R. v. MacKinnon, 2013 NSSC 356

SUPREME COURT OF NOVA SCOTIA Citation: R. v. MacKinnon, 2013 NSSC 356 Date: 20131108 Docket: Hfx No. 414703A Registry: Halifax Between: Blair William MacKinnon Appellant v. Her Majesty the Queen Respondent LIBRARY HEADING Judge : The Honourable Justice Michael J. Wood Heard: October 9, 2013 in Halifax, Nova Scotia Written Decision: November 8, 2013 Subject: Criminal Law - s. 10(

b) Canadian Charter of Rights and Freedoms - right to counsel

Summary: At trial, the Appellant was convicted of failing breathalyzer. Sole defence was alleged breach of right to counsel. Room where call made to legal counsel was not sound-proof and Appellant could hear R.C.M.P. officers outside of room. He made no complaint at the time. Trial judge concluded that there was an onus on accused to notify police if they felt that right to consult counsel in private was infringed.

Issue: Did the trial judge err in imposing a burden on an accused to object at the time if they believed their right to consult counsel in private was infringed? Result: The Court reviewed the case law concerning the right to counsel. It concluded that belief in lack of privacy must be shown to be reasonable in the circumstances. Whether there was an objection at the time is one factor to consider, but is not determinative. Trial judge erred in placing onus to object on accused and failing to consider the reasonableness of his belief. Appeal allowed and remitted for new trial.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: R. v. MacKinnon, 2013 NSSC 356 Date: 20131108 Docket: Hfx No. 414703A Registry: Halifax Between: Blair William MacKinnon Appellant v. Her Majesty the Queen Respondent

Judge: The Honourable Justice Michael J. Wood Heard: October 9, 2013, in Halifax, Nova Scotia Written Decision: November 8, 2013 Counsel: Stanley W. MacDonald, Q.C., for the appellant Ronald Lacey, for the respondent By the Court : [ 1 ] On April 4, 2013, the appellant, Blair MacKinnon, was convicted of an offence pursuant to s. 253(1) (

b) of the Criminal Code of Canada , R.S.C., 1985, c. C-46 for operating a motor vehicle when the quantity of alcohol in his blood exceeded 80 milligrams per 100 millilitres. [ 2 ] The trial was conducted as a blended voir dire with the sole issue being whether there was a breach of his right to retain and instruct counsel as protected by s. 10(

b) of the Canadian Charter of Rights and Freedoms . [ 3 ] Mr. MacKinnon has appealed his conviction, alleging that the trial judge made an error in law by imposing a burden on him to object if he believed that police officers could overhear his telephone conversation with his lawyer. [ 4 ] For the reasons that follow, I agree with Mr. MacKinnon ’ s assertion that the trial judge was wrong in his

interpretation of the right to counsel set out in s. 10(

b) of the Charter . BACKGROUND [ 5 ] On May 2, 2012, Mr. MacKinnon was detained by R.C.M.P. Constable Tony Roache and asked to provide a sample of his breath for analysis pursuant to s. 254 of the Criminal Code . Constable Roache advised Mr. MacKinnon of his right to counsel and Mr. MacKinnon indicated that he wished to exercise that right. [ 6 ] Mr. MacKinnon was placed in an interview room at the Tantallon R.C.M.P. detachment for purposes of his telephone call with legal counsel. Unfortunately the room was not terribly sound-proof and Mr. MacKinnon was able to hear Constable Roache humming outside the door.

He testified that this caused him to be concerned that the police officers could overhear his telephone discussions with his lawyer, with the result that he did not speak as freely as he wanted to during the call. [ 7 ] At a later date, Constable Roache and another officer conducted an experiment in which they concluded that someone in the interview room could easily overhear another person humming outside the door. [ 8 ] Following his telephone discussions with his lawyer on May 2, 2012, Mr. MacKinnon did not complain to the police about his concern for lack of privacy for his telephone call.

He proceeded to provide a breath sample in response to the demand by Constable Roache.

THE TRIAL JUDGE’S DECISION [9] Immediately following the blended voir dire and submissions of counsel, the trial judge gave his oral decision. The onlywitnesses who testified were Constable Roache and Mr. MacKinnon. There was also an agreed statement of fact which confirmed thatMr. MacKinnon’s lawyer had no particular recollection of the telephone conversation. [10] After summarizing the testimony of Constable Roache and Mr. MacKinnon, the trial judge made the following comments: I don’t believe and I find that Constable Roache did not hear what Mr. MacKinnon said. Mr.

