



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Owens, 2015 ONCA 652

DATE: 20150928

DOCKET: C59914

Laskin, Hourigan and Pardu JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Zachry Owens

Respondent

Mabel Lai, for the appellant

James Zegers, for the respondent

Heard: August 26, 2015

On appeal from the decision of the Summary Convictions
    Appeal Court dated December 30, 2014 by Justice Gisele M. Miller of the
    Superior Court of Justice, allowing the appeal from the conviction entered on December
    20, 2013 by Justice Julia A. Morneau of the Ontario Court of Justice.

Hourigan J.A.:

A.

Overview

[1]

The respondent was charged with operating a motor vehicle with blood
    alcohol in excess of the legal limit. At trial he brought an application to
    exclude breath sample evidence on the basis that his right to counsel under s. 10(b)
    of the
Charter
had been breached. The trial judge dismissed the
    application, holding that the respondent had never invoked his right to
    counsel, and convicted the respondent.

[2]

On appeal, the summary conviction appeal judge held that the trial judge
    erred in law in her s. 10(b) analysis by focusing on whether the
    respondents right to counsel had been invoked rather than on whether there had
    been a valid waiver of the right. The appeal judge found that the respondents s. 10(b)
    rights had been breached because there was no unequivocal waiver of the right
    to counsel, excluded the breath sample evidence pursuant to s. 24(2) of
    the
Charter
, and entered an acquittal.

[3]

In my view, the appeal judge erred in law by failing to first consider
    whether the respondent had invoked his s. 10(b) rights, because it is only
    in circumstances where a detainee has invoked his rights that the issue of
    waiver arises. The trial judge found as a fact that the respondent did not
    invoke his right to speak to counsel. This finding was open to the trial judge
    on the evidence and as a result there was no basis for appellate interference.
    Accordingly, the order of the appeal judge must be set aside and the conviction
    entered by the trial judge restored.

B.

Background Facts

[4]

The objective facts of the respondents interaction with the police are
    not contentious. The respondent was sitting in his parked pick-up truck, out of
    gas at the side of the highway, when he was approached by two police officers, responding
    to an earlier 911 call alerting them to the respondents erratic driving. The
    police formed a reasonable suspicion that the respondent had been drinking and
    demanded that he provide a breath sample. He did so, and the screening device
    registered a fail. This gave the police reasonable grounds to arrest the
    respondent and demand that he provide further breath samples at the police
    station.

[5]

Upon arrest, the police advised the respondent of his right to counsel
    using the standard language from the O.P.P. issued card. The arresting officer
    asked the respondent: Do you understand? and the respondent answered: Yes. The
    arresting officer then asked the respondent: Do you wish to call a lawyer
    now? and the respondent replied: No, not right now. The respondent was then
    taken to the police station where he provided breath samples into an
    Intoxilyzer device that registered a reading of 160 mg of alcohol in 100 mL of
    blood. When the respondent was returned to the arresting officer, that officer
    again asked whether the respondent wished to speak to counsel. The respondent
    replied: No, I have nothing to hide. The respondent did not ask to speak to a
    lawyer at any point while in police custody.

[6]

The perspectives of the arresting officer and the respondent regarding
    these events differ. The arresting officer testified that he interpreted the
    respondents reply of No, not right now to mean that the respondent did not
    want to speak to a lawyer at that instance and presence and that is why he
    asked the follow up question at the police station. However, the arresting
    officer also testified that it was his usual practice to ask a detainee more
    than once if he or she wishes to contact counsel because he understood it to be
    important. It was his evidence that the respondents replies did not indicate
    to him that the respondent wanted to speak to a lawyer during their interaction.

[7]

In contrast, the respondent testified that he replied as he did when he
    was first advised of his right to counsel because he did not understand how he
    could call counsel now as it was 2:00 a.m. and he was handcuffed in the back
    of a police cruiser. The respondent agreed, however, that he had told the
    arresting officer that he understood his rights. He further testified that he
    did not raise the issue of speaking with counsel at any point because he felt that
    he was not in a position to make requests of the police and should instead
    follow their lead. The respondent also testified that he wanted the opportunity
    to speak privately to counsel and assumed that he would be given that
    opportunity when he was taken to the police station. He explained his comment
    about having nothing to hide as meaning that, given that the breath samples
    had already been taken, the cat was out of the bag and that there was no
    point in speaking to a lawyer then and there.

