R. v. Lunn, 2012 NSSC 190

SUPREME COURT OF NOVA SCOTIA Citation: R. v. Lunn, 2012 NSSC 190 Date: 20120510 Docket: SK 357697 Registry: Kentville Between: Anne Paula Lunn Appellant v. Her Majesty The Queen Respondent Judge: The Honourable Justice Patrick Duncan Heard: January 18, 2012 in Windsor, Nova Scotia Counsel: Brian Casey, for the appellant William N.

Fegusson Q.C. , for the respondent By the Court : Introduction [ 1 ] The appellant, Anne Paula Lunn, was tried in Provincial Court for a charge that she: on or about the 12 th day of June 2010, at or near Hantsport, Nova Scotia, did without reasonable excuse fail or refuse to comply with a demand made to her by Cst. Billy Gossen, a peace officer, to accompany the said Paula Lunn [sic] for the purpose of enabling samples of the breath of the said Paula Lunn to be taken pursuant to section 254(3) of the Criminal Code to [sic] Section 254(5) of the Criminal Code .

[ 2 ] The appellant acknowledged at trial that the officer had the legally necessary grounds to make a demand that she provide samples of her breath to determine her blood alcohol content. She admitted that she refused to comply with that demand however, she submitted, she had a “reasonable excuse” within the meaning of section 254(5) of the Criminal Code to refuse to comply because she was not afforded an adequate opportunity to consult legal counsel of her choice. In a novel approach, the appellant did not make a motion alleging a breach of her rights to counsel as guaranteed by

section 10(

b) of the Canadian Charter of Rights and Freedoms . [ 3 ] The trial judge rejected the appellant’s argument and found her guilty. She now appeals against that verdict. The trial [ 4 ] There were only two witnesses called in the trial, the arresting officer and the appellant. [ 5 ] Cst. Billy Gossen testified that on June 12, 2010, he was working as a uniformed R.C.M.P. officer on patrol in his police car. While traveling west on the Highway 101 between Windsor and Hantsport, Nova Scotia, he observed a vehicle operated by the appellant traveling ahead of his and in the same direction.

He observed the appellant’s vehicle to be “swerving from side to side quite rapidly”. She was driving at 80-90 kph which was below that of other traffic. [ 6 ] The officer followed and watched the appellant’s vehicle cross to left of center as one vehicle passed her. Cst. Gossen stated that in doing this the appellant forced the passing vehicle onto the opposite shoulder and almost put that car off the road. At that point he concluded that the appellant was “an impaired driver” and effected a traffic stop. It was 10:37 p.m. [ 7 ] When Cst. Gossen walked toward the appellant’s vehicle he noted Ms.

Lunn to be operating the car. He described her as having “very slurred speech, bloodshot eyes”. After asking Ms. Lunn to exit her vehicle he observed that she was “staggering a lot”. Once inside the police vehicle he noted that she had a “strong smell of liquor” on her breath. It was at that point that he advised her that she was under arrest for impaired operation of a motor vehicle. It was 10:40 p.m. [ 8 ] Ms. Lunn was advised of her right to counsel and the so-called police warning. The appellant responded that she wanted to speak to a lawyer.

The officer made a demand of the appellant to provide samples of her breath suitable for analysis of her blood alcohol content. She did not respond to the demand at that time as it was determined that she would be returned to the Detachment to enable her to contact legal counsel. [ 9 ] The officer noted that they were at the Detachment by 10:49 p.m. Once there, Ms. Lunn was placed in a room with a phone and was connected with Trevor McGuigan, Duty Counsel. The officer observed her hang up the phone and dial again. He entered the room to confirm that she was in fact speaking to a lawyer.

When he asked to speak to the lawyer, Ms. Lunn became “very upset” because he was in the room. The officer told her that if she was not speaking to a lawyer then she was to hang up the phone which she did. [ 10 ] Ms. Lunn was taken to a room where the Breathalyzer test was to be administered. The technician, Cst. Murphy, reported to Cst. Gossen that Ms. Lunn said something to the effect that she either did not speak to a lawyer, or “didn’t get the right advice”. Acting on this information, Cst.

