R. v. Panigas, 2014 ONCJ 797

ONTARIO COURT OF JUSTICE CITATION: R. v. Panigas , 2014 ONCJ 797 DATE: 2014·03·12 COURT FILE No.: Toronto 4817 998 13 70017259-00 BETWEEN: HER MAJESTY THE QUEEN — AND — JONATHAN DAVID PANIGAS Before Justice W. Horkins Heard on February 19, 2014 Interim Ruling on Application to Exclude Evidence Released on March 12, 2014 Sabrina Fiacco ..................................................................................... Counsel for the Crown Alan Gold............................................... Counsel for the defendant Jonathan David Panigas W.

HORKINS, J.: [ 1 ] The accused is before me charged with driving “over 80.” [ 2 ] This is a mid-trial ruling on a Charter application brought by the accused alleging violations of his rights to counsel, as guaranteed by sections 10(

a) and 10(

b) of the Canadian Charter of Rights and Freedoms . [ 3 ] The applicant claims two distinct breaches of his Charter rights: 1. That his right to be informed of the reason for his detention was violated towards the outset of this investigation when, following the initial exchange with the officer conducting the RIDE spot-check, no explanation was given to him for being directed to pull his car off into a secondary investigation area. 2.

Secondly, he submits that the police failed to adequately facilitate access to counsel of his choice by channelling him instead to duty counsel prior to the taking of the breath samples used to determine his blood/alcohol content at the time of driving. [ 4 ] The applicant submits that to a large extent the source of the problem in this case flows from an intentional bias in the institutional practices of the Toronto Police Service which result in a systemic channeling of accused to use the on-call duty counsel system, as opposed to pursuing contact with private counsel of their own choice. [ 5 ] The voir dire on this application was blended into the Crown’s case.

At the conclusion of the Crown's case, the applicant gave evidence applicable only to the voir dire . I now have all of the evidence on the voir dire . The accused applicant seeks a ruling on this application to exclude evidence prior to making an election whether to call a defence. [ 6 ] On consent, this application is proceeding in two stages; first, the issue of whether there are Charter breaches and then if a breach is established, to move on to a s. 24(2) analysis.

FACTS [ 7 ] A brief factual overview is required to set the context for the issues. [ 8 ] On February 3, 2013, Super Bowl Sunday, the police set up a RIDE program at Queen’s Park Crescent and Bloor Street, in the heart of downtown Toronto. This spot-check featured a purpose built truck specifically equipped to operate as a fully functioning, stand-alone, mobile breath testing station. The design and layout of this RIDE truck is described in more detail in the evidence. [ 9 ] At about 11:05 pm, the accused was driving his girlfriend home when he was waved into the spot-check.

Officer Acorn in speaking with the accused detected an odor of alcohol and although Mr. Panigas said that he had not been drinking, PC Acorn directed him to pull his car into to a secondary position. No reason was communicated to Mr. Panigas for not being allowed to drive on his way. About a minute later, at 11:06, the demand was made for an approved screening device (ASD) breath sample.

Again no reason for the demand or continued detention was expressly communicated to the accused. [ 10 ] The accused failed the screening test at 11:07 and was then arrested for “drive over 80,” handcuffed and at 11:08 advised of his “rights to counsel.” The accused indicated that he understood and that he had a lawyer, Paul Martin, and wanted to speak with him “now.” The accused was asked whether he would like to speak to duty counsel if Paul Martin was not available, and he replied that he would.

The accused was then escorted into the RIDE truck where the handcuffs were removed and at 11:14 pm, a formal breath demand was made. [ 11 ] Commencing at 11:15 pm, the arresting officer made some efforts to contact Paul Martin. Using his own Blackberry he attempted a Google search but had “negative results.” Following his own unsuccessful efforts, he telephoned the traffic services police station and asked them to find contact information for a lawyer named Paul Martin.

This effort also yielded “negative results.” As a result, at 11.21 the officer “paged” for duty counsel to call back to the RIDE truck. [ 12 ] The breath technician, PC Thompson, was ready to do the test from the moment the accused was brought into the truck. PC Thompson made some inquires about the accused’s access to counsel and the name Paul Martin came up. Thompson recognized the name and Mr. Panigas confirmed that it was Paul Martin of Woodbridge that he wished to speak to. PC Thompson then told Mr. Panigas that Mr. Martin is not a lawyer but a paralegal that fights traffic tickets.

