R v Larson, 2015 SKCA 143

Court of Appeal for Saskatchewan Docket: CACR2565 Citation: R v Larson , 2015 SKCA 143 Date: 2015-12-21 Between: Brad Larson Appellant And Her Majesty the Queen Respondent Before: Jackson, Ottenbreit and Ryan-Froslie JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Ryan-Froslie On Appeal From: 2014 SKQB 418 , J.C. of Saskatoon Heard: October 23, 2015 Counsel: Michael W. Owens for the Appellant Beverly L. Klatt for the Respondent Ottenbreit J.A. I. Introduction [ 1 ] Brad Larson (Mr.

Larson) was convicted in the Provincial Court on a charge that he operated a motor vehicle while the concentration of alcohol in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to ss. 255(1) and 253(1) (

b) of the Criminal Code . Mr. Larson was fined $1,000 and received a 12 month driving prohibition. His appeal to the

summary conviction appeal court (appeal court) was dismissed. Mr. Larson now applies for leave to appeal that dismissal and appeals to this Court on the issue of whether he was properly allowed to exercise his right to counsel prior to providing a breath sample. For the reasons hereinafter set forth, leave is granted and the appeal is dismissed. II. Facts and Background [ 2 ] On November 25, 2012, Sgt. Barbar of the Saskatoon City Police arrested Mr. Larson for impaired driving. He read Mr. Larson his Charter rights shortly after his arrest at 3:18 a.m. At Mr. Larson’s request, Sgt.

Barbar explained his right to counsel and asked Mr. Larson if he would like to call a lawyer. Mr. Larson said he would think about calling one. [ 3 ] When he arrived at the Saskatoon police station, Mr. Larson said he would like to call Mike Riou, a lawyer. Sgt. Barbar did not know of Mr. Riou and asked Mr. Larson whether he knew how to contact him. Mr. Larson said that Mr. Riou’s number was on his cell phone. Accordingly, Sgt. Barbar retrieved Mr. Larson’s cell phone. Mr. Larson gave the number to Sgt. Barbar who dialed it at 3:58 a.m. The call was answered by a voicemail service at Mr. Riou’s office. Sgt.

Barbar asked Mr. Larson if he would like to leave a message. After receiving a yes from Mr. Larson, Sgt. Barbar left a message advising of Mr. Larson’s arrest, where he was located and asking Mr. Riou to call him back at the police station. Sgt. Barbar told Mr. Larson he could also call someone else or he could wait for a response. Mr. Larson preferred to wait. Sgt. Barbar tried Mr. Riou’s number at 4:21 a.m. but again got only his voicemail. [ 4 ] Sgt. Barbar told Mr. Larson that he had the option of calling a different lawyer, including Legal Aid. Mr. Larson also had a phone book in front of him.

He indicated that he wanted to call Legal Aid. Sgt. Barbar attempted several times to get through to Legal Aid and was initially unsuccessful. At 4:33 a.m. he again called Mr. Riou’s number and again got his voicemail. Sgt. Barbar tried Legal Aid again at 4:35 a.m. and this time got through. Mr. Larson spoke to a Mr. Nolin with Legal Aid for seven or eight minutes. [ 5 ] Sgt. Barbar asked Mr. Larson if he had a chance to obtain legal advice and he said that he did. Mr. Larson was then turned over to the breath technician who asked him whether he was satisfied with his call to counsel. Mr.

Larson replied “Yes, I am”. He was told by the breath technician that he could still call another lawyer before providing a breath sample if he wished. Mr. Larson said he understood that. He chose not to contact counsel any further. He provided breath samples and both returned readings of 120 mg percent of alcohol. [ 6 ] Mr. Riou is a lawyer in Unity, Saskatchewan. Sgt. Barbar was aware that the number he had dialed was a long distance number. He did not attempt to find a home telephone number for Mr. Riou nor did Mr. Larson ask him to do that or suggest contacting Mr.

Riou in some other way. [ 7 ] The trial judge held a voir dire on a number of issues, including the reasonableness of the grounds to make a breath demand as well as whether Mr. Larson had properly been given his right to counsel under s. 10(

b) of the Charter . On the voir dire , Mr. Larson argued that the police had failed in their implementational duty under s. 10( b ).

[ 8 ] The trial judge found there were reasonable grounds to make a breath demand. With respect to the s. 10(

b) rights, he found the following: [20] Applying this analysis I find that Sergeant Barbar did act diligently in facilitating Mr. Larson in his attempt to locate legal counsel. From the evidence at trial it was unclear that Sergeant Barbar knew Mr. Riou the lawyer that Mr. Larson initially requested was from Unity, Saskatchewan and that his name would not appear in the Saskatoon telephone book. Sergeant Barbar relied on the telephone number provided by Mr. Larson and did make several attempts to contact Mr. Riou. [21] At trial Mr.