Gossen discussed the problem with her and on her instruction made phone calls to contact Michael MacKenzie, a lawyer who was her counsel of choice. [ 11 ] There was no answer at the office number for Mr. MacKenzie. Ms. Lunn then provided the officer with Mr. MacKenzie’s home and cell phone numbers from her memory. Ms. Lunn told the officer that although she knew that Mr. MacKenzie would not normally take a call from a person in custody, she felt that their relationship was such that if he or his wife knew that it was Ms. Lunn calling that her call would be taken.

Therefore she specifically told the officer to provide her name to Mr. or Mrs. MacKenzie.

[ 12 ] A male person answered Mr. MacKenzie’s home phone and told the officer that Mr. MacKenzie was asleep, was not a defence lawyer, and would not take the call. The officer was not prepared to divulge the identity of a person in custody to an unidentified stranger, so he did not tell this person that he was calling on behalf of Ms. Lunn. When Cst. Gossen advised Ms. Lunn of this she became quite upset. She made it clear she was not happy with the earlier legal advice she had received, but offered no other name of a lawyer to call. [ 13 ] Cst. Gossen called the Duty Counsel a second time, but Ms.

Lunn did not want to speak to the same lawyer. Mr. McGuigan, who was on the line, heard her comment and said that if she did not want to speak to him, then he would not talk to her, and so the lawyer hung up the phone. [ 14 ] Ms. Lunn was unable to name someone else to call and was generally described as being “uncooperative”. The officer explained what a “refusal” was and the need to get the breath samples taken. He testified that: She absolutely refused anything else, just being ... was completely uncooperative. At this point, I did explain to her again that ... what a refusal was.

We needed to get this done, get this breath sample. She absolutely refused and she was charged with a refusal. [ 15 ] Ms. Lunn never requested a specific lawyer other than Mr. MacKenzie. She refused to re-enter the Breathalyzer testing room. In light of her refusal, she was charged with the offence for which she stood trial. It was approximately 11:47 p.m. at that point. [ 16 ] Cst. Gossen testified that, in his opinion, Ms. Lunn was “stalling ... it was obviously a stall to not go into the breath room.” [ 17 ] Evidence given in cross examination by Cst. Gossen, together with the testimony of Ms.

Lunn, provided explanations for much of the driving evidence that caused the traffic stop. The swerving was asserted to be attributable to Ms. Lunn searching for her cell phone while the vehicle was still in motion. She denied that her driving was as extremely erratic as the officer described. The speed was consistent with the speed limit for the area, and Ms. Lunn was exiting a ramp from the highway which caused her to reduce speed. She was able to stop her vehicle and to give her papers to the officer without problems. Ms. Lunn was in high heels while walking on gravel from her car to the police car.

It was dark and she was walking into the police car’s lights. [ 18 ] In light of this evidence, the trial judge found the accused not guilty of a companion charge of impaired operation of a motor vehicle. [ 19 ] The appellants’ evidence was that she had 2 glasses of wine over a period of three hours and was the designated driver on the evening in question. In relation to the key question for this appeal, she testified that she was “not happy” with the advice of duty counsel. The second call was to her daughter who was a summer law student with an Ottawa law firm. She did not let Cst.

Gossen speak with her because she feared that it might get her daughter “in trouble for giving legal advice”. [ 20 ] Ms. Lunn confirmed that she told Cst. Murphy of her dissatisfaction with the legal advice she received and of her expression of a desire to speak to Mr. MacKenzie as her counsel of choice. Her evidence is largely consistent with that of Cst. Gossen in relation to the attempts to contact Mr. MacKenzie.

She said that the MacKenzies were close friends, and although he was a part time prosecutor, she thought he would talk to her if he knew it was her. [ 21 ] In cross examination she said that she did not ask for Mr. MacKenzie immediately at the Detachment because of her embarrassment at her predicament. She did not identify her daughter to the officers because she was concerned it would negatively impact on her daughter’s career. She did not get advice from her daughter. Her expectation was that Mr. MacKenzie would not give her advice, but would refer her to someone who could.

