R. v. Hurdle, 2014 ONCJ 702

COURT FILE No.: 14-1525 Brampton DATE: November 27, 2014 Citation: R. v. Hurdle , 2014 ONCJ 702 ONTARIO COURT OF JUSTICE Central West Region BETWEEN: HER MAJESTY THE QUEEN — AND — farrell hurdle Before Justice Richard H.K. Schwarzl Heard on October 29, 2014 Reasons released on November 27, 2014 Ms. Robin Prihar..................................................................................................... for the Crown Mr.

Douglas Lent................................................................................................... for the Accused SCHWARZL, J.: 1.0: INTRODUCTION [ 1 .] On February 2, 2014 the Accused, Mr. Hurdle, was driving in Brampton when he was stopped at a RIDE location. After failing a screening test he was taken to a police station for breath testing where he provided two suitable samples directly into a properly operating approved instrument.

The results of each test showed that the Accused’s blood alcohol concentration exceeded the legal limit. [ 2 .] A trial was held on the single count of driving with excess blood alcohol. Two issues arose: first, whether the police properly relied on the screening test result to justify a breath demand; and second, whether the

section 10(

b) Charter rights of the Accused were violated by the police. 2.0: EVIDENCE 2.1: Dane Pallett [ 3 .] Dane Pallett is a Peel Regional Police Services officer. On Sunday, February 2, 2014 he was on duty working uniform patrol in Brampton. He set up a single car RIDE spot check on the southbound ramp to Highway 410 at Clark Boulevard where he stopped all traffic to check drivers’ sobriety. [ 4 .] At 8:51 p.m. a commercial pickup truck operated by the Accused stopped at the officer’s checkpoint. When asked if he had been drinking any alcohol recently, the Accused replied that he had not. P.C.

Pallett could nevertheless smell alcohol on the Accused’s breath and asked the Accused when his last drink was. The Accused told him, “Around 1:00 p.m.” While dealing with the Accused, P.C. Pallett noticed that in addition to the odour of alcohol on his breath, his eyes were watery and bloodshot and his face was flushed. Notwithstanding these observations, P.C. Pallett had no reason to believe that the Accused was intoxicated. [ 5 .] At 8:53 p.m. P.C. Pallett formed the reasonable suspicion that the Accused had been operating a motor vehicle with alcohol in

his body and at that time made a screening demand which the Accused said he understood. [ 6 .] P.C. Pallett had an Alcotest 6810 approved screening device with him. The officer had tested it upon himself earlier in his shift and found it to be working properly. He described the device as foolproof in that it will not permit breath samples to be received for analysis unless it has been properly calibrated and checked for accuracy within prescribed time limits. [ 7 .] Prior to administering the screening test, P.C. Pallett asked the Accused whether he had consumed any alcohol within the preceding fifteen minutes.

The Accused said he had not. P.C. Pallett asked the question because he is trained that very recent consumption of alcohol can cause false positive test results. [ 8 .] In cross-examination, P.C. Pallett was shown a memorandum dated November 26, 2013. The memo is from OPP Deputy Commissioner Brad Blair and is addressed to all OPP Regional and Detachment Commanders.

The contents of the memo read as follows: It has been brought to the attention of Highway Safety Division, Provincial Traffic Operations, that some members are experiencing an incorrect result after providing an alcohol-free self-breath test on the new Dräger Alcotest 6810 Screening Device. Further investigation revealed that any hand sanitizing product with an alcohol base, fruit juices, sugary foods/drinks, and bread products will affect the readings of the ASD. The ASD is capable of capturing any alcohol based fumes in the surrounding area of the device (i.e. windshield washer fluid).

The device should at all times be stored in an airtight container and only to be accessed for use. After discussions with the manufacturer, Dräger Safety Canada Ltd., they have recommended the following: In response to the false readings that some officers have experienced while performing blank checks, we strongly suggest that you remove any alcohol based hand cleaners in the breath alcohol equipment area. Cleaning your hands with an alcohol based hand cleaner followed by a blank check on an Alcotest 6810 roadside screening device may result in a failure due to the ambient alcohol concentration.