MacKinnon purports that he was under theimpression, based upon the hearing the voice of Constable Roache, that the officer could hear him. The officer has to be mindful of therights of Mr. MacKinnon and his right to seek and instruct counsel privately but he has to know that also there is a problem. The officerdoes not have to be clairvoyant. The onus then switches to Mr. MacKinnon to advise someone, his counsel or the police, that there is aproblem with being overheard. Mr.

MacKinnon says that he was very concerned that anything he did say was going to be used against him so that he knew, if notexplicitly otherwise advised, that he wanted to be able to speak in privacy but he advised nobody, including his own solicitor at the time,that he thought that the privacy was an issue for him. The answer being that ... the supposition being that well if I advise my own lawyerthat there is a problem, this fellow who is the police officer is going to treat me badly as a result of it. I suppose that’s a possibility and amatter of speculation but there was an onus, I believe, on Mr.

MacKinnon to advise the police that there was a problem with his ... hethought that he was being overheard and that he had to bring it to the attention of the police that his right to consult the counsel in privatewithout being overheard was being denied. Accordingly, I find that there has not been a breach of his right to seek and instruct counsel. The onus, at this point, was upon ... it wasreasonable to expect that Mr.

MacKinnon, in these circumstances, would bring it to the attention of somebody, his own solicitor or thepolice directly, that he believed his privacy was being interfered with and then if there was any steps that were taken thereafter, despiteof that, against him, then his rights would have been breached. THE LAW WITH RESPECT TO

SECTION 10(

B) OF THE CHARTER [11] A party, such as Mr. MacKinnon, who alleges a violation of his right to counsel must prove that breach on a balance ofprobabilities. If a breach is established, the court must then consider whether there ought to be an exclusion of evidence pursuant to s.24(2) of the Charter. This exercise involves the weighing of a number of competing factors. [12] The courts have recognized that the right to consult with counsel includes the right to do so in private. The Ontario Court ofAppeal in R. v. Playford, (ON CA), [1987] O.J.

No. 1107 stated as follows: 31 In my opinion, the right to retain and instruct counsel without delay carries with it the right to do so in privacy. It would defycommon sense to expect an accused person to instruct counsel properly when his instructions can be overheard by other persons and inparticular by police officers. Such lack of privacy might even seriously prejudice his ability to retain counsel.

Retention of counselusually requires some explanation by the accused of the circumstances which have led to his arrest. ... [13] The Court in Playford, supra, also recognized that even in the absence of evidence that the conversation was heard, therewould be a violation of the right to counsel if the accused reasonably believed that his discussions could be overheard by police.

This isillustrated by the following passage from the decision: 38 It seems clear that, so far as circumstances permit, an accused should not be questioned by police until he has had the right toretain and instruct counsel and that right is one that is to be afforded to him without delay in so far as circumstances permit. Privacy is a

matter which is inherent in that right. In my opinion, proof that an accused could instruct and consult counsel in private only bywhispering or by some other unusual device does not meet the test of privacy. An accused who believes that his conversation will beoverheard by the police will of course be substantially prejudiced in making use of his right to retain and instruct counsel. That does notmean, of course, that every accused who has such belief no mater how unreasonable, can assert that his right to retain and instructcounsel has been infringed.

Where the circumstances are such that an accused would reasonably believe that his conversation to retainor instruct counsel could be overheard by police, it cannot be said that his right to privacy has not been infringed unless it can be shownthat he was in fact able to retain and instruct counsel privately. [14] In a case with striking similarities to the present one, the Ontario Court of Justice found a breach of s. 10(

b) of the Charter in R.v. Carroll, [2002] O.J. No. 1215. In that case, Mr. Carroll consulted with counsel from a telephone booth where it was possible to hearsomeone talking loudly outside of the booth. Mr. Carroll testified that he assumed that those outside the booth could hear him becausehe could hear them. He made no complaint or objection at the time. The judge made the following factual finding: 7 I find as facts that Mr. Carroll exercised his right to counsel in a telephone booth which was not soundproof, that his voice couldbe heard by P.C. Eggertson outside, and that Mr.