PC Thompson gave evidence that Mr. Panigas’ enthusiasm for speaking to Martin seemed to wane in light of that information. In any event, Thompson had no difficulty in finding Martin’s phone number using his own smartphone and then calling and leaving a message requesting a direct call back. [ 13 ] There is some uncertainty as to the order of the calls to duty counsel and the call put into Martin’s office. This has some significance because PC Thompson says that Panigas lost interest in contacting Martin when he learned that he wasn’t a lawyer and indicated that he was then content to speak to duty counsel.

Panigas denies this and gave evidence that he only agreed to speak to duty counsel because he was led to believe that this had become his only option once Martin failed to call back quickly enough. [ 14 ] I do not have the time that the message was left for Martin, but the accused had only been in the truck for about seven minutes when the page was put out for duty counsel so probably at about 11:20 pm.

I do not have the time that duty counsel called back but it would have to have been at about half an hour later, around 11:50, because the evidence is that Panigas spoke to duty counsel for about five minutes and as soon as he was off the line, he was taken to the breath room at 11:57 pm. [ 15 ] Moving forward expeditiously to the formal breath testing of a suspect is of the essence in these investigations. Breath analysis is time-sensitive.

The statutory presumption of identity between the blood alcohol content at the time of testing and at the time of driving, is a fiction with a fading legitimacy as time elapses from the time of driving. The presumption disappears beyond a two-hour timeframe. The right to access counsel of choice is not subject to the two-hour timeframe, but the two-hour timeframe does create a legitimate interest in getting the test done with some dispatch.

The prosecution of a drinking and driving case becomes significantly more difficult and uncertain without that extraordinary presumption in play. [ 16 ] In a jurisdiction, such as Toronto, where there is a sophisticated Legal Aid duty counsel system in place, an accused will be expected to resort to that service when counsel of choice is not reasonably available.

However, it is absolutely wrong for the police to stream suspects to duty counsel without diligently facilitating every opportunity to access private counsel of choice. [ 17 ] The concern in this case that the police failed in their obligation to facilitate access to counsel, gains some weight from the timing of the consultation with duty counsel. There was still plenty of time, probably over an hour, for Mr. Martin to get the voice message and call back before the two-hour window would close.

There is a very real question to explore as to whether this accused really did make a free and informed choice to waive his right to counsel and accept advice from the provided services of duty counsel. [ 18 ] After the accused spoke with duty counsel he voiced no dissatisfaction with the consultation. However, at trial, he said that he was in fact very dissatisfied. His evidence was that he didn’t complain to the police because he didn’t expect that it would accomplish anything constructive and essentially that he did not feel free to do anything other than follow directions.

The accused’s evidence on the entire experience was that he was just trying to “go with the flow,” co-operate and do as he was told. In fact, the officers confirm that he was polite and cooperative throughout. [ 19 ] The breath tests were conducted and did produce excessive blood/alcohol readings. The accused was served with the relevant documents and subsequently released. [ 20 ] The accused’s girlfriend had been waiting outside in the cold for at least an hour and a half. During the time that Mr. Panigas was in the RIDE truck, his car was impounded and removed. Mr.

Panigas and his girlfriend were directed to use the nearby subway to make their way home. THE ISSUES

RIDE – Lawful Random Spot-Checks [ 21 ] A general police power to conduct random spot-checks of motorists was first recognized by the Supreme Court of Canada in Dedman [1] . In Ontario, these fixed, random spot-checks have been extremely well-publicized as the RIDE program. RIDE is an acronym for Reduced Impaired Driving Everywhere. [ 22 ] RIDE program stops need not be based on any degree of suspicion that a particular driver is breaking any law.

