R. v. Edwards, 2024 ONCA 135

what you need to know

-In the context of s. 10(b) of the Charter, unless the detainee indicates they want to waive their right to call a lawyer altogether, the police are not required advise them that they are entitled to wait a reasonable amount of time to communicate with their counsel of choice.

-When the police assume control over the means by which counsel can be contacted, they have to act with reasonable diligence. They do not have to act as subjectively diligently as the detainee would have.

PROCEDURAL BACKGROUND

The respondent was charged with one count of “over 80” and one count of impaired driving. The Crown proceeded summarily. The respondent was found guilty on both charges at trial. The trial judge entered a conviction on the “over 80” charge and, applying the Kienapple principle, stayed the impaired driving charge.

Mr. Edwards appealed his conviction to the Summary Conviction Appeal Court who allowed the appeal and ordered a new trial on both charges. On the impaired driving charge, the court held that the trial judge failed to provide sufficient reasons. On the “over 80” charge, the court held that the trial judge erred in law when he found the police complied with the requirements of s. 10(b) of the Charter. The court then concluded the police had failed to comply with s. 10(b) and the breathalyzer results should have been excluded under s. 24(2). The summary conviction appeal court ordered a new trial on both counts and ordered that the breathalyzer results were inadmissible at the new trial. [Note: given the court ordered that the breathalyzer results were inadmissible, there would be no evidence to support the “over 80” charge. The summary conviction appeal court should have acquitted on that charge and limited the new trial to the impaired driving charge.]

FACTUAL BACKGROUND

The police initially advised the respondent of his right to counsel at the roadside immediately after his arrest. There is no complaint with the police decision to take the respondent to the station before giving him the opportunity to contact counsel. There is also no issue that the police made a proper demand for a sample of the respondent’s breath. The alleged s. 10(b) violations relate to the events at the station.

As noted above, the trial judge found there was no breach of s. 10(b). The summary conviction appeal court found that the police failed to comply with s. 10(b) in 3 ways:

1) The police failed to tell the respondent he was entitled to wait a reasonable time for his counsel of choice to make contact before speaking with duty counsel; 

2) The police, having assumed responsibility for contacting the respondent’s counsel of choice, did not act with reasonable diligence in their efforts to facilitate contact with that counsel; and 

3) The police failed to wait a reasonable time before requiring the respondent to avail himself of duty counsel.

On appeal to the Court of Appeal, the Crown contends that each of the three reasons advanced by the summary conviction appeal court reveal legal error.

Disposition - Crown appeal allowed. “Over 80” conviction restored.

section 10(b) of the charter

Section 10(b) of the Charter provides: Everyone has the right on arrest or detention (b) to retain and instruct counsel without delay and to be informed of that right.

Section 10(b) guarantees to persons detained by the police the right to contact and consult with counsel without delay. The right is intended to mitigate the legal jeopardy and psychological disadvantage inevitably flowing from detention by the police: see R. v. Willier, 2010 SCC 37.

To serve this purpose, s. 10(b) requires that the police inform a detainee of the right to retain and instruct counsel without delay and of the availability of duty counsel. If a detainee indicates a desire to exercise the right to retain and instruct counsel, the police must, absent urgent and dangerous circumstances, afford the detainee a reasonable opportunity to exercise that right. The police must refrain from attempting to elicit evidence from the detainee until he has had a reasonable opportunity to speak with counsel, again except in cases of urgency or danger.

(1) Were the police required to tell the accused he was entitled to wait a reasonable time for counsel of choice to call back before speaking with duty counsel?

The informational component of s. 10(b) requires the police to advise the detainee of the availability of Legal Aid/duty counsel. The SCAC concluded that in addition to telling the detainee he had a right to speak with duty counsel, the police were also obliged to tell the detainee that he was entitled to wait a reasonable time for his counsel of choice to respond before choosing to speak with duty counsel.

The Court of Appeal noted that the “additional information obligation” set out in Prosper (i.e. to tell an accused they are entitled to wait a reasonable time for counsel of choice before speaking with duty counsel) was intended to to ensure that the waiver of the right to counsel was both informed and effective. If the accused does not waive their right to counsel, there is no concern about the validity of any waiver and this additional informational obligation is not required.

The right to counsel in s. 10(b) clearly includes the right to a reasonable opportunity to contact counsel of choice. Police conduct which interferes with a detainee’s ability to contact counsel of choice within a reasonable time will amount to an infringement of s. 10(b). For example, if the police lead the detainee to believe that their only option is to speak with duty counsel and that waiting to speak counsel of choice was not an option, this would violate s. 10(b).

