Cite as: R. v. Roache, 1992 NSCO 50 1991 C.K. No. 3240 IN THE COUNTY COURT OF DISTRICT NUMBER FOUR BETWEEN: MICHAEL RICHARD ROACHE APPELLANT - and HER MAJESTY THE QUEEN RESPONDENT HEARD: At Kentville, Nova Scotia, oh~the 16th day of June, 1992. BEFORE: The Honourable Judge Donald M. Hall, J.C.C. DECISION: October 16, 1992. COUNSEL: C. Palmer, Esq.,
Counsel for the Appellant.
D. Carmichael, Esq.,
Counsel for the Respondent.
HALL, D.M., J.C.C.: This is an appeal of of failing to comply with a breathalyzer to section 254(5) of the Criminal the appellant in Provincial Court at Kentville, Nova Scotia, on December 12, 1991. . The issue" argued on this trial Judge, His Honour J.A. that the appellant's right to counsel of the Canadian Charter of Rights been" infringed. The facts are not in dispute and are accurately summarized in the appellant's pre-hearing brief as follows: On June 14, 1991 at vehicle was stopped by the Kentville on School Street as driving. Upon the appellant, signs of impairment Constable an alert test which appellant was then breathalyzer test at said "Take me home then advised of his to the Kentville Police breathalyzer demand was where the Appellant indicated that he take the test. The Appellant with a list of legal aid lawyers and their phone numbers at which point that he did not want them whereupon he was placed in a private room with a telephone. The Appellant was observed to make a call lasting approximately two minutes. appeared from the telephone asked him if he had called his the Appellant said no, he had called his mother. Constable Boon immediately a conviction on a charge demand contrary Code entered against .' appeal is whether the MacLellan, erred in ruling under section 10 (b) and Freedoms had not 2:32 a.m. the Appellant's Town Police a result o~ suspicious who was driving, showing Boon administered the appellant failed. The requested to perform a which point the appellant boys". The appellant was Charter Rights and taken Station where the read to him again and would not was then provided the Appellant indicated When the Appellant room, Constable Boon lawyer to which asked him if· he was
- 2 going to take the Appellant replied that anything. This was the Appellant was charged with refusal. Because the accused refused to sign his Appearance Notice he was taken to the lock up in the basement of the Kentville processed there the call from Mr. Peter Van Feggelen, Waterbury, Newton and Feggelen could not Appellant at the lock up, the Appellant was taken back to the Kentville Police Station, next door, and the Appellant Feggelen there on five to ten minutes. After finishing his Feggelen the Appellant he could take the was approximately Constable Brown, the refused to allow this against the Appellant remained. At the trial before MacLellan, the Appellant charge under Section the charge under Section 254(5). found that there was of the breathalyzer occurred immediately after telephone room. It should be added testify at the trial nor present any evidence. The appellant's counsel appellant had indicated to the police his desire to speak to counsel and at no time expressly do so, there was a burden on no uncertain terms whether the appellant right to counsel and whether he fully understood his rights with respect to counsel at counsel contended that when breathalyzer to which the he was not blowing. into at 2:54 a.m. As a result Court House. While being Appellant received a phone a lawyer with Johnson. Because Mr. Van speak in private with the which was spoke with Mr. Van the phone for approximately conversation with Mr. Van asked Constable Boon if breathalyzer test now. It 3:30 a.m. at this point. Breathalyzer Technician, and the charge of refusal His Honour Judge J.A. was acquitted of the 253(a) but convicted of Judge MacLellan only one binding refusal by the Appellant which he appeared from the that the appellant did not argued that since the waived the right to the police to' ascertain in was waiving his that time. In particular, the appellant emerged from
