R. v. MacGregor, 2012 NSCA 18

NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacGregor , 2012 NSCA 18 Date: 20120215 Registry: Halifax Docket: CAC 346024 Between: Her Majesty the Queen Appellant v. Robert Owen MacGregor Respondent Docket: CAC 347194 Between: Robert Owen MacGregor Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice Peter M. S. Bryson Appeal Heard: January 17, 2012 Subject: Criminal Law – Breathalyzer.

Summary Conviction Appeals. Sections 10(

b) and 24(2) of the Charter .

Summary: Appeal by accused from

Summary Conviction Appeal Court (SCAC) decision setting aside acquittal of accused. Provincial Court judge excluded breath test results under s. 24(2) of the Charter for violation of accused ’ s s. 10(

b) Charter rights. After being stopped at police spot check, accused failed screening device test. He was read breathalyzer demand and Charter rights. He confirmed he understood. Police asked if accused wished to speak to a lawyer. Accused replied “ not right now thank you ” . Police then told him he could call at any time if he changed his mind. He was taken to police station where breath samples were taken. He did not ask and was not offered opportunity to call a lawyer at the police station.

Trial judge characterized the “ not right now ” response as equivocal, requiring police to obtain a waiver of rights or re-offer contact with a lawyer once they arrived at the police station. Trial judge also found that accused did not have opportunity to call a lawyer. SCAC judge allowed the appeal. Police explanation following accused ’ s “ not right now ” response was adequate. There was ample opportunity to contact counsel.

Section 10(

b) rights were not violated. Even so, breath test results should not have been excluded under a s. 24(2) analysis. The matter remitted to trial judge for continuance of trial on the basis that breath test results should be admitted.

Issue: 1. Were accused ’ s s. 10(

b) rights violated? 2. Should the breath test results be excluded under s. 24(2)? Result: Appeal dismissed. SCAC judge did not err in law. Police explanation following “ not right now ” response of accused was adequate because it confirmed that the accused ’ s right to consult counsel was ongoing and not confined to the police cruiser. Accused was advised that if he wanted to consult counsel that he could ask police officers who would ensure it occurred. The informational component of the accused ’ s s. 10(

b) right was not violated by police. Implementational right did not arise because accused did not ask to speak to counsel. The trial judge erred in finding there was no opportunity for accused to exercise right to counsel at the police station. Accused has an obligation to pursue his right once appropriately informed of it. In light of the s. 10(

b) analysis it was not necessary to consider exclusion of the evidence under s. 24(2) of the Charter . New trial ordered. This information sheet does not form part of the court ’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 17 pages.

NOVA SCOTIA COURT OF APPEAL Citation: R. v. MacGregor, 2012 NSCA 18 Date: 20120215 Registry: Halifax Docket: CAC 346024 Between: Her Majesty the Queen Appellant v. Robert Owen MacGregor Respondent Docket: CAC 347194 Between: Robert Owen MacGregor Appellant v. Her Majesty the Queen Respondent Judges: Fichaud, Beveridge and Bryson, JJ.A. Appeal Heard: January 17, 2012, in Halifax, Nova Scotia Held: The appeal with respect to CAC 347194 is dismissed; the appeal with respect to CAC 346024 is allowed and the matter is remitted back to the Provincial Court for a new trial, per reasons for judgment of Bryson, J.A.; Fichaud and Beveridge, JJ.A. concurring.

Counsel: William D. Delaney, Q.C., for the appellant/respondent Curtis C. Palmer, for the respondent/appellant Reasons for judgment : [ 1 ] This is what is colloquially known as a breathalyzer case. The appellant, Dr. Robert Owen MacGregor was charged with operating a motor vehicle while impaired and with excessive blood alcohol concentration, contrary to ss. 253(1) (

a) and (

b) of the Criminal Code . [ 2 ] There are two appeals, heard together, one by the Crown and one by Dr. MacGregor. [ 3 ] The appeals arise from the decision of the

Summary Conviction Appeal Court Judge (SCAC), the Honourable Justice Gregory W. Warner who held that the trial judge had erred in determining that Dr. MacGregor ’ s constitutional rights had been violated and excluding the results of his breathalyzer tests ( 2011 NSSC 100 ). [ 4 ] The parties are agreed with respect to the Crown ’ s appeal. The Crown says the SCAC judge erred in remitting the matter back to the trial judge for continuance of the trial. The Crown says that the proper remedy is a new trial. Dr. MacGregor agrees. So do I.