She did not tell the police that this was her intention. [ 22 ] Ms. Lunn testified that while Cst. Gossen did explain what the legal effect of a refusal was, he did not give her adequate time to

consider who else to call. She did not give him another lawyer’s name, but she did ask that the officer try again to contact the MacKenzies. That was not done. Ground of Appeal [ 23 ] Was the appellant’s inability to consult with legal counsel of her choice a “reasonable excuse” for refusing to provide a sample of her breath? Powers of a

Summary Conviction Appeal Court [ 24 ] This appeal has been brought pursuant to

section 813 (a)(

i) of the Criminal Code . The powers of a

summary conviction appeal court are, in accordance with the provisions of section 822(1) of the Criminal Code , as found in section 686(1) of the Criminal Code , which reads: 686(1) On the hearing of an appeal against a conviction ..., the court of appeal (

a) may allow the appeal where it is of the opinion that (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; (

b) may dismiss the appeal where (

i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred; or (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby; Standard of Review

[25] The applicable standard of review is as set out in the case of R. v. Nickerson, 1999 NSCA 168, where it is stated: 6 The scope of review of the trial court's findings of fact by the

Summary Conviction Appeal Court is the same as on appeal againstconviction to the Court of Appeal in indictable offences: see sections 822(1) and 686(1)(a)(

i) and R. v. Gillis (1981), (NS CA), 60 C.C.C. (2d) 169 (N.S.C.A.) per Jones, J.A. at p. 176. Absent an error of law or a miscarriage of justice, the test to beapplied by the

Summary Conviction Appeal Court is whether the findings of the trial judge are unreasonable or cannot be supported bythe evidence. As stated by the Supreme Court of Canada in R. v. B. (R.H.), (SCC), [1994] 1 S.C.R. 656 (S.C.C.) at 657,the appeal court is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose of determining whether itis reasonably capable of supporting the trial judge's conclusions. If it is, the

Summary Conviction Appeal Court is not entitled tosubstitute its view of the evidence for that of the trial judge. In short, a

summary conviction appeal on the record is an appeal; it isneither a simple review to determine whether there was some evidence to support the trial judge's conclusions nor a new trial on thetranscript. [26] Cromwell J.A., as he then was, in R. v. Barrett 2004 NSCA 38, outlined the scope of appellate review of evidence relied uponto support a verdict as follows: [15] This Court may allow an appeal in indictable offences like these if of the opinion that "... the verdict should be set aside on theground that it is unreasonable or cannot be supported by the evidence." : s. 686(1)(a)(i).

In applying this section, the Court is to answerthe question of whether the verdict is one that a properly instructed jury (or trial judge), acting judicially, could reasonably haverendered: Corbett v. The Queen, (SCC), [1975] 2 S.C.R. 275 at 282; R. v. Yebes, (SCC), [1987] 2S.C.R. 168 at 185; R. v. Biniaris, 2000 SCC 15 , [2000] 1 S.C.R. 381 at para. 36. [16] The appellate court must recognize and give effect to the advantages which the trier of fact has in assessing and weighing theevidence at trial.

Recognizing this appellate disadvantage, the reviewing court must not act as if it were the "thirteenth juror" or giveeffect to its own feelings of unease about the conviction absent an articulable basis for a finding of unreasonableness. The question isnot what the Court of Appeal would have done had it been the trial court, but what a jury or judge, properly directed and acting judicially,could reasonably do: Biniaris at paras. 38-40. [17] However, the reviewing Court must go beyond merely satisfying itself that there is at least some evidence in the record, howeverscant, to support a conviction.

While not substituting its opinion for that of the trial court, the court of appeal must "... re-examine and tosome extent reweigh and consider the effect of the evidence.": Yebes at 186. As Arbour, J. put it in Biniaris at para. 36, this requires theappellate court "... to review, analyse and, within the limits of appellate disadvantage, weigh the evidence ..." Trial Judge’s Decision [27] The offence for which the appellant was tried is set out in

Section 254 of the Criminal Code, the relevant parts of which are:

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hourshas committed, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soonas practicable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood, or (ii) ... (

b) if necessary, to accompany the peace officer for that purpose.

(5) Everyone commits an offence who, without reasonable excuse , fails or refuses to comply with a demand made under this section. (emphasis added) [ 28 ] The appellant confined her argument at trial and on appeal to the question of whether she had a “reasonable excuse” to refuse to provide breath samples, as a result of her inability to obtain advice from counsel of her choice. For that reason I will confine my review to those parts of the submissions and trial decision that are relevant to that issue. [ 29 ] At the conclusion of the trial evidence, counsel for Ms.