In Ontario, the Highway Traffic Act grants statutory powers to the police to lawfully conduct such programs. [ 23 ] In Hufsky [2] , this provision of the Highway Traffic Act was challenged as being contrary to the right not to be arbitrarily detained under

section 9 of the Charter . The Supreme Court unanimously concluded that the provision was indeed inconsistent with

section 9. However, after citing the “carnage on the highways” exacted by impaired drivers, the Court upheld these powers as being demonstrably justified under

section 1 of the Charter . Such random stops are therefore “lawful” and being lawful, are not per se “arbitrary.” [ 24 ] When a driver is initially stopped in the RIDE program there is no breach of

section 9. Drivers are randomly directed to pull to the side of the road; it is a well-publicized program. There is no specific reason for a RIDE stop; the initial detention is by definition, random. The initial inquiries made in a RIDE stop are brief and unless there is some basis for further investigative steps, the driver is quickly sent on their way. [ 25 ] As stated, “detention” is the triggering point for the rights guaranteed by

section 10 . There is, or was, a line of authorities, primarily in Alberta, which found

section 10 (

a) breaches where the delay in informing the accused of the reason for detention were as short as one minute. As far as I know, all of those decisions were subsequently overturned on appeal.

It would seem clear that these short delays, at the outset of the RIDE stop are either not within the Charter definition of “detention” or, viewed in “pre- Grant ” terms, the interference is viewed as being so minor as to easily survive the section 24(2) analysis [3] . [ 26 ] However, even if the initial stop is not a “detention,” once a reasonable suspicion of criminal conduct is formed and the police make the decision, as in this case, to detain the driver for further investigation by directing him to pull over into a secondary location and park, there is very clearly a “detention.” The process has graduated from a

summary screening activity to an investigative “detention” and

section 10(

a) of the Charter is triggered. Charter –

Section 10(a) [ 27 ]

Section 10(

a) of the Charter guarantees the right to be informed of the reason for being detained. The right is triggered immediately upon detention. Fulfilling the informational duty imposed by

section 10(

a) of the Canadian Charter of Rights and Freedoms in circumstances such as in this case, should be easily accomplished using plain language. Perhaps something as simple as: From the smell of alcohol, I suspect that you have been drinking and may still have alcohol in your system and so I am going to have you do a screening test. [ 28 ] In this case, Officer Acorn read the screening demand within a minute or less of directing Mr. Panigas to the secondary position. The ASD test was conducted summarily and a fail registered.

The accused was arrested for driving “over 80,” all within three minutes of the initial stop. [ 29 ] I find as a fact that when Mr. Panigas was directed to pull into the secondary location for further inquiry, with the intention having an ASD test conducted, he was entitled to an explanation. None was a given. This was a prima facie breach of s.10 (a). An analysis under s. 24(2) will be necessary with respect to the admissibility of the subsequently obtained evidence. Charter –

Section 10(b) [ 30 ] The requirements imposed on the police under

section 10(

b) of the Canadian Charter of Rights and Freedoms in the context of a RIDE program stop are more complex. [ 31 ] The Supreme Court has held in Orbanski and Elias, [4] that the right to access to counsel is implicitly overridden in the circumstances of a RIDE stop. The initial detention is a minimally intrusive screening process, involving a highly regulated activity, in which alcohol impairment is all too common and tragically, deadly. The Court concluded that this constitutional override of the rights to counsel is demonstrably justified under

section 1 of the Charter . As a result, questioning the driver about alcohol consumption or requesting the driver to participate in screening tests can take place prior to fulfilling the requirements of

section 10 (b). In effect, “rights to counsel” are suspended in order to facilitate a

summary screening process where the dynamics of the roadside situation make it impractical to put the detained driver in touch with counsel prior to the screening test. [ 32 ] It is important to highlight that the Court did emphasize that only minimal impairment of the right to counsel is justified. For instance, during the period of time that the right to counsel is overridden, any responses given by the driver to police questions and the results of roadside sobriety tests can only be used as an investigative tool. For example, in this case, to provide reasonable grounds for an Intoxilyzer demand.