Carroll could hear the conversations of those outside while he was talking with hislawyer. If the sound diffuser was intended to ensure his conversation with counsel could not be heard, I find that it was not achievingthat purpose on this particular occasion. In the circumstances, it was reasonable for him to feel that his conversation with duty counselcould be overheard and that he would feel inhibited as a result. It was also reasonable that a constable peering in the window couldmake him feel hurried, so that he ended his conversation with duty counsel. [15] The judge’s conclusion on the s. 10(

b) issue was as follows: 10 Although the specific fact situations in the some of the above jurisprudence are more egregious than in this case, the fundamentaltest of the nature of the privacy right is clear. My factual findings were that Mr. Carroll reasonably believed that the officers outsidecould hear his conversation with duty counsel, and that this belief inhibited his conversation with counsel. I also found that S.S.Eggertson could in fact hear the noise of his side of the conversation. Even if this sound were muffled, I am satisfied that thesecircumstances amount to a breach of his s. 10(

b) right to counsel in privacy. [16] In R. v. Burns, [2005] O.J. No. 3577, the accused was given the opportunity to consult with legal counsel by telephone whiledetained in police cells. The particular circumstances were described by the Court as follows: 5 At 11:28 p.m., Ms. Burns was asked if she wanted to speak to a lawyer, and replied she did not have a lawyer, as well as, “I don’tknow, I guess.” At 11:35 p.m., the arresting officer, Constable Donna Wilson, placed a call to duty counsel, and at 11:51 p.m., a lawyercalled back.

Officer Wilson transferred the call to the phone in the cell area, located on a wall outside the cells, and handed the receiverthrough the bars to Ms. Burns. Constable Wilson testified that a male prisoner in cell number one was taken from that cell and out of thecell block, and the door to the cell block was closed. [17] There was evidence at the trial that the prisoners could not see into adjoining cells. Ms. Burns testified that she felt inhibited intalking to duty counsel because she did not know if the prisoner in the adjoining cell was still there.

The Court concluded that her “beliefin a lack of privacy was a reasonable one and based on objectively rational criteria” and found a breach of the privacy component of herright to counsel. [18] The impact of an accused person’s failure to object or make their concerns known to police has been considered by courts indetermining the reasonableness of their belief that they could not retain and instruct counsel in private. In R. v. Burley, (ON CA), [2004] O.J. No. 319, the Ontario Court of Appeal considered the situation where the accused was hospitalized at thetime they were consulting with counsel by telephone.

The circumstances were described by the Court as follows: 7 In order to make a phone call to counsel, the respondent was taken into a small ambulance attendant room which had a desk andtwo chairs. There was a telephone in the room. There was conflicting evidence as to whether there was a door to the room but therespondent testified that he did recall a door. 8 The respondent contacted duty counsel at 7:00 p.m. and at 7:08 p.m. duty counsel called back. He was left alone in the room, andwas told that the call would be private and that the officer would not be within earshot.

The officer stood approximately 20 feet awaydown the hallway. The officer testified that he maintained a line of sight to the doorway of the room but could not see or hear the

respondent. 9 The respondent testified that he was not comfortable while speaking to duty counsel as he saw an elbow in the doorway, clothed in a blue or black jacket and that he thought it was a police officer. As a result, he felt uncomfortable, constantly moving the phone away from his ear to check the location of the police officer. As a result, the respondent did not believe that he had had an adequate consultation with duty counsel. [ 19 ] At no time did Mr. Burley complain that he was unable to effectively consult with counsel. After noting that it was necessary to examine the totality of the circumstances when considering a potential 10(

b) breach, the Court concluded as follows: 25 In this case, the respondent was informed of his right to counsel and he did speak to duty counsel while alone in a room. He had a good rapport with the only officer present during the call and was told by that officer that he would not be standing within earshot. The respondent spoke to counsel for five to six minutes. At no time did he suggest to the officer present that he was concerned about his privacy.