In addition, aromatic juices (fruit juices), certain foods such as white bread and sugared foods, can cause an alcohol result if the test is conducted immediately after eating or while eating. Please ensure no food or drink is consumed fifteen minutes before a test is commenced. This includes alcohol-free self-breath tests. It is imperative that officers remember to complete a self-test before their shifts, before and after an accused’s test. After completing these tests, the officer will have confidence that the ASD is working before it was deployed to the field. This is crucial for court…. [ 9 .] P.C.

Pallett had never seen this OPP memorandum before being confronted with it. Nor has he ever seen anything similar issued by the Peel Regional Police Services, the Centre of Forensic Sciences Toxicology Section, or Dräger Safety Canada. However, sometime well after this investigation P.C. Pallett became aware of the gist of the OPP memorandum while speaking to colleagues from that agency. [ 10 .] P.C. Pallett did not use any alcohol-based hand sanitizer while dealing with the Accused.

Nor did he have any concerns that there was windshield washer fluid nearby while administering the screening test. [ 11 .] At 8:55 p.m. and after providing the Accused with a fresh mouthpiece and instructions on how to provide a suitable sample, the Accused blew into the device. The result of his screening test was a fail which indicated to P.C. Pallett that the Accused had more than 100 milligrams of alcohol per one hundred millilitres of his blood. [ 12 .] At 8:55 the Accused was arrested for driving with excess blood alcohol. After calling for a tow truck and briefly searching the Accused, P.C.

Pallett provided him with his rights to counsel. The officer asked the following questions and recorded the Accused’s answers as he gave them:

Pallett: It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand? Accused: Yup. Pallett: You have the right to telephone any lawyer you wish. Do you understand? Accused: Yes. Pallett: You also have the right to free advice from a Legal Aid lawyer. Do you understand? Accused: Yes. Pallett: If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance. Do you understand? Accused: Yes.

Pallett: 1-800-265-0451 is a toll free number that will put you in contact with a Legal Aid Duty Counsel lawyer for free legal advice right now. Do you understand? Accused: Yes. Pallett: Do you wish to call a lawyer now? Accused: Yes. Pallett: Do you have a specific lawyer you would like to contact? Accused: No. Pallett: Would you like to speak with Duty Counsel? Accused: Yes. [ 13 .] In cross-examination P.C. Pallett testified that the Accused said he wanted to speak to a lawyer but that he didn’t have one of his own. [ 14 .] At 9:00 p.m. P.C.

Pallett read a primary caution and breath demand to the Accused, both of which he said he understood. [ 15 .] At 9:03 p.m. another officer arrived to deal with the Accused’s truck. P.C. Pallett gave the keys to that officer. [ 16 .] At 9:05 p.m. P.C. Pallett left the scene with the Accused and drove him to the police station, arriving there at 9:14 p.m. [ 17 .] At 9:19 p.m. P.C. Pallett called duty counsel on behalf of the Accused. At no time in the station did the Accused tell P.C. Pallett that he had a particular lawyer nor did he ask to speak with anyone other than duty counsel. P.C.

Pallett agreed that he never told the Accused he could speak to a third party to get access to a specific lawyer. [ 18 .] At 9:24 p.m. P.C. Pallett provided the qualified technician, P.C. Lovell, with his grounds in which he detailed his investigation to that point. [ 19 .] At 9:31 p.m. duty counsel called the station and spoke with the Accused in private between 9:32 and 9:34 p.m. After getting off the phone the Accused told P.C. Pallett that he had issues with the lawyer and that he was not content with the call. P.C.

Pallett testified that the complaint was made spontaneously by the Accused and not in response to any inquiries from P.C. Pallett. [ 20 .] At 9:35 p.m. P.C. Pallett called duty counsel a second time. The officer requested that a different lawyer speak to the Accused to help prevent any potential problems should the first lawyer speak to the Accused again. [ 21 .] At 9:46 a different duty counsel telephoned the police station. Between 9:47 and 9:53 p.m. the Accused spoke with the lawyer in private. After finishing this second call, P.C. Pallett escorted the Accused back to the breath room.

