands of the police officers. II. THE FACTS [ 4 ] Public security officer Paris Tsovras testified that at approximately 4 AM on the morning of October 1, 2016 he was patrolling on O’Brien Street, where the speed limit is 30 km/hr. He was driving a clearly marked public security vehicle with amber revolving lights on its roof. [ 5 ] A black Kia Soul, driving at an estimated 70 km/hr, passed him on his left, in a lane meant for oncoming traffic. Concerned, Mr.

Tsovras decided to follow the Kia. [ 6 ] He saw it strike two orange traffic cones that were placed between the driving lane and a bicycle path, and then go through a red light at the next intersection. Two streets later the Kia turned left on another red light, before entering into the parking lot of an apartment building. [ 7 ] While Mr. Tsovras was following the Kia he asked his dispatch to call the police as he was concerned about the condition of the Kia’s driver. He was told that the police were on their way. Mr.

Tsovras drove with the revolving lights on his car roof flashing in order to make himself visible to police, as well as to any other drivers on the road. [ 8 ] He pulled his vehicle into the parking lot where the Kia had entered. He saw the driver of the Kia, who would later be identified as Mr. Mehta, walking away from his vehicle. Mr. Tsovras got out of his own vehicle and approached him. [ 9 ] Mr.

Tsovras testified that as a public security officer for the borough of St-Laurent, he did not have the power to intercept the vehicle or to issue traffic tickets for violations of the Code de la sécurité routière ( C.S.R.). [ 10 ] He also did not have the power to detain or arrest anyone for criminal offences beyond those granted to all citizens by sec. 494(1)

of the Criminal Code ( Cr. C .). [ 11 ] He explained that he wanted to keep Mr. Mehta on the scene while waiting for the police. In his words, he “decided to have a conversation until the police arrived”, and he “stalled” the driver. [ 12 ] He introduced himself, and asked general questions such as how the man was doing, and what he had been doing that night. While Mr. Tsovras first addressed the driver in French, both men quickly switched to English. [ 13 ] Mr. Tsovras did not inform Mr. Mehta that he was free to leave, or that he could refuse to answer any of his questions. And, even though Mr.

Tsovras told the Court that he did not have the power to force Mr. Mehta to furnish his identification, he asked for his driver’s licence. [ 14 ] Mr. Mehta answered that he had left his licence in his home, although Mr. Tsovras could see what looked like his wallet sticking out of his back pants pocket. [ 15 ] Mr. Mehta then walked toward the building, opened the garage door and entered the building. Mr. Tsovras followed him up to the door, but did not follow him inside. [ 16 ] He saw the driver walk around inside the large garage with his keys in his hand, as if he was looking for the right car.

In order to get Mr. Mehta to remain on the scene, Mr. Tsovras told him, “It’s okay, we can look at the papers later”. [ 17 ] At one point, he lost sight of Mr. Mehta for about one minute. Eventually, Mr. Mehta came out of the building through a different door and rejoined Mr. Tsovras in the parking lot. [ 18 ] Mr. Mehta told him that he wanted to go inside, but Mr. Tsovras told him to stay with him, as the police were on their way and would surely want to speak to him. In all, the two men remained on the scene for 5 or 6 minutes before the police arrived. [ 19 ] During his cross-examination, Mr.

Tsovras testified that he followed the Kia with the intention of being able to inform the police where it was, as well as to be a witness to any potential accidents, and not with the intention of detaining or arresting anyone. He was not looking to issue tickets or warnings for any driving offences. In his words, he was “acting as a Canadian citizen”, and not in any official capacity. [ 20 ] He testified that he never informed Mr. Mehta of his Charter rights because he had not arrested him. [ 21 ] Constable Lefebvre arrived on the scene with his partner, Constable Proulx.

They had received a call about a drunk driver at approximately 4:10 AM, and they got to the parking lot at 4:15 AM. [ 22 ] On the scene, they met with Mr. Tsovras, who described how he had seen the Kia being driven. Constable Lefebvre wanted to establish if the driver was intoxicated, or if it was merely a case of C.S.R . violations. He asked Mr. Mehta what was going on, and in reply the driver handed him a credit card and a Medicare card. [ 23 ] The police officer described to the Court a number of symptoms of alcohol consumption that he observed on Mr. Mehta, including a strong odour of alcohol.

He testified that after approximately three minutes of observing Mr. Mehta’s behaviour he had sufficient grounds to arrest him for drunk driving. He stated, “ Pour moi il est complètement ivre. Pour moi c’est une evidence .” [ 24 ] He placed Mr. Mehta under arrest at 4:18 AM. He explained the grounds for the arrest, as well as his right to silence and right to a lawyer. [ 25 ] When he asked Mr. Mehta if he had understood his rights, the latter replied yes. However, when he asked him what it was that he had understood, Mr. Mehta began to speak, but seemed unable to express his thoughts. [ 26 ] Once Mr.