- 3 "telephone room" and responded question as to whether he had I called my wife", the police make further inquiries as to whether the appellant wished to make further efforts to contact counsel instead of simply asking him again "if he was going to take the breathalyzer". Mr. Palmer submitted that the officer's failure such further inquiries resulted denied his right to counsel. In support of his position Mr. Palmer relied on the decision of Canada in R. v. Tremblay, 11987] Counsel for the respondent was no evidence before the court the appellant wanted to consult of this, Crown counsel contended obligation on the police to do did. The following are the provisions: Criminal Code: 254(5) Everyone commits reasonable excuse, fails with a demand made to under this section. The Canadian Charter of Rights and Freedoms: 10. Everyone has the right on arrest or detention (b) to retain and delay and to be informed of that right; In R. v. Tremblay (supra) to the police officer's contacted a lawyer, "No, officer was obligated to to make in the appellant being of the Supreme Court 2 S.C.R. 435. agreed that there which established that counsel. In the absence that there was no anything more than they applicable legislative an offence who, without or refuses to comply him by a peace of f icer instruct counsel without Lamer, J., as he then
- 4 was, stated at page 438: In this case the accused was of his right to counsel, was given a phone and placed a call to his wife. It appears, though is not all that clear, lawyer for him. Right after that call, the police officers requested first sample of breath, with. When that request was made, there remained ample time to comply down in the Criminal limits for the taking was thus no urgency right. after his first opinion, triggered the violation of this accused's rights. And further at page 439: Generally speaking, if a reasonably diligent in the exercise of his rights, the correlative duties decision in R. v. Manninen, imposed on the police detainee has requested the assistance of .counsel are suspended and continuing their investigation him to give a sample of his breath. In R. v. Manninen, [1987] J., in delivering the judgment of the Court said at pages 1241 - 1243: In my view, s. lO(b) on the police in addition to the duty to inform the detainee of his must provide the detainee opportunity to exercise the right to retain and instruct counsel without is in the control of exercise his right to counsel provide him with a do so. This aspect of the right to counsel recognized in Canadian law well before the advent of the Charter. In promptly informed asked for a lawyer, the evidence on this point that she was to call a that the accused give his a request he complied with the requirements set Code as regards the time of breath samples; there to proceed, and to do so call was what, in my detainee is not being set out in this Court IS [1987] 1 S.C.R. 1233, in a situation where a are not a bar to their and calling upon 1 S.C.R. 1233, Lamer, imposes at least two duties rights. First, the police with a reasonable delay. The detainee the police and he cannot unless the police reasonable opportunity to was Brownridge v. The Queen,
- 5 [1972] S.C.R. 926, Canadian Bill of Rights, was, wrote at pp. 952-53: The right to retain and instruct counsel without delay can only have or detained person if it is taken a correlative obligation authorities to facilitate contact with counsel. This means allowing use the telephone for available. In my view, this aspect of the right to counsel was clearly infringed respondent clearly asserted his right to silent and his desire There was a telephone the office, which the own purposes. It was respondent to make an the telephone. The with counsel included respondent the use of the telephone. there may be circumstances particularly urgent with an investigation facilitate a detainee's counsel. There was circumstances surrounding case. Further, s. lO(b) duty to cease questioning or otherwise attempting to elicit evidence from has had a reasonable instruct counsel. The counsel is to allow be informed of his rights the law but, equally if not obtain advice as to how to exercise those rights. In this case, the informed the respondent silent and the main be to confirm the existence then to advise him as a 'case decided under the Laskin, J., as he then meaning to an arrested as raising upon the police him upon his request to that purpose if one is in this case. The remain to consult his lawyer. immediately at hand in officers used for their not necessary for the express request to use duty to facilitate contact the duty to offer the Of course, in which it is, that' the police continue before it is possible to communication with no' urgency in the the offences in this imposes on the police the the detainee until he opportunity to retain and purpose of the right to the detainee not only to and obligations under more important, to police officers correctly of his right to remain function of counsel would of that right and to how to exercise it.