Evidence gathered during the period of this override cannot itself be used as direct evidence to incriminate the driver. [ 33 ] Once the “Fail” on the screening test provided reasonable grounds for an arrest and an ensuing extended period of detention, the suspension of “rights to counsel” ended and the usual obligations arising from s. 10 (

b) were immediately triggered. [ 34 ] Once PC Acorn arrested Mr. Panigas and made the demand that he accompany him to the RIDE truck to supply potentially incriminating breath tests, the purpose for the extraordinary suspension of the accused’s Charter rights no longer existed. The obligation on the police at that point was to both inform the accused of his right to access counsel and to actively facilitate implementation of that right.

[ 35 ] An appreciation of these general principles is an important context in which to consider whether in the particular circumstances of this case this accused’s Charter rights under s. 10(

b) were violated. [ 36 ] The evidence in this application is that the police in this jurisdiction have, in fact, structured the process in a way that they take full control and responsibility for making efforts to contact counsel for the accused. The accused is not given any means of pursuing contact with counsel on their own.

The submission that this protocol is flawed is illustrated with case law from other jurisdictions, where the standard practice is to facilitate access to counsel by putting the task into the hands of the detainee to pursue contact with private counsel directly and on their own. [ 37 ] The case law, primarily from Alberta, describes a process where the detainee is given phone books, lawyers’ lists, legal directories, internet access and actual access to a phone capable of making outgoing calls to the world.

The philosophy in those jurisdictions seems to be that, given all those resources, it is then up to the detainee to either pursue accessing counsel with some diligence, or not. There is a case of a 10(

b) breach where the accused was given a phone but denied Internet access [5] . This young accused gave evidence that he did not consider the 411 function on the phone to be “a viable search engine.” This case illustrates to me the seriousness with which those courts determined that the best way to facilitate access to counsel is to give the detainee the means of doing so and then leaving it up to them the pursue it.

This is a dramatic contrast to the practice in this jurisdiction where the police retain the task to themselves entirely. [ 38 ] In Toronto, the system appears to dictate that the accused is never allowed to actually dial a phone, let alone search the Internet, or be given a directory to look up contact information on their own. The approach of the Toronto police is that they control the process of gaining access to counsel and will seek to fulfill their duty of facilitating access to counsel, by making a call for the accused.

They will make a call to private counsel and will “page” the on call duty counselor. [ 39 ] In a situation, such as this case, where the suspect requests contact with their own counsel of choice, as opposed to the state- funded duty counselor, problems with this approach can arise. Those problems are well-illustrated by the facts of this case.

The police will not usually have the contact information for private counsel, are not equipped with the means of obtaining that contact information, and may not be particularly motivated to extend themselves in searching for it when the handy “1-800” duty counsel service option is so easily available. [ 40 ] The dynamic of a drinking and driving investigation creates a certain amount of pressure to get the testing done within the two-hour evidentiary presumption timeframe. Prosecutions are tremendously assisted when a certificate can be relied upon for presumptive proof of blood alcohol concentration.

Getting past the stage of the process where advice from counsel is required is very easy if the suspect just takes the offer of duty counsel and “gets on with the program.” It is therefore a persuasive suggestion that the police might be very attracted to that significantly more direct route to the breath room.

It is understandable then that the police might be motivated to steer suspects to duty counsel rather than spend the time and effort involved in contacting private counsel especially when they have very limited resources available themselves to try and find a particular lawyers contact information. [ 41 ] In this case, the arresting officer, PC Acorn made efforts to get the contact information for Paul Martin. Regrettably it would seem he had neither the resources nor the correct understanding to do that.

He tried to access the Internet through his Blackberry and three times came up with what he described as “negative results.” He has no notes or recall of exactly what it is he tried to Google. From his answers and cross-examination, I have some concern that he may have been unsuccessful if he was actually “googling” what he referred to as the “Upper Law Society.” The actual governing body which maintains a licensee database is the Law Society of Upper Canada. [ 42 ] I conclude that PC Acorn's efforts were honest but inadequate.

Negligent is far too harsh a characterization because that would connote that the officer was entirely at fault. The greater fault in this case lies with a system, or protocol that has become institutionalized in this jurisdiction.