At no time did the Accused

complain to P.C. Pallett about the second call with counsel. The officer testified that if the Accused had done so he would have assisted the Accused in resolving his concerns. [ 22 .] At 10:29 p.m. the Accused was returned to P.C. Pallett’s custody and at 10:46 p.m. the officer served the Accused with true copies of the Notice of Intention to Produce and the Certificate of Qualified Technician. That certificate stated that the lowest of the two breath test results was 130 milligrams of alcohol per one hundred millilitres of blood. [ 23 .] At 11:15 p.m. P.C.

Pallett released the Accused on a Promise to Appear. 2.2: Christine Lovell [ 24 .] Christine Lovell is a member of the Peel Regional Police Services and is a qualified breath technician. [ 25 .] On February 2, 2014 at 9:19 p.m. she assisted P.C. Pallett in bringing the Accused into the station from the police car. As she removed his handcuffs she could smell the odour of alcohol on his breath and noticed that his face was red. [ 26 .] Between 9:24 and 9:27 p.m. P.C. Lovell received grounds from P.C. Pallett. [ 27 .] At 9:34 p.m. the Accused was delivered by P.C. Pallett into her custody.

She had no basis to believe that the Accused was intoxicated. [ 28 .] P.C. Lovell was aware that prior to 9:34 p.m. the Accused had spoken with duty counsel. As he entered the breath room he told her that he wasn’t happy with duty counsel and wanted to speak to the same or another duty counsel lawyer again. In the presence of the Accused, P.C. Lovell directed P.C. Pallett to call duty counsel again.

The Accused appeared content with this step. [ 29 .] On the breath room video after the Accused entered for the first time, the following exchange took place: Lovell: We want to make sure you got the legal advice you were looking for. If you like we can call back. Accused: I am not content. Lovell: We will call duty counsel again. Whether you follow or like the advice, it is up to you what to do with the advice. [ 30 .] The Accused never told P.C. Lovell that he had a lawyer he wanted to speak to. Nor did she ask because she understood from P.C.

Pallett that the Accused did not have his own lawyer and she trusted this information. [ 31 .] When the Accused re-entered the breath room after speaking to duty counsel for a second time, the following exchange took place: Lovell: All better? You understood duty counsel? Accused: A little bit better. Lovell: Is it a language issue? Accused: No, no. P.C. Lovell then proceeded immediately with breath testing. [ 32 .] P.C. Lovell testified that her only concern upon the Accused’s return was whether he comprehended the lawyer. She never

asked if he was happy with the advice as in her experience many people are not. [ 33 .] As a qualified technician, P.C. Lovell is aware of the risks of conducting screening tests where mouth alcohol is present. She is qualified to operate the Alcotest 6810 approved screening device. P.C. Lovell was not aware of the OPP memo nor was she aware of the warnings raised by it. P.C. Lovell is not aware of any directive from the manufacturer or the Centre of Forensic Sciences on this topic. 2.3: Farrell Hurdle [ 34 .] The Accused testified on the Charter voir dire.

He is married and works as a foreman for a paving company. [ 35 .] After failing the screening test P.C. Pallett gave him his rights to counsel. In cross-examination the Accused first stated that he did not recall the officer telling him he could call any lawyer he wished, then agreed that the officer did tell him this. The Accused said that when the officer asked if he had a specific lawyer he said no because he didn’t remember the lawyer’s name. The Accused agreed that he did not tell P.C. Pallett that he had a lawyer but forgot his name. He said he didn’t because he was nervous.

The Accused agreed that when he was offered duty counsel by P.C. Pallett, he agreed to speak to the free lawyer. [ 36 .] At the station, the officer asked him in the booking area if he wanted duty counsel or a lawyer. The Accused wanted to call Mr. Lent but could not remember his name and he had no way of getting his phone number. The Accused said that if he could have called home he would have asked his wife for the lawyer’s name and number.