Mehta was seated inside the police car, Constable Lefebvre used his official card to read the rights and the order to furnish a breath sample at the police station. Mr. Mehta was still unable to explain what he understood of his rights, so the officer tried to explain them again in his own words. [ 27 ] He told Mr. Mehta that he would have the opportunity to speak to a lawyer of his choice once they had arrived at the police station. He also told that him he could speak to a Legal Aid lawyer if he was financially admissible, or he could consult a duty counsel (“ avocat de garde ”) for free information. [ 28 ] Mr.

Mehta’s only response was a wide grin, with an empty and glassy gaze. He was then brought to the Centre opérationnel sud . [ 29 ] Constable Lefebvre testified that all his dealings with Mr. Mehta were in French, and that the latter did not seem to have any difficulty understanding him. He ascribed Mr. Mehta’s difficulty in expressing himself to his intoxicated condition, rather than to any linguistic problems. [ 30 ] At the police station, Mr. Mehta was booked before being allowed to exercise his right to counsel. Constable Lefebvre testified that he did not remember what he told Mr.

Mehta about the exercise of this right, although he added that Mr. Mehta’s rights were not read to him again once they were at the police station. [ 31 ] Constable Lefebvre stated that he usually asks detainees if they have a lawyer of their own that they wish to call. He believed that he did ask the question to Mr. Mehta, although he did not remember the response.

He also testified that there were phone numbers for Legal Aid and the Urgence Avocat service on posters on the walls at the police station. [ 32 ] Constable Lefebvre admitted that he was unaware of the difference between the Legal Aid and Urgence Avocat services. Mr.

Mehta agreed to speak to a Legal Aid lawyer, and had his phone call starting at 4:54 AM. It was Constable Lefebvre who dialled the number for him. [ 33 ] Constable Keven Proulx was Constable Lefebvre’s partner that night. While his testimony corroborated his partner’s for the most part, certain specifics are worth mentioning. [ 34 ] Prior to the arrest, they were investigating a possible drunk driving offence, and sought to get the versions of the witness and the driver before deciding if any charges should be laid. [ 35 ] He confirmed that Constable Lefebvre informed Mr.

Mehta of his rights upon his arrest, and then read the same rights from an official card once they were in the patrol car. [ 36 ] While Constable Proulx did not pay attention to Mr. Mehta’s reactions while he was being given his rights, he confirmed that the detainee spoke very little. However, at one point after the arrest, Mr. Mehta did ask, “ Qu’est-ce que vous m’avez donné ?” Constable Proulx was not sure what the man meant by that. [ 37 ] While Constable Proulx had doubts that Mr.

Mehta had understood his rights, he was not concerned because there would be further opportunities to explain them to him when they got to the police station. Constable Proulx hardly spoke to Mr. Mehta that night. [ 38 ] Prior to Mr. Mehta’s testimony, a video of the booking procedure was viewed by the Court. In this video, we can see and hear the offer by Constable Lefebvre for Mr. Mehta to speak to an attorney. [ 39 ] It came toward the end of the booking procedures, after Mr. Mehta was asked to remove his shoe laces.

He was standing in front of the booking counter, when Constable Lefebvre asked, “ Connaissez-vous un avocat que vous désirez appeler? ” [ 40 ] Mr. Mehta’s brief answer is inaudible, but Constable Lefebvre responded by asking, “ Vous ne connaissez pas? ” Mr. Mehta replied by shaking his head “no”. [ 41 ] Constable Lefebvre then stated, “ Ok, on va vous faire appeler l’Aide juridique. Ça vous convient? ” To which Mr. Mehta nodded in the affirmative. [ 42 ] It was at this point that he was taken to a separate room where he could speak to the Aide juridique , or Legal Aid, lawyer in privacy. [ 43 ] Mr.

Mehta testified as to what occurred after the police arrived at the parking lot. [ 44 ] He stated that he was placed under arrest, although he never understood why, nor where he was being taken. He denied having been told that he was being taken to the police station to furnish a breath sample. [ 45 ] He had a vague memory of hearing some other words, including something about his right to a lawyer.

He remembered being informed of his right to silence. [ 46 ] He testified that everything happened fast, and he did not really understand anything that was said about his rights, merely that the officers were giving him orders. On the other hand, he also testified that he only remembered part of what happened on the scene. [ 47 ] He did remember that after he was arrested he asked the police officers what was happening, but they never answered.

He stated that he did not have any trouble understanding what was being said to him in French. [ 48 ] He denied having had his rights read to him from a card in the patrol car, or that the police officers would have spoken to him from the time they put him in the patrol car until they got him to the police station. [ 49 ] Mr. Mehta had a friend who was an attorney, and whose contact information was in his cell telephone, which was on his person and brought to the police station with him.

