R. v. Anderson, 2010 ONCJ 769

COURT FILE No.: Toronto Region – Scarborough DATE: 2010·04·29 Citation: R. v. Anderson , 2010 ONCJ 769 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ERROL ANDERSON Before Justice M.

Wong Heard on August 28 and October 23, 2009; March 4 and April 7, 2010 Reasons for Judgment released on April 29, 2010 E.Emami .................................................................................................................... for the Crown D.Gomes ......................................................................................... for the accused Errol Anderson Wong, J.: [ 1 ] Errol Anderson pleaded not guilty to the offence of Over 80. The trial began on August 28, 2009, with the Crown electing to proceed summarily.

The matter was adjourned for further days of evidence and submissions. [ 2 ] The Defence brought a motion arguing that Mr. Anderson’s right to counsel of choice pursuant to s. 10(

b) of the Canadian Charter of Rights and Freedoms was violated and seeks an order under s.24(2) for the exclusion of the breathalyzer results. Both counsel agreed that the Charter application could be heard as part of the trial proper. [ 3 ] Defence counsel Mr. Gomes submits the officer was not reasonably diligent in giving Mr. Anderson a meaningful right to counsel by making perfunctory attempts to contact counsel of choice and soon after the officer contacted duty counsel even though Mr. Anderson had not made the request. Mr.

Emami for the Crown submits the arresting officer was diligent although unsuccessful in contacting private counsel; and then went further to confer with the accused, who agreed to speak to duty counsel. If the Court finds that Mr. Anderson’s rights under s. 10 (

b) have been violated, then the Crown submits the evidence ought not to be excluded pursuant to a s. 24(2) analysis. [ 4 ] The Crown called two witnesses: the arresting officer Police Constable Sarath Thayalan and Duty Counsel, Marwan Osseiran. The Defence called his client for the purposes of the voir dire only. [ 5 ] The facts in this case are not particularly complex. [ 6 ] Crown’s Case: [ 7 ] On November 9, 2008, at approximately 12:40 am, Police Constable Thayalan was one of a group of officers set up on a RIDE spot check.

At 12:58 am, the officer noticed the accused’s vehicle approaching the RIDE checkpoint and instead of slowing down, the vehicle sped up. P.C. Thayalan signalled for the driver to stop, which he did. The accused, Errol Anderson, was the driver and he had three passengers. The officer asked Mr. Anderson if he had had anything to drink in the previous twelve hours. Based on his positive response, P.C. Thayalan asked Mr. Anderson to pull his vehicle over to the side of the road. [ 8 ] The officer asked Mr. Anderson to produce his driver’s license, wherein the accused initially produced his Ontario Health Card.

He subsequently produced the correct documents. When asked to step out of the vehicle, the officer also noted that Mr. Anderson was unsteady on his feet and the odour of alcohol was “overpowering”. [ 9 ] P.C. Thayalan formed a reasonable suspicion that Mr. Anderson had alcohol in his body, and he asked Mr. Anderson to accompany him to the back of the police cruiser where the officer set up and demonstrated the approved screening device. At approximately 1:01 am., the accused provided a suitable sample of his breath into the screening device and registered a “fail”. Based on the results, P.C.

Thayalan testified he had reasonable and probable grounds to believe that Mr. Anderson was committing the offence of Operate Over 80 and at 1:02 am., the accused was arrested. [ 10 ] P.C. Thayalan asked Mr. Anderson if he wanted to call a lawyer now and the defendant answered “yes”.

[ 11 ] The officer read the secondary caution to Mr. Anderson and asked him if he had anything to say. The accused replied he was cold and asked the officer to turn up the heat in the vehicle. The officer made a demand for the accused to accompany him to provide a breath sample into an approved instrument. [ 12 ] At approximately 1:05 am., P.C. Thayalan called the dispatcher seeking a location for the nearest breath testing facility. After organizing a ride for himself and Mr. Anderson, at 1:22 am., they were on their way to 41 Division.

Officer Thayalan testified he could not drive the accused to the station in his own police vehicle because his cruiser was needed to maintain the RIDE spot check. The officer recorded Mr. Anderson’s comments on the way to the station in his police memo book. P.C. Thayalan described Mr. Anderson’s mood changing from what was originally “unpleasant and derisive” to being “jovial, pleasant, outgoing and talkative” by evening’s end. [ 13 ] After arriving at 41 Division at 1:31 am., P.C. Thayalan testified he announced their arrival but had to wait because the station was particularly busy that night.

At 1:38 am., they were told that the booking sergeant was still busy and, hence, they waited until 1:46 am, when Mr. Anderson was paraded before Sergeant Paolotta. [ 14 ] On the booking tape which was played repeatedly during this trial and marked as an exhibit, P.C. Thayalan is seen escorting Mr. Anderson into the booking area. P.C. Thayalan briefly advised the sergeant why the accused was arrested and that Mr. Anderson wanted to speak to duty counsel. After Mr.

Anderson identified himself providing his name, date of birth and address, the sergeant asked him if he understood why he was at the police station and the accused responded appropriately. The sergeant indicated that he understood that Mr. Anderson wanted to speak to duty counsel and Mr. Anderson corrected the officer stating, “ I never said I wanted to speak to duty counsel, but I will go with what he [P.C. Thayalan] said ”. The sergeant responded telling Mr. Anderson that he needed to know his choices and that he had the right to speak to duty counsel. Mr.

Anderson said he has his own lawyer, but did not give the officer the name of any particular counsel. The booking procedure continued. Mr. Anderson appeared chatty, talkative, and engaged. [ 15 ] After being paraded, Mr. Anderson was escorted to the report room and handcuffed, which is the normal place and procedure for the booking of a prisoner. P.C. Thayalan testified he spoke to the accused about his lawyer. The accused said he had a friend who was a lawyer and his name was “Paul”. The officer asked a few follow up questions. P.C.

Thayalan testified his impression was that “Paul” may have worked in the legal industry as opposed to being a lawyer. However, quite properly, P.C. Thayalan said he gave Mr. Anderson the benefit of the doubt and asked him how the lawyer could be reached. [ 16 ] Mr. Anderson in his own evidence agrees that P.C. Thayalan then retrieved the accused’s cell phone which had been placed in a property bag and which was being stored in the booking hall. The officer tried unsuccessfully to scroll through Mr. Anderson’s BlackBerry’s contact list, so P.C. Thayalan took the phone out of the plastic bag and gave it to Mr.

Anderson, who located two numbers for “Paul Sebunya”: a mobile number and a work number. Mr. Anderson does not dispute that P.C. Thayalan asked him which number he should try and the accused told the officer not to call the work number, and instead to try the cell number. According to Mr. Anderson, the cell number was the “ best way to get a hold of [the lawyer] ”. P.C. Thayalan said that given it was 2:00 o’clock in the morning, Mr. Anderson’s suggestion sounded reasonable. [ 17 ] At 2:01 am, the officer placed the first of three calls to the mobile cell phone number listed in Mr.