This system puts the obligation to facilitate access to counsel of choice on the shoulders of the front- line officer, but fails to provide him with the proper facilities or resources to fulfill that heavy responsibility. [ 43 ] The evidence is that this highly sophisticated, dedicated, stand-alone RIDE truck had next to nothing dedicated to the obligation of facilitating access to counsel, an obligation that foreseeably arises in every breath testing case. There are no legal directories, no phone books and no internet access.

The only available telephones are the personal smartphones of the officers’ or a telephone dedicated only to receive call backs from pages duty counsel. Frankly, the whole set up feeds the suggestion that the truck is actually designed with a bias towards channeling the accused to the state funded duty counsel option. [ 44 ] As an aside, I have to acknowledge that I have often been puzzled by the local practice of providing an accused with the actual “1-800” duty counsel number.

There is never any intention of letting the person dial that number, or any other number themselves, so why give them the impression that they will have that opportunity? The front line officers do it because it is printed on the card they are issued to give “rights to counsel”. It makes no sense at all.

To my mind this practice confirms that there is a system in place and letting the suspect actually contact the outside world themselves is not part of that system. [ 45 ] In this case, the ineffectiveness of PC Acorn’s effort is illustrated by the contrasting ease with which PC Thompson, the technician, obtained Paul Martin’s telephone number. Thompson, using his personal smartphone, accessed the Internet-based directory of the Law Society, found Mr. Martin’s number, called it and left a voice message to call him back directly. [ 46 ] PC Thompson told Mr. Panigas that Mr.

Martin is an experienced paralegal, but not a lawyer. Thompson says the accused seemed surprised at this and seemed to lose interest in actually contacting him. Then, when duty counsel called back, the choice was put to the accused in terms to the effect that because his counsel of choice hadn’t called back, his next option was to speak to duty counsel. [ 47 ] I accept Mr. Panigas’ evidence that it was still his wish to contact Mr. Martin, or another private lawyer of his choice. I accept his evidence that his sincere and reasonable belief at the time was that his first choice, being to consult with Mr.

Martin, or other private counsel, was no longer on the table and that his only other option was the duty counselor. I find that this misunderstanding of his

rights was precipitated by the conduct of the officers in the context of a system they are trained to follow, and that was the only reasonthat he accepted the offer of duty counsel at that point in time. [48] Ten years ago in R. v. Blackett,[6] Justice D.S. Ferguson suggested that police protocols in these investigations shouldinclude the following: “That the police will record in their notebooks -- or on video -- the efforts they make to facilitate contact with counsel.

This could bedone by summarizing what they did in front of the video camera used to record the breathalizer tests.” [49] This RIDE truck is fully equipped with an audio video system that recorded the Intoxilyzer testing in this case. It is verysignificant then, in terms of fact finding, that there is neither a recording nor any formal documentary evidence of the suggested waiverof the right to wait for the call back from Mr. Martin, or the giving of advice that other calls to outside counsel could still be made. [50] These events occurred over a year prior to the trial.

These drinking and driving investigations take on a sameness thatundercuts the ability of an officer to reliably recall some of the finer details a year later, especially if they are not contemporaneouslyrecorded in some fashion. These may be details concerning an aspect of the investigation that is not necessarily the top priority of thepolice involved. I prefer the evidence of the accused with respect to the events surrounding facilitating his access to counsel of choice. [51] In any event, duty counsel called back and the accused consulted with him.

There is no evidence of any particular reason fornot waiting for Martin to call back. There was still an hour or so in the two-hour timeframe. One explanation is that the officers believedthat Mr. Panigas no longer wished to speak with Martin, as opposed to duty counsel.

Another explanation may be that the officers simplywanted to clear this hurdle of giving access to legal advice and get on with it without further ado. [52] When the police, as an institution, decide to take control of the accused’s means of accessing counsel of choice, they alsoassume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.

Thatdid not occur in this case. [53] I am persuaded in this case that the police, collectively, did not pursue access to the accused’s counsel of choice with thesame diligence, competence or enthusiasm that Mr. Panigas would have devoted to the exercise himself had he been given the means ofdoing so. In fact, if given access to a phone book or the Law Society of Upper Canada’s database, there is every reason to believe that hewould have contacted Mr. Martin or clearly exhausted all prospects of doing so rather quickly.