The appeal before the SCAC judge was brought under s. 813 of the Code which incorporates the powers of the court under s. 686, by virtue of s. 822 of the Code . Those powers do not include remitting the matter to the trial judge to complete the trial. This remedy would have been available if the appeal had proceeded under s. 830. These points were not explicitly argued before the SCAC judge. [ 5 ] The parties join issue over Dr. MacGregor ’ s appeal. The SCAC judge overturned the trial judge on the question of whether Dr. MacGregor ’ s rights under s. 10(

b) of the Canadian Charter of Rights and Freedoms were violated and whether the breathalyzer evidence should have been excluded under s. 24(2) of the Charter . For reasons elaborated on below, I would dismiss Dr. MacGregor ’ s appeal. FACTS [ 6 ] At about 12:45 a.m. on April 7, 2009, Dr. MacGregor was stopped at an RCMP checkpoint immediately outside Kentville, Kings County, Nova Scotia. When RCMP Cst. Christopher MacDonald spoke to Dr. MacGregor, he noted a smell of alcohol. Dr. MacGregor responded that he had had a couple of drinks earlier in the evening.

He also said that he had used mouthwash prior to leaving his office, approximately 15 to 30 minutes before being stopped by police. [ 7 ] Cst. MacDonald believed that Dr. MacGregor had alcohol in his body and gave him an approved screening device demand. At 12:52 a.m., the device gave a fail reading. This was explained to Dr. MacGregor who was then given a breathalyzer demand by Cst. MacDonald. Dr. MacGregor was then arrested for impaired driving and informed of his right to counsel. He was asked if he understood his right to counsel. Dr. MacGregor said that he did.

When asked if he would like to speak to counsel, Dr. MacGregor replied “ Not right now, thank you ” . Cst. MacDonald responded: I’ll let you know that if you change your mind at anytime tonight during this whole process, that you want to talk to a lawyer, just let myself or any other officer know, and we will make sure that you get in contact with a lawyer, okay? Dr. MacGregor responded “ Yeah ” . [ 8 ] Cst. MacDonald then provided Dr. MacGregor with information about applying for legal assistance through the provincial legal aid program. Dr. MacGregor indicated that he understood this information.

He was then read the standard police caution by Cst. MacDonald.

[ 9 ] The foregoing exchange was recorded on the police officer ’ s video camera in his police cruiser. Accordingly, it was possible for each court to have the opportunity to listen and view Dr. MacGregor ’ s responses to Cst. MacDonald ’ s questions and explanations. [ 10 ] Dr. MacGregor was then taken to the Kentville Police Station, a short distance from the checkpoint. He was introduced to RCMP Cst. Seal, who is a breath technician. The first breathalyzer test occurred at 1:28 a.m. [ 11 ] When at the police station, Dr.

MacGregor did not ask to speak to a lawyer, nor was he asked if he would like to consult one. At trial, Dr. MacGregor testified that it was his intention to call a lawyer when he arrived at the police station. His expectation was that he would be given an opportunity to do so at that time. He did not want to speak to a lawyer at the roadside because he didn ’ t have a cell phone and there was none offered to him or any privacy at that point. [ 12 ] Although he intended to call a lawyer at the police station, he never told the police that, notwithstanding Cst. MacDonald ’ s explanation. When asked, Dr.

MacGregor said that he didn ’ t raise the issue because he was in an unfamiliar setting and was merely doing what he was asked to do. But he said that if he had been offered a telephone, he would have phoned a lawyer. Decision of Provincial Court Judge: [ 13 ] Dr. MacGregor ’ s case was heard at first instance by the Honourable Judge Alan T. Tufts ( 2010 NSPC 65 ). The judge considered that Dr. MacGregor ’ s response to Cst.