Riou was called as a witness and testified that he would have been home on the evening in question and would have responded to a telephone call from Mr. Larson. When Mr. Riou was not available Sergeant Barbar again informed Mr. Larson of the availability of Legal Aid and was clearly given the impression by Mr. Larson that Legal Aid was an acceptable choice. It is noteworthy that Sergeant Barbar patiently tried to contact Legal Aid despite the line being busy for a considerable period of time. He was ultimately successful and did connect Mr.

Larson with Legal Aid where there was approximately seven minutes of conversation in private between Mr. Larson and a Legal Aid lawyer. [22] Sergeant Grabowski, the breathalyzer operator, asked Mr. Larson if he had contacted a lawyer and he was advised that Mr. Larson had. He also told Mr. Larson that he still had the opportunity to again speak to counsel prior to the first breath sample being taken. Sergeant Grabowski followed that up by asking if Mr. Larson was satisfied with the call to a lawyer and replied “yes, I am”. Defence counsel, in cross-examination of Constable Grabowski, asked if he inquired of Mr.

Larson whether he was satisfied with the quality of legal advice obtained. [23] This prompted the Crown prosecutor when he cross-examined Mr. Larson to ask what would have been his response to the question, “was he satisfied with the quality of legal advice” to which he responded, yes he was satisfied.

Quite frankly the Court does not think that is an appropriate question because it is certainly not incumbent upon a police officer to pass judgment on the quality of legal advice given to an accused who has been detained. [24] However, if my assessment is wrong that Sergeant Barbar did not act diligently in facilitating Mr. Larson’s attempts to find a lawyer, the question then becomes did Mr. Larson act diligently in exercising his rights to counsel.

From the evidence it was clear he was placed in a telephone room with a phone book and given the opportunity to find a lawyer, he was advised by Sergeant Barbar that the number he provided for Mr. Riou was to a voicemail and that a message had been left and when Sergeant Barbar offered to contact Legal Aid he agreed. Later in speaking to Sergeant Gabruch he advised Constable Gabruch he was satisfied with his call to a lawyer being Legal Aid even after he was advised he still could contact any lawyer that he chose. [25] Under the circumstances the Court holds that Mr. Larson’s rights to counsel pursuant to s. 10(

b) of the Charter were not violated. [ 9 ] Mr. Larson was, in due course, found guilty of driving with a blood alcohol level exceeding .08. III. Decision of the

Summary Conviction Appeal Court Judge [ 10 ] Mr. Larson appealed his conviction to the appeal court only on the s. 10(

b) issue. Neither the Crown nor Mr. Larson challenged the findings of fact made by the trial judge. He identified the issue as being whether on the facts found, the judge was correct in law in not finding a breach of Mr. Larson’s s. 10(

b) right to counsel. The appeal court judge correctly identified the standard of review as correctness. [ 11 ] Mr. Larson argued that the implementational duty on the police to assist him in contacting counsel of his choice was breached in that no efforts were made by Sgt. Barbar to determine Mr. Riou’s home phone number which more likely would have resulted in contact with him. He submitted Sgt. Barbar understood that it was unlikely that phoning Mr. Riou’s office at four in the morning would result in any meaningful contact with him. Additionally, Mr. Larson submitted that Sgt.

Barbar did not attempt to call directory assistance or use any internet based or other means of trying to find Mr. Riou’s home number. In these circumstances, Mr. Larson stated that the failure of Sgt. Barbar and the other officer to do more than they did resulted in a breach of his s. 10(

b) right to counsel. [ 12 ] In support of his arguments, Mr. Larson relied on R v O’Connor , 2013 SKQB 292 , 428 Sask R 11, rev’d 2015 SKCA 9 , 451 Sask R 240 [ O’Connor ], a decision which he argued was factually similar to his own. The appeal court judge distinguished that case and found that the case before him was similar to recent cases from the Supreme Court of Canada: [4] The factual situation the trial judge found himself in appears to be relatively common, although the results at trial from similar circumstances appear to be inconsistent.

Much of that inconsistency has been laid to rest in the cases of R v Willier , 2010 SCC 37 , [2010] 2 SCR 429 [ Willier ], and R v McCrimmon , 2010 SCC 36 , [2010] 2 SCR 402 [ McCrimmon ]. … [9] The facts of this case are markedly different. As indicated, Mr. Larson was the one who provided the phone number to call, which was done by the police officer. A voice message was left by Mr. Larson himself. A period of time passed and a further attempt was made to call Mr. Riou. Legal Aid was eventually contacted after a further call to Mr. Riou, and Mr. Larson had acknowledged that it was unlikely Mr.