In this case, however, Mr. Edwards did not waive his right to counsel. Upon being unsuccessful in contacting counsel of choice, he chose to exercise his right to counsel by speaking with duty counsel. Given there was no waiver, the police were not required to tell him that he was entitled to wait a reasonable time for counsel of choice to call back before speaking with duty counsel.

Similarly, he was not misled or coerced by the police into believing his only option was to speak with duty counsel. He was provided the opportunity to speak to duty counsel, accepted that opportunity, spoke to duty counsel and indicated he was satisfied with the conversation.

(2) Did the police take reasonable steps to contact Mr. Edward’s counsel of choice?

The obligation on the police to facilitate contact with counsel and the responsibility of the detainee to take reasonable steps to contact counsel work in tandem. The police must make reasonable efforts to connect the detainee with counsel of choice “without delay”. The detainee must exercise reasonable diligence in his or her efforts to connect with counsel of choice. Both obligations are tested against reasonableness-based standards

The language used in some cases suggests a different test if the police have assumed control over the means by which counsel can be contacted, as for example in this case when the police took the respondent’s cellphone. Those cases speak in terms of the police having to pursue access to counsel as “diligently” as the detainee would personally have done so. This language suggests a personalized or subjective component to the requirements imposed on the police by s. 10(b), and raises the possibility that the police could act reasonably in attempting to contact counsel and yet still breach s. 10(b) because, despite acting reasonably, they failed to do something the accused would have done to contact counsel.

The Court of Appeal, however, concluded that this line of authorities do not depart from the “reasonable diligence” standard. While they refer to acting as “diligently” as the detainee would have acted, they also refer to the detainee as using reasonable diligence in seeking out counsel. In other words, the diligent detainee in the circumstances is as detainee who acts with reasonable diligence.

There are significant difficulties in applying a diligence standard that would incorporate the steps a particular detainee would take in a given situation. The police would in most cases have no way of knowing what the detainee would have done in the specific situation, and therefore no way of knowing how they could properly comply with their obligation under s. 10(b). However, if the police obligation is measured strictly in terms of reasonable diligence, the police should have no difficulty in understanding the requirements imposed by that obligation in any given situation.

The purpose of s. 10(b) is best served by testing police compliance with their requirements against the reasonable diligence standard. That standard will, of course, reflect the particular circumstances of the case, including the extent to which the police have assumed control of the detainee’s ability to contact counsel. If the police assume that control, it is reasonable to expect that the police will take a more active role in contacting counsel.

In the present case, the accused texted his counsel of choice and police placed two calls to his personal cell phone. Mr. Edwards’ also left a message for counsel. The police also asked him if he had any other counsel he might wish to contact. Finally, the police offered to contact duty counsel. He accepted the offer and spoke with duty counsel within a few minutes. The police’s failure to specifically ask him whether he had some other way of contacting counsel of choice did not render the police efforts unreasonable. The Court of Appeal also rejected the argument that there may have been a website with additional contact information for Mr. Edwards’ counsel of choice.

The proper approach is to ask whether, in all of the circumstances, the police took reasonable steps to connect the detainee with counsel of choice, not whether there is some additional step the police did not take which may have assisted in contacting counsel of choice.

(3) Did the police wait a reasonable time for counsel of choice to call back before proceeding with the breathalyzer test?

The police administered the breathalyzer test an hour after Mr. Edwards made his first attempt to contact counsel. The Court of Appeal concluded that the trial judge did not err in concluding that the police waited a reasonable time before proceeding with the breathalyzer test. Reasonableness is not simply a measure of time, but looks to the circumstances of the case.

In this case, the police waited an hour from the respondent’s first attempt to contact counsel until they required the respondent to provide a breath sample. In that hour, three attempts were made to contact counsel of choice, the respondent declined an offer to contact other counsel, and the police put the respondent in contact with duty counsel, who spoke with the respondent for some seven minutes. On the evidence accepted by the trial judge, the respondent was satisfied with the advice provided by duty counsel. The fact the respondent received legal advice with which he was satisfied, while waiting for counsel of choice to contact him, was a relevant consideration in determining whether the police waited a reasonable time for counsel of choice to call back.

For more information on s. 10(b) of the Charter, check out Emond’s “Search and Seizure”, chapter 17, “Exclusion of Evidence Under Section 24(2) of the Charter” and “Modern Criminal Evidence”, chapter 10, “Confessions and Self-Incrimination”.