R. v. Does, 2019 ONCJ 410

ONTARIO COURT OF JUSTICE CITATION: R. v. Does , 2019 ONCJ 410 DATE: 2019 06 13 COURT FILE No.: Niagara Region 998 F1037 BETWEEN: HER MAJESTY THE QUEEN — AND — Melissa Does Before Justice J. De Filippis Heard on April 9, 15 & May 3, 2019 Reasons for Judgment released on June 13, 2019 Mr. H. Limheng.................................................................................... counsel for the Crown Mr. B.

Starkman ........................................................................................... for the defendant De Filippis, J.: INTRODUCTION [ 1 ] The defendant was charged with operating a motor vehicle with a blood alcohol level that exceeded the legal limit (“over 80”). At the conclusion of the Crown’s case, the defendant raised an issue with respect to recent amendments to the relevant Criminal Code provisions. Since the success of this argument would be fatal to the Crown’s case, it was agreed that I would rule on that issue first. I dismissed the Defence argu​ment; see R. v. Does , [2019] O.J.

No. 1924 . [ 2 ] This decision concerns the remaining issue: A Defence challenge to the admissibility of evidence because of alleged violations of her right to counsel, as guaranteed by

section 10(

b) of the Charter of Rights and Freedoms. The

section provides that “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right". I have concluded that this argument should also be dismissed. These are my reasons. [ 3 ] As noted in my previous ruling, the following facts are not in dispute: On March 17, 2018 at 8:50 pm the defendant arrived at the primary inspection booth at the Peace Bridge in Fort Erie, Ontario. She was the driver of a motor vehicle, with New York plates, that contained several passengers. Her attire might be seen as representing St. Patrick’s Day festivities.

The defendant told Border Security Officer McNulty that she had made a wrong turn and did not intend to cross into Canada. The officer saw an open beer can in the back seat and noted that the passengers were belligerent and appeared to be intoxicated. He detected the strong odour of alcohol emanating from the defendant’s breath. BSO McNulty is also designated as a peace officer. He subjected the defendant to an approved screening device demand. She failed the test and was arrested for the present offence. She was taken to a nearby police station to comply with a breath demand.

PC Choy is the officer who obtained the defendant’s breath samples. He is qualified to do so and used an approved instrument to obtain two suitable samples of the defendant’s breath. The test results show that the defendant’s blood alcohol was 193 and 187 – well over the legal limit. EVIDENCE RELEVANT TO THE CHARTER MOTION [ 4 ] BSO McNulty testified that he arrested the defendant after she failed the roadside test and immediately advised her that she had the right to speak to a lawyer of her choosing or duty counsel. With respect to the latter, the officer explained there was no cost for the

advice received from duty counsel as it was paid for by the Ontario Legal Aid program. He also informed her of the telephone numberfor this program. When asked if she understood, the defendant answered, “yes”. After the defendant was taken to the police station, shewas placed in a cell to await the breath tests. At this time, BSO McNulty contacted duty counsel and left a message that the defendantwished to obtain legal advice.

When duty counsel returned that call, the defendant had a private conversation with this lawyer. [5] It was suggested that the BSO McNulty inappropriately “steered” the defendant to duty counsel, rather than allowing her tospeak to a private lawyer of her choice. The officer testified that he always encourages detainees to speak to their own lawyer. However, in this case, he interpreted the defendant’s answer – “yes”, without mentioning the name of a lawyer, or the desire to speak toa private one – as a request to speak to duty counsel.

He acted upon that understanding and put her in contact with that lawyer. [6] After the defendant obtained legal advice, she was escorted to an office occupied by PC Choy for the purpose complying withthe breath demand. Before PC Choy conducted the breath tests, he told the defendant that he understood she had spoken to duty counsel. The defendant confirmed this fact. Defence counsel asked the officer if he had also confirmed that the defendant was “satisfied” with theadvice given by duty counsel. He replied that he did not do so. [7] Ms.

Does testified that she is a resident of New York State and employed as a nurse. She agreed that she was properly advisedof the right to counsel and had answered “yes” when asked if she understood. She testified that she never asked to speak to duty counseland did so because that is who the officer put her in contact with. The defendant said she would have preferred to speak to “a privatelawyer who specializes in this area [of law]”. She added that if the police had asked if she was satisfied with duty counsel, she wouldhave asked for another lawyer.