Anderson’s phone contacts for Paul Sebunya. After several rings, the call went to voice mail. P.C. Thayalan said he left his name, badge number, the date and time of the call, the police division, a quick synopsis of why he was calling including that Mr. Anderson was under arrest for Over 80, and that accused had identified Mr. Sebunya as his lawyer and wanted to speak to him. The officer left both the general phone number for 41 Division as well as his direct line at the station. [ 18 ] P.C. Thayalan testified that given the hour of the day, he thought Mr.

Sebunya might be asleep so he called back twice more in quick succession. He testified based on his experience, if a person is sleeping they sometimes wake up if their phone constantly rings. At 2:02 am., and 2:03 am, P.C. Thayalan placed two follow up calls to the same mobile cell number. Both times there was no answer and both times the call was directed to voice mail. The officer testified he did not leave additional messages because he thought his first message was sufficient. [ 19 ] At 2:04 am., P.C. Thayalan told Mr. Anderson that he placed multiple calls to Mr.

Sebunya’s cell number without success and told him that he had left a voice mail message. Mr. Anderson agreed the officer gave him this information. Officer Thayalan then asked Mr. Anderson if he had any other ways to get a hold of his lawyer and the accused did not. P.C. Thayalan asked Mr. Anderson that given that it was the weekend and the time of night, how reasonable was it to expect that Mr. Sebunya was going to call back. Mr. Anderson agrees that he likely said something to the effect of, “ If he has not called back, then he is not going to”. Mr. Anderson agrees the officer told him that if Mr.

Sebunya returned his call then he could speak to him. [ 20 ] Accordingly to P.C. Thayalan, he informed Mr. Anderson that duty counsel was also available and explained that duty counsel was a free, confidential lawyer service. If Mr. Anderson wanted to speak to them, the officer told him that he would place a call and usually duty counsel would call back within the next 10-15 minutes. Officer Thayalan disagreed with Defence counsel suggestion that he was in a hurry to process his client. The officer said he was aware of the two hour presumption for drinking and driving offences and only one hour had passed.

Even if it took duty counsel twenty minutes to return his call and even factoring another ten minutes for an unforeseen delay, P.C. Thayalan was still confident that he had sufficient time to comply with the time limits on having the accused’s breath samples taken. [ 21 ] P.C. Thayalan testified after he explained to Mr. Anderson the nature of a call to duty counsel, he asked the accused in an open ended way, what did he want to do? Accordingly to the officer, Mr. Anderson said he wanted to speak to duty counsel. [ 22 ] At 2:06 am. P.C.

Thayalan placed a call to duty counsel. [ 23 ] While waiting for duty counsel to return his call, P.C. Thayalan continued to check to see if he could locate Paul Sebunya. He checked Canada 411 on the computer for a “Paul Sebunya” and a “P. Sebunya” and found nothing. The officer also checked the internal police database for the same name and found nothing. P.C. Thayalan also “googled” the name “Paul Sebunya lawyer” and found search results including a hit of “Paul Sebunya” who was involved in a labour relations court ruling, but there was no

contact information. There was some contact information for “Sebunya, Paul” in Sudbury with a “705” contact number. P.C. Thayalan was not sure if this was the same person Mr. Anderson was referring to so the officer asked him if his lawyer lived or worked in Sudbury and the accused said “no”. [ 24 ] The officer testified he could not locate any additional information for Paul Sebunya. [ 25 ] At 2:11 am., Mr. Anderson asked to go to the washroom and P.C. Thayalan escorted him. [ 26 ] At 2:13 am., they returned to the report room and waited until 2:17 am, when duty counsel Marwan Osserian returned the call.

The officer testified he advised Mr. Osserian about the nature and circumstances of the accused’s arrest and the time, and he escorted Mr. Anderson to a private phone booth. [ 27 ] Mr. Osserian testified that he was called to the Ontario bar on April 24, 2008, and he started working as duty counsel in June 2008 at the Old City Hall. He advised that he received arrest call training from a senior lawyer, who had 8 ½ years of experience. Mr. Osserian said he had six to eight sessions: each session was four to six hours in length.

During the training, he would take actual arrest calls and then receive feedback and advice from the senior lawyer. In August 2008, Mr. Osserian was manning the 1-800 duty counsel number alone. As for receiving a call from Mr. Anderson on November 9, 2008, Mr. Osserian testified he was unable to retrieve his notes of the call but testified about the advice he usually would give an accused person. [ 28 ] Mr. Osserian testified that he begins an arrest call by introducing himself as “duty counsel”; explaining that he is from legal aid, and that he is there to provide free legal advice.

In the case of someone charged with an impaired driving offence, Mr. Osserian testified in 99% of the cases, he advises the party that they should be providing breath samples and that they will be required to provide two samples of their breath with approximately 20-25 minutes in between the samples. He tells the person that if they “pass” the test, they may not be charged; if they “fail” the test, then they will be likely charged with Over 80. Mr. Osserian testified that he would ordinarily advise the party that if they refused to provide a sample, they would face another criminal offence.

Further, the witness said he tells the accused person there is no duty to perform any physical tests measuring sobriety; in the case, of an Over 80 charge, Mr. Osserian also tells the person that no DNA sample is required. [ 29 ] Mr. Osserian testified that he does not ask the accused every time if they want to speak to duty counsel because he presumes the party wants his advice, otherwise he would not have been called. Mr. Osserian testified that his arrest calls can take from 1 minute to upwards of 45 minutes on serious calls involving charges such as murder.

Usually he gives advice for approximately 15 minutes, but Mr. Osserian complained that his superiors told him he should be quicker. [ 30 ] Both P.C. Thayalan and Mr. Anderson testified the accused spoke to duty counsel for approximately 5 minutes. Mr. Anderson completed his call with duty counsel at 2:22 am. [ 31 ] Immediately after the call from duty counsel was completed, at 2:23 am., P.C. Thayalan escorted Mr. Anderson into the breath testing room. The videotape was played at this trial and marked as an exhibit. The video shows the breath technician, P.C. Mike Petrasek, asking questions and Mr.

Anderson answering. The accused appeared comfortable with the officer; discussing sports in particular hockey, just as he had during the booking procedure. P.C. Petrasek reviewed with Mr. Anderson that the accused had just spoken to duty counsel and asked the defendant if he had any questions. Mr. Anderson indicated he had none. [ 32 ] At 2:29 am, Mr. Anderson provided the first of two suitable samples in to the breathalyzer instrument. His first reading was 188 mgs of alcohol/100 mls of blood. [ 33 ] The officer then escorted Mr.