He did not ask that the door be closed or that he be given an opportunity to make a second call. [ 20 ] The Court concluded that the respondent ’ s belief that he could not retain and instruct counsel in private was not reasonable in all of the circumstances. [ 21 ] In R. v. Ogbaldet, [2010] O.J. No. 4487 , the Ontario Court of Justice found a breach of s. 10(

b) of the Charter despite the absence of any expression of concern by Mr. Ogbaldet. The Court was satisfied that there was no obligation on an accused to make a specific request for privacy. [ 22 ] Based upon these authorities, I believe the test to be applied in assessing an alleged breach of s. 10(

b) of the Charter is whether the accused believes that their privacy has been infringed and whether this belief is reasonable in the situation. The use of the term “ reasonable ” carries with it an element of objectiveness. Subjective belief alone is not sufficient. Whether the accused has made an objection or expressed concerns about the privacy of their consultation with legal counsel is simply one of the circumstances to consider.

Without other objective evidence to substantiate the claim, one can see where the absence of a complaint would be significant in assessing the reasonableness of the belief. [ 23 ] Where there is other objective evidence to support the belief that there is no privacy, the absence of a complaint is less significant. For example, in Ogbaldet, supra , the accused could hear voices from outside of the room. This was also the situation with Mr. Carroll. With Ms. Burns, there was no evidence that she had been told that the prisoner in the next cell had been moved.

In all three of these cases there was a breach of the accused ’ s s. 10 (

b) rights, even though there was no complaint or objection made at the time. [ 24 ] I have been referred to no cases which state that the failure to object and request privacy is always fatal to an allegation of breach of the right to consult legal counsel in private. I am satisfied that there is no such proposition in law. ANALYSIS [ 25 ] In order for the trial judge to assess Mr. MacKinnon ’ s claim that his s. 10 (

b) rights have been infringed, he was required to consider the reasonableness of the belief in the circumstances. He did not do so. [ 26 ] The lack of a complaint is one factor which needs to be assessed, along with the other evidence, including the poor sound- proofing of the interview room. It is clear to me from a reading of the decision that the trial judge did not undertake any such analysis. Instead of considering whether Mr. MacKinnon ’ s belief was reasonable, he focussed on the absence of an objection and said that there was an onus on Mr. MacKinnon to voice his concerns.

[ 27 ] The trial judge ’ s comments concerning the onus on Mr. MacKinnon are put in context by his conclusion about the significance of the experiment by Cst. Roache: Interestingly and candidly, before the Court Constable Roache says that months later he conducted, I guess we can call it an experiment between himself and another officer. He confirmed that being in the position where he would have been on the night in question, the 2nd of May, 2012, it would have been available to him to hear inside that room. That information came to the officer, I believe it was the 17th of January of this year, months later.

He says that he and another officer exchanged places and talked in a moderate tone inside the room and you could hear each other outside the room. So, as of that date, certainly Constable Roache would be put on notice because he hadn’t been put on notice prior to that except, I assume, through the information of counsel, that there was a problem and I accept the officer’s testimony on the date in question he did not know there was a problem with the room, of the ability to overhear and, in fact, did not overhear the accused and it was reasonable in the circumstances for Mr.

MacKinnon to ought to have requested or made aware to the officer that there was a problem, that he believed that he was being overheard. It would be my recommendation that that room not be used hereinafter and the police are put on notice. Order accordingly. [ 28 ] In noting that the police are now “ on notice ” of the sound-proofing problem and recommending that the interview room no longer be used, the trial judge confirms his belief that such notice is required before a breach of the right to counsel can be proven. That is not a correct

interpretation of the authorities which have applied s. 10(

b) of the Charter . The right to counsel is not limited to situations where police are informed of privacy concerns and fail to act. DISPOSITION [ 29 ] For the reasons outlined above, I believe that the trial judge made an error by not assessing the reasonableness of Mr. MacKinnon ’ s belief that he had no privacy when he consulted with legal counsel. There is no legal burden on an accused, such as Mr. MacKinnon, to advise the police of their concerns with respect to privacy.

The presence or absence of a complaint is simply one of the circumstances to be considered in the analysis. [ 30 ] I will, therefore, allow the appeal and set aside the trial judge ’ s decision. The matter will be remitted for a new hearing on whether there was a breach of Mr. MacKinnon ’ s s. 10 (

b) rights and, if so, whether there should be an exclusion of evidence under s. 24(2) of the Charter . _____________________________________ Wood, J.