The Accused agreed that he did not tell any officer that he wanted to call his wife. [ 37 .] When he spoke to the first duty counsel, the Accused said he didn’t quite understand what the lawyer said and he was unhappy about that. The Accused agreed that he told both P.C. Pallett and P.C. Lovell he was dissatisfied and they called duty counsel again right away. The Accused then spoke to another duty counsel to have things explained better. The second lawyer explained a bit more but not enough to satisfy the Accused about anything. [ 38 .] When he told P.C.

Lovell that he understood the second lawyer “a little bit better” he meant that he was not satisfied with the advice he had just received because neither lawyer gave him any help. The Accused agreed that unlike earlier, he never told the police that he was dissatisfied with the advice given by the second duty counsel.

He explained this by saying that he was nervous. [ 39 .] The Accused said that no one at the police station asked if he wanted to speak with “counsel of choice” or if he wanted to call his wife to get a lawyer. [ 40 .] The Accused believed that he was entitled to only one call to a lawyer based on what he has learned from television. He agreed that no police officer ever said that he could have only one call. [ 41 .] In cross-examination, the Accused did not recall P.C. Lovell going over his rights to counsel with him prior to the breath tests.

After being shown the breath room video, the Accused recalled and agreed with the following exchange: Lovell: Did you understand your rights at the roadside? Accused: Yes. Lovell: I can go over them with you if you're not sure. You have the right to telephone any lawyer you wish. Do you understand? Accused: Yes. Lovell: You also have the right to free advice from a Legal Aid lawyer in private. Do you understand? Accused: Yes. Lovell: If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance. Do you understand?

Accused: Yes. Lovell: 1-800-265-0451 is a toll free number that will put you in contact with a free Duty Counsel lawyer now. Do youunderstand? Accused: Yes. Lovell: Ask all the questions you want of the lawyer. We need to make sure you have no language barriers. After watching the video, the Accused agreed that he had been told by two police officers on two separate occasions that he could callany lawyer he wished. He agreed that the police never restricted his calls to only duty counsel. 3.0: ISSUES AND ANALYSIS 3.1: Was it appropriate for P.C.

Pallett to rely on the fail result of the screening test? 3.1.1: Positions of the parties [42.] The defence submits that in November 2013 the Ontario Provincial Police were aware of the potential for food, juice or nearbyalcohol-based products to cause false positive screening results on the Alcotest 6810. The defence submits that at the time of thisinvestigation the Peel Regional Police Services or P.C. Pallett was, or should have been, aware of these issues. The defence submits thatsince P.C.

Pallett did not consider these concerns it was unreasonable to rely on the fail result of the screening test in this case. [43.] The Crown submits that P.C. Pallett was unaware at the time of this investigation of any false positive concerns caused byfood, juice or alcohol-based products. Accordingly, he could not turn his mind to something he did not know.

The Crown submits thatthe officer was justified in considering the Accused’s failure of the screening test a reliable indication that his blood alcoholconcentration exceeded the legal limit. 3.1.2: Applicable Legal Principles [44.] Where the police make an approved screening device demand, they have a duty to administer the test “forthwith”, whichmeans in no more time than is reasonably necessary to enable the officer to do his duty between the stop and the providing of the breathsample: R. v. Quansah, 2012 ONCA 123 , [2012] O.J.

No. 779 (C.A.). [45.] A police officer who is aware that a detainee has recently consumed alcohol is entitled to wait up to 15 minutes to negate thepotential of a false-positive screening test result: R. v. Bernshaw, (SCC), [1994] S.C.J. No. 87 (S.C.C.) at ¶ 51. Wherethere is no evidence of recent consumption to warrant a delay, the screening test may be properly administered forthwith. The merepossibility that a driver has consumed alcohol within the past 15 minutes does not preclude the officer from relying on the screeningtest: R. v. Einarson (ON CA), [2004] O.J.

