R. v. Antoninas, 2014 ONSC 4220

CITATION : R. v. Antoninas, 2014 ONSC 4220 COURT FILE NO.: 729/13 DATE: 2014 11 04 ONTARIO SUPERIOR COURT OF JUSTICE (Summary Conviction Appeal Court) B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) Megan Ward, for the Respondent /Crown ) Respondent ) ) - and - ) ) ) ADRIAN ANTONINAS ) ) Erika Chozik, for the Appellant ) Appellant ) ) ) REASONS FOR JUDGMENT [On appeal from the Judgment of the Honourable Justice S.R. Clark, dated November 7, 2013] DURNO J [ 1 ] When the appellant was arrested for driving having consumed excess alcohol, the arresting officer read him the standard rights to counsel.

The appellant said that he understood. The officer then asked, “Do you wish to call duty counsel when we get back to the detachment?” The appellant responded, “Probably.” [ 2 ] At his trial the appellant testified that once at the division he asked to use his cell phone because he wanted to call his sister to get the number of a criminal lawyer she knew. He did not say who he intended to call, nor was he asked. The officer told him that he was going to call Legal Aid, that was all he needed at that time, and he could call his own lawyer when he got out of the station. The officer placed a call to Legal Aid.

The appellant spoke to duty counsel for five to six minutes and was taken to the Intoxilyzer technician. Before taking the breath samples, the technician read the appellant his rights to counsel and asked him after each component if he understood. The appellant said that he did. The officer did not ask if he wanted to call a lawyer because he knew the appellant had already spoken to duty counsel. The appellant provided breath samples that were analyzed as over the legal limit.

At this trial, the appellant testified that the advice he received from duty counsel was inadequate. [ 3 ] At his trial, the appellant unsuccessfully argued that his s. 10(

b) Charter rights were violated. He was convicted and appeals contending the trial judge erred: i. in failing to address whether the informational component of the rights to counsel was fulfilled when the arresting officer asked

him if he wanted to call duty counsel from the station, thereby effectively eliminating contacting private counsel as an option for the appellant; ii. in failing to find the police officer was required to make further inquiries at the roadside when the appellant was asked if he wanted to speak to duty counsel at the station and replied, “Probably.” iii. in failing to find the appellant’s rights to counsel were breached when he was not allowed to use his cell phone at the station with the officer saying duty counsel was all that was required at that time and he could speak to his own lawyer after he was released; iv. in failing to find his rights to counsel were violated when the Intoxilyzer technician gave the rights to counsel without asking the appellant whether he wanted to contact counsel; v. by finding the appellant’s evidence was not credible based on a misapprehension of the evidence, vi. in basing his s. 24(2) analysis on a “community shock” test that is not part of the applicable analysis; vii. in failing to exclude the Intoxilyzer readings; and, viii. in providing reasons that do not permit appellate review. [ 4 ] For the following reasons, the appeal is allowed and a new trial ordered.

The Evidence [ 5 ] The appellant was stopped for speeding 150 km/h on Highway 410 where the speed limit is 100 km/h. When the officer detected an odour of an alcoholic beverage on the appellant’s breath, he made an approved screening device (ASD) breath demand, and on his twelfth attempt the appellant provided a suitable sample that analyzed as a ‘fail’.

He was arrested for “over 80”, taken to the station and provided two breath samples that analyzed at 120 and 110 milligrams of alcohol in 100 millilitres of blood. [ 6 ] Constable Floyd testified that he had been a police officer for 28 years and with the Ontario Provincial Police since 1997. After the ‘fail’ on the ASD, he read the appellant the rights to counsel from a pre-printed card as follows: I'm arresting you for over 80. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish.

You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice now. Do you understand? The appellant responded that he did. The officer then asked: Do you wish to call duty counsel when we get back to the detachment?

The respondent said, “Probably.” [ 7 ] The officer did not know why he asked the last question as he did although it was probably because the majority of people he deals with want to speak to duty counsel. He agreed that he ought to have said, “Do you wish to speak to counsel”, not just duty counsel but added that he would have expected if someone had counsel of choice, they would indicate that to him in some way. [ 8 ] When they got to the division the officer called Legal Aid because the appellant had said that he probably would speak to duty counsel and had not indicated otherwise.

He had no notations in his memo book that the appellant had asked to use his cell phone and did not remember the appellant doing so. Following an objection by defence counsel, the trial judge would not permit the Crown ask the arresting officer what he would have done had the appellant asked to use his cell phone.

Even though the appellant had already testified, the officer was not asked whether he told the appellant that he only required duty counsel at that time or that he could call his own lawyer after he left the station [ 9 ] The officer testified that after the appellant spoke to duty counsel for seven minutes, he said nothing to indicate that he was in any way dissatisfied with the advice he received. [ 10 ] The Intoxilyzer technician, Constable Williams, testified that he always told persons in custody and did tell the appellant that they were read a statement at the roadside, that they have the right to contact a lawyer and that they do not have to say anything.

He then asked the appellant, “Did you understand those rights?” The appellant said, “Yes.” The officer recalled that question and answer although he had no notations of either. He would then tell the person that he just wanted to go through the rights again to make sure they clearly understand it. [ 11 ] He read the appellant his rights to counsel and received the following answers before taking the breath samples: Q: You’re under arrest for operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood. Do you understand?

A: Yes Q: It’s my duty to inform you, you have the right to retain and instruct counsel without delay. Do you understand? A: Yes Q: You also have the right to telephone any lawyer that you wish. Do you understand? A: Yes Q: You also have the right to free advice from a legal aid lawyer. Do you understand?

A: Yes Q: If you are charged with an offence you may apply to your Ontario Legal Aid Plan for assistance. Do you understand? A: Yes Q: And 1-800-265-0451 is a toll free number that will put you in contact with a Legal Aid Duty Counsel lawyer for legal advice right now. Do you understand? A: Yes. [ 12 ] The officer did not ask him if he wanted to speak to a lawyer because he knew the appellant had already spoken to duty counsel.