Anderson from the room and the defendant asked for, and received a glass of water. [ 34 ] At 2:48 am., Mr. Anderson was taken back into the room for his second breath test. At 2:51 am., the accused’s second reading was 183 mgs. of alcohol/100 mls of blood. [ 35 ] At 2:52 am., the accused was returned to the reporting room and advised that he was going to be charged with the offence of Over 80. P.C. Thayalan continued completing his paperwork and at 3:14 am, he explained and served Mr. Anderson with a true copy of the Intoxilyzer 5000C print out. At 3:16 am., the officer explained and served Mr.

Anderson with a copy of the certificate of a qualified breath technician and notice pursuant to section 268(7) of the Criminal Code . [ 36 ] P.C. Thayalan testified that he never received a return call from Paul Sebunya that night or at any time since. A further on-line search of Law Society of Upper Canada website indicated that Paul Sebunya’s status as a lawyer as of August 28, 2009 (the first date this trial commenced) was “not practising law-other”, which accordingly to the website

definitions means “a lawyer who is not currently practising law or providing legal services”. [ 37 ] The Defence Evidence: [ 38 ] Errol Anderson is now 33 years old and he works in sales. He has no criminal record and said this was the first time he had ever been arrested. [ 39 ] Mr. Anderson began his testimony in chief by answering that he vaguely remembers the night of November 9, 2008. He says that after reviewing the booking and breath test videos, he remembers the events “somewhat”. [ 40 ] Mr. Anderson said he wanted to speak to Paul Sebunya, someone he knew through a friend from high school back in 1996.

As far as Mr. Anderson was aware, Mr. Sebunya was still a lawyer in good standing and he had both Mr. Sebunya’s office and cell phone numbers in his BlackBerry. Mr. Anderson agreed with P.C. Thayalan who described in detail the steps he took in retrieving the accused’s phone from the property bag; allowing the accused to find the numbers himself; asking him which of the two numbers he should try; being advised by the officer that he had left a message for the lawyer on voice mail because no one answered the phone; as well as P.C. Thayalan telling him that if Mr. Sebunya called back, Mr.

Anderson could speak to him. Mr. Anderson agreed that he did

not think his lawyer was going to call him back considering the time of night, but said he was “hopeful”. As well, Mr. Anderson agreed he never told either Police Constables Thayalan or Petrasek that he wanted to wait for Mr. Sebunya’s calls or words to the effect; nor had he never expressed hope or optimism that Mr. Sebunya would call him back. The defendant agreed that neither police officer rushed him in trying to locate Paul Sebunya. [ 41 ] Mr. Anderson is certain that he did not ask to speak to duty counsel either at the roadside or at the police station. He agrees, however, that he does not recall if P.C.

Thayalan asked him if he wanted to speak to duty counsel. Mr. Anderson agrees that he cannot recall; therefore, he cannot dispute the suggestion that P.C. Thayalan told him that it usually took ten minutes before duty counsel returned a phone call. Similarly, Mr. Anderson could not dispute the fact that if the officer had told him that it would take 10 minutes for duty counsel to call back, that while waiting for duty counsel, he did not tell P.C. Thayalan that he did not want to speak to duty counsel. [ 42 ] According to Mr. Anderson, after the officer attempted to call Mr. Sebunya, P.C.

Thayalan walked back to his desk. Mr. Anderson said the next thing he knew the officer escorted him into the private interview room to speak to someone on the phone. Mr. Anderson said he thought it might be Mr. Sebunya and was surprised when it was not his lawyer on the phone. Mr. Anderson testified that he said that could not understand the person on the phone: he could not understand the pronunciation of the person’s name, who he was or the purpose of the call. He recalled the person on the phone asking him what he was charged with, and Mr. Anderson answered. When speaking to this person, Mr.

Anderson said it did not click in his mind that he could get legal advice. Mr. Anderson complained that duty counsel rushed when giving him advice. [ 43 ] However, the defendant agreed that duty counsel explained the breath test procedure; he understood that he had to provide breath samples; and he understood that if he did not pass “the test”, he would be spending the night in custody. Mr.

Anderson summarized his understanding of the procedure as described by duty counsel: “I would go and blow into the machine, and if I failed, then I would have to blow again, and if I failed I would be spending the night in the jail ”. Mr. Anderson agreed he did not tell duty counsel that he had his own lawyer and that he wanted to speak to him. Had he been aware that he could get legal advice; however, Mr. Anderson said he would have tried to stay on the phone longer in an effort to understand the procedure better and the possible consequences. Mr.

Anderson agreed that he could not dispute the fact that when speaking to duty counsel he was told that if convicted of the offence of Over 80, it would result in him having a criminal record. [ 44 ] There were some contradictions in Mr. Anderson’s evidence: for example, he agreed he understood the terms “legal aid” and “duty counsel”, but yet said he did not know what or who was “duty counsel”. In examination in chief, Mr. Anderson said he asked duty counsel on the phone “Who is this?”, and admitted he did not ask many questions. However, in cross examination, Mr.

Anderson agreed with the Crown that at no time did he ask Mr. Osseiran “who are you?”, “who do you work for?” or “why are you calling?” [ 45 ] Accordingly to Mr. Anderson, his conversation with duty counsel lasted less than 5 minutes and ended with the phone going silent. Mr. Anderson said he heard nothing on the other end of the phone, so he just hung up. Mr. Anderson agreed he never complained to either Police Constables Thayalan or Petrasek that his call was interrupted or that he did not feel he had received adequate advice. Instead, Mr.

Anderson said his only focus was about whether he was going to “pass the test” so he was not sufficiently concerned that the call ended abruptly to advise the officers. [ 46 ] Mr. Anderson testified that because it was his first time being arrested, he did not understand “his options”. Counsel for Mr. Anderson submits that after his client spoke to duty counsel, Mr. Anderson ought to have been told that he had the right to wait before giving the breath samples to consider his options. Mr.

Anderson himself and through his counsel argue that after the defendant spoke to duty counsel, he was left with the erroneous impression that he had to submit to the breath tests immediately. [ 47 ] Mr. Anderson also agreed that the only lawyer he knew and wanted to speak to was Paul Sebunya; nor did he suggest another lawyer from whom he wanted to seek advice after being unable to reach Mr. Sebunya. Also, the defendant testified that after he was arrested on November 9, 2008 and released the same day, he tried to contact Mr. Sebunya for the next three days – calling but not being able to reach Mr.