He would have liked to speak to this attorney, but never mentioned him to the police officers, nor did he tell them that he had the phone number of a lawyer in his cell phone. [ 50 ] Once at the police station he remembered being told something about his right to silence, but nothing else. He stated that the police officer asked him if he had a lawyer that he could call right then (“ maintenant ”), and that he responded, “not now” (“ pas maintenant ”). [ 51 ] Although he agreed that in the video we never hear the officer saying the word “ maintenant ”, Mr.

Mehta insisted that this was what he understood the officer to mean. He answered “ pas maintenant ” because he could not reach his attorney without access to the information on his cell phone, and he did not believe that he would be given access to the cellphone at the police station. He testified that the police gave him “no tools” with which he could find his attorney. [ 52 ] He also stated that the police officers never used the expression “attorney of your choice”, (“ avocat de votre choix ”), so he did not know he had a choice of whom he could speak to.

They also never told him that he could speak to the Urgence Avocat attorney, although his testimony did not indicate that he was aware of any difference between the Legal Aid and Urgence Avocat services. [ 53 ] Although he accepted to speak to the Legal Aid lawyer, he did not feel he had any choice in the matter. He did not know what “ Aide juridique ” meant, believing that it might be some sort of government or police lawyer. [ 54 ] Furthermore, when he spoke to the lawyer on the phone, he was unsure if she was even a real lawyer. He thought she might be a legal secretary or paralegal.

Although the woman introduced herself to him, he does not think she actually specified that she was an attorney.

[55] He was left dissatisfied with the phone consultation, although he did not mention this to either the lawyer that he spoke to or toany of the police officers. He did not believe he had the option of telling the officers that he was not satisfied with the consultation hehad. They never asked him if he was satisfied after the phone call. [56] He testified that he was following the advice that the lawyer gave him to remain silent. He also stated that at the police stationall he had in mind was to follow the police officers’ orders, and not say or ask anything. III. THE LAW AND ITS APPLICATION TO THE FACTS 1) The sec. 10(

b) Charter obligations of the public security agent [57] The Court accepts that if a public security officer, while in the performance of some sort of government function, or while actingas an agent of the state, detains an individual, then the detainee’s Charter rights must be respected: L’article 32 de la Charte mentionne qu’elle s’applique notamment à la législature et au gouvernement de chaque province, pour tous lesdomaines relevant de cette législature.

Or, dans l’arrêt Godbout c Longueuil (Ville), la Cour suprême énonce que l’ensemble des activitésexercées par une municipalité étant de nature gouvernemental, elles sont assujetties à la Charte. Également, notre Cour d’appel juge quela Charte s’applique aux municipalités. Ce faisant, les agissements d’un officier municipal exerçant ses devoirs pour la mise en œuvre dela réglementation municipale sont soumis à la Charte. Il s’agit d’actions étatiques auxquelles la Charte s’intéresse.[1] [58] Mr.

Tsovras, however, insisted that he was acting as a private individual, with only the powers of an ordinary citizen who hadobserved the commission of a criminal act, as set out in sec. 494(1)(

a) Cr. C. This raises the question of what his Charter obligations as aprivate citizen would be. [59] Both attorneys presented jurisprudence in support of their arguments about whether Mr. Tsovras was or was not obliged toinform Mr. Mehta of his sec. 10(

b) Charter right, even if he were acting in his capacity as a private citizen. [60] Much of the disagreement in the jurisprudence centers on whether the Supreme Court settled this question in the case ofBuhay.[2] In that case a security guard at a bus depot smelled the odour of marijuana emanating from a locker and forced it open in orderto search it. [61] As he was not acting as an agent of the state (ie. he was not directed or encouraged by any police officers to open the locker), andhis role of protecting private property could not be assimilated to the implementation of a government purpose or programme, he washeld to be acting as a private citizen. [62] The Supreme Court further held that as a private citizen he was not obliged to respect the defendant’s right to be free fromunreasonable search and seizure, as set out in sec. 8 of the Charter.

The court did not, however, deal directly with the obligations of acitizen who carries out an arrest. [63] In the case of Asante-Mensah,[3] decided shortly after Buhay, the Supreme Court left open the issue of applying the Charterspecifically to citizen’s arrests.

As this Charter question had not been argued before it in that case, the court refused to rule on it.[4] [64] Since then, the Alberta Court of Appeal has taken the position in the case of Dell[5] that by stating in Asante-Mensah that thisquestion had not been argued, the Supreme Court was indicating that the issue had not been settled in Buhay: Further support for the proposition that Buhay did not expressly overrule Lerke is found in Asante-Mensah, a case heard and decided bythe Supreme Court shortly after Buhay.