The appellant never told him he wanted to speak to a lawyer. [ 13 ] Because the detachment was out of DVDs there was no videotape of the appellant in the Intoxilyzer room. [ 14 ] The appellant provided breath samples that analyzed at 123 milligrams of alcohol in 100 millilitres of blood on his sixth attempt to provide a suitable sample and on his fourth attempt, 115 milligrams of alcohol in 100 millilitres of blood. [ 15 ] The appellant testified on the Charter application only. He stopped at a friend’s residence on his way home to show him pictures of his newborn baby.

While there, he called his wife and asked if it was okay to stay the night, go to work in the morning and come home the next evening. After his wife agreed, he split a bottle of wine with his friend and “crashed” on the couch. Two hours later, he received a text message from his wife that the baby was crying and screaming. She thought she should take the child to the hospital. He freaked out and decided to drive home. [ 16 ] When he was driving on highways 403 and 410 he was not looking at his speedometer. When he was pulled over, he admitted he had one glass of wine at a friend’s about an hour earlier.

After he was arrested, he testified that the officer asked him if he wanted to call a lawyer from the station and he said, “Probably yes, like meaning obviously, right?” He did not recall the rights to counsel or “formal language” being used by the officer. He was scared as this was the first time he was arrested and he did not know the procedure. [ 17 ] He did not know what lawyer to call but while being driven to the detachment he recalled that his sister, who was a personal trainer, had a criminal lawyer as a client. He had a cell phone but the officer had taken it from him by the time he was at the station.

Had he had it, he would have contacted the criminal lawyer through his sister. [ 18 ] At the station he asked to use his cell phone because he believed he was allowed one phone call from watching movies. The officer did not ask him who he wanted to call and the appellant did not feel he needed to tell him. The appellant testified that the officer responded: …right out, I’m not going to let you use your phone … we’re going to call a Legal Aid for you, and that’s all you need right now.

You can call your lawyer when you get out of here. [ 19 ] Later, the appellant testified that the officer had also said that he needed to speak to Legal Aid before they proceeded with the Breathalyzer testing. [ 20 ] The appellant spoke to duty counsel for approximately seven minutes. At trial he said he was not satisfied with the advice he received.

When asked if he told the officer that he was not satisfied with the content of the advice he received, he said: Well, at that point like, I don't want to get into specifics that was said to me over the phone, but at that point, he told me that this was the necessary step before I take the Breathalyzer. [ 21 ] The officer told him if he did not provide a breath sample, he was going to charge him with refusal anyway, and that was going to be worse for him.

Given the situation he was in, and “thinking about what's going on at home and, and not being familiar with the procedures, I just went along with what he told me.” The technician told the appellant, “Once we get through this, we will release you.” Because the appellant wanted to be released as soon as possible, he went along with everything they said. [ 22 ] Crown counsel pressed the appellant for an answer as to whether he had expressed dissatisfaction with duty counsel as follows: Q: Okay.

So, after you speak to duty counsel, you don’t say anything about the fact that you’re not satisfied with that conversation, right? A: Well, after thinking about it , I was not satisfied, because ... (emphasis added) Q: Okay. But you didn’t verbalize it, sir? You never said I’m not satisfied, I’m not happy? A: No .... I didn’t say because ... [w]ell because I was like, I was led out of the room right away, and he’s like, we got to get through this as soon as possible, if you want to be released today, and, and, and you know, we’re running out of time, and, and there was a lot going on.

I didn't think about not being satisfied with the, with the phone call, with the conversation I just had. (emphasis added) [ 23 ] When questioned about the technician re-reading him his rights to counsel, the appellant responded: Well, at, at that point, I already spoken to someone. I figured this is just the procedure that they have to go through, and he said do you understand, I said, I’m - I do, because I figured, I already spoke to a lawyer. So, you know, and after contacting a private lawyer, I saw the difference between the two conversations, because my initial conversation, the first one with Mr.

Robichaud (defence counsel at trial), was over an hour and a half, and that one was seven minutes, and seven minutes, I didn’t get any legal advice that was satisfying.

[ 24 ] While the technician told him he had the right to call any lawyer he wanted, he had already been provided with a phone call that the police provided, his phone was nowhere near him, and “I figured I’ve asked them once to, to, to call somebody, like if I’m going to ask again, they’re going to refuse it.” [ 25 ] The appellant admitted in cross-examination that it was not possible for the officers to read his mind. The following exchange then occurred: Q: Okay, and at no point when the second officer reads you your rights to counsel did you say I want to speak to a specific lawyer, this is his or her name?

A: No, because that was already after the fact, after the, the breathalyser test, and it was a done deal. Q: It was a done deal? A: No, like, like I didn’t mean to say done deal. It was like after - like at that point I’ve already spoken to someone, and you know, I figured I’m going to call a private lawyer tomorrow and my, my rights at that point were already breached, right? Q: So, that was your thinking when you were being re-read your rights to counsel, that your rights were already breached, so what’s the point in seeking the lawyer I prefer?

A: No, I’m not saying what’s the point, it’s just he didn’t tell me I have the right to - like, if I - he, he didn’t place a phone in front of me, there you can call anybody you wish, he, he’s just, he’s just routine. Q: No, he just said to you, you also have the right to telephone any lawyer you wish, do you understand? A: Yes, but that was after the fact. Q: Okay A: I, I was not advised of that right when I was arrested, and I was not advised of that right before I, I’ve taken the Breathalyzer test, and before I’ve spoken to whoever I spoken to on the phone.

Q: Well, this is before you’ve taken the Breathalyzer test. This second reading of your rights to counsel occurs before you provide your two suitable samples of breath. A: I, I, I don’t recall, like I, I didn’t pay attention to that at that point, or, or, or I don’t recall. [ 26 ] Later in cross-examination, the appellant admitted he never told any officer he was dissatisfied with the legal advice he received.

He again reiterated that he did not recall being read his rights to counsel or the officer reading anything from a paper or card at the roadside. [ 27 ] In re-examination, the appellant’s dissatisfaction with the advice from duty counsel was addressed as follows: Q: My, my friend’s asked you several questions about the level of satisfaction of the legal advice that you obtained. At the moment that the police had, as my friend put it to you just before, the, the, the breath samples are taken again, and you agreed that you hadn’t expressed any level of dissatisfaction with the legal advice that you had given, okay?