No. 852 (C.A.). [46.] An officer who observes a detainee to leave a bar is not required to wait 15 minutes where the officer has no information as tothe time of the detainee’s last drink. The central inquiry is whether there was any reason for the officer to question when the Accusedhad his last drink. Absent such reason, there is no obligation on the officer to determine when the last drink was: R. v. Bernshaw, supra;R. v. Szybunka, 2005 ABCA 422 , [2005] A.J. No. 1682 (C.A.); R. v. Bridgeman, [2005] O.J. No. 5334 (S.C.J.); R. v. Aulakh,[2006] O.J. No. 5034 (O.C.J.); R. v. Brown, [2014] O.J.

No. 1021 (S.C.J.). [47.] Officers making screening demands must address their minds to whether or not they would be obtaining a reliable reading byadministering the test without a brief delay. If the officer decides not to delay taking the sample and that decision is challenged at trial,the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was takenwithout delay: R. v. Mastromartino, (ON SC), [2004] O.J.

No. 1435 (S.C.J.) [48.] The test is whether in all of the circumstances the officer acted reasonably when he decided to administer the roadsidescreening device test with or without delay and not that the police must direct their minds to whether mouth alcohol may be present in thedetainee: R. v. Maracle, [2008] O.J. No. 2974 (S.C.J.) at ¶ 37. The time frame for such a belief is at the time of the demand, based onfacts known or available to the officer at the time he formed the belief: R. v. Weese, [2004] O.J. No. 4502 (S.C.J.), aff’d. [2005] O.J. No.749 (C.A.), Leave to appeal refused [2005] S.C.C.A. No. 16.

[49.] Where an accused alleges that the screening device was not operating properly, or unreliable, he bears the onus of leadingevidence to demonstrate there was a “high degree of unreliability with respect to the device” at the time of testing: R. v. Paradisi (ON CA), [1998] O.J. No. 2336 (C.A.); R. v. Weese, supra. 3.1.3: Analysis [50.] I find that P.C. Pallett was alive to the issue of a potential false positive screening test. He asked the Accused directly whetherhe had consumed any alcohol within the past fifteen minutes. The Accused said he had not.

The officer was entitled to rely on thatstatement. [51.] At the time of the demand and testing in this case, P.C. Pallett was not aware of any potential reliability problems with theAlcotest 6810 approved screening device due to ambient alcohol as described in the OPP Memorandum, filed. Both P.C. Pallett and P.C.Lovell testified that their police service has never issued a similar memorandum; that the manufacturer did not, and has not yet, issued aservice bulletin to their police agency; and that the Centre of Forensic Sciences Toxicology

Section has never provided anymemorandum or other information to the Peel Regional Police Services on this topic. [52.] I disagree that P.C. Pallett should have been aware of the issues raised in the November 2013 OPP Memorandum. It wasprepared for another police agency and there is no reason or evidence to believe that it had been shared with any other police service inthe Province prior to, or since, this occurrence. [53.] I find that P.C. Pallett reasonably and sufficiently considered all of the circumstances known to him.

In so doing, he compliedwith his duties under the law to satisfy himself that any screening test result he obtained was reliable. [54.] There was no violation of the Accused’s Charter rights in the process or basis of the police breath demand. 3.2: Were Mr. Hurdle’s rights to counsel violated by the police? 3.2.1: Positions of the Parties [55.] The defence submits that the police failed in two ways to give the Accused a reasonable opportunity to exercise his rights tocounsel.

The first way, it is argued, was by not giving the Accused the opportunity to speak with his own lawyer or a third party toaccess his own lawyer. The defence submits that the police unlawfully restricted the Accused’s access to counsel to only one choice: Duty Counsel. The second way the police are alleged to have violated the Accused’s rights to counsel was the failure of P.C. Lovell tofollow up when the Accused told her that after his second call with Duty Counsel he understood his rights “a little bit better.” [56.] The Crown submits that the Accused has failed to establish any breach of his rights to counsel.