The Court declined “to address the question whether a citizen’s arrest could be construed as stateaction for purposes of the Charter, as held by the Alberta Court of Appeal in Lerke, supra, at p. 134 and, if so, what consequences mightflow from that ruling”: at para. 77.[6] [65] The Lerke[7] decision, cited in the above quote, was an Alberta Court of Appeal decision rendered in 1986 which held that theCharter applied to private, or citizen’s, arrests. [66] In the recent case of Giguère[8] an analysis of Buhay also led the Superior Court to conclude that the Supreme Court has notdecided whether or not the Charter applied to a citizen’s arrest.[9] [67] Applying the reasoning in Lerke the Superior Court concluded as follows: Le citoyen est ainsi appelé à agir comme le fera un agent de la paix et vice versa.

Il s’ensuit que l’arrestation d’une personne par unsimple citoyen constitue une action gouvernementale au même

titre que si elle est effectuée par un agent de la paix.[10] [68] As a result, until a higher court rules otherwise, pursuant to Giguère the Charter must be respected when arrests are carried outby private citizens. The question that arises, then, is whether the facts of our case establish that Mr. Mehta had been arrested, or at leastdetained, by Mr. Tsovras. [69] In the Latimer[11] case, the Supreme Court set out the necessary criteria for an arrest, stating: […] an arrest consists either of (

i) the actual seizure or touching of a person’s body with a view to his detention, or (ii) the pronouncingof “words of arrest” to a person who submits to the arresting officer… As this Court has held with respect to s. 10(

a) of the Charter (R vEvans, (SCC), [1991] 1 S.C.R. 869, at p. 888), what counts is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used...The question is... what the accused was told, viewed reasonably in all the circumstances of the case.[12] [70] It is clear from the facts of our case that Mr. Tsovras never arrested Mr. Mehta. He never told him that he was under arrest, nor

did he attempt to apply any contact which could have led Mr. Mehta to believe that he had been arrested. [ 71 ] Furthermore, Mr. Mehta never testified as to any belief he might have had that he was under arrest during his interaction with Mr. Tsovras, who was clearly not a police officer. [ 72 ] More importantly, the Court also finds that Mr. Tsovras never detained Mr. Mehta. We do not have, in this case, the significant physical or psychological restraint that would constitute a detention, as required by the Supreme Court in Grant . [13] [ 73 ] In Grant the Supreme Court limited the applicability of sec. 10 (

b) to individuals whose “liberty is meaningfully constrained”. [14] Furthermore, the Supreme Court instructed judges to look at all the circumstances of the case, including the nature of the police conduct (in our case, the public security officer’s conduct), as well as the particular characteristics or circumstances of the individual involved. [15] [ 74 ] In the present case, there is no evidence that Mr. Mehta felt subordinated to, or under power of, Mr. Tsovras. He was free to move around, and even to enter the garage of the apartment building (where Mr. Tsovras never followed him).

He disappeared from view and eventually came back out from a different exit. [ 75 ] All this was despite the fact that Mr. Tsovras asked him to remain in the parking lot. And, even though Mr. Tsovras asked to see Mr. Mehta’s driver’s licence, it was never shown to him, nor did he attempt to force Mr. Mehta to show it to him. [ 76 ] Furthermore, Mr. Tsovras was attempting to stall Mr. Mehta until the police arrived by keeping up a conversation; he was not gathering evidence in furtherance of an investigation.

The Court cannot see how this could be considered detention in any common sense of the word. [ 77 ] The Court disagrees with the argument that when Mr. Tsovras told Mr. Mehta that the police were coming and would want to speak to him, that this could be construed as a detention. [ 78 ] A simple example can illustrate why that reasoning would make no sense: There is a car accident and one driver decides to call the police. He tells the second driver not to leave the scene because the police are on their way.

Obviously, the second driver is not in any legal sense being detained by the first driver. (And some would argue that the obligation on the second driver to stay on the scene in this example might be stronger than it was on Mr. Mehta in our case.) [ 79 ] At the most in this example, the first driver is attempting to apply a certain moral suasion, the effects of which will vary according to the sense of duty and good citizenship of the second driver.

This is a far cry from the physical or psychological restraint on the second driver’s freedom which would be required to trigger his Charter rights. [ 80 ] Another useful analogy would be the situation where an individual is briefly “detained” by a police officer for a traffic offence.

Nobody would argue that the driver in such a case needs to be advised of the right to counsel before being issued a ticket. [ 81 ] In the Suberu [16] case, the Supreme Court made it clear that not every interaction with a police officer results in a detention, and not every encounter with a police officer triggers the Charter . [17] [ 82 ] This Court cannot speculate if, in Mr. Mehta’s mind, he in fact believed that he was being detained by Mr. Tsovras. Objectively speaking, considering Mr.