So, and my question is, did you know, in retrospect now, were you satisfied with that legal advice? (emphasis added) A: No. Q: Okay. At that particular time, you’ve already said this, but you had never been in trouble before? A: No. Q: Right? Did you have any way to otherwise that, that you’d be able to reference whether that was satisfactory legal advice? A: That wasn’t a legal advice at all, it was just basically go along.

Reasons for Judgment [ 28 ] The trial judge noted that the appellant essentially admitted the Crown’s case but argued the officer did not discharge the informational or implementational duties under s. 10(

b) of the Charter . The thrust of the appellant’s position was that duty counsel was thrust upon him and he was not allowed to make attempts to contact his own private counsel. [ 29 ] His Honour identified the two main issues as: 1. Did the officers discharge their informational and implementational duties to allow the defendant the opportunity to contact counsel of choice? 2.

Did the defendant exercise due diligence in seeking counsel of choice? [ 30 ] The trial judge summarized the evidence, the positions of counsel in their written and oral submissions and then addressed the first question noted in the previous paragraph. He found the police must provide a detainee with a reasonable opportunity to exercise their rights to counsel, with what is a reasonable opportunity depending on all of the surrounding circumstances. Where officers assist a defendant, they must be reasonably diligent but are not required to exhaust all reasonable means for the detainee to speak to a lawyer.

The test was not could the police have done more. Rather, it was whether they provided the detainee with the necessary information andassistance to allow him a reasonable opportunity to exercise his rights. [31] His Honour found the central question was whether the police did enough; should they have allowed the appellant to contacthis sister in an effort to be given the lawyer’s name?

He concluded that while it might have been helpful for the officer to surmise that iswhat the appellant wanted to do, that the appellant did not tell him who he wanted to call or why, was not something for which theofficer could be faulted. Applying hindsight, the police “perhaps could have done more.” However, His Honour had not lost sight of the“contextual realities and practicalities” that it was well after midnight when the events were occurring.

Accordingly, the likelihood ofreaching anyone other than duty counsel was not particularly strong. [32] His Honour then addressed the second question noted earlier with regard to the appellant’s diligence, noting that part of theequation is that the appellant also had an obligation to be reasonably diligent in making it known that he wished to call a lawyer or to callsomeone who could find him a lawyer.

The appellant never said he wanted to speak to his sister or that he wanted her to find a lawyer. [33] The trial judge continued: The Court also finds that the defendants’ evidence is really an after-the-fact revisionist approach to set up the legal position he wishes toadvance. [34] His Honour found that the officers did not perform their duties or functions in a mere perfunctory manner, nor did he “gothrough the motions” or show an indifference to the appellant. He was put in contact with duty counsel and never said he was dissatisfiedwith the advice he received.

The officer was not required to be a mind reader. Where the detainee does not exercise reasonable diligence,there is no way the officer could have known what the appellant wished to do. [35] His Honour found four reasons upon which he concluded the appellant did not exercise due diligence.

First, because he was in“freaked out mode” and was “likely selectively hearing what Constable Floyd was telling him and specifically, reading from the pre-printed card which told him everything he needed to know.” [36] Second, His Honour accepted the arresting officer read the rights to counsel from his card as trial counsel had conceded. Thatshould have triggered the appellant saying that he wanted to call his sister, or to have been as specific as he needed to be about what heactually wanted. [37] Third, the appellant effectively had “two kicks at the can” as both officers read him everything he needed to know.

While thetechnician never read him the final standard question, it was a time for “sober second thought” as the appellant would have composedhimself somewhat and would have been able to process what was going on and the jeopardy he was in. Both officers were courteous,professional and civilized. [38] Fourth, the appellant was afforded a reasonable opportunity to exercise his right. All he had to do was say so if he wished tocall a particular lawyer or person. [39] If His Honour was in error in that analysis and there was a breach of s. 10(b), the trial judge would not have excluded theevidence.

As regards the seriousness of the breach branch of the R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 analysis, theofficers were polite, patient and courteous. There was no evidence of systemic problems. There was nothing egregious in the policeconduct. They did not set out to deliberately infringe the appellant’s rights [40] In relation to the impact on the appellant branch of Grant, this was not an intrusive breach. There was no concern thatadmitting the readings would send the wrong message. The officers were trying to find a way to speed up the investigation so theappellant would not be inconvenienced.

The impact was lessened because the appellant did speak to duty counsel. Any breach wasfleeting, transient, and technical in nature as opposed to profoundly intrusive. [41] Finally, in regards to society’s interest, there was a need to have trials on the merits, the breath samples were reliable evidenceand necessary to prove a serious offence. [42] Balancing all the factors, His Honour asked what would an objective, dispassionate community member say about the totalityof circumstances in this case. It would not be that the police cut corners or used dirty tactics in their treatment of the appellant.

Norwould they say he was treated unfairly. Rather, the objective reasonable person would say the appellant ought to be responsible for hisactions. The Right to Counsel: s. 10(

b) of the Charter [43] In R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, at para. 17, the Supreme Court outlined the purpose and dutiesimposed on police officer by s. 10(

b) as follows: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legalaid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right(except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases ofurgency or danger). [citations omitted]

The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature ofimplementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel. 18 Importantly, the right to counsel under s. 10(

b) is not absolute. Unless a detainee invokes the right and is reasonably diligent inexercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either notarise in the first place or will be suspended: [citations omitted] Furthermore, the rights guaranteed by s. 10(

b) may be waived by thedetainee, although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit: [citationsomitted] 19 Under these circumstances, it is critical that the information component of the right to counsel be comprehensive in scope and thatit be presented by police authorities in a “timely and comprehensible” manner: [citations omitted] Unless they are clearly and fullyinformed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not tocontact counsel and, in turn, whether to exercise other rights, such as their right to silence: [citation omitted].