C.

Decisions Below

(1)

Decision of the Trial Judge

[8]

The trial judge found that the informational component of s. 10(b)
    was satisfied when the arresting officer read from the O.P.P. issued card.

[9]

The trial judge then reviewed the circumstances of the interaction
    between the respondent and the police to determine whether the right to counsel
    had been invoked. She noted that there was nothing in the evidence to suggest
    that the police were acting officiously or in an intimidating manner. There was
    also no evidence to suggest that the respondent was confused or did not
    understand his right to counsel. She further found that the arresting officer
    did not mislead the respondent. The trial judge concluded that the respondent
    did not invoke his right to consult with counsel.

[10]

The
    trial judge dismissed the
Charter
application and admitted the breath
    sample evidence. She found proof beyond a reasonable doubt that the respondent
    was operating a motor vehicle with more than 80 mg of alcohol in 100 mL of
    blood and entered a finding of guilt accordingly.

(2)

Decision of the Appeal Judge

[11]

The
    respondent appealed his summary conviction. The sole issue on appeal, as at
    trial, was the admissibility of the breath sample evidence in light of the
    respondents claim that his s. 10(b) rights were breached.

[12]

The
    appeal judge found that the trial judge focused on the wrong legal question and
    erred in law when she failed to consider whether the respondents words No,
    not right now amounted to a clear and unequivocal waiver of the right to
    counsel. The appeal judge concluded that they did not as No, not right now implied
    a future exercise of the right. As the respondent did not unequivocally waive
    his rights, the collection of breath samples by the police before the
    respondent had a meaningful opportunity to contact counsel amounted to a violation
    of the respondents s. 10(b) rights.

[13]

Having
    found a breach of the respondents s. 10(b) rights, the appeal judge
    conducted the analysis mandated by
R. v. Grant
, 2009 SCC 32, [2009] 2
    S.C.R. 353, to determine whether the breath samples should be excluded pursuant
    to s. 24(2) of the
Charter
. Under the first stage of the
Grant
analysis, she found that the
Charter
-infringing state conduct was
    serious because, once at the police station, the arresting officer deliberately
    delayed offering the respondent an opportunity to contact counsel until after
    the breath samples were taken. This stage favoured exclusion. The second stage
    also favoured exclusion, as the effect of the breach was to deny the respondent
    the opportunity to make an informed decision about providing incriminating
    evidence to police. It is unclear from her reasons what conclusion the appeal
    judge reached regarding the third stage of the
Grant
analysis, being
    societys interest in the adjudication of the case on its merits. Ultimately, the
    appeal judge found that given the serious and deliberate nature of the breach,
    the admission of the breath sample evidence would bring the administration of
    justice into disrepute. She allowed the appeal, set aside the conviction, and entered
    an acquittal.

D.

Positions of the Parties

[14]

The
    Crown seeks leave to appeal on the ground that the appeal judge erred in law by
    finding that the issue of waiver arose without the detainee first establishing
    that he invoked his right to counsel. The Crown argues that this erroneous
    analytical approach has significant ramifications for the administration of
    justice, particularly in the Ontario Court of Justice, where the decision is
    binding appellate authority. The Crown also argues that the trial judges finding
    of fact that there was no invocation of the right to counsel was correct and is
    owed deference. In the alternative, the Crown submits that if this court finds
    that the summary conviction judge erred in her analytical approach but that the
    respondents s. 10(b) rights were nonetheless breached, the breath sample evidence
    should not have been excluded under s. 24(2) of the
Charter
.

[15]

The
    respondent submits that leave to appeal should not be granted because the law
    is clear: a detainee must invoke the right to counsel, and the standard for
    waiver of that right is high. The respondent does not argue that the summary
    conviction appeal judge was correct in her analytical approach to the issue.
    Rather, he submits that the statement No, not right now implies a future
    exercise of the right to counsel and that he thereby invoked his right to
    counsel.  Thus, the arresting officer failed in fulfilling his implementational
    duty under s. 10(b) of the
Charter
to provide the respondent with
    an opportunity to contact counsel after his rights were invoked. Further, the
    respondent submits that the appeal judge conducted the three-stage
Grant
analysis thoughtfully and thoroughly and was correct in excluding the evidence.