On his evidence, at this point if Mr.Panigas had been fully aware of the situation and of his rights, he would most likely have put out calls to other lawyers that he knew ofthrough his business and family. [54] In Alberta the courts have been clear in determining that it is not just best practices but actually necessary to provide anaccused with the ability to find and contact counsel through their own efforts. In R. v.

McLinden,[7] Justice Fradsham found that theaccused’s rights to counsel were breached even where the police provided a list of “available” lawyers’ names to pick from and thenplaced a call to the one the accused selected. The Court found that the police violated the accused’s rights to counsel in only providing atruncated list of a select group of lawyers and in placing the call for the accused, rather than letting the accused make the call himself. Atparagraph 15 of the judgment, Justice Fradsham cites an excerpt from the case of R. v. Akot (M.M.) [8] : 15 In R. v.

Akot (M.M.) (2000) 2000 ABPC 100 , 268 A.R. 145 (Alta. Prov. Ct.), Assistant Chief Stevenson set out what thepolice should do to adequately discharge their implementational duties under

section 10(

b) of the Charter. At paragraph 47, the learnedtrial judge said: "On this point, it is my view that the police fulfill their obligations to the accused in the exercise of s. 10(

b) Charter rights in thefollowing manner: 1) provide a telephone that enables outside local communication free of charge; 2) provide a list of counsel who have advised their availability for consultation throughout the time of the accused's detention; 3) provide both the White and Yellow Page local telephone directories, and 4) written instructions on how to contact Directory Assistance." 16 Stevenson, A.C.J.'s decision in R. v. Akot, supra, (i.e., that no Charter breach had occurred in that case) was appealed to the Courtof Queen's Bench. Wilkins, J. heard and allowed the appeal. However, in R. v.

Rath, [2003] A.J. No. 1659 (Court of Queen's Bench ofAlberta; No. 020029591s1; J.D. of Calgary, June 5, 2003), Wilkins, J. specifically agreed with Stevenson, A.C.J.'s comments in R. v.Akot, supra, on the steps the police must take to properly discharge their obligations under

section 10(b). At page 4 of his reasons in R. v.Rath, supra, Wilkins, J., when referring to R. v. Akot, supra, said: "He [Stevenson, A.C.J.] correctly states the manner in which the police can fulfil their obligation under

Section 10(

b) in [his] earlierdecision, notwithstanding his earlier conclusion was reversed on appeal as to the existence of the breach." 17 With respect to the specific matter of whether or not the provision of telephone directories constitutes part of the implementationalduty of the police under

section 10(

b) of the Charter, I note that Judge Turpel-Lafond said in R. v. Campbell (2003) 2003 SKPC 82

, 235 Sask. R. 127 (Sask. Prov. Ct.) at p. 137: "Other jurisdictions have faced very similar facts and determined that the obligation on the police service to allow a detained person toretain and instruct counsel include (sic) providing the detained person with a private room with an operable telephone and telephonedirectories to enable them to contact a lawyer of choice." 18 I note that the learned trial judge specifically referred, with approval, to Stevenson, A.C.J.'s decision in R. v. Akot, supra. 19 Accordingly, I am satisfied that the above quoted statements by Assistant Chief Judge Stevenson in R. v.

Akot, supra, havesuccessfully withstood appellate and peer review, and I adopt them as a correct statement of the law. 20 Consequently, I find that when a detained person wishes to exercise his or her

section 10(

b) Charter right to consult with legalcounsel and is capable of doing so, but does not know either who to contact, or the telephone number of a lawyer he or she wishes tocontact, then the police, as part of their implementation duties under

section 10(b), have a positive obligation to provide to the detainedperson the white and yellow pages of the local telephone directory. [55] The Court should be very shy about presuming to dictate operational protocols for the police and I don’t intent to do so.However, where an institutional system precipitates the violation of an accused’s Charter rights, then it is the Court’s mandate tointervene. This must be done on a case by case basis. In this particular case the standard practice of taking over total control offacilitating access to counsel did in fact frustrate Mr.