Riou would be returning his call. The facts of this case much more align with the relatively recent decisions of Willier and McCrimmon coming out of our Supreme Court. … [10] No breach of the accused’s s. 10(

b) rights were found in either case. Both those cases seem to rely heavily on the fact that duty counsel was contacted and the accused expressed satisfaction with the legal advice received. The learned trial judge went on to consider

that if he was wrong in concluding that the police service did not act diligently in facilitating Mr. Larson’s attempt to find a lawyer, then he must look at whether Mr. Larson in fact acted diligently in exercising his right to counsel. That is an underlying theme contained in McCrimmon . As in McCrimmon , Mr. Larson expressed satisfaction to the police with his discussion with Legal Aid duty counsel. … [ 13 ] The appeal court judge concluded, on the basis that Mr. Larson confirmed his satisfaction with his discussion with Legal Aid counsel, that Mr. Larson’s s. 10(

b) Charter rights were not breached. IV. Analysis [ 14 ] The sole issue is whether the appeal court judge erred when he determined that the trial judge correctly found that Mr. Larson’s right to counsel under s. 10(

b) of the Charter was not denied by the police in their dealings with him. [ 15 ] In this Court, Mr. Larson makes the same arguments he did before the appeal court judge, namely, that Sgt. Barbar could have done more to assist Mr. Larson in contacting Mr. Riou. He argues as well that Sgt. Barbar took control of the contact process and therefore took on extra duties in respect of contacting counsel and that he failed to carry out those duties on Mr. Larson’s behalf. Mr.

Larson submits that R v McCrimmon , 2010 SCC 36 , [2010] 2 SCR 402 [ McCrimmon ], is distinguishable on its facts and relies again, as he did in the court below, on O’Connor , a case where the appeal court judge decided that the police failed to fulfill their implementational duty, but which was set aside on appeal to this Court on the basis that the appeal court judge wrongly substituted his own factual inferences for that of the trial judge. [ 16 ] The Crown argues that the police made several attempts to contact Mr. Riou but when it became clear that he was not available, Mr.

Larson decided to exercise his right to counsel by calling a different lawyer, was satisfied with that call and decided not to call anyone else. The Crown submits that the police were entitled to rely on Mr. Larson’s expression of satisfaction in deciding whether he had a reasonable opportunity to contact counsel. The Crown also argues that it is not a breach of s. 10(

b) for the officer to take control of dialing the phone in the circumstances. [ 17 ] The law with respect to s. 10(

b) obligations of the police is set forth in R v Willier , 2010 SCC 37 at para 29 , [2010] 2 SCR 429 [ Willier ], and may be summarized as follows: (

a) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel; (

b) 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 (

c) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). [ 18 ] The implementational duties mentioned in (

b) and (

c) above are contingent upon a detainee’s reasonable diligence in contacting counsel. What is reasonable will depend on all of the circumstances in any given case ( Willier at paras 33–35 ). [ 19 ] A detainee has the right to consult with counsel of his choice ( McCrimmon at para 17 ) but in Willier , the Court held that if a detainee’s lawyer is not available in a reasonable amount of time, the detainee must exercise his right to counsel by calling another lawyer and, failing that, the police duty to hold off eliciting evidence will be suspended ( Willier at para 35 ).

What amounts to a reasonable time depends on the circumstances. In the context of a demand for a sample of breath pursuant to s. 254 of the Criminal Code , there are necessarily time restrictions. [ 20 ] It is my view that the appeal court judge was correct in finding that the trial judge did not err. The police may assume control of dialing the phone ( R v Restau , 2008 SKCA 147 at para 22 , 314 Sask R 224). Apart from the police dialing the phone for Mr. Larson, this is not a case where the police could be said to have taken control of the contact process. Mr.

Larson clearly had in mind a specific lawyer he wanted to reach. That was Mr. Riou. The police facilitated his request by giving Mr. Larson his mobile phone so that he could provide them with Mr. Riou’s contact number, and the police made several attempts to reach Mr. Riou over approximately 40 minutes. Mr. Larson never suggested that the police should assist him in finding another number for Mr. Riou. Notably, Mr. Larson did not help himself by requesting the officer to find another number. Sgt. Barbar cannot be faulted in the circumstances of this case for not taking an initiative regarding the exercise of Mr.

Larson’s right to counsel that Mr. Larson himself did not take or that he was not asked to take by Mr. Larson. Indeed, to place an obligation on the police to independently suggest such initiatives would be to encourage the police to take over the contact process. [ 21 ] Moreover, when Mr. Riou did not respond to the message left for him, Sgt. Barbar properly reminded Mr. Larson of the Legal Aid option. Mr. Larson made a decision that he would exercise his right to counsel by contacting Legal Aid. The police facilitated this contact and even after that continued trying to contact Mr. Riou. Most importantly, Mr.

Larson had the benefit of talking to legal counsel for seven to eight minutes and, thereafter, advised the police that he was satisfied with that discussion. Even after that, he was again offered the opportunity of calling another lawyer if he wished to. Mr. Larson declined. It was only then that a sample of breath was taken from Mr. Larson. [ 22 ] Given the facts found by the trial judge, which were not in dispute before the appeal court judge, the trial judge’s decision that Sgt. Barbar acted diligently in facilitating Mr.

Larson’s attempts to contact counsel is in accordance with the jurisprudence mentioned earlier. The appeal court judge was correct in concluding that the trial judge did not err in finding that the police had fulfilled their implementational duty. [ 23 ] Leave is granted and the appeal is dismissed.

“Ottenbreit J.A.” Ottenbreit J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.