E.

Issues

[16]

This
    appeal raises the following issues:

1.

Should leave to appeal be granted?

2.

Did the appeal judge err in finding a breach of the respondents s. 10(b)
    rights?

3.

Should the evidence have been excluded under s. 24(2) of the
Charter
?

F.

Analysis

(1)

Leave to Appeal

[17]

The
    relevant factors to be considered when deciding whether to grant leave to
    appeal in summary conviction proceedings are: (i) the significance of the
    proposed question of law to the administration of justice, and (ii) the
    strength of the appeal:
R. v. R. (R.)
, 2008 ONCA 497, 90 O.R. (3d)
    564, at para. 37. Leave may be granted if the appeal is arguable, but the
    question has broader significance to the administration of justice; or, leave
    may be granted if there is a clear error,  even though the question is not
    one of general significance:
R. v. Manchulenko
, 2013 ONCA 543, 116
    O.R. (3d) 721, at para. 45;
R. (R.)
, at para. 37.

[18]

In
    my view, in the present case both factors favour granting leave.

[19]

First,
    it is important that lower courts have guidance regarding the correct
    analytical approach to applications under s. 10(b) of the
Charter
.
    The issue raised in this appeal, specifically, concerns whether a detainee is
    obligated to establish an invocation of his or rights as prerequisite to a
    consideration of the issue of waiver. This is an issue that frequently arises
    in the context of drinking and driving offences, but has broader implications
    for any investigation in which a properly informed detainee elects not to
    invoke his or her right to counsel. Thus, the proposed question of law has
    broad significance for the administration of justice in Ontario.

[20]

Second,
    as discussed further below, I am also of the view that the appeal is
    meritorious. The law requires a properly informed detainee to invoke his or her
    right to counsel before any implementation duties on the part of the police are
    triggered. In addition, I agree with the submission of the Crown that logically
    there can be no waiver of a right to consult counsel until there has been an
    invocation of the right; waiver must be tethered to an existing request to
    consult counsel.

[21]

For
    the foregoing reasons, I would grant leave to appeal.

(2)

Section 10(b) Breach

[22]

In
    her analysis, the appeal judge went straight to the issue of waiver of the
    implementational duties under s. 10(b), bypassing any consideration of
    whether the respondent had invoked his right to consult with counsel and never
    considering the trial judges findings with respect to this issue. Indeed, the
    appeal judge held that the trial judge erred in law by deciding the
Charter
application on the issue of invocation instead of waiver. In my view, it was
    the appeal judge who erred in her approach. The issue of waiver of s. 10(b)
    rights only arises when the accused has established on a balance of
    probabilities that he invoked his right to counsel.

[23]

Professor
    D. Stuart discusses the development of the law regarding the interaction
    between the invocation of the right to counsel and the corresponding police implementation
    duties in
Charter Justice in Canadian Criminal Law
, 6th ed. (Toronto:
    Carswell, 2014), at p. 429:

In
Manninen
, the Supreme Court held that the right to
    counsel leads to correlative obligations on the police. The Court left open the
    question of whether the police duties were dependent upon the accused asserting
    the right as Manninen had done. The Ontario Court of Appeal in
Anderson
had earlier held that the police duties only arose where the accused had in any
    manner chosen to invoke or exercise his right to retain and instruct counsel.
Anderson
has been strongly criticized as unduly weakening the right to counsel by only
    protecting those accused who are knowledgeable, thoroughly understanding and
    assertive. The language of obligation throughout
Manninen
and its
    strong ruling on the facts suggested that the Supreme Court might well reverse
Anderson
.
    In
Baig
(1987), the Supreme Court did exactly the opposite in adopting
    the
Anderson
proposition that the duties depend on the accused
    asserting his right.