Tsovras’ words and actions, surely he was not more imposing than the armed and uniformed police officer in Suberu . [ 83 ] It is Mr. Mehta who bears the burden of establishing the alleged violation on the balance of probabilities. Without evidence to establish that he was detained by Mr. Tsovras, the Court finds that he has failed to demonstrate that his sec. 10 (

b) right to counsel was violated by Mr. Tsovras. [ 84 ] A caveat is appropriate here. If the Court erred in its

interpretation of the facts, and Mr. Mehta was effectively detained by Mr. Tsovras, the result on this motion would still be the same. [ 85 ] Assuming that Mr. Mehta was detained, and that Mr. Tsovras failed in his obligation to inform him of his sec. 10(

b) Charter rights, the Grant criteria for exclusion under sec. 24(2) Charter would nevertheless lead to admission of the breath analysis results. [ 86 ] To begin with, the time spent waiting for the police was a little more than 5 minutes. During this brief time, Mr. Tsovras did not attempt to get Mr. Mehta to make a statement or otherwise incriminate himself. Mr. Tsovras did not perform any type of investigation during this time. [ 87 ] Furthermore, Mr. Tsovras honestly believed he did not have the power to detain or arrest Mr.

Mehta, and did not attempt to physically restrain his movement in any way. [ 88 ] As a result, the Grant criteria of “seriousness of state conduct” [18] would favour the admission of the evidence obtained by the police. [ 89 ] The breath analysis results were obtained much later, after Mr. Mehta was legally arrested and informed of his right to counsel, and after he had the opportunity to speak to a Legal Aid attorney from the police station. One can therefore not conclude that the breath analysis results were obtained pursuant to the purported Charter violation by Mr.

Tsovras. [ 90 ] As a result the Grant criteria requiring the Court to measure the impact on Mr. Mehta’s “ Charter -protected interests” [19] would also lead the Court to admit the breath analysis results.

[ 91 ] The final Grant criteria, “society’s interest in an adjudication on the merits”, [20] would also lead the Court to admit the reliable evidence in question. [ 92 ] As a result, even if the Court had come to the conclusion that Mr. Tsovras violated Mr. Mehta’s sec. 10(

b) Charter rights, this violation would not lead the Court to exclude the breath test results. 2) The right to consult counsel of his choice [ 93 ] The next question is whether the police officers fulfilled their legal duties toward Mr. Mehta under

section 10(

b) of the Charter . [ 94 ] Upon arriving on the scene, the police officers spoke to both Mr. Tsovras and Mr. Mehta in order to determine whether this was a case of drunk driving. At this point Mr. Mehta could be considered to have been detained for the purpose of an investigation. [ 95 ] The Supreme Court made clear in the Orbanski [21] case that during these brief interactions between police officers and drivers the latter’s sec. 10(

b) Charter right is suspended, and this suspension is a reasonable limit that is prescribed by law, as permitted by sec. 1 of the Charter . [ 96 ] This exception is allowed because any questions Constable Lefebvre asked Mr. Mehta would not have provided him with conscriptive evidence, but merely allowed him to determine if he had grounds to charge the driver. This he did within three minutes of his arrival, assuring that the suspension of Mr. Mehta’s Charter right was very brief. [ 97 ] Mr. Mehta’s lawyer further argued that Constable Lefebvre violated her client’s right to counsel of his choice.

She argued that by referring Mr. Mehta to Legal Aid, and not advising him of the possibility of calling the avocat de garde , or duty counsel, Constable Lefebvre did not fulfill the informational component of his obligations. [ 98 ] It is useful to examine what Constable Lefebvre’s obligations were toward Mr. Mehta under sec. 10(

b) of the Charter . Pursuant to a well-established jurisprudence, [22] his obligations were as follows: 1) To inform the Mr. Mehta of his right to counsel and the existence and availability of Legal Aid and duty counsel; 2) If Mr. Mehta indicated a desire to exercise his right to counsel, to provide him with a reasonable opportunity to do so; 3) To refrain from attempting to elicit any evidence from Mr.

Mehta until he had a reasonable opportunity to exercise his right to counsel. [ 99 ] In the case of Ross [23] it was held that the right to consult an attorney of one’s choosing is an essential component of the right to counsel, but that the detainee must exercise this right with reasonable diligence. [24] [ 100 ] At trial, much was made of the fact that Constable Lefebvre offered Mr. Mehta to speak to Legal Aid at the police station, but did not mention that an avocat de garde , or duty counsel, was also available to him.

This latter service is known as Urgence Avocat . [ 101 ] The defence’s argument is derived from several Supreme Court rulings, beginning in Brydges [25] and continuing through Bartle , [26] Prosper [27] and others, which state that police officers must inform detainees of the existence and availability of Legal Aid and duty counsel services. [ 102 ] However, this Court does not agree with the contention of Mr. Mehta’s attorney that in every case where a police officer offers only one of the two above-mentioned services this would result in a violation of the detainee’s sec. 10(

b) Charter right. The error in the argument that was put forward lies in a misinterpretation of how and why the Supreme Court differentiated between the two services. [ 103 ] To understand the Supreme Court’s intention in these decisions it is important to begin by understanding why the detainees in each case declined to call an attorney. [ 104 ] In Brydges the detainee desired to speak to a lawyer, but was concerned about his ability to afford a private practice attorney.