Sebunya and leaving voice mail messages for him. On the third day, Mr. Anderson said he spoke to Mr. Sebunya who advised him that he was on a leave of absence from practise. Mr. Anderson does not dispute that Mr. Sebunya did not call P.C. Thayalan back for the remainder of the time the accused spent at the station. [ 48 ] Position of the Parties: [ 49 ] Counsel for Mr. Anderson argues that the police breached his client’s Charter rights by failing to properly inform the defendant of his right to counsel, and more particularly counsel of choice contrary to s. 10(

b) of the Charter , prior to Mr. Anderson providing samples of his breath. Mr. Gomes argues that P.C. Thayalan, while well intended, ought to have placed one phone call to Paul Sebunya and then waited for at least ten minutes before trying to call him again. Counsel submits that Mr. Sebunya may have, for example, been in the washroom and he would unlikely have been able respond to three calls in succession because they were tantamount to being one call. Had P.C.

Thayalan waited ten minutes between placing the calls, counsel submits there would have been a greater likelihood for counsel to hear the phone and answer it. [ 50 ] Mr. Gomes further submits that by P.C. Thayalan asking Mr. Anderson whether he believed Mr. Sebunya was likely to call back and what would he like to do next, was unreasonable in the circumstances. Counsel submits the officer should not have been putting Mr. Anderson in the position of making a choice so quickly after being unable to reach counsel of choice. Instead, Mr. Gomes submits Mr.

Anderson ought to have been told that he could simply wait a while to see if Mr. Sebunya called back before deciding what to do next. Counsel submits P.C. Thayalan was in a hurry to get Mr. Anderson into the breath room and therefore, shortcuts were taken and Mr. Anderson was denied the right to make informed choices as to whether he wanted to wait for counsel, speak to duty counsel, or comply with the demand for breath samples. [ 51 ] Crown counsel, Mr. Emami submits P.C. Thayalan was exemplary in attempting to contact Mr. Anderson’s lawyer and then following up with attempts to locate him through the internet.

After Mr. Sebunya did not call back, Mr. Emami argues P.C. Thayalan properly advised Mr. Anderson that he could not reach his lawyer and gave the accused the opportunity to participate in

deciding what steps should next be taken. Crown counsel submits the Court should accept the evidence of P.C. Thayalan who testified that he asked Mr. Anderson if he wanted to speak to duty counsel, to which the accused said “yes”; as well the Court should accept the evidence of Marwan Osserian, duty counsel, who testified about the usual advice he gives to persons over the telephone who are charged with drinking and driving offences. Moreover, Crown Counsel Emami submits that not only did Mr.

Anderson speak to duty counsel, afterwards he did not complain to either of the two officers about the quality of advice he received nor did he ask to speak to any other lawyer. [ 52 ] The Law: [ 53 ] In a very recent decision of R.v. Winterfield , 2010 ONSC 1288 , Justice Durno of the Ontario Superior Court sitting as a

summary convictions appeal court reviewed the obligations police officers have in relation to the proper implementation of

section 10 (

b) rights under the Charter . I cannot say it more succinctly so I will quote Justice Durno starting at paragraph 53: [ 54 ] On arrest or detention everyone has the right to retain and instruct counsel without delay and to be informed of that right: Charter of Rights and Freedoms , s. 10(b). The Supreme Court of Canada has found the right imposes several duties on the police. First, the police must advise the detainee of the right, and provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay.

Second, the police are required to facilitate contact with counsel: R. v. Brydges 1990 CanLII 123 (S.C.C.) , (1990), 53 C.C.C. (3d) 330 (S.C.C.). Third, the police are under a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel: R. v. Manninen 1987 CanLII 67 (S.C.C.) , (1987), 34 C.C.C. (3d) 385 at p. 391. [ 55 ] In R. v.

Prosper 1994 CanLII 65 (S.C.C.) , (1994), 92 C.C.C. (3d) 353, the Supreme Court examined the implementational component as it related to the availability of duty counsel concluding: [ 56 ] As this Court has stated on a number of occasions, s. 10(

b) imposes both informational and implementational duties on state authorities who arrest or detain a person. (See Bartle , at pp. 192-94; R. v. Manninen , 1987 CanLII 67 (S.C.C.) , [1987] 1 S.C.R. 1233, at pp. 1241-42; R. v. Evans , 1991 CanLII 98 (S.C.C.) , [1991] 1 S.C.R. 869, at p. 890; Brydges , at pp. 203-4.) Once a detainee has indicated a desire to exercise his or her right to counsel, the state is required to provide him or her with a reasonable opportunity in which to do so.

In addition, state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. As the majority indicated in R. v. Ross , 1989 CanLII 134 (S.C.C.) , [1989] 1 S.C.R. 3, at p. 12, once a detainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right.

In other words, the police are obliged to "hold off" from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. [ 57 ] In my view, what constitutes a "reasonable opportunity" will depend on all the surrounding circumstances. These circumstances will include the availability of duty counsel services in the jurisdiction where the detention takes place.

As the majority in Brydges suggested (at p. 216), the existence of duty counsel services may affect what constitutes "reasonable diligence" of a detainee in pursuing the right to counsel, which will in turn affect the length of the period during which the state authorities' s. 10(

b) implementational duties will require them to "hold off" from trying to elicit incriminatory evidence from the detainee. [ 58 ] In determining what is a reasonable opportunity, the fact that the evidence may cease to be available as a result of a long delay is a factor to be considered. [ 59 ] Making the police hold off in situations where a detainee has been reasonably diligent in exercising his or her right to counsel, including where appropriate trying to reach a private lawyer, and where " Brydges duty counsel" is not available would accommodate a detainee's privilege against self-incrimination.

The police investigation with respect to evidence in the construction of which a detainee must necessarily participate (e.g., confessions, identification evidence, and breath and blood samples) would have to be held in abeyance until such reasonable time as a detainee is able to make contact with a private lawyer or whatever duty counsel service is in existence in the jurisdiction. [ 60 ] While there is no constitutional obligation on governments to make available “ Brydges duty counsel”, the alternative solution is the obligation on police to “hold off” until a detainee has been given a reasonable opportunity to contact counsel: Prosper , at para. 33 .

There is duty counsel available in Ontario. [ 61 ] In this case, there is no dispute that after Mr. Anderson was arrested and advised of his right to counsel at the roadside. I am satisfied that P.C. Thayalan complied with the specific requirement of the informational component of s.10(

b) described in Brydges and Bartle . [ 62 ] Under the implementational component, s. 10(

b) requires that the detainee be given an opportunity or the means, to “retain and instruct counsel without delay”. If the detainee chooses not to contact counsel, no breach results. If the legal system fails to provide the detainee with the opportunity to consult counsel without delay for whatever reason – be it lack of facilities, information, willing counsel or some other impediment – then a s.10(

b) breach is established. (See R.v. Prosper 1994 CanLII 65 (SCC) , [1994] 3 S.C.R. 236 S.C.C.) [ 63 ] Police Constable Thayalan testified that after Mr. Anderson had been arrested at the roadside, when asked if he wanted to call a lawyer now, Mr. Anderson indicated “yes”. However, the officer was of the opinion that he could not provide Mr. Anderson a meaningful right to counsel at the side of the road using a cell phone because he could not give Mr. Anderson privacy. [ 64 ] In the recent decision of R. v.Devries (2009) 2010 ONCA 84 (CanLII) , 98 O.R. (3d) 721, the Ontario Court of Appeal discussed the issue of whether compliance with s. 10(