Moreover, in light of therule that, absent special circumstances indicating that a detainee may not understand the s. 10(

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

b) caution,it is important that the standard caution given to detainees be as instructive and clear as possible: [citations omitted] 20 Indeed, the pivotal function of the initial information component under s. 10(

b) has already been recognized by this Court. Forinstance, in Evans, McLachlin J., for the majority, stated at p. 891 that a “person who does not understand his or her right cannot beexpected to assert it”. …. Likewise, this Court has stressed on previous occasions that, before an accused can be said to have waived hisor her right to counsel, he or she must be possessed of sufficient information to allow him or her to make an informed choice as regardsexercising the right: [citations omitted]. 21 To conclude, because the purpose of the right to counsel under s. 10(

b) is about providing detainees with meaningful choices, itfollows that a detainee should be fully advised of available services before being expected to assert that right, particularly given thatsubsequent duties on the state are not triggered unless and until a detainee expresses a desire to contact counsel. … 28 …It follows, therefore, that where the informational obligations under s. 10(

b) have not been properly complied with by police,questions about whether a particular detainee exercised his or her right to counsel with reasonable diligence and/or whether he or shewaived his or her facilitation rights do not properly arise for consideration. Such questions are simply not relevant under s. 10(b)(although they may be when it comes to considering whether the evidence obtained in the course of the Charter violation should beexcluded under s. 24(2) of the Charter). The breach of s. 10(

b) is complete, except in cases of waiver or urgency, upon a failure by stateauthorities to properly inform a detainee of his or her right to counsel and until such time as that failure is corrected. [44] The purpose of s. 10(

b) is to provide a detainee with an opportunity to obtain legal advice relevant to his legal situation. R. v.Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310, at para. 24. [45] As Doherty J.A. held in R. v. T.G.H., 2014 ONCA 460, at para. 36: Broadly speaking, Sinclair holds that in most cases, the police will be required to comply with s. 10(

b) only once upon the detention orarrest of an individual. A second compliance with s. 10(

b) will be necessary only where the circumstances are such that the purposeanimating the right to counsel requires a repetition of the s. 10(

b) rights. The court identified specific situations in which the obligation toreiterate the s. 10(

b) rights has been recognized and stressed that “the categories are not closed”. [46] In Sinclair, the Court found that a further opportunity to consult counsel may be constitutionally required in somecircumstances that generally involve a material change in the detainee's situation. One of these circumstances the Court examined waswhere there were “Reasons to Question the Detainee’s Understanding of His

Section 10(

b) Right”. The Court held, “If events indicatethat a detainee who has waived his right to counsel may not have understood his right, the police should reiterate his right to consultcounsel, to ensure that the purpose of s. 10(

b) is fulfilled”, citing R. v. Prosper, (SCC), [1994] 3 S.C.R. 236.

Where thecircumstances in a particular case do not fall into a previously recognized situation, the question is whether a further opportunity toconsult a lawyer is necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation. “Thechange of circumstances, the cases suggest, must be objectively observable in order to trigger the additional implementational duties onpolice officers.” Sinclair, at para. 55. [47] The Court continued: It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewedlegal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation orrefuse to do so. [48] The Court also found there was a presumption that the initial legal advice received was sufficient and correct in relation tohow the detainee should exercise his or her rights in the context of the police investigation.

The failure to provide a further opportunityto consult with counsel will only constitute a breach when it becomes clear, as a result of changed circumstances, or new developments,that the first advice, viewed contextually, is no longer sufficient or correct. Sinclair at para. 57. Cases Relied upon by Counsel on the appeal: Zoghaib and Kumarasamy [49] The Crown submits R. v. Zoghaib, [2005] O.J. No. 5947, affirmed, [2006] O.J. No. 1023 and R. v. Clarke (2005), (ON CA), 196 C.C.C. (3d) 426 (C.A.), provide the answer to the appellant’s arguments. The appellant submits that this Court’s judgment in R. v.

Kumarasamy (2002), 22 M.V.R. (4th) 234 is similar to this case and should determine the issues. [50] In Zoghaib, after being given her rights to counsel, the accused said she did not want to speak to a lawyer. When told she had

the right to speak to duty counsel, she asked if she could speak to her parents. The officer said that she could not, she could talk to dutycounsel first and she could speak to her parents later. She was never given an opportunity to speak to her parents while in custody. [51] At the detachment, the detainee was asked if she wanted to speak to a lawyer and said, “Yes.” The officer called duty counsel.At no time while detained did the accused say she wanted to speak to private counsel, wished to contact her parents to get her a lawyer orthat she was dissatisfied with the advice given by duty counsel.

At trial, the accused testified that she wanted to call her parents to helpher contact a lawyer to give her advice that night because they had a friend who was a lawyer. [52] The trial judge found a breach of s. 10(

b) and excluded the Intoxilyzer readings, concluding that by proceeding to call dutycounsel, the effect was to unintentionally induce the accused to accept duty counsel as her manner of exercising her rights to counselinstead of bringing up the idea of calling her parents to seek their assistance in contacting her parent’s friend or some other lawyer. [53] On

Summary Conviction Appeal (SCA), Fragomeni J. referenced the Court of Appeal judgment in R. v. Littleford, (ON CA), [2001] O.J. No. 2437 where the officer had left a voicemail message for the detainee’s counsel of choice andimmediately phoned duty counsel who spoke to the accused. The Court of Appeal agreed with the trial judge that there was no breach ofs. 10(

b) as speaking to duty counsel seemed to satisfy the accused “at the time.” He had not raised any concerns about the advice hereceived. [54] The SCA judge considered Kumarasamy, and found Ms. Zoghaib never mentioned the name of a specific lawyer nor did shetell police she wanted to call her parents to contact a lawyer. His Honour also relied on R. v. Adams and Waltz (1989), (ON CA), 49 C.C.C. (3d) 100 (Ont. C.A.), where a detainee asked police if he could call his mother but when queried about the call saidthat it was not urgent and could wait.