Lunn made a brief submission speaking to the charge under section 254(5) of the Code . He referred to the case of R. v. Willier 2010 SCC 37 , and argued that Ms. Lunn made it clear to the officers that she was not satisfied with the advice of Mr. McGuigan and was reasonable in asking to speak to Mr.

MacKenzie, and so, the failure to provide her with that opportunity resulted in a reasonable excuse for her refusal. [ 30 ] The trial judge’s decision in relation to this charge is found at pp. 66-70 of the Trial Transcript, and in particular at pp. 68-70: In any event, its’ also clear from the evidence that she didn’t like the advice that she was given by Mr. McGuigan and it’s also clear that after that, that the officer did attempt to facilitate her request to get in touch with Mr. MacKenzie. True, he didn’t tell the male individual who answered the phone that it was Paula who was calling per the request of Ms.

Lunn. The officer gave an explanation for that, a very reasonable explanation, in fact, that he didn’t want to give the name of this individual that he had stopped for impaired driving to somebody that he didn’t know who was on the other end of the phone. Then after that, in fact, after she’s presented to the Breathalyzer technician, there are questions raised about her, again, not liking the legal advice that she had received. ... this argument is being put forward as part of the “without reasonable excuse” argument on the Breathalyzer refusal, not a

section 10 (

b) argument. But, in essence, it is, in a way a 10(

b) argument because if there is a violation of 10(b), in essence, then that ought to constitute, one might argue, reasonable excuse for failing to comply with the Breathalyzer demand. So I am thinking of this in terms of 10(

b) but also in terms of “without reasonable excuse.” And in doing that my finding here is that Ms. Lunn did not have a reasonable excuse for refusing to comply with the Breathalyzer. She had had an opportunity to speak to the lawyer, which was fine initially. She didn’t like the advice. The officer then attempted to facilitate contact with a specific lawyer. He then got the answer to the effect that that lawyer did not do defence work. She was then given another opportunity to speak with a lawyer or Legal Aid and her view was that if it was going to be the same person, then she wasn’t going to be happy with that.

And then, as I understand the evidence, Legal Aid made it clear that they weren’t going to give advice if she wasn’t willing to follow it. So insofar as the second count goes, when I consider again the essential elements of the offence and when I take into consideration the phrase “without reasonable excuse” on this particular count, I am satisfied beyond a reasonable doubt that Ms. Lunn did, indeed, fail or refuse to comply with the demand that was made to her by Cst.

Gossen and that she committed the offence contrary to section 254(5) of the Criminal Code and further that it was without reasonable excuse on her part. So a finding of guilt on the second count. [ 31 ]

Section 10(

b) of the Charter , referred to by the trial judge, states: 10 Everyone has the right on arrest or detention (a) ... (

b) to retain and instruct counsel without delay and to be informed of that right;

[32] An accused alleging an infringement or denial of this right may seek a remedy under

section 24 of the Charter. Ms. Lunn’scounsel elected not seek a remedy pursuant to the Charter. Analysis [33] The appellant submits that on the facts of this case the police conduct deprived the appellant of her right to retain and instructcounsel without delay and so she had a reasonable excuse for her refusal to comply with the demand to provide suitable breath samples. In advancing this argument the appellant relies on the decision of the Supreme Court of Canada in R. v. Brownridge (SCC), [1972] SCR 926.

Ritchie J., writing on behalf of the majority held: The refusal of the police constable to permit the appellant to speak to his lawyer, in the circumstances of this case, deprived him of theright to retain and instruct counsel without delay, and constituted a reasonable excuse for his refusal to comply with the demand of thepolice constable that he take a breath test.