Panigas’ wish to consult with private counsel of his own choosing. The system hadthe effect of channeling this accused to duty counsel and of abandoning his right to access private counsel when there could have, andshould have been, further efforts made to facilitate that request. [56] In R. v. Diego Vizzari,[9] Justice A.D. Cooper found a 10(

b) breach where the police called counsel’s office, left a messageand then told the accused that he would have to provide samples whether the lawyer called back or not. The officer then called dutycounsel and when duty counsel called back simply put the accused on the phone for advice. The Court accepted that the accused felt thathe had no other choice than to speak to duty counsel, rather than wait a reasonable period of time for a call back from his own counsel. [57] In R. v.

Mourad,[10] Justice Blouin found that the obligation to facilitate contact with counsel of choice was not fulfilled.After some delay in getting approval to do so, the accused was permitted to use his cell phone to get the number for his lawyer. Therewere then problems with the connection and after three attempts the officer was getting anxious about the passage of time.

The accusedwas told that he had to speak to duty counsel or proceed with no legal advice at all. [58] Channeling an accused away from contacting outside counsel and creating the misleading impression that “it's duty counselor nothing,” is a gross violation of the rights of an accused who is being held incommunicado. [59] If anyone doubts the significant importance of the right to counsel of one’s own choice, both substantively and symbolically,in a free and democratic society, I have attached as an endnote an excerpt from R. v.

McCallen where Justice Dennis O’Connor, in ourCourt of Appeal, describes that importance very eloquently.[i] [60] In an application asserting a violation of Charter rights, the onus is on the applicant to establish on a balance of probabilitiesthat the right has been infringed or denied. Once it is established that the accused asserted his right to contact counsel and that thatopportunity never transpired, I think that an obligation shifts to the Crown to establish that a reasonable opportunity to exercise that rightwas provided. [61] I have no hesitation in finding that this accused’s 10(

b) right to have access to counsel diligently facilitated by the police wasnot adequately fulfilled in all the circumstances of this case and that this accused’s s. 10(

b) right to a reasonable opportunity to obtainlegal advice from counsel of his own choice was violated. [62] Having found breaches of the accused’s s. 10 rights, I will now receive the submissions of counsel with respect to the s. 24(2)analysis. [i] R v McCallen, (1999) 116 OCA 308, Per O’Connor J.A. at para. [32] – [39]; [32] It is well established that s. 10(

b) includes not only the

right to retain counsel but the right to retain the counsel of the accused’s choice and the right to be represented by that counsel throughout the proceedings. … [34] There are sound reasons why this right was considered to be a fundamental component of the criminal justice system well before the enactment of the Charter and why it was recognized as a right deserving of constitutional protection in the Charter . The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests.

Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence and will be used or not used, within the boundaries of counsels’ ethical constraints, in the clients’ best interests.

The law recognizes the uniqueness of this confidential relationship by providing special protection from compelled disclosure of information that is exchanged between clients and their counsel. [35] In addition, the relationship of counsel and client requires clients, typically untrained in the law and lacking the skills of advocates, to entrust the management and conduct of their cases to the counsel who act on their behalf. There should be no room for doubt about counsel’s loyalty and dedication to the client’s case.

It is human nature that the trust and confidence that are essential for the relationship to be effective will be promoted and more readily realized if clients have not only the right to retain counsel but to retain counsel of their choice. [36] The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to

suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected. Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf. [37] In addition to constituting a valuable personal right to clients, s. 10(

b) provides a right that is an important component in the objective perception of fairness of the criminal justice system. Criminal proceedings are adversarial in nature and pit the accused against the authority of the state. Without adequate safeguards the resulting contest may be unfairly weighted in favour of the state. The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against them.

Including with this fundamental right to counsel, the additional right to choose one’s own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent. [38] The corollary to this point, which is central to this case, is that the perception of fairness will be damaged, and in many cases severely so, if accused persons are improperly or unfairly denied the opportunity to be represented by the counsel they choose. [39] Although it may be said that in some cases there will not be any practical difference whether an accused is represented by one counsel rather than another, nevertheless, the intangible value to the accused and the symbolic value to the system of criminal justice of the s. 10(

b) right are of fundamental importance and must be vindicated when breached. Released: March 12, 2014 Signed: “Justice W. Horkins”