He had not mentioned that he wanted to call his mother about getting a lawyer. The Court ofAppeal upheld the trial judge’s finding that the statement was admissible because there were no special circumstances that required thepolice to seek a clarification why he wanted to call his mother, citing R. v. Baig (1987), (SCC), 37 C.C.C. (3d) 181 andR. v.

Manninen (1987), (SCC), 34 C.C.C. (3d) 385 (S.C.C.) [55] In Zoghaib, the Court of Appeal were in substantial agreement with the SCA judgment noting, On the findings of fact made by the trial judge, any subsequent misapprehension by the appellant of her right to contact her own lawyeras opposed to duty counsel was a product of her own thought processes, none of which were conveyed to or known to the officer. TheSummary Conviction Appeal Court correctly held that as a matter of law the appellant’s unexpressed desire to speak to her own lawyercould not result in a breach of s. 10(

b) of the Charter. [56] In Clarke, the accused understood that he could call any lawyer he wanted and said, “Yes, I think I will.” At the division, theofficer placed a call to duty counsel, the appellant spoke with counsel for several minutes, never asked to speak to a specific lawyer, andnever complained about the advice he received. At his trial, Clarke testified that while he had been given his rights to counsel, heunderstood that his right was to be provided with duty counsel.

Had he known he could call any lawyer he wanted, he would have calledhis trial counsel. [57] The Court of Appeal reversed the SCA judgement finding that there was a breach of s. 10(b), reinstating the trial judge’sruling that there was no violation as follows at para. 32: Again, in my view, the appeal judge impermissibly interfered with the trial judge’s findings when he concluded that the respondent“clearly expressed an intention to speak to his lawyer” and “was not afforded that opportunity.” Indeed, it seems to me that the weight ofthe evidence supported her findings.

Officer Boyd advised the respondent of his right to counsel using the standard formula that includedan explicit statement that the respondent had the right to call any lawyer he wished. The respondent gave no indication that he did notunderstand his right and made no complaint when invited to speak to duty counsel. For evidence of his desire to speak to a particularlawyer, he could rely only on his statement to P.C.

Tallon: “I am not telling you anything until I speak to my lawyer” and his assertion onthe voir dire in response to a question from own counsel that had he understood that he could speak to any lawyer, he would have calledhim.

It was plainly open, on this evidence, for the trial judge to find that the respondent understood his right to counsel and that he failedto assert his wish to speak to a specific lawyer with reasonable diligence: [citations omitted] [58] In Kumarasamy, the appellant was given his rights to counsel and when asked if he understood about the toll free numberreplied, “Okay, I want to call a lawyer.” The appellant said a number of times that he wanted to speak to his own lawyer but did nothave the number. Had he had the number, the officer said they would have put him in contact with that counsel.

The appellantrequested a lawyer at the station and the officer immediately contacted duty counsel. The appellant never asked to speak to duty counselnor was there evidence he had agreed before the call that he would speak to duty counsel. [59] On the Intoxilyzer room video, the appellant said that he did not have the lawyer's phone number and he wanted to call afriend to get the number.

While being asked questions by the technician, the appellant kept talking about calling his friend to get his owncounsel’s number. [60] The appellant had asked to speak to his own counsel before he spoke to duty counsel, not after. Yet, the officers did nothing toassist him in contacting his own counsel. In allowing the appeal, and excluding the evidence of his failure to provide a breath sample, Ifound the case law did not show that the officers could go directly to duty counsel when a detainee wanted to contact his or her counselof choice.

The 24 hour duty counsel system could not be used to trump a detainee’s right to counsel of choice. The duty on police tofacilitate contact with counsel once the detainee wanted to speak to a lawyer included permitting a phone call to a friend or relative toobtain the name and number of counsel of choice. However, it was not always the case that a detainee was entitled to make one or morecalls to friends or relatives because there would be rare cases where a call could jeopardize an ongoing investigation. Kumarasamy, atpara. 26.

Did the trial judge err in failing to address whether the appellant's right to counsel was breached when the arresting officer asked ifhe wanted to speak to duty counsel instead of did he want to speak to counsel?

[ 61 ] The appellant submits the trial judge simply jumped over the first issue in the case, the adequacy of the informational component of the rights to counsel and went directly to the implementational issue, whether the officer did enough to facilitate the appellant’s contact with counsel. [ 62 ] The Crown submits the trial judge dealt with the issue when reviewing the evidence. I disagree. [ 63 ] While counsels’ written submissions at trial were never made exhibits and were not included in the Ontario Court of Justice file that was sent to the

Summary Conviction Appeal office, a transcript of counsel’s oral submissions is available. The adequacy of the informational component was raised by the appellant as either the first in a series of breaches or as the first in a sequence of events that resulted in a breach. [ 64 ] His Honour correctly identified the two issues to be addressed and titled the first whether the officers discharged their informational and implementational duties.

However, when he addressed that question, he immediately went to the officers’ duty to provide a reasonable opportunity to exercise the rights and to be reasonably diligent in doing so.

By doing so, His Honour never addressed the adequacy of the informational component and proceeded as though the requirements of the informational component were satisfied. [ 65 ] The trial judge identified the issue as whether the police did enough and concluded that while the officer might have made further inquiries about who the appellant wanted to call at the detachment and why, it was after midnight and the likelihood of reaching someone at that time of day was not particularly strong.

The trial judge then moved on to consider whether the appellant was diligent in seeking to exercise his rights to counsel without addressing the adequacy of the informational component. [ 66 ] His Honour in reviewing the evidence and positions of counsel, referred to the rights the appellant received and the final question he was asked. While doing so he noted that the arresting officer read the “six usual questions.” The arresting officer did not read the usual six questions. He did not read the standard “do you understand” after each of the six components of the Brydges’ rights to counsel.

He read the appellant the six elements and asked the appellant two questions: first, did he understand and second, whether the appellant wanted to speak to duty counsel at the station. That is not one of the usual six questions. [ 67 ] Contrary to the Crown’s submission on appeal, outlining the evidence and the arguments of counsel is not resolving the first issue raised at trial - whether the appellant’s rights were breached as a result of the last question. [ 68 ] Finally, His Honour, in the s. 24(2) analysis found the officers had not cut corners.