b) requires the officer to inform the detainee who chooses to consult counsel “now”, that contact will occur when taken to the police station. [ 65 ] I do not think that the use of the word “now” in the context of the administration of the s. 10(

b) caution at the roadside

implies that the detainee can speak with a lawyer instantly upon the officer’s completion of the s. 10(

b) caution. Most police officers are not standing with a telephone in their outstretched hand as they complete the s. 10(

b) caution. The officer’s statement to a detainee at the roadside that he or she may speak with a lawyer “now” would necessarily convey that the right to speak with a lawyer was contingent on the availability of a telephone that was useable in circumstances that would permit the detainee to speak with a lawyer for the purpose of obtaining legal advice. [ 66 ] It is important to distinguish between the nature of the rights guaranteed by s. 10(

b) and the further question of whether the police have properly complied with a detainee’s right to consult with counsel in any given case. The constitutional right is the right to speak with a lawyer “without delay”. All detainees are entitled to that right and must be so advised by the police. The language used by the police cannot suggest that the right to speak with a lawyer only arises at some point later on in the detention.

If the detainee, having been told he or she has a right to speak with a lawyer “without delay”, chooses to exercise that right, the police must then afford him or her a reasonable opportunity to do so. Whether the steps taken by the police to make a telephone available to a detainee, in circumstances where he or she can speak with counsel, comply with the implementational requirements of s. 10(

b) turns on the facts of the specific case and not on whether the police properly informed the detainee of his or her right to speak with counsel without delay. [ 67 ] In other words, compliance with s.10(

b) must be measured on a case by case basis and adjudicated to see if the essential components of s. 10(

b) are conveyed to the detainee. [ 68 ] In this case, as often is the case in impaired driving and over 80 cases, Mr. Anderson was arrested outside on a public street. P.C. Thayalan did not provide Mr. Anderson with the opportunity to contact counsel at the roadside after his arrest even though the accused replied “yes” when asked if he wanted to call a lawyer “now”. P.C. Thayalan considered whether he could give Mr. Anderson an effective right to counsel at the roadside and made an informed decision that he could not because he could not afford him privacy.

However, as required, the officer refrained from questioning the accused or having him perform roadside sobriety tests while arranging for, and transporting him to, the nearest police station where a breathalyser technician was available. [ 69 ] Upon arriving at the police station, P.C. Thayalan accounted for the delay in entering the police station to begin the booking procedure. Counsel for Mr. Anderson points out that on the booking video, Mr. Anderson specifically corrected the sergeant when the officer put to him that he understood the defendant wanted to speak to duty counsel. Mr.

Anderson said to the sergeant he did not want to speak to duty counsel, but rather his own lawyer. Counsel Mr. Gomes for Mr. Anderson submits that contacting duty counsel has become the “default position” police officers take and they assume the detainee wants to call duty counsel. This position, Mr. Gomes argues, undermines an accused person’s ability to exercise their substantive right to contact counsel of their choice. [ 70 ] In this case, however, P.C. Thayalan made further inquiries of Mr. Anderson and took steps to allow him to contact Paul Sebunya. This included retrieving Mr.

Anderson’s cell phone from the booking desk, allowing the accused to search his contact file in his cell phone for the number, and asking the accused which number he should try calling– the office or the mobile number. P.C. Thayalan called Mr. Sebunya’s number no less than three times, leaving a detailed message the first time, and reporting this information back to the accused. P.C. Thayalan then asked Mr. Anderson if he believed Mr. Sebunya was likely to call back, to which the accused testified he said “No”. Defence counsel submits P.C. Thayalan was wrong, as he puts it, by “putting the ball back into the Mr.

Anderson’s court” because it required the defendant to make quick decisions during a stressful situation. Mr. Gomes submits P.C. Thayalan asking Mr. Anderson to make this decision would result in the accused feeling powerless. [ 71 ] As well, Defence counsel submits that calling Mr. Sebunya three times in succession was unreasonable. Counsel suggests the officer ought to have called once and left the message; then waited 10 minutes or so before calling again; and so on. The requirement that the breath samples be taken as soon as practicable, Mr.

Gomes submits should not be seen as need to be impatient waiting for counsel to call back. [ 72 ] The Crown provided me with some very helpful cases on this issue. First, in R.v. Littleford 2001 CanLII 8559 (ON CA) , [2001] O.J. No. 2437 (Ont. C.A.), the facts in that case are somewhat similar to Mr. Anderson’s case. The appellant was arrested for impaired driving and was advised of his right to counsel. He wanted to call his own lawyer so at 12:53 am., the officer called the counsel’s office and left a message on the answering machine.

Immediately afterwards, the police officer called duty counsel, who later returned the call and spoke to the accused. Mr. Littleford testified he did not want to speak to duty counsel because he felt he would be speaking to “law students”; not understanding or fully appreciating that duty counsel were lawyers. However, Mr. Littleford spoke to duty counsel. Afterwards, the Appellant made no further requests to contact his own lawyer and did not complain to anyone the advice he received from duty counsel.

The appellant provided breath samples which were over the legal limit: he was convicted at trial and that finding was upheld at two levels of appeal. [ 73 ] The Defence counsel on the appeal argued that the police officer did not take further steps to try and reach Mr. Littleford’s lawyer.

For example, the officer did not offer to look up the lawyer’s phone number in the phone book or give the accused a telephone and phone book so he could look it up himself. [ 74 ] The Court of Appeal in Littleford , supra, stated at paragraph 8 of the judgment: [ 75 ] On a Charter motion, the onus is on the accused person to prove a breach of his or her Charter rights on a balance of probabilities. The difficulty with the appellant’s position in this case is that he did speak to duty counsel before taking the breathalyzer test.

He neither raised any concern at the time, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights. The Trial Judge made a finding that speaking to duty counsel “seemed to satisfy him at the time”. There is no basis on the record to disturb that finding. [ 76 ] In a similar case of R.v. Nezoil [2001] O.J. No. 4372 (Ont. Sup.Ct.) , the accused was found guilty of Over 80 and appealed based on the argument that he wanted to call his lawyer but needed to call home to get the number.