The arresting officer was uncertain whether a Legal Aid lawyer could be reached at that hour, so the detainee agreed to be interrogated without first having obtained legal advice. [28] [ 105 ] The Supreme Court stated that the detainee’s right to counsel was violated as he had not been informed of the existence of a duty counsel who was available 24 hours a day to speak to any detainee without regard to their financial situation. [29] [ 106 ] Later cases referred to these freely available attorneys as “ Brydges duty counsel”. [30] [ 107 ] In Bartle , the detainee was informed of the existence of Legal Aid, but not of 24-hour duty counsel, nor the 1-800 number where the duty counsel could be reached.

The Supreme Court explained the distinction between Legal Aid and duty counsel thus: In Brydges , the majority drew a careful distinction between Legal Aid plans, which provide longer term legal assistance to accused persons who meet prescribed financial qualifications, and ‘duty counsel’, which is a form of initial,

summary legal advice available to all detainees upon request, irrespective of financial means or of time of day or night. [31] [ 108 ] The following passage makes the distinction between the two named services even clearer: Accordingly, Brydges had the effect of adding two new elements to the information component of s. 10(b): (1) information about access to counsel free of charge where an accused meets prescribed financial criteria set by provincial Legal Aid plans (“Legal Aid”); and

(2) information about access to immediate, although temporary legal advice irrespective of financial status (“duty counsel”). [32] [ 109 ] As the detainee in Bartle was unaware of the existence of the 24-hour service, and believed that he would be unable to reach a Legal Aid lawyer at the late hour, he decided to forego getting any legal advice. [ 110 ] In Prosper , a decision that was rendered at the same time as Bartle, the police officers gave the detainee a list of Legal Aid lawyers, but the detainee was unable to reach one who was available outside regular office hours.

The detainee declined to call a private practice attorney because he did not think he could afford one, and so ended up not getting the legal advice he was entitled to. [33] [ 111 ] It is relevant to note that when describing which lawyers could be considered “ Brydges duty counsel,” the Supreme Court stated the following: The term ‘duty counsel’ was used to refer to a specific subset of legal services which are provided to persons who have been arrested or detained (i.e. “detainees”).

Duty counsel in this context refers to the provision of immediate and free preliminary legal advice by qualified personnel, whether staff lawyers from Legal Aid offices, lawyers from the private bar, lawyers specifically hired for the purpose of fielding calls from detainees, or otherwise. [34] [emphasis added] [ 112 ] As a result, the Supreme Court required police officers to inform detainees of the existence of both Legal Aid (lawyers for those who met the financial criteria, and available mostly during office hours) and duty counsel (lawyers on call 24 hours a day, free for all detainees, regardless of their financial situation).

As the Supreme Court stated, sometimes the duty counsel were also “staff lawyers from Legal Aid offices”. [ 113 ] No evidence was heard before this Court about the services that are available in Quebec. However, the Court can take judicial knowledge of the fact that detainees in this province are referred to Legal Aid attorneys without regard to their financial eligibility. [ 114 ] Although in his original reading of the right to counsel Constable Lefebvre mentioned that Legal Aid was available if Mr.

Mehta was financially eligible, in point of fact that may be the case for in-court representation, but not for the initial phone call from a detainee. [ 115 ] Mr. Mehta, who voluntarily testified of what was said between him and the Legal Aid attorney, also never claimed that he was questioned about his financial status. [ 116 ] Furthermore, there was no doubt in Constable Lefebvre’s or Mr. Mehta’s mind that the Legal Aid lawyer was going be available at that late hour. As a result, neither of the issues that the Supreme Court wished to eliminate in Brydges should have concerned Mr.

Mehta when he was offered to speak to the “ Aide juridique ”. [ 117 ] The defence’s argument is the equivalent of saying that Constable Lefebvre was obliged to give Mr. Mehta the choice between getting immediate and free legal advice from a lawyer that he did not know, and getting immediate and free legal advice from a different lawyer that he did not know.

With respect, this is not what the Supreme Court intended when it stated that police officers must advise detainees of the existence and availability of Legal Aid and duty counsel. [ 118 ] What the Supreme Court required in Brydges was that all detainees should have immediate access to free legal advice at any time of day or night.