The arresting officer’s last question can be regarded as cutting corners. [ 69 ] Accordingly, I agree with the appellant that His Honour never addressed the initial issue to be determined. In these circumstances, it is appropriate to decide, if possible, whether on the basis of the trial judge's findings of fact, there was a breach of s. 10(

b) at the roadside. Was there a breach of the appellant’s rights to counsel when the officer asked him if he wished to speak to duty counsel instead of whether he wanted to call a lawyer when he got to the station? [ 70 ] This ground involves the arresting officer’s last question to the appellant after reciting the rights to counsel at the roadside: Q: Do you wish to contact duty counsel when we get back to the detachment? A: Probably [ 71 ] This ground requires the following questions to be answered: first, what was the appellant told at the roadside?

Second, was the officer required to make further inquiries when the appellant answered, “Probably,” to the last question? Third, does the standard last question fall under the informational or implementational component of s. 10(b)? Finally, was there a breach of s. 10(

b) as a result of the officer’s last question? What was the appellant told at the roadside ? [ 72 ] The arresting officer testified he read the appellant his rights to counsel from a pre-printed card that outlined the rights but did not ask a question after every component of the rights. The appellant testified that he did not receive his rights to counsel at the roadside, was not given any “formal language” and that he did not recall being given his rights to counsel. All he was asked was whether he wanted to call a lawyer from the station.

He told the officer, “Probably.” [ 73 ] At trial, defence counsel conceded the officer read the rights despite the appellant’s evidence to the contrary. Not surprisingly, and with a sound evidentiary record in support, His Honour found the officer read the rights to counsel. Absent palpable and overriding error, and none is suggested, that finding of fact cannot be reversed on appeal. Accordingly, the appellant was told that he could call any lawyer he wished and that he could contact legal aid duty counsel now.

He told the arresting officer that he understood the components of the rights to counsel after the officer had read him the elements. He also told the technician that he understood his rights when they were read at the roadside. Was the arresting officer required to make further inquiries after the appellant responded, “Probably” to the last question? [ 74 ] The appellant argues the officer was required to make further inquiries to determine what the appellant meant by the equivocal, “probably” answer. He could have meant that he probably would speak to duty counsel or he probably would speak to private counsel.

The officer was required to ascertain what he meant by “probably.” The Crown says no clarifying questions were required. [ 75 ] I am not persuaded that the officer was required to make further inquiries at the roadside after the appellant answered, “probably” when asked if he wished to contact duty counsel at the station. The officer assumed the appellant meant that he wanted to call

duty counsel like the majority of people he dealt with. Coincidentally, that is how the appellant described the answer in his testimony,“And I replied probably, yes, like meaning obviously, right?” The failure to make that inquiry did not result in a breach on this record.For the appellant his answer was not ambiguous. Does the officer’s last question fall under the informational or implementational component of the rights to counsel? [76] As noted earlier if there is a breach in relation to the informational component, the detainee’s lack of diligence is irrelevant indetermining whether there was a s. 10(

b) breach, although it may impact on the s. 24(2) analysis. The appellant submits the last questionwas part of the informational component while the Crown argues that it was not. [77] First, I am not persuaded the standard last question is part of the informational component of the rights to counsel. The policeare required to give the detainee an opportunity to exercise his or her rights to counsel. R. v. C.(J.W.), 2011 ONCA 550, at para. 23. Thelast question is a mandatory inquiry that informs whether the officer’s implementational and “hold-off” obligations are engaged.

It doesnot give the detainee any information. It is designed to give the officer information. [78] It is arguable that by asking the last question and including “when we get back to the detachment” the officer is clarifying hisstatement that the 1-800 phone number would enable the appellant to speak to duty counsel “now.” What ‘now’ really meant was whenthey got back to the detachment. However, I am not persuaded that converts the question into part of the informational component. InR. v.

Devries (2009), 2009 ONCA 477 , 95 O.R. (3d) 721 (C.A.), an appeal involving the informational component (para. 21),the issue was whether a police officer was required to tell a person charged with impaired driving at the roadside that if they chose toconsult counsel, the consultation would occur at the police station and not the roadside.

The Court found that officers were not obligedto provide that information. [79] Doherty J.A. held there were two elements to the informational component: first, the detainee must be told he or she has theright to retain and instruct counsel, and second, the detainee must be informed of the existence and availability of duty counsel and legalaid. at para. 22. In addition, Doherty J.A. held that R. v. Bartle (SCC), [1994] 3 S.C.R. 173 identified two keycomponents of the informational requirement that were “embedded” in s. 10(b).

First, the detainee must be told of the immediacy of theavailability of legal assistance and second, the detainee must be told of the means by which he or she can access legal advice. At para.28 [80] Justice Doherty held that the use of the word ‘now’ in the standard caution did not imply that the detainee could speak to alawyer instantly upon the officer finishing the recitation of the rights.

To impose an obligation to advice the detainee they could speak tocounsel at the station raised insurmountable practical problems. [81] The standard last question is not part of the mandatory informational component of the rights to counsel in relation to thelocation where counsel could be contacted. Was there a breach of the appellant’s rights to counsel as a result of the officer’s last question? [82] The appellant submits that by asking the question as he did, the officer qualified the informational component by limiting theaccess to counsel at the station to duty counsel.

The Crown argues the appellant had been told his rights to counsel fully and the lastquestion neither qualified nor restricted the appellant’s rights to counsel. [83] I agree that the manner in which the question was asked had the potential to be misleading.

While generally, the last questionis the key to determining whether the second and third duties noted in Bartle arise, by asking the question as he did, there was thepotential that the appellant may have felt the only means by which he could access counsel at the station was through duty counsel. [84] However, while the potential existed for the appellant to be misled, applying the trial judge’s findings of fact in relation tothe rights to counsel and the appellant’s evidence, I am not persuaded the potential became a reality in this case. [85] The appellant submitted he did not realize he could contact private counsel because the last question mislead him.