They argue that the Accusedwas told clearly on two separate occasions by two different officers that he could speak to any lawyer he wished. They further submitthat the Accused was not reasonably diligent in pursuing his rights in that he never told any officer that he had his own lawyer, he neverasked to call his wife to get the lawyer’s name, and he failed to express any dissatisfaction with the second Duty Counsel. 3.2.2: Applicable Legal Principles [57.] The police must give a detainee his rights to counsel before breath samples are provided and must give the person both (a)sufficient information and (

b) a reasonable opportunity to exercise those rights: R. v. Brydges (1990), (SCC), 53C.C.C. (3d) 330 (S.C.C.). [58.] Where the police assist the Accused in exercising his rights to counsel, the police must be reasonably diligent: R. v. Wilding,2007 ONCA 853 , [2007] O.J. No. 4776 (C.A.). While the police must be reasonably diligent in assisting the Accused inexercising his rights to counsel, they are not required to exhaust all reasonable means for the detainee to speak with a lawyer: R. v.Winterfield, 2010 ONSC 1288 , [2010] O.J. No. 952 (S.C.J.) ¶ 46 – 67; R. v. Sharma, [2004] O.J.

No. 2991 (S.C.J.). [59.] The test is not whether the police could have done more, but rather did the police provide the accused with the necessaryinformation and assistance to allow the accused to exercise his rights: R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.) at ¶ 24; R. v. Blackett,[2006] O.J. No. 2999 (S.C.J.) at ¶ 23 – 24 and 29; R. v. Antoninas, 2014 ONSC 4220 at ¶ 93.

[60.] Where a detainee indicates that he has understood his rights and has been given a reasonable opportunity to exercise them, anequivocal response by him would not, on its own, trigger an obligation on the police to obtain a clear waiver where it is found thatnothing about the situation indicated to police (

a) that the detainee did not understand his rights or (

b) that he was deprived ofopportunity to exercise his rights: R .v. J.W.C., [2011] O.J. No. 3608 (C.A.) at ¶ 19 to 30. [61.] The detainee is required to be reasonably diligent in the pursuit of his rights: R. v. Leclair and Ross (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at p. 135; R. v. Richfield (2003), (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v.Clarke (2005), (ON CA), 196 C.C.C. (3d) 426 (Ont. C.A.) at ¶ 31-33; R. v. Van Binnendyk, [2007] O.J.

No. 2899(C.A.). [62.] Where a detainee wants to call a specific lawyer or a third party to access counsel, he has a duty to tell the police who he wantsto call and why: R. v. Williams, [2014] O.J. No. 2559 (C.A.) at ¶ 39. [63.] The police are only able to respond to information provided by the detainee and cannot be held to a standard of clairvoyance: R. v. Eakin, (ON CA), [2000] O.J. No. 1670 (C.A); R. v. Littleford, (ON CA), [2001] O.J.

No.2437 (C.A.). [64.] The police must generally permit the detainee to contact a third party, such as a spouse, parent, neighbour, or paralegal, etc. tofacilitate contact with counsel. It may be reasonable for the police to make those contacts on behalf of the detainee: R. v. Tremblay(1987), (SCC), 37 C.C.C. (3d) 565 (S.C.C.); R. v. Crossman, [1991] B.C.J. No. 729 (C.A.); R. v. Kumarasamy, [2002]O.J. No. 303 (S.C.J.); R. v. Barran, [2004] O.J. No. 1686 (O.C.J.). [65.] Unless the detainee expresses to the police dissatisfaction with advice received, he is not entitled to Charter relief: R. v.Neziol, [2001] O.J.

No. 4372 (S.C.J.); R. v. Kumarasamy, supra, R. v. Cairns, (ON CA), [2004] O.J. No. 210 (C.A.);R. v. Burley (2004), (ON CA), 181 C.C.C. (3d) 463 (Ont. C.A.); R. v. Traicheff, [2008] O.J. No. 4361 (S.C.J.), aff’d[2010] O.J. No. 5355 (C.A.); R. v. Willier, 2010 SCC 37 , [2010] S.C.J. No. 37 (S.C.C.) at ¶ 42. [66.] The police have no obligation under s. 10(

b) to monitor the quality of the legal advice received by a detainee from dutycounsel: R. v. Willier, supra, at ¶ 41; R. v. Beierl, [2010] O.J. No. 4477 (C.A.). To require the police to do so would undermine the rightto confidentiality and privacy a detainee enjoys with his lawyer. 3.2.3: Analysis [67.] On two separate occasions, the Accused was told he could speak with any lawyer he wished. Each time he said heunderstood. P.C. Pallett asked the Accused directly if he had a specific lawyer he wanted to speak to. The Accused said he did not. When asked by P.C.