MacDonald indicated either that he was “ ...uninformed about his ability to call a lawyer without delay or he wanted to call a lawyer but not in the police car . . . the police should not have assumed that [his answer] was a “ no ” and placed the onus back on him to ask if he “ changed his mind ” . ” [ 14 ] The judge went on to find that Dr. MacGregor had not waived his right to counsel and, in all the circumstances, the police were obliged to “ ...implement the defendant ’ s ability to call a lawyer or obtain a clear and unequivocal waiver to call a lawyer without delay ” . Since the police did neither, Dr.

MacGregor ’ s s. 10 (

b) rights were violated. [ 15 ] Having found a violation of Dr. MacGregor ’ s s. 10 (

b) rights, the judge went on to consider whether the evidence of the breathalyzer results should have been excluded under s. 24(2) of the Charter . Referring to the 3-part test in R. v. Grant , 2009 SCC 32 , Judge Tufts characterized the police conduct as “ ...not serious, but not inadvertent ” . Considering the second test, he found that the right to counsel “ was completely denied ” . Dr. MacGregor never had an opportunity to speak to a lawyer. The impact on him was serious.

With respect to the third test, Judge Tufts acknowledged that the evidence was crucial to the Crown ’ s case and important in order to judge the case on its merits. [ 16 ] Judge Tufts concluded that the denial of Dr. MacGregor ’ s right to retain and instruct counsel without delay favoured exclusion of the breathalyzer results. Accordingly, there was no evidence to sustain a charge under s. 253(1)(

b) of the Code . The Crown agreed there was not sufficient evidence to support a charge under s. 253(1)(a). Dr. MacGregor was acquitted. Decision of the SCAC Judge: [ 17 ] The SCAC judge extensively reviewed the trial judge ’ s factual findings. He found that Cst. MacDonald ’ s response to Dr. MacGregor ’ s “ not right now ” statement was adequate; that there was no evidence that anything interfered with Dr. MacGregor ’ s opportunity to ask to speak to counsel before he submitted to breathalyzer testing; that there was no further obligation upon Cst. MacDonald or the breathalyzer technician once Dr.

MacGregor arrived at the police station; and that the trial judge erred by requiring Cst. MacDonald to repeat the offer of contact with counsel. [ 18 ] The SCAC judge went on to find that Dr. MacGregor understood his rights and intended to contact a lawyer. He said that Dr. MacGregor provided no reasonable basis for not pursuing his right to do so. He found that the evidence did not support the trial judge ’ s

conclusions that Dr. MacGregor had no opportunity to ask for a lawyer at the police station or that the police had any duty to reiterate hisright to counsel at that time. [19] In the alternative, the SCAC judge determined that the trial judge erred in excluding evidence of the breathalyzer test resultsunder s. 24(2) of the Charter. The SCAC judge concluded that the trial judge had failed to balance the three Grant inquiries. He saidthat a proper weighing of these tests should not have led to exclusion of the breath samples.

He ordered the case remitted to the trialjudge to complete the trial on the basis that the certificate of breath sample test results would be admissible against Dr. MacGregor. Standard of Review: [20] This is an appeal under s. 839 of the Criminal Code. In R. v. R.H.L., 2008 NSCA 100, Justice Saunders described theappropriate standard: [20] Not only are appeals under s. 839 restricted to questions of law “but the error of law required to ground jurisdiction in this courtis that of the

summary conviction appeal judge” per Oland, J.A. in R. v. Travers (R.H.) 2001 NSCA 71 at ¶ 21, also making referenceto R. v. Shrubsall, [2000] N.S. J. No. 26 (NSCA) at ¶ 7. Accordingly, for this appeal to succeed an error in law must be identified in thedecision of Justice LeBlanc, sitting as the SCAC. [21] The standard of review that applied at the SCAC during its review of the trial judge’s decision was explained by this court in R.v. Nickerson, 1999 NSCA 168 [1999] N.S.J. No. 210 at ¶ 6: . . . Absent an error of law or a miscarriage of justice, the test to be applied by the