It just so happens that in the above-mentioned cases, this required police officers to offer detainees the two very different services of Legal Aid and duty counsel. [ 119 ] In Quebec, both the Legal Aid and Urgence Avocat services provide free, 24-hour a day legal advice to all detainees, regardless of their financial status. This was precisely the service that was offered to Mr. Mehta, and he profited from it. The Legal Aid lawyer to whom Mr. Mehta was referred was, in fact, a “ Brydges duty counsel”. [ 120 ] The Court also rejects the defence argument that Mr.

Mehta should have been provided some sort of “tools” to allow him to search for a lawyer on his own, and not be directed toward the Legal Aid. Mr.

Mehta’s attorney submitted several trial court decisions from Ontario [35] that held that the police are not allowed to refer a detainee to free duty counsel when the detainee tells them that he does not know any lawyers that he could call. [ 121 ] These cases ruled that detainees had to be given a telephone directory, or even access to the internet, [36] as well as “free use of a telephone” [37] to try on their own to find an attorney. [ 122 ] With respect to these learned opinions, the Court disagrees. Once Mr.

Mehta informed Constable Lefebvre that he did not know any lawyers, one fails to see the point of giving him acces to a phone book or an online directory. [ 123 ] On what basis would he have chosen a lawyer from a list of strangers’ names? Would he know if these lawyers could be reached at that late hour, were willing to take calls from detainees free of charge, or had the knowledge or competence to advise him adequately? [ 124 ] Certainly there was nothing in Mr. Mehta’s testimony to indicate that such a search would have been of any more use to him than throwing a dart at a board.

This would have given him merely the illusion of choice. [ 125 ] Furthermore, to this Court’s knowledge, the common practice in Montreal, whereby police officers place the call to the lawyer on the detainee’s behalf, and do not leave detainees free to phone whomever they might want to, has not been declared a violation of sec. 10(

b) of the Charter . And no such argument was presented in the present case. [ 126 ] It is somewhat ironic that in one argument on behalf of Mr. Mehta the Court was told that the police were obliged to inform him of the existence of a free duty counsel service, while the second argument was that the police were wrong to refer him to a free duty counsel service. [ 127 ] In the end, the call that Mr. Mehta made to the Legal Aid attorney obviated all worries that were raised in Brydges and fulfilled

Constable Lefebvre’s obligations under sec. 10(

b) Charter . [ 128 ] As to Mr. Mehta’s alleged dissatisfaction with the legal advice that he received, beyond the fact that his explanation for this dissatisfaction was not clearly enunciated in his testimony, Mr. Mehta never bothered to tell anybody at the time. [ 129 ] In the case of Willier [38] the Supreme Court made clear that a police officer does not have the obligation to monitor the quality of the legal advice received by a detainee. In other words, it was up to Mr. Mehta to inform Constable Lefebvre that he was dissatisfied with the legal advice he obtained.

Otherwise, the officer was entitled to consider that he had exercised his right to counsel. [39] [ 130 ] It is useful to note that in Willier the detainee named an attorney to whom he wished to speak. He only succeeded in leaving a voice message, after which the officer reminded him of the availability of Legal Aid, which the detainee accepted.

The Supreme Court found nothing wrong in the way the police officer acted, as the decision to speak to the Legal Aid lawyer remained that of the detainee who was always free to say no. [40] [ 131 ] The Superior Court was faced with a similar fact pattern in Thibert , [41] and also concluded that the police officer could offer a phone call to Legal Aid as an option to waiting for a call back from the lawyer of the detainee’s choice. The Court finds the reasoning in these cases applicable to our situation, where Mr.

Mehta told the police that he did not know a lawyer before being referred to the Legal Aid. [ 132 ] While the implementation of the sec. 10(

b) Charter right at the police station was done in a fairly succinct manner, there was nothing rushed or impatient in the way that Constable Lefebvre spoke to Mr. Mehta. [ 133 ] If there was any question about whether Mr. Mehta understood his Charter rights at the time of his arrest, once he was being booked the video showed Mr. Mehta to be responsive to everything that was being said to him, with no hesitation. [ 134 ] But what of Mr. Mehta’s claim that he believed he had to know the phone number of the lawyer by heart, and that he would not be allowed to refer to his cell phone contacts to find the number?

While this could show that he did not understand how he could exercise his rights, the Court finds that much of his testimony lacked credibility. [ 135 ] To begin with, the question he was asked, which can be translated as “Do you know a lawyer that you would like to call”, is straightforward and normally would not be subject to a variety of

interpretations. The Court does not believe that Mr. Mehta answered “ pas maintenant ”. [ 136 ] Even if Mr. Mehta honestly believed he would not be allowed to find the attorney’s phone number in his cell phone, nothing stopped him from giving them the attorney’s name and leaving it to them to find the contact information.

Did he think that police officers did not have access to Google? [ 137 ] Furthermore, his claim that he answered Constable Lefebvre’s query about knowing a lawyer with “ pas maintenant ”, is not even an answer to the question that was posed to him. [ 138 ] And the reply of the police officer, “ Vous ne connaissez pas ” , would also make no sense if Mr. Mehta had replied “ pas maintenant ”. On the other hand, it would make perfect sense if Mr. Mehta had answered “no”. [ 139 ] Mr.

