Breath Samples Admitted Despite Denial of Counsel of Choice

The BC Provincial Court held that the decision of a driver to speak to duty counsel, and his affirmative answer when asked if he was satisfied with the call, did not amount to a waiver of a previously asserted right to counsel of choice was a violation of his right to counsel, and had a serious impact on a his Charter-protected interests. However, the evidence was admitted on the basis that the impact on his rights was did not outweigh the public's interest in an adjudication of the matter, given the relatively minor nature of the breach: R. v. Martin (December 11, 2009) Surrey Registry No. 168107 (BC Provincial Court).

With regard to the application for exclusion and the application of R. v. Grant, the Court said:

Seriousness of Charter Infringing State Conduct

[30] The breach in this case was not serious but it cannot be described as trivial or minor. Constable Booth did not deliberately deprive the defendant of the right to contact counsel of choice. He accurately informed the defendant of the options that were available to him to contact counsel. He offered to call any lawyer whose name or number Mr. Martin could provide. Mr. Martin actually did get legal advice. It just was not from a lawyer whom he had freely chosen.

[31] It was the confusing way in which the officer implemented the defendant’s request for counsel that is at the heart of the breach of that right. There was no need to ask the defendant whether or not he was going to provide breath samples. Constable Booth had already told him that he was required by law to comply or face the legal consequences of a refusal. There was in fact no urgency for the defendant to state whether he intended to provide the samples. That false sense of urgency created by the question made the defendant believe that he had to contact counsel at that very time.

[32] Then, the officer asked a question intended to determine whether the defendant had received satisfactory legal advice. Not surprisingly, the officer believed that the defendant’s affirmative answer meant that he no longer needed to raise the issue of him contacting counsel. The problem was that this question begged the more important question of whether Mr. Martin still wanted to contact his own lawyer or whether he now waived that right.

[33] Constable Booth did not act in bad faith. His actions were all well intentioned. However, to characterize his conduct as being in good faith would be inaccurate. He should have recognized that he had the additional legal obligation to determine whether the defendant had changed his mind about contacting his own lawyer. Ignorance of the scope of a subject’s Charter rights cannot be an excuse for violating them.

[34] Constable Booth did not intend to deprive the defendant of an opportunity to contact his own lawyer. He was conscientious in putting him in touch with duty counsel, so that he obtained some legal advice quickly. I would not characterize his actions as reckless. His conduct is better described as negligent, perhaps sloppy.

[35] In these circumstances I find that admission of the evidence would not greatly undermine public confidence in the rule of law.

Impact on the Charter Protected Interests of the Defendant

[36] The evidence was not obtained through a violation of the defendant’s rights under s.8 of the Charter. There is no argument therefore about the interests protected by that section.

[37] Nonetheless, the issue that must be considered here is important. Would the admission of the evidence send the message that the right of a detainee to choose his own lawyer matters little? Does the court need to distance itself from this Charter infringing conduct?

[38] It can be argued that if the court condones a police practice of implicitly encouraging detainees to use the convenient resource of duty counsel instead of allowing them to take the time necessary to find their own lawyer, the right to “counsel of choice” becomes almost meaningless. The long term interests of the administration of justice and its repute may suffer.

[39] The right to consult “counsel of choice” is a fundamental aspect of the right to retain and instruct counsel. A detainee is entitled to obtain legal advice from a lawyer whom he trusts and in whose legal advice he has confidence. This goal can best be achieved when the detainee has chosen the lawyer himself.

[40] In many circumstances, however, it may not be practicable for a detainee to retain “counsel of choice”, particularly when there is an urgent need for preliminary legal advice, as in the case of a demand being made for breath samples under s.254 of the Code. That is the context in which a free 24 hour duty counsel service is provided. It is an alternative which many detainees may choose over trying to locate private counsel.

[41] In the case at bar, the defendant did receive legal advice. There is no evidence that it was not adequate. Mr. Martin’s answer to the question whether he was satisfied with his opportunity to contact counsel can reasonably be taken to mean that he did receive satisfactory legal advice. These circumstances can be distinguished from those in Badgerow, supra. In that case, the accused had only a brief conversation with one lawyer. He then answered “Yes”, to a question similar to that posed by Constable Booth, but then immediately requested to speak to another lawyer whom he named. That request was simply ignored.

[42] Mr. Martin’s failure to ask again to speak to his own lawyer, after speaking to duty counsel, is significant. It is not evidence of lack of diligence, but it does suggest that he did not seem to have any specific lawyer in mind. Of course he still should have been allowed to search in a directory if he so desired, but the impact on his right under s.10 (b) is lessened somewhat because he was not prevented from speaking to a known and trusted legal advisor. I am not, however, entitled to speculate on what another lawyer would have said to him, had he been able to contact another one.

[43] In any event, the impact on Mr. Martin’s protected interests was serious. He asserted a right which Constable Booth told him that he had – he could call any lawyer he wanted to. He never even got to try to contact a lawyer of his own choice. The long term interests of the administration of justice would favour exclusion of the evidence because courts should not be seen to accept sloppy police procedure which effectively denies an accused an essential aspect of the right to counsel.

Public Interest in Having a Trial Adjudicated on its Merits

[44] What would be the effect of the admission of the evidence on the public interest in having the case adjudicated on its merits? Clearly the effect would be to strengthen that interest. The evidence of the analysis of the breath samples is very reliable. It is essential for the prosecution to prove the case against Mr. Martin.