Summary Conviction Appeal Court is whether thefindings of the trial judge are unreasonable or cannot be supported by the evidence. As stated by the Supreme Court of Canada in R. v.Burns (R.H.), (SCC), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C. (3d) 193, at p.657 [S.C.R.], the appeal court is entitled to review the evidence at trial, re-examine and reweigh it, but only for the purpose ofdetermining whether it is reasonably capable of supporting the trial judge’s conclusions. If it is, the

Summary Conviction Appeal Courtis not entitled to substitute its view of the evidence for that of the trial judge. In short, a

summary conviction appeal on the record is anappeal; it is neither a simple review to determine whether there was some evidence to support the trial judge’s conclusions nor a newtrial on the transcript. (Underlining in original) [22] The standard of review we are to apply on an appeal from a SCAC was described in R. v. C.S.M., [2004] N.S.J. No. 173 (C.A.): [26] Under s. 839 (1), the issue is whether the SCAC has erred in “law alone:”. The Court of Appeal is considering an appeal fromthe SCAC, not a de novo appeal from the trial court.

This Court must determine whether the SCAC erred in law in the statement orapplication of the principles governing the review by the SCAC of the trial verdict. R. v. Travers (R.H.) (2001), 2001 NSCA 71193 N.S.R. (2d) 263; 602 A.P.R. 263; 2001 NSCA 71, at para. 21; R. v. Cunningham (P.R.) (1995), 1995 NSCA 153143 N.S.R. (2d) 149; 411 A.P.R. 149 (C.A.), at paras. 12, 21; R. v. G.W., (ON CA), [1996] O.J. No. 3075,(C.A.) at para. 20; R. v. Emery (1981), (BC CA), 61 C.C.C. (2d) 84 (B.C.C.A). See as well R. v. Hayes, 2008 NSCA 23 [2008] N.S.J.

No. 100 (C.A.) per Hamilton, J.A. at ¶ 21-22. [21] The issue of exclusion of evidence as a remedy under s. 24(2) of the Charter was considered by Justice Arbor in R. v. Buhay,2003 SCC 30: 44 In light of the above, a distinction has been drawn between the judicial adjudication of disrepute, which involves an appreciationof evidence in the exercise of discretion, and the judicial decision to exclude, which is a duty flowing from a finding of disrepute (seeSopinka, Lederman and Bryant, supra, at p. 423).

Deciding whether each of the preconditions to exclusion is met requires an evaluationof the evidence and the exercise of a substantial amount of judgment which mandates deference by appellate courts (D. M. Paciocco andL. Stuesser, The Law of Evidence (3rd ed. 2002), at p. 276; see also R. v. B. (C.R.), (SCC), [1990] 1 S.C.R. 717, at p.733). This Court has emphasized on numerous occasions the importance of deferring to the s. 24(2) Charter findings of lower courtjudges: see, e.g., R. v. Duguay, (SCC), [1989] 1 S.C.R. 93, at p. 98; Kokesch, supra, at p. 19; R. v. Greffe, 1990

, atp. 256; R. v. Belnavis, (SCC), [1997] 3 S.C.R. 341, at para. 35; R. v. Stillman, (SCC), [1997] 1 S.C.R.607, at para. 68. It was recently recalled by this Court in Law, supra, at para. 32: While the decision to exclude must be a reasonable one, a reviewing court will not interfere with a trial judge’s conclusions on s. 24(2)absent an “apparent error as to the applicable principles or rules of law” or an “unreasonable finding” . . . . Did the SCAC judge err in finding that Dr. MacGregor’s 10(

b) right to counsel had not been infringed? [22]

Section 10(

b) of the Charter provides: 10. Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right; [23] There are two elements to a s. 10(

b) right. The first is informational and the second implementational. In other words, adetained person has to be properly informed about his or her rights. The second element requires that the detained person has to be givenan opportunity to consult a lawyer if he or she chooses to do so. [24] Whether a right guaranteed by the Charter has been infringed, is a question of law. But the analysis is usually more complexthan this simple statement implies. Dr. MacGregor quotes from this Court in R. v.