When asked if she was satisfied with her conversation with duty counsel, the defendant replied, “I’m nota lawyer and can’t really say, I would have preferred a private lawyer”. When pressed on this matter by Crown counsel, she concededthat when told she had the right to speak to a private lawyer or duty counsel, she understood these were her options. She also admittedthat she did not know the name of a private lawyer and did not mention a name or ask the police to search for one. ANALYSIS [8] The Supreme Court of Canada has described the purpose of s. 10(

b) as ensuring “that a suspect is able to make a choice tospeak to the police investigators that is both free and informed.” (R. v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310). Thispurpose is accomplished “by ensuring that detainees have an opportunity to be informed of their rights and obligations under the law andto obtain advice on how to exercise those rights and perform those obligations.” (R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R.429). In general, this means that s. 10(

b) imposes certain duties on the police: 1. To inform the detainee of his/her right to retain and instruct counsel without delay and of the existence and availability of Legal Aidand duty counsel; 2. If the detainee has expressed a desire to exercise this right, to provide the person with a reasonable opportunity to exercise the right; 3. To refrain from eliciting evidence from the detainee until the person has had that opportunity. [9] The aforementioned principles are established ones. They were reflected in a prior decision by the Court of Appeal for Ontarioin R. v. Richfield, (ON CA), [2003] O.J. No. 3230.

In that case, it was also clarified that a detainee must bereasonably diligent in exercising his/her right to counsel. [10] Defence counsel urges me to be wary of the testimony of BSO McNulty because his notes do not record that the defendantasked to speak to duty counsel. Counsel points out that although the defendant testified she understood her options with respect to theright to counsel, she added that these options were not discussed with her by the officer.

It is the position of the Defence that I mustconclude that the defendant was steered to duty counsel without the opportunity to consult with counsel of her choice. This, it is said, ismade manifest by the failure of the authorities to ask the defendant if she was satisfied with the advice given to her by duty counsel. [11] The Crown suggests that the defendant’s evidence is an after the fact fabrication designed to advance a Charter claim. I wouldnot go so far. It may be that after the fact the defendant came to believe it would have been preferable to speak to a private lawyer.

If so,this does not create a Charter breach where none existed before. [12] This much is clear: The defendant did not know a private lawyer. She did not say she wanted to speak with one. She did not askfor assistance in finding one. This silence is significant because there is no reason to doubt the sincerity of BSO McNulty’s testimonythat he understood that the defendant wished to speak to duty counsel. In this regard, I note that before providing breath samples, sheconfirmed for PC Choy that she had spoken to duty counsel and made no further comment.

Moreover, at no time did she expressconcern about her conversation with duty counsel. The Defence argues that, in any event, the Charter claim succeeds because the policehad a duty to do more in presenting the options to the defendant. [13] Defence counsel places considerable emphasis on R. v. Manuel, 2018 ONCJ 381, in which one of my colleagues sets out theobligations upon police with respect to

section 10(b). The court held that this includes the duty to go beyond a positive answer by adetainee that she understands her rights; the police must ask supplementary questions to determine how she wishes to exercise heroptions: In response to the defence claim that the police violated Mr. Manuel's s. 10(

b) rights by "channeling" him towards duty counsel, theCrown submits that the police were simply following the direction provided to them by Mr. Manuel. The Crown points to the fact thatMr. Manuel said "perfect" when asked by the police if he wanted to call duty counsel and said that he was satisfied with the"conversation" he had with duty counsel at the police station (when asked by the breath technician). Put differently, the Crown submitsthat the police were not constitutionally obliged to provide Mr.

Manuel with the tools required to choose other counsel because Mr.Manuel expressly waived that right when he accepted the offer for him to consult with duty counsel. The Supreme Court of Canada has repeatedly held that when the Crown claims an accused has waived a Charter right the Crownassumes a burden of demonstrating that any such waiver was constitutionally valid. In the context of an alleged waiver of s. 10(

b) rights,

Lamer C.J.C. said in Prosper : Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be aclear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on theCrown: Ross, (SCC), [1989] 1 S.C.R. 3 at pp. 11-12. Further, the waiver must be free and voluntary and it must not bethe product of either direct or indirect compulsion. This Court has indicated on numerous occasions that the standard required for aneffective waiver of the right to counsel is very high: Clarkson v.

The Queen, (SCC), [1986] 1 S.C.R. 383, Manninen,and Evans, (SCC), [1991] 1 S.C.R. 869. As I said in Bartle, at pp. 192-94 and 206, a person who waives a right mustknow what he or she is giving up if the waiver is to be valid... In this case, the Crown has not met its "very high" burden of showing that Mr. Manuel knowingly waived his right to choose counselwhen he acquiesced to the police offer to consult duty counsel.