Lovell if he understood all his rights at the roadside the Accused said that he had. [68.] I find that at no time was the Accused’s exercise of his rights to counsel limited to Duty Counsel. [69.] The Accused’s evidence that he thought he was limited to one call was betrayed as false when he asked to speak with counsel asecond time. His request was instantly granted and he was not limited in time or topic by the police. P.C.

Lovell told the Accused thathe could ask counsel all the questions he wanted. [70.] The Accused may have wanted to speak with a specific lawyer and he may have wanted to call his wife to access that counsel. However, he never told the police. The Accused had an obligation to tell the police that he wanted to call home and why. He failed tomeet his duty. As noted by the Ontario Court of Appeal in R. v. Zohaib,[2006] O.J.

No. 1023, any misapprehension by the Accused ofhis right to contact his own lawyer as opposed to duty counsel was a product of his own thought processes, none of which were conveyedto or known by the officer. [71.] After the Accused spoke with Duty Counsel a second time, P.C. Lovell asked the Accused if things were all better and whetherhe understood Duty Counsel. The Accused replied “A little bit better.” The officer then asked if there was a language problem to which

the Accused answered “No.” I disagree that the Accused’s utterances imposed a duty on P.C. Lovell to make further inquiries regarding the Accused’s understanding of his rights. It appears that P.C. Lovell was concerned at that moment only with linguistic comprehension by the Accused. She was not contemplating any inquiry about the quality or extent of the legal advice the Accused received from the second Duty Counsel. She was not obliged to do so. She had earlier told the Accused to ask the lawyer all the questions he wanted. While P.C. Lovell could possibly have done more, she did not have to.

I find that what she did in the circumstances vis-à-vis rights to counsel was reasonable. [ 72 .] The Accused spoke with Duty Counsel twice. After speaking to the first Duty Counsel for two minutes, he complained to P.C. Pallett and P.C. Lovell that he was not satisfied. They responded immediately by calling duty counsel again. He then spoke with Duty Counsel a second time and for longer than the first call. The Accused did not complain to P.C. Pallett after the second call. When asked by P.C.

Lovell “All better?” he gave a generally affirmative reply “A little bit better.” There was nothing in this statement or the surrounding circumstances that triggered – or should have triggered - any duty on Lovell to go further. [ 73 .] At all times, the Accused had a duty to be diligent in exercising his rights. The Accused was unafraid to express his dissatisfaction after his first call with Duty Counsel. When he expressed his concern the first time he was crystal clear with the police. He failed to be diligent with P.C. Lovell after the second call to Duty Counsel.

His initial statement to the qualified technician was at best ambiguous and it was his obligation to be clear as he had been earlier. He had a duty to explain what the issue was if not language. P.C. Lovell could not have been expected to probe the quality of the legal advice given to the Accused or read his mind; it was for him to say if he had a problem and he failed to do so. In the absence of specific complaint there was nothing else in the circumstances to suggest to P.C.

Lovell that the Accused was not satisfied with his second call with Duty Counsel. [ 74 .] Assessing the evidence as a whole, I find that that the Accused has not shown that his rights to counsel were probably breached in this case. His

section 10(

b) Charter application is dismissed. 4.0: CONCLUSIONS [ 75 .] None of the Charter​ rights of the Accused were violated. The police performed their duties reasonably and appropriately. Assessing the evidence as a whole, I find beyond a reasonable doubt that the Accused is guilty of driving with excess blood alcohol. Original Signed by The Honourable Justice R.H.K. Schwarzl _____________________________________ Richard H.K. Schwarzl, Justice of the Ontario Court of Justice