- 6 For the right to counsel detainee must have access to this advice before he is questioned or otherwise required to provide evidence. I discussed police in the context in 'R. v. Therens, [1985] 624: The Court also considered Leclair and Ross, [1989] 1 concerned with accused persons in a police line-up for identification purposes after having clearly indicated their desire counsel. The Court outlined officers with respect to a detained person exercising his or her right to counsel. At pages who delivered the majority j~dgment said: The appellants were that they had the right to retain counsel is not in dispute. complied initially with Ross and Leclair of instruct counsel without held in R. v. Manninen, s. 10(b) imposes at least two duties on the police in addition to the duty their rights. The first is that the police must give the accused or detained person who so wishes a reasonable opportunity to retain and instruct The second is that the police must refrain from attempting to elicit evidence until the detainee opportunity to retain I am of the view that fulfilled neither duty . . . . Although an accused has the right to choose counsel, it must be noted that, as this Court said in R. v. Tremblay, 2 S.C.R. 435, a detainee--must to be effective, the the duty imposed on the of a breathalyzer demand 1 S.C.R. 613, at p. this issue in R. v. S.C.R. 3. This case was being asked to part·icipate to assert their right to the obligation of police 10 and 11, Lamer, J., obviously detained and and instruct Moreover, the police s. 10(b) and advised their right to retain and delay. As this Court [1987] 1 S.C.R. 1233, to inform detainees of to exercise the right' counsel without delay. from the detainee has had a reasonable and instruct counsel. in this case the police or detained person [1987] be reasonably
7 diligent in the exercise if he is not, the on the police and suspended. Reasonable diligence in the exercise of the right to choose upon the context facing person. On being arrested, detained person is faced with for' legal advice and diligence accordingly. the best lawyer to conduct person faces no such immediacy. And at page 12: Having seen that the appellants got to their phone calls, the police officers placed them in police cells the appellants were line-up, which they did. The police were mistaken procedure. As this Court police have, at least, a duty to cease questioning or otherwise attempting the detainee until opportuni ty to retain In my view, the right ta counsel also means that, once an accused or detained person has asserted that right, the police cannot, in any way, the detainee or accused person to make a decision or participate in a process which could ultimately have an adverse effect eventual trial until reasonable opportunity to exercise that right. Counsel for the appellant to R. v. Pittman (1991) 89 Nfld. of the Newfoundland Supreme Court, Belinda Ann Conrad v. R., November (unreported), a decision of the as he then was, in the County Two. In both of those cases somewhat similar to the facts successful in establishing that under section lO(b) had been of these rights and correlative duties imposed set out in Manninen are one's counsel depends the accused or detained for example, the an immediate need must exercise reasonable By contrast, when seeking a trial, the accused no answer and a few minutes later, told to participate in a to follow such a held in Manninen, the to elicit evidence from he has had a reasonable and instruct counsel. compel in the conduct of an that person has had a referred the Court & P.E.I. 65, a decision Trial Division, and 7, 1989, CBW 7711 Honourable Judge Freeman, Court of District Number the defendants, on facts in the present case, were their right to counsel infringed. In both cases,
- 8 however, the defendants' had made it clear to the police that they wished to consult counsel. It is interesting to Freeman, after finding that the defendant's Charter rights had been violated, did not go evidence ought to be excluded under At page 9 he said: In R. v. Therens [1985] J. stated: "In my opinion the right to counsel is of such fundamental importance criminal law context must prima facie qiscredit the administration of justice." The remedy in Leclair of the evidence that infringement. That was of Judge Charron, D. C. J. v. Jaime Freitas, May 29, However, it does not appear necessary to invoke what is by its constitutional remedy in the present circumstances. to lie in the provisions The Appellant is charged and without reasonable excuse did refuse to comply with a demand. " Because she had asserted her right to under s. lOeb) of the Charter and had not waived that right at the time of refusal, that she refused the she had a reasonable excuse. Wi th respect I would of the Supreme Court of Canada in Brownridge v. (1972) 7 C.C.C.(2d) 417, supports Judge Freeman. In Brownridge, the denial of an accused person's right to counsel the Canadian Bill of Rights provided note that in Conrad Judge on to consider whether the 24 (2) of the Charter. 1 S.C.R. 613, LeDain, that its denial in a and Ross was exclusion followed the Charter followed in the ruling in a voir dire in R. 1989 (unreported). nature an extraordinary under s. 24 of the Charter The remedy appears of the Criminal Code. that she "unlawfully counsel I would find demand lawfully because suggest that the decision The Queen the position taken by Laskin, C.J., held that under a lawful excuse for
- 9 refusing to provide samples of 235 of the Code. One might wonder why in R. v. Tremblay (suprCl) where that Tremblay's right to counsel on to hold that because of Tremblay's the evidence of the refusal should not s. 24(2)· of the Charter. It is significant that the detained persons indicated wished to consult counsel. In the present case, . however, as the learned trial judge found, that the appellant tried or even wanted to call a At no time did he tell the police that a lawyer. When asked by the from the "telephone room" whether he replied that he had called his mother. There was thus no evidence had asserted his right to counsel nor that he was reasonably diligent in the exercise of that right. Accordingly, I agree with the conclusion of learned trial judge that the appellant's right to counsel was not violated. The appeal is therefore dismissed. Crown counsel will draft an appropriate order. breath under then section this point was not raised Lamer, J., after finding had been violated, went obnoxious conduct be excluded under in the foregoing cases to the police that they there was no evidence lawyer. he wanted to call police officer on emerging he had called a lawyer that the appellant the I trust that Donald M. Hall
Judge of the County Court
of District Number Four
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