This wasdespite his own testimony that while he was never given his formal rights to counsel, he was asked, “Once you get back to thedetachment, will you want to call a lawyer.” On appeal, he argued that the officer’s question established the breach of the s. 10(b)informational component so that it matters not whether he was diligent in pursuing the rights. The breach had already occurred. [86] There are two problems with that argument.

First, contrary to his testimony and as his trial counsel conceded, the appellantwas told he had the right to contact any lawyer he wanted and he said that he understood all of his rights before being asked the lastquestion by the arresting officer. [87] Second, contrary to his argument that he believed he could only call duty counsel and not a private lawyer from the station,the appellant's evidence belies that assertion. He testified that when he was being driven to the station, he remembered that his sisterknew a criminal lawyer.

He decided he would call his sister to get the lawyer’s number or to get her to call the lawyer as he believed hewas allowed one call. At the station, the appellant asked if he could use his cell phone. If the appellant understood from the officer’scomments at the roadside that he could only call duty counsel, why was he seeking to contact private counsel? [88] In further written submissions filed after the arguments on the appeal when additional input from counsel was requested inthis area, the appellant distinguished between asking to use his phone and exercising his rights.

I agree with the Crown that there is nomerit in the distinction the appellant seeks to draw on these facts. The appellant had to have understood that he could contact privatecounsel. Since the officer had taken his phone he had to ask to use the phone to access counsel. [89] In these circumstances, applying the trial judge’s findings of fact and the appellant’s evidence, I am not persuaded there was abreach of s. 10(

b) at the roadside. If there was a breach of the rights to counsel because the rights could have been misunderstood, byitself, the breach was minor and would not result in the exclusion of the evidence. The appellant did speak to counsel and voiced nocomplaint.

[90] On appeal, counsel suggested that if there was no breach at that time, the cumulative effect of the breaches in theinformational component, the officer not clarifying what ‘probably’ meant, the officer not allowing the appellant the use of his phoneand the technician not asking him if he wanted to contact counsel were such as to establish a breach relying on the sequence of eventsthat would warrant exclusion of the Intoxilyzer readings. While I am not persuaded that there were breaches at the roadside, given thecumulative breach argument, it is necessary to consider the balance of the issues raised.

Was there a breach of the appellant’s rights to counsel when he was refused his request to use his cell phone at the detachment? [91] The appellant testified that he asked to use his phone before he spoke to duty counsel. He never told the officer he wanted tocall his sister to get the number of a criminal lawyer she knew or to have her get in contact with the lawyer.

The appellant testified thatthe officer said he could not, that he would make all the calls the appellant required, all the appellant required at that time was dutycounsel, and he could contact his own counsel after he was released from the station. [92] With one important caveat, I agree with the trial judge that the officers were not required to do more.

The failure to makefurther inquiries did not breach the appellant's rights to counsel in these circumstances, nor did it aggravate any breach in relation to theimplementational component. [93] While the officers could have done more, whether there was a breach is not determined by making a finding that they did notdo everything they could possibly have done. Rather, the question is whether what the police did to facilitate the rights resulted in abreach of s. 10(b). [94] The appellant testified that he did not feel he had to tell the officers who he wanted to call. He was wrong. R. v.

Johnston(2004), 2004 BCCA 148 , 183 C.C.C. (3d) 157 (B.C.C.A.). If he wanted to exercise his rights to counsel he had to activelyparticipate, including telling the officer that the call was related to him obtaining counsel. As the Court of Appeal recently held in adifferent context, the appellant had the “unique ability and indeed obligation” to tell the officers who he wanted to call and why.

R. v.Williams, 2014 ONCA 431, at para. 39. [95] The problematic caveat is the appellant’s evidence what the officer told him when he asked to use his phone at the station.The comments the officer is alleged to have made would be directly linked to counsel of choice being restricted to someone who is to becontacted after release, telling the appellant that all he needs at that time was duty counsel.

If those comments were made it would be areasonable inference that the officer assumed the request to use the phone was related to contacting private counsel, yet he refused theappellant’s request. [96] Whether those comments were made was an essential factual determination that had to be made. If that conversation occurred,the right to counsel issue takes on a very different perspective and the case becomes more akin to Kumarasamy where the police knewthe detainee wanted to contact counsel of choice but put him in contact with duty counsel.

Here, the officer arguably frustrated theappellant’s efforts to contact counsel of choice knowing or assuming the call was related to contacting private counsel. In Kumarasamythe evidence was excluded on that basis alone. [97] No doubt, when examining whether the appellant exercised due diligence, the trial judge found the appellant's evidence was“really an after-the-fact revisionist approach to set up the legal position he wishes to advance.” However, His Honour clearly acceptedpart of the appellant’s evidence - that he asked to use his phone at the detachment.

Accordingly, the trial judge did not reject all of hisevidence, yet never indicates what parts of the appellant’s evidence were concocted to advance his breach allegations. [98] It is not apparent from the reasons whether the “revisionist” component to the appellant’s evidence was his explanation whyhe did not tell the officer who he wanted to call and why, his basis for concluding the legal advice from duty counsel was deficient, whyhe did not tell the officers he was dissatisfied with duty counsel's advice, the officer’s response when he asked to use his phone or someother aspect or aspects of his evidence. [99] The arresting officer did not recall whether the appellant had asked to use his phone.

No one ever asked him about thecomments the appellant alleged he made even though the appellant had already testified. [100] After the arguments on appeal, counsel were asked to provide further input on this issue. Both provided helpful writtensubmissions. The appellant submitted the finding the appellant had concocted portions of his evidence was unreasonable. In thealternative, if it was not apparent whether the trial judge rejected the appellant’s evidence about the officer's comments, the reasons weredeficient.

Finally, the appellant urged this court to conclude that the conversation occurred, find a breach of s. 10(b), and exclude theevidence pursuant to s. 24(2) of the Charter. [101] The Crown argued that His Honour had rejected the appellant’s evidence as a whole despite addressing the revisionistapproach when dealing with whether the appellant was diligent in pursing the exercise of his rights to counsel and despite clearlyaccepting that the appellant asked to use his cell phone at the detachment.