However, at the station, the appellant opted not to call home, given the time of night. Instead, the officer called duty counsel who spoke to the accused, who subsequently provided breath samples over the legal limit and was convicted. The appellant argued unsuccessfully on appeal that the police ought to have given his client the opportunity to look through a phone book, call directory assistance or re-advise him of his right

to counsel. Justice Durno found that while the officer could have done more to assist the appellant in finding his lawyer’s phone number, the issue was whether the officer was required to go further. At paragraph 16, the Court asked whether by not taking the extra steps, were the appellant’s rights to counsel breached by the failure to do so? The Court concluded that they were not. [ 77 ] In R.v. Blackett [2006] O.J. No. 2999 (Ont. S.C) , the

summary conviction appeal judge held the police acted in good faith and were reasonably diligent by placing two calls to the business number of counsel of choice and then offering the accused the use of the phone book and a call to duty counsel, which he declined.

The Court in upholding the conviction and the trial judge’s finding that the appellant had failed to establish a Charter breach, agreed that it was unreasonable to expect police to use the internet to search for the lawyer’s home number or to call everyone in the phone book with the same last name and first initial as the lawyer to see if it was the accused’s counsel. [ 78 ] The Ontario Court of Appeal in R.v.Wilding 2007 ONCA 853 (CanLII) , [2007] O.J. No. 4776 focused their analysis on the s.24 (2) aspect of the

summary conviction decision that found that the respondent’s s. 10(

b) rights were violated and excluded the breathalyzer results. In that case, the police obtained the phone number of a friend who, accordingly to the accused would know the lawyer’s number; the police called the friend twice, but the accused told the police not to leave a message. The officer also checked a lawyer’s directory and found an old phone number for the lawyer that was no longer in service, and then checked unsuccessfully to find counsel’s number in the White Pages.

The appellate court found that while the police could have done more to facilitate access to counsel such as checking Canada 411 on the internet or calling directory assistance, the nature of the breach was minor. The accused also spoke to duty counsel and did not complain about the quality of advice he was given before providing breath samples. [ 79 ] In refusing to disturb the finding of the

summary conviction appeal judge that the accused’s

section 10(

b) rights had been violated, the Court of Appeal said assuming the arresting officer did not make reasonable efforts to contact the respondent’s counsel of choice, “[ the officer] missed the mark by very little ”. The court concluded the breach was minor, refused to exclude the breathalyzer readings, and restored the original conviction. [ 80 ] There are, of course, cases where the courts have found that the accused’s right to contact counsel of choice has been violated. In R.v. Zaidi [2007] O.J. No. 4105, (Ont. S.C) , the accused was arrested for impaired operation and indicated he wanted to call his own lawyer.

Police obtained the phone number from the accused’s brother. Officers called the number and discovered it was a pager and they inputted their phone number. No return call was received. The police then asked the accused if he had any other phone numbers for his lawyer, which he did not, so they asked the appellant if he wanted to call duty counsel. The appellant said “no”, but duty counsel was called anyway and Mr. Zaidi spoke to duty counsel. Afterwards, the defendant told the police that he was dissatisfied with the advice he received from duty counsel and wanted to call his own lawyer.

The breathalyzer technician ignored the accused’s demand to speak to his own lawyer because he thought it was just a tactic to delay the taking of the breath samples. Each time the accused was asked a question, he responded that he wanted to have his own lawyer present. In allowing the appeal and entering an acquittal, the

summary conviction appeal judge found that the appellant had displayed reasonable diligence in the exercise of his right to counsel, which the police ignored. At a minimum, the police ought to have given the accused a phone book to try and find another number for his lawyer. [ 81 ] In R.v. Gownden [2008] O.J. No. 5495 (Ont.C.J.) , the accused was found not guilty of refusing to provide a sample of his breath. In that case, the accused advised the officer that he wanted to speak to a paralegal. The officer tried unsuccessfully to reach the paralegal in the middle of the night.

The judgment reveals the trial judge was troubled by the officer’s lack of detail in his notes; instead the officer testified about the usual steps he takes in dealing with detainees but little was recorded relating to this particular investigation. For example, the officer often testified he “would have” explained to the accused the difference between a paralegal and a lawyer, as well he “would have” explained to the accused the role of duty counsel and that they operate independently from the police. However, the officer’s notes did not reflect these particulars.

The trial judge was unimpressed and found the officers’ lacked interest in assisting the accused, who clearly did not understand his rights. The court found that the police breached the informational component of the accused’s right to counsel. [ 82 ] In Winterfield , supra , the appellant testified after unsuccessfully trying to reach his own lawyer at 9:24 p.m. on a Friday evening, he told the officer that the only person he wanted to receive advice from was his own lawyer; and that after he spoke to duty counsel he complained to the officer about the quality of advice.

The appellant also testified he felt pressured to speak to duty counsel. However, in Winterfield , the officer retrieved the accused’s cell phone so he could look up the lawyer’s number himself; the officer tried looking up the lawyer’s number himself in the phone book; but could not recall whether or not he looked up the lawyer’s number on the internet.

The police also gave the appellant his own cell phone to see if he could find the number himself. [ 83 ] Further the Court found that while it was possible the officer could have done more to help the accused find his lawyer’s number, the proper question to ask is whether the police provided the appellant with the information required to assist him in exercising the rights to counsel and whether police facilitated that contact ( R.v. Gentile, [2008] O.J. No. 3664 (S.C.J.) .

Justice Durno in Winterfield upheld the trial judge’s finding that there was no breach as a result of the police failure to facilitate contact with counsel and the trial judge’s findings of credibility where she rejected the accused’s evidence. [ 84 ] Mr. Anderson gave evidence on the voir dire in this trial. Firstly, Mr. Anderson does not dispute that after speaking to duty counsel he never complained to either Officers Thayalan or Petrasek, that he was dissatisfied with duty counsel’s advice. Mr.

Anderson’s explanation is that he was too focused on passing the breathalyzer test to express any dissatisfaction or concern. As the court in Winterfield stated at paragraph 70 , “i t is difficult to see how the police were to facilitate the exercise of his s. 10(

b) rights when he never told them there was a problem with the advice he received”. [ 85 ] The fact that Mr. Anderson may have been unhappy or dissatisfied that he was told he had to either provide a sample or refuse, does not equate with a breach of s. 10(b). In Winterfield , supra at paragraph 73 through to 75, Justice Durno states: [ 86 ] Where a detainee is dissatisfied with the advice received, it is appropriate to examine the bases of that dissatisfaction in determining if there was a breach and, if so, the seriousness of the breach.

This is so because there is a presumption that in the absence of evidence to the contrary, the appellant received proper legal advice: R. v. T.(E.) 1993 CanLII 51 (S.C.C.) , (1993), 86 C.C.C. (3d) 289

(S.C.C.). [ 87 ] I agree with the following comments of Vaillancourt J. in R. v. Toth , [1997] O.J. No. 4079 ; (1998), 36 W.C.B. (2d) 129 : [ 88 ] A blanket statement that an accused did not believe she was provided with useful information does not equate to a breach of s. 10(

b) of the Charter . Many accused might not like or appreciate the advice given to them by a particular counsel. The Charter is aimed at providing the accused the opportunity to contact counsel forthwith, it does not require an accused to embrace the advice provided. [ 89 ] What the appellant is asserting in his trial evidence, without any specifics, is that he did not receive proper legal advice, an allegation of ineffective assistance or the incompetence of counsel. When that occurs, the detainee should provide the bases upon which he or she is dissatisfied with duty counsel.