[24]

The
    Supreme Court has been consistent since
R. v. Baig
, [1987] 2 S.C.R.
    537, in holding that implementation duties are not triggered unless and until
    a detainee indicates a desire to exercise his or her right to counsel:
R.
    v. Bartle
, [1994] 3 S.C.R. 173, at p. 192;
R. v. Willier
, 2010
    SCC 37, [2010] 2 S.C.R. 429, at paras. 30, 33;
R. v. Taylor
, 2014 SCC
    50, [2014] 2 S.C.R. 495, at paras. 23-24. This court has also held that
    implementation obligations arise only when detainees express a wish to exercise
    their right to counsel:
R. v. Fuller
, 2012 ONCA 565, 295 O.A.C. 309,
    at para. 17.

[25]

The
    Supreme Court has also made clear that police implementational obligations
    flowing from s. 10(b) are not absolute. Absent invocation of the right to
    counsel and reasonable diligence in its exercise by the detainee, police duties
    to provide a reasonable opportunity to consult counsel and to refrain from
    soliciting evidence will either not arise in the first place or will be
    suspended:
R. v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310, at para.
    27.

[26]

While
    the onus rests with the Crown to prove that a detainee has unequivocally waived
    his right to consult counsel, and the standard required for an effective waiver
    is very high, the issue of waiver arises only if a detainee first asserts the
    right:
R. v. Prosper
, [1994] 3 S.C.R. 236, at pp. 274-75;
Sinclair
,
    at paras. 27-28. Further, absent proof of circumstances indicating that
    the accused did not understand his right to retain counsel when he was informed
    of it, the onus has to be on him to prove that he asked for the right but it
    was denied or he was denied any opportunity to even ask for it:
Baig
,
    at p. 540, citing
R. v. Anderson
(1984), 10 C.C.C. (3d) 417 (Ont
    C.A.), at p. 431.

[27]

Thus,
    once the trial judge found that the police had complied with the informational
    component of s. 10(b), the next question for determination was not whether
    the Crown had established that the respondent had
waived
his right to
    consult counsel, but whether the respondent had established that he
invoked
his right to consult counsel and thereby triggered the implementational duties.

[28]

As
    stated by Rosenberg J.A. in this court, the question of whether a detainee
    asserted a desire to consult with counsel is essentially a question of fact:
R.
    v. Backhouse
(2005), 194 C.C.C. (3d) 1 (Ont. C.A.), at paras. 77-78. The
    appeal judge was obliged to first acknowledge the finding of fact by the trial
    judge that there had been no invocation of the right to counsel.  Next, she was
    required to defer to that finding absent a palpable and overriding error:
Housen
    v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 10. The appeal
    judge made no acknowledgement of the factual finding and conducted no analysis
    of its validity.

[29]

In
    my view, the trial judges finding that the respondent did not invoke his right
    to consult counsel contains no palpable and overriding error that would permit
    appellate interference. On the facts of this case, it was open to the trial
    judge to find that the arguably ambiguous statement No, not right now did not
    qualify as an invocation of the right to counsel. The respondent testified that
    he answered Yes to the arresting officers question Do you understand?, and
    further that he understood his right to counsel when it was given to him by the
    arresting officer. He further testified that he did not ask to speak to counsel
    at any

point during his interaction with the police. While the
    arresting officer asked the

respondent a second time whether he wished to contact
    counsel, the officer testified that it was his standard practice to ask more
    than once, and that at no point did he believe that the respondent wished to
    speak with a lawyer.

[30]

The
    trial judge indicated that she did not believe the respondents explanation for
    why he declined to contact counsel when he was asked at the police station.
    Further, she found that the interactions between the police and the respondent
    were polite and non-confrontational, that the arresting officer did not mislead
    the respondent as to his rights, and that the respondent was not confused.

[31]

Given
    this basis in the evidence, the trial judges factual finding that the
    respondent did not invoke the right to consult counsel should have been
    deferred to by the appeal judge. She erred in ignoring this finding and deciding
    the case on the basis of a waiver analysis.

(3)

Section 24(2) Analysis

[32]

Given
    my conclusion that there was no breach of s. 10(b), it is unnecessary to
    consider the summary conviction appeal judges decision to exclude the evidence
    under the
Grant
analysis.

G.

Disposition

[33]

For
    the foregoing reasons, I would allow the appeal, set aside the order of the
    summary conviction appeal judge and restore the conviction entered by the trial
    judge.

Released: September 28, 2015 JL

C.W.
    Hourigan J.A.

I
    agree John Laskin J.A.

I
    agree G. Pardu J.A.