In the alternative, the Crown argued there was ample evidenceupon which to find the appellant was revising the actual events to assist his Charter application. Finally, the Crown argued I shouldmake the findings of fact and determine the conversation never occurred. [102] First, I find it is not implicit that the trial judge rejected all of the appellant’s evidence. Otherwise, why address the request touse the phone?

His Honour did not reject the appellant’s evidence as a whole. [103] Second, the rejection of the appellant’s evidence is more consistent with it referring to his failure to express his dissatisfactionwith the advice he received from duty counsel. The finding that that evidence was an after-the-fact realization and not something that hebelieved on the night of his arrest was supportable on the following bases. [104] On the night of his arrest, the appellant never mentioned any problems with duty counsel. From a review of the transcript, theexplanation for that is readily apparent.

On the night of the arrest the appellant did not believe there was a problem. It was only after hisfirst meeting with trial counsel that he determined the advice was deficient because the consultation was too brief and apparently because

he was told to provide a breath sample. The opinion the advice was deficient was an after-the-fact realization. As noted earlier, his trialcounsel asked whether in retrospect he was satisfied with the legal advice. [105] The relevant time for exercising the rights and for the police to facilitate contact is upon arrest, not as a result of an after-the-fact realization days after the detainee has left the station. As was the case in Littlefield, at the detachment the appellant seemed satisfiedwith the advice he received.

If there was a problem with what he was told that knowledge was solely in the mind of the appellant and itwas exclusively in his hands to disclose the problem, had there been one. [106] As regards the appellant’s reasons for concluding the advice was deficient, he based that conclusion upon a comparisonbetween his first interview with trial counsel that lasted one and one half hours and his seven minute conversation with duty counsel andthat it was not proper legal advice because he was told to cooperate. [107] The appellant’s reliance on the duration of the conversations with counsel is misplaced.

The Supreme Court of Canada held inR. v. Bartle (SCC), [1994] 3 S.C.R. 173, that upon arrest a detainee is entitled to “initial”, “summary” or “preliminarylegal advice.” at para. 22 and 36. A first interview with counsel involves more issues and time or as the Supreme Court found, “privatecounsel deals more fully with the case.” at para. 36 [108] If the alleged deficiency was that he was told to provide a breath sample, it cannot be characterized as ineffective or improperlegal advice.

There is a significant difference between receiving advice you don't like and receiving ineffective assistance or improperadvice. [109] Finally, since the appellant refused to answer any questions between the first and second breath sample, and had never beenarrested before, it would be open to infer that was the legal advice he received. If so, it was proper advice. [110] Third, I find the reasons are deficient and do not permit effective appellate review of this issue.

They fail to determine a liveissue in the case - whether the officer made the comments after the appellant asked to use his cell phone. [111] Fourth, I cannot do what counsel suggested, make the findings of fact, determine whether there was a breach and apply s.24(2). I did not see and hear the appellant testify. As the Court of Appeal recently reminded appellate courts in R. v.

Capano, 2014ONCA 599, at para. 52, “Where the reasons are deficient the reviewing court must examine the evidence and determine whether thereasons are patent on the record.” They are not. [112] The Court of Appeal continued: However, this exercise is not an invitation to appellate courts to engage in a reassessment of aspects of the case not resolved by the trialjudge.

Where the trial judge’s reasoning is not apparent from the reasons or the record, the appeal court ought not to substitute its ownanalysis for that of the trial judge, Dinardo, at para. 32. [113] I cannot make findings of fact from transcripts of evidence. On this basis, a new trial is required. However, in light of theappellant’s argument that there were a series of breaches that should result in the exclusion of the evidence, I will examine the remainingissue to determine whether it results in the exclusion of the evidence under s. 24(2), regardless of whether the officer made thecomments.

Was there a breach of the appellant’s rights to counsel when the Intoxilyzer technician did not ask him if he wanted to contactcounsel? [114] The third alleged breach arose when the technician did not ask what the appellant’s counsel characterized as the “goldenquestion” - Do you want to speak to a lawyer now?

The Crown says he was not required to do so because the appellant had alreadyspoken to duty counsel. [115] After the appellant exercised his rights to counsel without complaint about the nature of the advice he received or furtherrequests to call counsel, for reasons that are not readily apparent, the technician gave the appellant his rights to counsel again, asking ifhe understood after each element. I say for reasons that are not readily apparent because the officer said he did not ask the final questionas the appellant had already spoken to duty counsel.

Why he asked if the appellant understood his rights to counsel after he had exercisedthem is not readily apparent. [116] The appellant received all the information he required from the technician in regards to his rights to counsel. Theinformational component was satisfied. The last question informs whether the second and third duties were in play. Since the appellanthad already spoken to duty counsel without complaint, I question the need to re-advise the appellant and ask the final question.

He hadbeen told he had the right to contact any lawyer he wished and said he understood. [117] I am not persuaded there was a breach when the technician did not ask the final question. Is it appropriate or possible to conduct the s. 24(2) analysis in these circumstances? [118] I am not persuaded the appellant’s s. 10(

b) rights were violated at the roadside or when the technician omitted the lastquestion. However, I am unable to determine whether there was a breach when the appellant asked to use his phone at the detachment. While I could examine s. 24(2) on the assumption that there were breaches, in these circumstances to do so would be an academicexercise and I decline to do so. Conclusion [119] The appeal is allowed, the conviction quashed and a new trial ordered.

[ 120 ] The appellant is ordered to appear in Courtroom 104 at 9:30 a.m. on November 28, 2014 to set a new trial date. ___________________________ Durno J Released: November 4, 2014 CITATION : R. v. Antoninas, 2014 ONSC 4220 COURT FILE NO.: 729/13 DATE: 2014 11 04

ONTARIO SUPERIOR COURT OF JUSTICE (Summary Conviction Appeal Court) B E T W E E N: HER MAJESTY THE QUEEN Respondent - and - ADRIAN ANTONINAS Appellant REASONS FOR JUDGMENT [On appeal from the Judgment of the Honourable Justice S.R. Clark, dated November 7, 2013] Durno J Released: November 4, 2014