It is difficult to determine if there was a breach, and if so, how serious it was when the only evidence is the conclusory, “I was dissatisfied with the legal advice.” [ 90 ] There was no evidence called by the Defence that the advice Mr. Anderson received was defective. Mr. Anderson claims that had he been aware that he was speaking to duty counsel who was a lawyer, the accused would have kept him on the phone longer to ask more questions – instead of being focused on “passing the test”.

In relation to Over 80 cases, whether a person is charged with the offence or not (as opposed to being found guilty or not guilty of the offence after a trial) actually comes down to, as Mr. Anderson said, “passing a test”; in other words providing a suitable sample of breath into a breathalyzer instrument and registering a reading of less than 80 mgs of alcohol per 100 milliliters of blood is a “pass”; and registering a reading over 80 mgs of alcohol per 100 millilitres of blood is a “fail”.

In the case of impaired driving and over 80 offences, the only options an accused has once arrested and a proper demand is made for him to provide a sample of his breath are very straightforward: s/he must provide a sample of his breath or s/he can refuse. If the accused fails or refuses to provide a sample, s/he will be charged with a Criminal Code offence, which has the same consequences as if s/he blew over the legal limit. [ 91 ] I do not accept Mr.

Anderson’s evidence that he failed to receive proper advice from duty counsel; moreover, if he had any complaint, the accused never told anyone. [ 92 ] At page 71 of the August 28, 2009 transcript from these proceedings, Defence counsel is critical of P.C. Thayalan, who after reporting back to Mr. Anderson that he had not been able to reach Mr. Sebunya, asked the accused given the hour of the evening whether it was likely Mr. Sebunya would call back and what he wanted to do. Defence counsel argues the officer should not have “put the ball back in Mr. Anderson’s court”. [ 93 ] Q: Was it necessary for Mr.

Anderson to be engaged in that process, that is: “what will I do if Mr. Sebunya doesn’t call back?” right at the point after you’ve left the message? [ 94 ] A : It is his right to counsel, so it is his decision. He should make it. And I don’t see why he should not be informed of his options promptly, after I had done what I had done. I would argue what I gave him was a situation update, and asked him, “What do you want to do?” [ 95 ] I disagree wholeheartedly with counsel and commend P.C. Thayalan for giving Mr. Anderson the choice as to what to do next.

By reporting back to the accused the results of his efforts to reach counsel and then asking Mr. Anderson what he wanted to do next, P.C. Thayalan was allowing the accused to make an informed decision. As I put to counsel during his submission, most lawyers argue the opposite: that the police never consulted their client as to what step to take next. [ 96 ] Mr. Gomes further argues his client should have been given a third option and that was simply to wait for Mr. Sebunya to call back or have more time to gather his thoughts. From the accused’s own evidence and admission, P.C. Thayalan advised Mr.

Anderson that if Mr. Sebunya called back at any point while waiting for duty counsel to return the call (and presumably at any time during the evening’s investigation), Mr. Anderson could speak to him. The reality is Mr. Sebunya did not call back that night or return the accused’s calls for the next three days. [ 97 ] Had Mr. Anderson asked the officer to wait because his lawyer might call back, P.C. Thayalan on page 75 of the transcript at line 18, said he would have waited. However, after consulting with Mr. Anderson who said “yes” to speaking to duty counsel, P.C.

Thayalan stated, ““ and I wasn’t going to second guess him after that”. [ 98 ] As for giving the accused the option of waiting, there is no constitutional obligation for the police to tell the accused he could just wait without there being a reason or a request.

I do not interpret Prosper, supra , as suggesting that the police are obliged to “hold off” from attempting to elicit incriminatory evidence once the detainee has been reasonably diligent in exercising their right to counsel, whether private counsel or duty counsel, and police have take reasonable steps to effect that right. [ 99 ] To suggest as counsel does that Mr. Anderson was intimidated by the police officers and would have been afraid to ask for more time to wait and consider his options is a position inconsistent with his client’s demeanour as seen on the videotapes. On the videotape, Mr.

Anderson appeared calm, chatty and made small talk with the officers. He inquired about his car, and exchange relaxed banter with the officers. Mr. Anderson felt sufficiently comfortable to ask to use the washroom and request a glass of water; P.C. Thayalan complied with both requests. On tape, Mr. Anderson appeared to be no more anxious than any other person under arrest who might understandably experience some nervousness and stress. [ 100 ] Mr. Anderson testified he specifically recalls being asked and rejecting unequivocally that he wanted to speak to duty counsel. However, Mr.

Anderson’s evidence falls far short of being reliable. During his evidence, I have counted least five or six times when Mr. Anderson acknowledged that he had difficulty remembering the evenings events, could not dispute certain facts, or was nervous because he was under the strong influence of alcohol. Here are a few examples which I paraphrase: [ 101 ] In cross examination, he agreed he could not dispute P.C. Thayalan’s version of how Paul Sebunya’s phone number was retrieved from his phone because his memory was vague because he had been drinking and he agreed his perception and recollection is

affected negatively by alcohol; [ 102 ] He could not disagree that P.C.

Thayalan asked him if he wanted to call a lawyer because his recollection was vague because he had been drinking; [ 103 ] He could not recall if he was alone when he spoke to duty counsel because his memory was vague [ 104 ] He could not recall or could not say certain things were told to him by duty counsel; [ 105 ] He explained why he was making small talk with the officers was because “I was under the influence, I wanted to say something to try and calm down ”; [ 106 ] When asked whether he was concerned about asserting his right to counsel during the parading before the sergeant, Mr.

Anderson said, “ at that time being intoxicated, and it was my first time, and speaking to a lawyer…it was not on my mind”. [ 107 ] When asked why he did not tell the breath technician that he was dissatisfied with the quality of the advice he received from duty counsel, Mr. Anderson said, “ After I spoke to duty counsel…if I was going to fail…I was nervous about the test and I was not worrying about my lawyer. I was intoxicated.” [ 108 ] In re-examination, Defence counsel asked Mr. Anderson about his apparent jovial demeanour at the station. The accused responded: “it was not a happy moment.

I was more…basically how things happen at a police station, I was more nervous and I was trying to be more accommodating and I was trying not to anything incorrect in my intoxicated state”. [ 109 ] On the other hand, P.C. Thayalan was sober. Moreover, he was extremely professional, his note-taking remarkably thorough, and his knowledge of what was required of him truly impressive.