Balancing the Three Factors

[45] The police conduct was careless but not egregious. The breach occurred because of an unusual approach taken by the police officer, but who had no intention of denying Mr. Martin’s access to counsel. Mr. Martin in fact did speak to duty counsel for a length of time which was sufficient to get legal advice on the charge that he faced. There is no suggestion that the advice was defective or poor. The impact of the breach on the protected interest of the defendant, namely the right to retain “counsel of choice”, was significant. There is, however, a strong public interest in the adjudication of the case on its merits based on the reliable evidence arising from the analysis of the breath samples.

[46] The analysis of the first and third factors favours inclusion of the evidence. Consideration of the second favours exclusion. On balance, therefore, I find that the administration of justice would not be brought into disrepute by the admission of the evidence of the analysis of the breath samples obtained from Mr. Martin.

[47] The defence application is therefore dismissed.

The Court's reasoning in the judgment's penultimate paragraph implies a mathematical process (two factors favoured admitting th eimpugned evidence, only one favoured excluding, therefore the evidence should be admitted), which is arguably not consistent with the Supreme Court's statements on this issue.

Evidence of Refusal to Blow Excluded as Remedy for Violation of the Right to Counsel

A BC Provincial Court Judge excluded the evidence of a refusal to provide breath samples after finding that a driver had not been advised of his right to counsel prior to the breath demand: R. v. Erickson (November 10, 2009) Chilliwack Registry No. 55484 (BC Provincial Court).

The case is notable for the Court's treatment of the reliability of the officer's evidence, and for the application of the Grant analysis to the exclusion of evidence following a breach of the right to retain and instruct counsel.

With respect to the reliability of the officer, the Court said:

The contested evidence in this case

[15] In her evidence-in-chief, Constable Hazelwood was asked if there was any discussion with Mr. Erickson about providing samples after he had spoken to counsel. She replied that she had no notes of this, but that she "would have" asked in case they changed their minds. She also stated, "I don't have a memory of it though."

[16] When the same part of the investigation was being queried at cross-examination she positively asserted that she had asked Mr. Erickson if he was prepared to give breath samples after his call to Legal Aid. She went further in response to probing by Mr. Juriloff and suggested that she had an actual memory of doing this. Thus, it appears that she had some unexplainable epiphany or has a memory that does not function normally or is determined that the end of securing a conviction justifies tailoring her evidence.

[17] Mr. Waldock points out that the test at this stage is a balance of probabilities. This is undoubtedly correct. He submits that I am in a position to find that the Constable probably did ask at the station. He says that her change in testimony simply means that she has now recalled because she focussed on the evidence or reflected on her practice.

[18] I cannot accept this proposition with all due respect to Mr. Waldock's able submissions for the reasons I have mentioned. In my view, she has demonstrated a patently unreliable memory. I am compelled to conclude that she probably did not raise the question of providing a sample again at the station.

[19] I am fortified in my conclusion about Constable Hazelwood's reliability by the observations made in R. v. Lozanovski, 2005 ONCJ 112 and R. v. McConnell, 2008 BCSC 505.

[20] While it is true that both those cases dealt with reliability on the context of reasonable doubt, the impugned evidence in those cases consisted of deviations from field notes rather than the appearance of a memory in cross-examination that was stated not to be present in-chief.

[21] The significance of this conclusion on reliability comes into play in at least two ways, in my view. First, it calls into serious question other important testimony given by this officer which was not contemporaneously recorded in her field notes, her report to Crown counsel and other narratives. Second, her lack of further inquiry about counsel may affect the gravity of the breach when it comes to considering a remedy.

After finding that the driver's right to counsel had been violated, the Court excluded the evidence of a refusal. Although the Court did not refer to the decision of the BC Supreme Court in R. v. Givens [2009] B.C.J. No. 2076 (BCSC), the two rulings are consistent:

[37] As to remedy, as I have indicated, Mr. Juriloff moves to exclude the evidence of refusal.

[38] An analysis using the framework set out in R. v. Grant, 2009 SCC 32 (“Grant”); R. v. Harrison, 2009 SCC 34 and R. v. Suberu, 2009 SCC 33 is necessary.

[39] Here, there is no question, as I have indicated, that Mr. Erickson was detained. I found a breach and now must go on to the three enquiries that are set out in the Grant decision and the companion cases.

[40] As to the seriousness of the breach, the conduct by the police here was deliberate although not malicious. I cannot accede as I have said with great respect to Mr. Waldock's submission that the breach was somehow mitigated by subsequent enquiries. This was a serious breach, in my view, of one of the most cherished rights a citizen enjoys under our law. The impact of this breach was profound. There is no acceptable evidence to suggest the question of his willingness to provide a sample was ever revisited after he had received the information he was entitled to. Moreover, he was never presented to the instrument.

[41] Finally, while society always has a high interest in having cases adjudicated on the merits, there is also a high societal interest in respecting individual rights.

[42] Here, the facts do not support a finding of continued refusal. The Crown cannot rely on the answer elicited as it resulted from the compelled participation of Mr. Erickson. I find, specifically, the evidence would adversely affect trial fairness and it will be excluded from the trial.