Having regard to the provisions of the Bill of Rights, s. 223(2) of the Criminal Code isrequired to be construed and applied in this sense, so that, unless it is apparent that an accused person is not asserting his right to counselbona fide, but is asserting such right for the purpose of delay or for some other improper reason, the denial of that right affords a"reasonable excuse" for failing to provide a sample of his breath as required by the section. [34] There are many cases where an accused sought a

section 24 Charter remedy based on a denial or infringement of the right tocounsel as provided by

section 10(b). Indeed, the cases put forward by the appellant assailing the police conduct in this case all relyupon the obligations created by

section 10 of the Charter. Neither counsel, either at trial or upon appeal, referred to a case decided sincethe implementation of the Charter in which the appellant’s argument was considered. [35] The relationship of “reasonable excuse” defences to Charter guarantees was reviewed in R. v. Jacobson 2002 BCSC 651. L.J.Smith J. summarizes the law in this way: 33 The problem of reconciling the parameters of Charter rights with reasonable excuse defences is analyzed in R. v. Williams (1992), (ON CA), 78 C.C.C. (3d) 72 (Ont. C.A.), leave to appeal refused, [1993] S.C.C.A. No. 24 (S.C.C.).

There, theaccused was arrested and brought to the police station for the purpose of submitting to a Breathalyzer test. He spoke to counsel soonafter arrival. However, the lawyer considered himself to be in a conflict of interest and telephoned another lawyer to assist the accused. The police were not aware of this arrangement, nor that the accused had received no legal advice during his conversation with the firstlawyer.

Although there was conflicting evidence as to whether the accused asked for another opportunity to consult counsel prior toperforming the test, the accused was eventually charged with failure to provide a breath sample. On appeal from conviction, themajority of the Court of Appeal reviewed in detail the Supreme Court of Canada decisions in Brownridge v. The Queen (supra) and R. v.Holmes (1988), (SCC), 41 C.C.C. (3d) 497, and concluded as follows (at 94): There is a practical benefit in establishing a consistent approach to establishing and remedying Charter violations.

In general,Charter violation issues are determined by the trial judge. The onus is on the accused to establish the Charter violation on the balance ofprobabilities: see R. v. Collins (1987), (SCC), 33 C.C.C. (3d) 1 [(S.C.C.) - alternate cites omitted]. If a Charter violationis found, the accused must establish that the admission of the evidence in issue (in this case the appellant's refusal to comply with thebreathalyser demand) would bring the administration of justice into disrepute.

In a jury trial, viewing a Charter violation such as the denial of an accused's right to counsel as a "reasonable excuse", as theappellant urges here, would result in the jury, not the trial judge, determining whether there was a Charter violation. The result would bethat some alleged Charter violations would be subject to proof in the balance of probability and determined by the trial judge, whileothers, such as the alleged violation of the appellant's right to counsel, would be determined by the jury. This, in my view, is notdesirable.

An accused arrested on a charge of murder (an example selected only for purpose of analysis) would have the violation of hisright to counsel considered under s. 10(

b) and remedied, where appropriate, by the exclusion of evidence under s. 24(2) of the Charter. Ido not think, on a policy basis, that a different approach to the denial of the same right should apply by resort to the s. 254(5) language"without reasonable excuse", in circumstances where the accused is charged with refusing to provide a breath sample for purposes ofanalysis. [Counsel for the appellant] submitted that a Charter violation committed during the investigative process, that is, before theoffence (refusing to provide a breath sample) was committed should be viewed differently. I do not agree.

The circumstances of aCharter violation, including its temporal relationship to the offence, should be addressed when the issue of the exclusion of evidenceunder s. 24(2) is dealt with. If the offence is committed after the Charter violation, the court will more readily exclude the evidence (herethe refusal) obtained as a consequence of the violation.

The trial judge accepted [the police officer's] evidence over that of the appellant. He concluded that the Charter violation, thedenial of the appellant's right to counsel, had not been established. There was, therefore, no basis upon which to exclude the evidence ofthe appellant's refusal to comply with the breathalyser demand. I do not think that the fact that the trial judge had a reasonable doubt as towhether the appellant's right to counsel had been breached could constitute a reasonable excuse for his refusal.

Thus, I think theappellant was properly convicted. ... 34 In effect, Osborne J.A. (Weiler J.A. concurring) held that Charter defences operate within a closed system, i.e. that breaches ofCharter rights are to be remedied within the s. 24(2) structure for the exclusion of evidence or not at all. Although the Canadian Bill ofRights remains in effect, the Charter and a new constitutional regime now exist. If there is a breach of a Charter right, can it found boththe defence of reasonable excuse, as was done under the Canadian Bill of Rights when there was no other remedial option, and remediesunder s. 24(2)?