R.E.W., 2011 NSCA 18: [30] Whether a right guaranteed by the Canadian Charter of Rights and Freedoms has been infringed or denied is a question of law. A trial judge is required to articulate and apply the correct legal principles. A failure to do so will be reviewed on a standard ofcorrectness. [31] However, not every factor that goes into deciding a question of law attracts such a standard. Trial judges are frequently requiredto make findings of fact that inform the ultimate legal question to be answered.

In my opinion, such findings of fact, or of mixed law andfact, without an extricable legal component, are subject to deference and cannot be disturbed unless the trial judge made a palpable andoverriding error (see Housen v. Nikolaisen, 2002 SCC 33 [2002] 2 S.C.R. 235, at paras. 25, 26 and 36). I see no reason whythis does not also apply generally to facts found in a dispute over violation of rights (see Congrégation des témoins de Jéhovah deSt-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48). This imports an assessment of whether the finding is unreasonable or notsupported by the evidence (see H.L. v.

Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401). [25] Dr. MacGregor says there are two questions arising out of this issue. First, did the SCAC judge properly defer to the trialjudge’s findings of fact? Second, was Cst. MacDonald’s “clarification”, which followed Dr. MacGregor’s response “not right now, thankyou”, adequate? Dr. MacGregor argues that the second question only arises if the first one is answered positively. [26] Dr. MacGregor goes on to argue that the trial judge made the following findings of fact which should have been undisturbed onappeal: (

a) It was clear from the exchange with Cst. MacDonald, after reviewing the videotape evidence, that Dr. MacGregor wanted tospeak to a lawyer and intended to do so; (

b) The procedure (meaning the time from the breathalyzer demand to the taking of the breath samples at the police station) wasdone “fairly expeditiously”; Dr. MacGregor appeared “overwhelmed by the experience”. He was being deferential and seemedunfamiliar with the circumstances;

(

c) There was no opportunity for Dr. MacGregor to call a lawyer; (

d) Dr. MacGregor had not declined his right to call a lawyer. It was reasonable to infer that he wanted to call a lawyer later at thepolice station. [27] Dr. MacGregor is correct that findings of fact by a trial judge are entitled to considerable deference. Absent a palpable andoverriding error, they must be respected by the SCAC judge. The essence of the appellant’s first criticism of the SCAC judge is that hedid not appropriately defer to the factual findings of the Provincial Court judge. Dr.

MacGregor argues that the SCAC judgeinappropriately weighed the evidence and came to factual conclusions that differed from the trial judge. I agree that the SCAC judgereweighed the evidence and came to his own factual conclusions. But in this case, I think he was right to do so. [28] The primary facts of what was said and done are not in dispute. But with respect, the trial judge drew apparently contradictoryinferences from the facts. Regarding whether Dr. MacGregor wished to speak to a lawyer, the trial judge said: [11] However, in my opinion, he wanted to speak to a lawyer at some point.

I conclude this because in effect that is what he said tothe police officer in the car that evening and furthermore he testified to the same effect at the voir dire hearing. . . . [19] ...it was reasonable to infer he wanted to call a lawyer later–later at the police station, as he testified. ... . . . [22] The video here is helpful because in viewing it, in my opinion, it is clear the defendant wanted to speak to a lawyer and intendedto do so. ... [29] On the other hand, the trial judge said that Dr. MacGregor’s response when asked about consulting legal counsel, “not rightnow”, was “equivocal”.

He went on to use this equivocal response to impose a duty on police to obtain a waiver from Dr. MacGregor orreiterate his right to counsel at the police station. But with respect, Dr. MacGregor cannot have it both ways. Either it was clear that hewished to consult counsel or it was not. The distinction is important because, as the trial judge rightly said, police are not mind readersand have no obligation to respond to an undisclosed, subjective understanding of a detainee. Rather, their obligation is to respondappropriately if it can be reasonably inferred that a detainee does not understand his or her rights.