For the reasons set out above, I find that the police did not provide Mr.Manuel with the information required for him to have made a meaningful decision about giving up the right to choose counsel in favourof consulting duty counsel. I accept Mr. Manuel's evidence that he did not know he had a right to insist upon being given access to thetools required for choosing private counsel.

To paraphrase what Lamer C.J.C. said in Bartle, the purpose of the right to counsel would bedefeated if police were only required to advise detainees of the availability of a telephone and telephone book after some triggeringrequest by the detainee. I find that it was because of what the police did and did not say (nor do) that Mr. Manuel was made to feel likehe had no choice but to opt for duty counsel; that is, Mr. Manuel was indirectly compelled to forego his s. 10(

b) right to consult withcounsel of his choosing. [14] There is no question that the police must do more than simply recite the right to counsel. It is incumbent upon them to ensure adetainee understands that right. If it appears the person does not comprehend, the police must take reasonable steps to provide additionalinformation so that it is explained. In this regard, the police must appreciate that counsel of choice is a fundamental right and that theyhave no business interfering in a decision by a person about that choice. Manuel recognizes these important principles.

However, Icannot follow the decision to the extent that it imposes additional obligations on the police where, as in the case before me, the defendantappears to have understood her rights and remains silent. This ignores the responsibility on the defendant to be diligent in exercising theright to counsel. It can also cause mischief by inviting the police to speculate about the defendant’s intentions. [15] Quite apart from my reservations about Manuel, it has arguably been overruled. In R. v.

Ruscica, 2019 ONSC 2442, theappellant relied on Manuel in asserting that the trial judge erred in not finding a breach of the right to counsel. The

summary convictionappeal court concluded as follows: In my view, what is being proposed by the appellant represents a significant expansion of the Charter rights under s. 10(b). Theproposed expansion is inconsistent with binding appellate authority. It also raises real practical questions as to what information needs tobe given to a detainee. If the information is required by a response received to the s. 10(

b) advice from a detainee, the circumstances willdictate what information needs to be provided. This is consistent with established case law and courts are able to assess the adequacy ofthe police response. However, in a vacuum, where there is no issue raised by a detainee, there would appear to be practical difficulties indetermining what information will be required. [16] It is clear that Ms. Does understood her right to counsel, including the options available to her in exercising this right. This isher testimony before me. As such, she had a responsibility to say something to the police.

Had she done so, in a manner consistent withher additional trial testimony that she preferred a private lawyer, it would have corrected the belief by BSO McNulty that she was contentwith duty counsel. [17] Defence counsel asserts that the police should have asked the defendant if she was satisfied with duty counsel. This, it is said,would have alerted them to her desire to speak to a private lawyer or, at least, encourage her to think about that option in the event thatshe was not satisfied.

I reject this submission: First, it puts the cart before the horse; to repeat, if it is clear a detainee understands theright to counsel, the person bears some responsibility in exercising that right. Second, the police have no business inquiring into thesufficiency of advice given by a lawyer and are in no position to evaluate it. Third, as already stated, where it appears a detaineeunderstands the right to counsel, the police have no role in a decision about what option the person should choose. [18] In coming to my conclusion, I take comfort in the comments made by the Court of Appeal for Ontario in R. v.

Clarke, (ON CA), [2005] O.J. No. 1825. The facts in this case are similar to the present one: Officer Boyd advised the respondent of his right to counsel using the standard formula that included an explicit statement that therespondent had the right to call any lawyer he wished. The respondent gave no indication that he did not understand his right and madeno complaint when invited to speak to duty counsel. For evidence of his desire to speak to a particular lawyer, he could rely only on hisstatement to P.C.

Tallon: "I am not telling you anything until I speak to my lawyer" and his assertion on the voir dire in response to aquestion from own counsel that had he understood that he could speak to any lawyer, he would have called him. It was plainly open, onthis evidence, for the trial judge to find that the respondent understood his right to counsel and that he failed to assert his wish to speak toa specific lawyer with reasonable diligence…. CONCLUSION [19] The defendant has not discharged the burden upon her of showing that it is more likely than not that the police violated herright to counsel.

The application to exclude is dismissed. The defendant is found guilty. Released: June 13, 2019

Signed: Justice J. De Filippis