The Williams case suggests that the answer is no, and that an alleged breach of a Charter right cannot give rise to areasonable excuse as envisioned by statute. It follows that something less than a breach of a Charter right, such as stating that such a rightexists when it does not, cannot give rise to a reasonable excuse. (Emphasis added) [36] The Supreme Court of Canada dismissed a leave application in Williams. The Ontario Court of Appeal referred to Williamswith approval in R. v. Van Deelan 2009 ONCA 53. [37] I accept the conclusion in Williams and in Jacobsen.

I conclude that a defence of “reasonable excuse” based on a denial of aright to counsel of choice was not open to the appellant to argue. The correct procedure was to make a motion pursuant to the Charteralleging a violation of her

section 10(

b) Charter rights. [38] The trial verdict was correct, though it was because the defence advanced was no longer known in law, having been supersededby the implementation of the Charter. That would be sufficient to dispose of this appeal. [39] During oral submissions on appeal I enquired of appellant’s counsel as to why this legal argument was relied upon.

Counselsubmitted that by proceeding with the argument as he had, the evidentiary burden of proof was more favorable to an accused person thanif they were to argue a denial or infringement of their right to counsel under the Charter. [40] In written arguments, and again in oral submissions, the appellant relied on the decisions in R. v. Goleski 2011 BCSC 911 andR. v. Lewko 2002 SKCA 121 in support of the position that there is only an evidentiary, not a persuasive burden upon the accused toestablish a “reasonable excuse”. That is not the state of the law in Nova Scotia. In R. v.

Peck (1994), (NS CA), 128N.S.R. (2d) 206, Chipman J.A., writing for a unanimous court stated: 18 Case authority has established that the burden of proving that there is a reasonable excuse for failure to provide a breath sample inresponse to a demand rests with the accused on a balance of probabilities. See R. v. Phinney (1979), (NS CA), 49C.C.C. (2d) 81 (N.S.S.C.A.D.); R. v. Warnica (1980), (NS CA), 56 C.C.C. (2d) 100 (N.S.S.C.A.D.) and the casesreferred to by the court in R. v. Gray (1986), (BC SC), 30 C.C.C. (3d) 234 (B.C.Co.Ct.). See also, R. v.

Basha 2009 NSSC 345, at paras. 18-24. [41] As such, had the Brownridge argument been available to the appellant, the burden on her at trial was to prove on the balance ofprobabilities that her failure to obtain legal counsel to her satisfaction, constituted a reasonable excuse to refuse to provide breathsamples. In the result, counsel’s misapprehension as to the burden for proving reasonable excuse is immaterial to the outcome of thisappeal.

[42] A question may be posed as to whether a properly framed motion seeking a Charter remedy may have had some impact on theverdict. I do not accept that the trial judge, or this court, are obligated to analyze an argument that was not presented. However, the trialjudge, in responding to the “reasonable excuse” defence, informed herself by referencing the requirements of

section 10(

b) of theCharter. Similarly, the prosecution couched its’ arguments by reference to the Charter imposed duties on the police and on theaccused to say that the right to counsel was not infringed or denied. There was no analysis by the trial judge of whether a remedy undersection 24 of the Charter was available or justified. [43] A review of the trial evidence, and the trial judge’s decision, reveals the following to be relevant and material facts: ▸ Ms. Lunn was correctly informed of her right to counsel; ▸ Ms. Lunn implemented her right to counsel by speaking with Trevor McGuigan; ▸ Ms.

Lunn, on being presented to the Breathalyzer technician, complained that she was not satisfied with the legal advice shereceived; ▸ Cst. Gossen attempted to contact Michael MacKenzie, Ms. Lunn’s counsel of choice, but unsuccessfully; ▸ Cst. Gossen did not follow Ms. Lunn’s instructions to provide her name to the MacKenzies because the phone was answered attheir home by a third and unknown party; ▸ The trial judge accepted the officer’s decision as “reasonable”; ▸ Ms. Lunn did not intend to ask Mr. MacKenzie for legal advice, but for the name of another lawyer whom she could consult; ▸ Ms.