In R. v. Kennedy,(NL CA), [1995] N.J. No. 340, 135 Nfld. & P.E.I.R. 271 (Nfld. C.A.), the Newfoundland Court of Appeal put it this way: 28 Despite the strength of the Crown's argument, there is no need to determine whether factual support exists to justify the trialjudge's finding that Mr. Kennedy did not sufficiently understand his right to counsel when it was accorded to him.

This is because hisconclusion of a defect in the information component in the right's communication is reviewable on the basis of error of law, independentof its factual foundation. 29 That error results from the trial judge's focusing exclusively upon the detainee's understanding of the substance of thecommunication, rather than on whether the communicator acquitted her duty to inform Mr. Kennedy in comprehensible terms of theessential substance of his right to counsel. It will be noted that the informational component of the right to counsel is expressed in thepassive voice. Hence, s. 10(

b) stipulates that everyone, on arrest or detention, has the right "... to be informed ...". Therefore, the detaineeis clearly meant to be the recipient of advice as to his or her right "to retain and instruct counsel without delay ...". Responsibility forconveying that advice obviously rests with the public authority effecting the detention. Thus, the point of concentration in assessingwhether the informational component of the right to counsel was defective must focus upon whether that authority acquitted the duty tocommunicate the right to counsel. As McLaughlin, J. puts it in R. v. Evans (1991) (SCC), 1 S.C.R. 869 at p. 891 "(t)hepurpose of s. 10(

b) is to require the police to communicate the right to counsel to the detainee".

30 The detainee's right, therefore, is to be properly informed. There is no absolute protection against a lack of appreciation of the information conveyed . The fulfilment of the informational component of the right to counsel does not hinge upon whether the detainee understood the communication but whether the essential elements of the right were adequately communicated. It is not, therefore, so much a question whether the message was comprehended; but if it was comprehensible. By focusing entirely upon Mr. Kennedy's understanding of the communication of his right, the trial judge made an error of law in his

interpretation of the import of s. 10(

b) of the Charter . 31 This is not to say that the detainee's comprehension may not be a factor in assessing whether the police or other public authority has discharged its informational obligation. Thus, if there are indications that the person under detention has not sufficiently understood or appreciated his or her right to counsel when conveyed to him or her, the duty will entail such steps as are necessary to facilitate adequate comprehension . In the absence of signs of lack of such comprehension, however, adequate communication will satisfy the requirements.

This is clear from Bartle where, in underscoring the importance of the standard police caution given to detainees being as instructive and clear as possible, Lamer, C.J.C. refers at p. 193 to the rule that: ... absent special circumstances indicating that a detainee may not understand the s. 10(

b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(

b) caution .... . . . 35 The record not only establishes that the police were without actual knowledge of any possible misconception by Mr. Kennedy, but neither does it display any basis to impute constructive knowledge of any defect in his comprehension . Neither the responses nor the reactions of Mr. Kennedy to the s. 10(

b) cautions that were communicated to him would suggest to the police that he was operating under any disability of comprehension. Thus, his oral responses could reasonably be interpreted as coming from an individual who had appreciated the information given to him. One constable testified that after the second caution Mr. Kennedy asked what would happen if he did not exercise his right and this was explained to him. Moreover, he apparently walked to the telephone and turned away after making his final decision not to consult counsel before giving blood samples. Thus, Mr.

Kennedy's reactions were those of a person who had fully understood what had been imparted to him. [Emphasis added] [ 30 ] In this case, the trial judge ’ s findings about Dr. MacGregor ’ s “ clear intention ” to consult counsel and the “ equivocal ” character of his response can be reconciled in this way: Dr. MacGregor subjectively formed an intention to consult legal counsel but did not clearly convey his intention to the police. His answer to them was “ equivocal ” . The SCAC judge agreed. So do I. That necessarily requires a consideration of what duty the police had arising from this equivocal response.

Judge Tufts found that they had either to obtain a waiver or reiterate the right to speak to counsel at the police station. The SCAC judge did not agree and neither do I. The police certainly had no obligation to seek and obtain a waiver from Dr. MacGregor. Their obligation was to convey to Dr. MacGregor that his right to counsel was ongoing. This is precisely what they did. [ 31 ] The exchange with Dr. MacGregor here bears repeating. When asked if he wished to speak to counsel while in the police cruiser, Dr. MacGregor said: No. Not right now, thank you. To this, Cst.