Mehta’s head shake in response to this second question confirms that he told the police officer that he did not know any lawyer, and not that he merely did not know one that he could call “ maintenant ”. [ 140 ] Mr. Mehta testified that, in his mind, he had decided to simply obey all orders that were given to him at the police station. However, on viewing the video it is not obvious to the Court which of Constable Lefebvre’s orders would have prevented Mr. Mehta from telling the police officer that he knew an attorney that he wished to consult. [ 141 ] It is very easy for Mr.

Mehta to claim after the fact that he knew a lawyer, that he wanted to speak to the lawyer, that he did not think he could reach the lawyer, that for some vague reason he was dissatisfied with the legal consultation that he was given, and that he did not even know if the phone call he had was with a real lawyer. [ 142 ] All this, and yet he never mentioned any of his concerns or doubts to anyone, including to the person to whom he spoke on the phone, whose advice to remain silent he still saw fit to follow. [ 143 ] If any of this were true, then the Court could justifiably conclude that Mr.

Mehta did not show reasonable diligence in the exercise of his sec. 10(

b) Charter right, and had nobody to blame but himself. But his testimony is self-serving, with convenient gaps, sometimes in his memory, and sometimes in his understanding of what was being said and done around him, and the Court rejects it. [ 144 ] The reality in our case is that Mr. Mehta has shaped his testimony for his own ends, although he neglected to give his tale anything approaching an air of reality.

He seems to blame the police officers for not having read his mind, while absolving himself of all responsibility to be diligent in the exercise of his Charter right. [ 145 ] His lack of credibility is also evident when considering Mr. Mehta’s allegations that his rights were not properly given to him at the time of his arrest or afterward in the patrol car.

He remembered being told something about a lawyer, but has convenient holes in his memory about how things unfolded and what he was told. [ 146 ] In effect, he picked and chose the facts which were most beneficial to him, and was vague or unsure about those facts which belied his version of events. His testimony was clearly tailored to place all fault on the police officers, while painting himself as a hapless victim of their machinations. [ 147 ] As for the two officers, they corroborated each other about following the standard procedure of advising a detainee of the reasons

for his arrest as well as his rights. They both testified that Mr. Mehta was verbally told his rights upon his arrest by Constable Lefebvre. [ 148 ] He also had his rights read to him from an official card once he was sitting in the patrol car, after which Constable Lefebvre had to try and explain everything in his own words because there was some doubt as to what Mr. Mehta had understood. [ 149 ] It is true that the efficacy of these further explanations remained in doubt. Nevertheless, the police officers were not obliged to sit in the patrol car and keep trying to make sure that Mr.

Mehta understood his rights. After their initial attempts, it was reasonable for them to bring Mr. Mehta to the police station where they would be able to ensure that he exercised his right to counsel. [ 150 ] Had the officers alleged that Mr. Mehta refused to speak to an attorney, then the question of his understanding of what they told him in the patrol car would have been relevant. As Mr.

Mehta was able to freely and fully exercise his right to counsel, the question becomes moot. [ 151 ] Both officers readily admitted that there were specific details they did not remember, and relied on the police report to try and fill those gaps. Despite the arguments presented by Mr. Mehta’s attorney, they did not attempt to mislead the Court about what was said and done at the police station. [ 152 ] Constable Lefebvre, in particular, admitted that, where the report was silent, his answers were based on what he usually said to detainees, and not to what specifically occurred with Mr.

Mehta. [ 153 ] The Court found both police officers to be credible witnesses who did not attempt to adjust or muddy the facts in order to make themselves look good. The same cannot be said for Mr. Mehta. [ 154 ] Faced with a motion where the burden of proof is one of a balance of probabilities, the Court has no hesitation in rejecting Mr. Mehta’s testimony, and accepting that of the two police officers. VI. CONCLUSION CONSIDERING that a public security officer would be obliged to inform a detainee of his sec. 10(

b) Charter right, whether the said officer was acting as a member of the public or on behalf of the state; CONSIDERING that the evidence before the Court does not establish that Mr. Mehta was detained by the public security officer in this case; CONSIDERING that Mr. Mehta’s right to consult an attorney of his choice was respected by Constable Lefebvre, and that Mr. Mehta voluntarily accepted to speak to a Legal Aid attorney; CONSIDERING that Mr. Mehta has failed to establish on a balance of probabilities that his

section 10(

b) Charter right was violated; THEREFORE the present motion is rejected. __________________________________ GABRIEL BOUTROS, J.M.C.C.M. Me Rola Agora Fridas and Me François Giasson For the prosecution Me Rose-Marie Picard For the defence