Lunn did not tell the police why she wanted to speak to Mr. MacKenzie; ▸ Ms. Lunn did not provide the name of another lawyer; ▸ Ms. Lunn refused to speak to Duty Counsel when he was contacted a second time. ▸ The elapsed time from Ms. Lunn’s operation of her vehicle to the refusal and charge was 1 hour and 10 minutes. [44] If there was a basis for the appellant to complain it could only be in the view taken by the trial judge of the police efforts infulfilling their implementational duties. In R. v.

Willier 2010 SCC 37 the Supreme Court of Canada addresses the obligations on thepolice: 33 Detainees who choose to exercise their s. 10(

b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioningthe detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee's reasonablediligence in attempting to contact counsel: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. Black, (SCC), [1989] 2 S.C.R. 138; R. v. Smith, (SCC), [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the

exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson J. stated inBlack (pp. 154-55): A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counselif he wishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrainfrom questioning the accused are suspended: see R. v.

Tremblay, (SCC), [1987] 2 S.C.R. 435. 34 Such a limit on the rights of a detainee are necessary, as Lamer J., as he then was, noted in Smith, "because without it, it would bepossible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence tobe lost, destroyed or rendered impossible to obtain. The rights set out in the Charter, and in particular the right to retain and instructcounsel, are not absolute and unlimited rights.

They must be exercised in a way that is reconcilable with the needs of society" (p. 385). 35 Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(

b) entitles them to a reasonableopportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees havethe right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amountsto a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the chargeand the urgency of the investigation: Black.

If the chosen lawyer cannot be available within a reasonable period of time, detainees areexpected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, (SCC), [1989] 1 S.C.R. 3; and Black. As Lamer J. emphasized in Ross, diligence must also accompany a detainee's exerciseof the right to counsel of choice (pp. 10-11): Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v.

Tremblay, (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, thecorrelative duties imposed on the police and set out in Manninen ( (SCC), [1987] 1 S.C.R. 1233) are suspended. Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detainedperson. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercisereasonable diligence accordingly.

By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no suchimmediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot beavailable within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling anotherlawyer. [45] The trial judge’s findings of fact were reasonable and consistent with the evidence. There was no palpable or overriding errorin her assessment of the evidence. [46] The trial judge did not expressly resolve the question of whether, as Cst.

Gossen believed, Ms. Lunn was “stalling” or whether,as she suggested, he did not provide her with adequate opportunity to provide another counsel’s name. Notwithstanding this unaddressedquestion, the evidence was reasonably capable of supporting a conclusion that the officer provided a reasonable opportunity to theappellant to contact counsel.

The evidence could also reasonably support the conclusion that the appellant had not exercised duediligence to obtain counsel, by failing to provide the officer with another choice of counsel and being “uncooperative”. [47] I acknowledge that there was no urgency (there was still approximately 50 minutes in which to obtain the first breath testsample so as to satisfy s. 258(1)(c)(ii) of the Code), but the testimony could support the officer’s conclusion that furtherdelay was unwarranted. He and Ms. Lunn had hit a dead end in trying to resolve her dissatisfaction with the legal advice she hadreceived.

The judge’s implicit conclusion that there was no merit in further delay is supportable in the evidence. [48] Had the matter been put forward as a Charter motion, the evidence and the trial judge’s findings would likely have been fatalto the success of such a motion. I can make no further comment as the trial judge was not asked to, and did not, undertake an analysisunder

section 24 of the Charter.

Conclusion [ 49 ] I conclude that the appellant advanced a defence before the trial judge, and before this court, that is not based in, nor consistent with, the current jurisprudence and therefore is not sustainable. Further, the argument relied, in part, on the appellant’s incorrect understanding of the law in Nova Scotia as it related to the burden of proving “reasonable excuse” in defending a charge contrary to section 254(5) of the Criminal Code . [ 50 ] On the whole of the evidence, and employing a correct understanding of the law, the verdict of the trial judge was reasonable and supported by the evidence.

I find no error of law and no basis upon which to conclude that there was a miscarriage of justice. [ 51 ] The appeal is dismissed. Duncan J .