MacDonald responded: I'll let you know that if you change your mind at anytime tonight during this whole process , that you want to talk to a lawyer, just let myself or any other officer know, and we will make sure that you get in contact with a lawyer, okay? [Emphasis added] The SCAC judge rightly emphasized those words. The police reply was adequate and appropriate because:

(

a) it recognizes that Dr. MacGregor did not want to call a lawyer then and there; (

b) it recognizes that he may wish to call a lawyer later on that evening “during the process”; (

c) it confirms that Dr. MacGregor’s right to consult counsel was ongoing through the process, and was not limited to “then and there”in the police cruiser; (

d) it tells Dr. MacGregor how to implement his right to consult counsel. He need only advise police at any time during the process. Police would then ensure that he got in contact with a lawyer; [32] Again, respectfully, nothing could be clearer. [33] At trial, Cst. MacDonald testified that he did not reiterate the right to counsel at the police station because of what he hadalready said to Dr. MacGregor and because he believed that he was an intelligent man. Dr. MacGregor had told the officer that he was adentist. Constable MacDonald described him as “well-schooled”. Other than the smell of alcohol, Dr.

MacGregor displayed no signs ofimpairment. The trial judge treated this evidence as irrelevant: [18] With respect, I would not subscribe to this assumption. This is not a matter of the degree of one’s education. It is about beinginformed of one’s constitutional rights and being given the opportunity to exercise those rights and if the defendant did not want toexercise those rights to be clear and unequivocal in waiving his rights. ... [34] With respect, this evidence was relevant to whether the police knew or should have known that Dr. MacGregor understoodthem.

It does not go to the issue of waiver, but rather whether police had to say more than the explanation already offered (para. 31above). As Kennedy shows, absent such knowledge or constructive knowledge, police have no obligation to say more. [35] Dr. MacGregor testified that he intended to call a lawyer from the police station. The trial judge found as a fact that this washis intention. However, Dr. MacGregor cannot be coy about his true intentions. Once he is aware of his rights, he has an obligation topursue them: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435; R. v. McCrimmon, 2010 SCC 36, at para. 18; R. v.

Willier,2010 SCC 37, at para. 33. [36] The evidence does not indicate a lack of understanding of his rights by Dr. MacGregor. Nor does it show failure to adequatelyinform him of his rights. The trial judge made no finding that Dr. MacGregor did not understand his s. 10(

b) rights. [37] At trial, Dr. MacGregor was asked by his own counsel why he didn’t raise the issue of calling a lawyer when he arrived at thepolice station: Q. Okay. When you got back to the police station was any offer made to you by anyone to use a phone to call a lawyer? A. None. No. Q. Did you raise the issue yourself? A. No, I did not.

Q. Why not? A. I was under the . . . I was in a very unfamiliar setting. It’s intimidating. I’d never been in that situation before, so I just . . . I was doing what I was asked to do. Q. If it had been offered to you, what would you have done? A. I would have phoned a lawyer. Q. Okay. And by that, I mean back at the police station. A. Yes. Q. Thank you. [ 38 ] Dr. MacGregor repeated this evidence in cross-examination. He agreed that if he had turned his mind to it at the police station he would have asked for legal counsel.

He elaborated that he “ sort of expected I would be offered at that time, yes. ” He went on to testify: Q. But you remember the officer clearly said that if you change your mind, let me or another police officer know and we’ll be . . . we’ll make sure that you get in contact with a lawyer. A. Yes. My

interpretation was if I changed my mind about calling. Q. Okay. A. And I’d made my mind up to call. Q. And your answer was, Yeah. Does that sound right? A. That sounds right. Yeah. Q. But you do remember that he said “if you change your mind.” So it sounded like you initially . . . he was . . . you knew the officer was under the impression that you didn’t want to contact a lawyer at that time, at least in the vehicle. A. In the vehicle. Q. Okay. And that you had the option to let them know if you changed your mind. A. It was my intent to call, yes.