His investigative notes consisted of seven 8x10 inch pages which began with four pages of pre-printed questions and answers; and then the remaining pages consisting of handwritten legible notes with diagrams and complete notations of times. The officer had recorded the weather conditions so when the accused asked for the heat to be turned up in the police cruiser, it was consistent with the temperature being only 5 degrees Celsius. [ 110 ] In his evidence, P.C. Thayalan testified that he considered at the roadside whether he could give the accused “a meaningful right to counsel”.

As stated earlier, there is no strict requirement that says a detainee must be given immediate access to a phone at the roadside; however, I was very impressed to hear that the officer actually knew and cared enough to consider the issue. [ 111 ] P.C. Thayalan was also able to articulate his grounds and his process as to why he had taken certain steps. The officer was never argumentative during his testimony. For example, he agreed with counsel that he did not specifically tell Mr. Anderson that he had a choice to wait. [ 112 ] I find that P.C. Thayalan facilitated Mr. Anderson’s

section 10(

b) rights from 2:01 am, when he initially placed his first of three calls to Mr. Sebunya until 2:17 am., when duty counsel returned this call. P.C. Thayalan is to be commended for retrieving Mr. Anderson’s phone from the property bag and letting Mr. Anderson try and locate the phone number himself. I find Defence counsel’s submission that P.C. Thayalan ought to have waited 15 minutes between each call to counsel, in case the lawyer was in the bathroom, purely conjecture. Mr. Sebunya never returned either the police officer’s or Mr. Anderson’s calls for the next three days.

As per the case law, every police officer ought take reasonable steps to reach the detainee’s counsel of choice. In this case, P.C. Thayalan’s next step was to search the Mr. Sebunya’s name on the internet, the modern day version of flipping through a phone book, but likely more effective. [ 113 ] I accept P.C. Thayalan’s evidence that he asked Mr. Anderson if he wanted to call duty counsel and the answer was affirmative. His notes were detailed and intelligent. The accused testified otherwise and said he specifically remembered not wanting to speak to duty counsel. However, Mr.

Anderson’s selective memory is severely hampered by his own admission that he has trouble remembering details on the evening – likely because by his own admission he was heavily intoxicated. Furthermore, after speaking to duty counsel, Mr. Anderson admits he did not complain to any officer anything about the call. I have already outlined the relevant cases on this point. [ 114 ] Moreover, throughout the investigation, I find Officer Thayalan was courteous, respectful, polite, and professional. Even Mr. Anderson admitted, P.C.

Thayalan was kind, fair, cooperative, non-threatening, and the officer accommodated all of his requests. [ 115 ] Short of P.C. Thayalan possessing telepathic abilities to read Mr. Anderson’s mind, I find the officer’s note taking, efforts to reach the accused’s counsel of choice, his treatment and respect given to the accused and the quality of his evidence, is a textbook example of how an arrest and investigation on one of these types of charges should be done. [ 116 ] On any Charter application, the onus is on the moving party to establish on a balance of probabilities that a breach existed.

I am not persuaded that Mr. Anderson’s rights under s. 10(

b) were breached. As such, the evidence of his breath readings is admissible against him at this trial. There being no further defence for me to consider, I find the accused guilty of the offence of Over 80. [ 117 ] Section 24(2) Charter Considerations: [ 118 ] In an effort to be thorough in my reasons, should it be determined that I am wrong in dismissing Mr. Anderson’s argument regarding a Charter breach, I would not have excluded the evidence based on a section 24(2) analysis as revised in R.v.

Grant , 2009 SCC 32 (CanLII) , 2009 S.C.C. 32 at paragraph 71 : [ 119 ] …whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward- looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing

state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits.

The Court’s role on a s.24(2) application is to balance the assessments under each of these lines of inquiry to determine where, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. [ 120 ] In this case, on the first prong of the inquiry, if there was a breach of Mr. Anderson’s rights, it was not in doing more to facilitate his right to counsel. There is no evidence that the officer was acting in bad faith or any suggestion that the officer was targeting Mr. Anderson in stopping his vehicle. Accordingly to Defence counsel, P.C.

Thayalan was “clearly competent and decent” and if there was a breach, counsel agrees it was not a wilful act made in a conscious way to water down the accused’s rights. Further, after efforts were made to call Mr. Sebunya, Mr. Anderson did not provide P.C. Thayalan with the name or number of any other lawyer or 3d person who could help him find a lawyer. Further, I am wholly satisfied that P.C. Thayalan did everything creatively possible to contact counsel of choice. Borrowing from the words at paragraph 6 of Wilding (supra), if P.C. Thayalan did not make reasonable efforts to contact Mr.

Sebunya, “ he missed the mark by very little”. [ 121 ] Under all the circumstances, I would not regard the breach as serious state misconduct. [ 122 ] Referring again to the Winterfield, supra decision at paragraph 83: [ 123 ] The second inquiry deals with the impact of the breach on the Charter -protected rights of the appellant. The appellant had a right to retain and instruct counsel of choice. While it is not an absolute right in the sense that he could wait for hours on end to contact counsel, it is a most important right. However, the appellant did receive legal advice from duty counsel.

It is clear that duty counsel told him he had to provide breath samples; and he should not answer any questions or perform any sobriety tests. There is no evidence and no arguments advanced that that advice was defective. Despite the appellant’s professed dissatisfaction with that advice, the dissatisfaction was not of a degree that he told either officer or the trial judge the bases upon which he reached that conclusion. [ 124 ] The only difference in that case and Mr. Anderson’s trial, is that we do not have evidence of what duty counsel Mr.

Osserian told the accused because he could not find his notes, only what he would normally advise a party under arrest. However, there is a reasonable inference that Mr. Osserian gave the accused the advice he usually give detainees charged with Over 80 because Mr. Anderson provided the breath samples. As such, I adopt Justice Durno’s analysis on the second level of inquiry and find there would be minimal impact on the accused’s Charter protected rights if the evidence were admitted. [ 125 ] Finally, the last line of inquiry involves society’s interest in the adjudication of the trial on its merits.

Numerous courts over the years have emphasized the seriousness of drinking and driving offences as reflected in the increasing higher minimal penalties mandated in the Criminal Code . The Court in Grant , supra, recognized based on the minimally intrusive impact of a breath sample, any impact of a Charter breach is much reduced. Breath readings are highly reliable evidence – the more reliable the evidence, the more likely exclusion of the evidence would bring the administration of justice into disrepute. [ 126 ] In balancing the various factors and inquiries as set out in Grant , had I found a breach of Mr.

Anderson’s s. 10(

b) rights, I would not have excluded the evidence pursuant to section 24(2) of the Charter . [ 127 ] Conclusion: [ 128 ] The Defence has not established any basis for the exclusion of the breath sample readings. The Crown has satisfied the burden of proof and Mr. Anderson will be found guilty as charged. Released: April 29, 2010 Justice M. Wong