Q. Okay. And you never said anything to the breath technician? A. No. Q. Okay. About a lawyer, I mean. A. No. He didn’t ask me. [39] In none of this evidence does Dr. MacGregor indicate that he thought he had lost the right to speak to a lawyer once he got tothe police station. To the contrary, he maintained that it was his intention to call. Moreover, when asked why he didn’t call, he didn’tsay because he didn’t understand his rights. He didn’t even say that he was given no opportunity to call (about which more is saidbelow).

Rather, he was in unfamiliar territory, doing what he was asked to do. [40] It was an error of law for the trial judge to find that Cst. MacDonald’s response failed to meet the duty to inform Dr.MacGregor of his s. 10(

b) rights. Implementational Rights: [41] Once police have discharged the informational component of a s. 10(b), the implementation component does not arise absent anexpressed desire by the accused to exercise those rights. In R. v. Baig, (SCC), [1987] 2 S.C.R. 537, at para. 6, theSupreme Court of Canada endorsed the following language of Tarnopolsky J.A. in R. v. Anderson, (ON CA), [1984]10 C.C.C. (3d) 417, at p. 431: ...

I am of the view that, absent proof of circumstances indicating that the accused did not understand his right to retain counsel when hewas informed of it, the onus has to be on him to prove that he asked for the right but it was denied or he was denied any opportunity toeven ask for it. No such evidence was put forth in this case. Also see: R. v. Bartle. (SCC), [1994] 3 S.C.R. 173, at 151-192, per Lamer C.J. [42] With respect to implementational rights, the trial judge said: [17] The defendant testified and I accept this–there was no opportunity for him to express any desire to call a lawyer.

The officer whotestified said that because the defendant was a professional man and an intelligent man he expected the defendant would speak up andask. [43] This factual finding cannot be sustained. Dr. MacGregor never testified that he had no opportunity to express a desire to call alawyer. To repeat, what he actually said was: Q. Okay. When you got back to the police station was any offer made to you by anyone to use a phone to call a lawyer? A. None. No.

Q. Did you raise the issue yourself? A. No, I did not. Q. Why not? A. I was under the ... I was in a very unfamiliar setting. It's intimidating. I'd never been in that situation before, so I just ... I was doing what I was asked to do. (Also see Dr. MacGregor ’ s evidence quoted in para. 38 above.) [ 44 ] Moreover, no other evidence supports this finding. Approximately 28 minutes passed from the time that the demand was made of Dr. MacGregor to the time of the first breath test. The police station was only two or three kilometres from the RCMP checkpoint. The evidence was that Dr.

MacGregor was transported immediately and without interruption to the police station. The evidence also was that detainees are observed for 20 minutes before the first breath test is administered. There was ample time for Dr. MacGregor to utter the few words that he needed to say and had been told to say, in order to exercise his right to consult counsel. [ 45 ] Throughout his time in custody, Dr. MacGregor was in the presence of police officers. Initially, he was with Cst. MacDonald and subsequently he was with Cst. Seal, the breath technician. He said nothing to them.

The fact that he was in unfamiliar circumstances and probably found the experience novel and intimidating, may explain his subjective state of mind. But it is not objective evidence that there was no opportunity to call a lawyer. [ 46 ] It was a palpable and overriding error for the trial judge to conclude that Dr. MacGregor had no opportunity to implement his right to counsel. Section 24(2) of the Charter : [ 47 ] In view of the foregoing conclusion regarding analysis of s. 10(

b) of the Charter , it is unnecessary to consider the alternative analysis under s. 24(2) . [ 48 ] The SCAC judge did not err in law. The police did not breach Dr. MacGregor ’ s s. 10(

b) rights. Dr. MacGregor ’ s appeal is dismissed. The Crown ’ s appeal in CAC 346024 is allowed. This matter should be remitted to the Provincial Court for a new trial. Bryson, J.A. Concurred in: Fichaud, J.A. Beveridge, J.A.