IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	R. v. McLean,
	2008 BCSC 553

Date: 20080502
Docket: 26786-3
Registry: Fort St. John

Regina

v.

Phillip Scott McLean

Before: The Honourable Mr. Justice Preston

Ruling on Voir dire

Counsel for the Crown	S. Meldrum
Counsel for the Defence	G. Cranston
Date and Place of Hearing:	April 2, 2008
	Fort St. John, B.C.

[1]                This is a ruling on a voir dire concerning the right to counsel pursuant to s. 10(b) of the Charter.  The accused is charged with dangerous driving causing death, impaired driving causing death and driving with a breath alcohol reading over .08.

[2]                The accused seeks to have the certificate of analysis of two breathalyser tests excluded from evidence on the basis that he was denied his right to counsel because the police officer who demanded that he provide a breath sample would not disclose the grounds for that demand to counsel over the telephone.

Facts

[3]                The sole evidence on the voir dire was that of Constable Klubi who arrested Mr. McLean and made the demand.

[4]                Constable Klubi’s evidence was as follows.

[5]                Constable Klubi escorted the accused to the telephone room in the Fort St. John detachment of the R.C.M.P.  He provided Mr. McLean with the three telephone numbers of Mr. Cranston, the counsel that Mr. McLean wished to contact.  He provided Mr. McLean with a telephone and told him he had to dial “9” for an outside line.  After Mr. McLean had made 13 attempts to telephone Mr. Cranston, the officer assisted by dialling the number.  The call was answered by an answering machine and the officer turned the telephone over to Mr. McLean to leave a message.

[6]                Mr. McLean then dialled another number and appeared to be speaking to someone for approximately 18 minutes after which he indicated to Constable Klubi that Mr. Cranston wished to speak to him.  Mr. Cranston informed him that Constable Klubi was required by law to disclose the grounds upon which he formed the belief that Mr. McLean was operating a motor vehicle while his ability was impaired.  Constable Klubi declined to do so.

[7]                Constable Klubi returned the telephone to Mr. McLean who had a short conversation with Mr. Cranston and hung up the telephone.

[8]                At all times throughout the telephone calls, Constable Klubi left the telephone room when Mr. McLean was speaking with Mr. Cranston.  He observed the accused through the glass door to the room.

[9]                Mr. McLean came out of the telephone room and told Constable Klubi that Mr. Cranston was going to call back within 15 minutes.  Constable Klubi asked him if he wished to speak to another lawyer.  Mr. McLean answered “no”.  The Constable then asked the accused if he wished to provide a breath sample then or wait and speak to Mr. Cranston again.  The accused said he wanted to speak to Mr. Cranston.

[10]            Constable Klubi then informed Mr. McLean that it was Constable Klubi’s duty to afford Mr. McLean a reasonable opportunity to speak with counsel and confirmed that he would not question or administer tests to Mr. McLean until he had an opportunity to do so.

[11]            Constable Klubi left Mr. McLean in the telephone room and after a short time the telephone rang.  Mr. McLean picked up the telephone and talked for about five minutes.

[12]            Constable Klubi entered the room after Mr. McLean hung up the telephone and asked if he was satisfied that he had spoken to counsel.  Mr. McLean said “yes”.  He asked him if he wished to speak to any other lawyers.  Mr. McLean replied “no”.

[13]            Constable Klubi then took Mr. McLean to the breath-testing room and confirmed that he had nothing in his mouth, did not have dentures, and after an observation period, the breathalyser test was administered.

Section 10(b) of the Charter

[14]            Subsection 10(b) of the Charter reads:

10.       Everyone has the right on arrest or detention

…

(b)        to retain and instruct counsel without delay

                and to be informed of that right.

Case Law

[15]            The defence relies upon the decision of Mr. Justice Oliver in R. v. Sherwood, (1991), 29 M.V.R. (2d) 21, as authority that a duty is cast on police to provide the grounds for the belief underlying the demand for a breath sample upon request by defence counsel when an accused is exercising his s. 10(b) rights.

[16]            In R. v. Sherwood, the accused exercised his s. 10(b) rights by making a telephone call to his lawyer.  His lawyer requested, through his client, that a police officer disclose the grounds for the demand for a breath sample.  The officer refused to provide that information.  The accused refused to take the breath test.  He was convicted at trial but acquitted on appeal.  In acquitting the accused, Oliver J. said at para. 17:

I find, with great respect to the contrary view reached by the learned trial Judge, that Mr. Sherwood’s right to instruct counsel pursuant to s. 10(b) of the Charter was violated by the police officer in failing to provide the information requested.  The effect of this failure was to render the appellant’s right to counsel a mere ritual without significance or meaning.  The purpose of the constitutional guaranty of the right to counsel is to protect one accused of crime from a conviction resulting from his own ignorance of his legal and constitutional rights and to secure the right to a fair trial by enabling the accused to participate fully and fairly in the adversarial process.  In order for the right to counsel to be meaningful and effective, it is necessary for the detainee to obtain sufficient information to assess, with the aid of counsel, the extent of his jeopardy.  Where the detainee is placed in circumstances where his answer places him in immediate legal jeopardy, the police have a duty to provide him upon demand with sufficient information as to the basis for his arrest to enable the detainee when instructing counsel to obtain meaningful advice as to how to exercise his rights and duties.  Once the right to counsel has been asserted, the state has an affirmative obligation to preserve the accused’s choice by not acting in a manner that circumvents or dilutes the protection afforded by this right.  [emphasis in the original]

[17]            Oliver J. concluded at para. 23:

The obdurate refusal of the police officer to provide the basic information requested by Mr. Sherwood provides a “reasonable excuse” within the meaning of s. 254(5) of the Criminal Code.

[18]            The proposition established in Sherwood was doubted by the Alberta Court of Appeal in R. v. Stenset 1999 ABCA109, 70 Alta. L.R. (3d) 45 [“Stenset”].

[19]            In Stenset, the accused was stopped at a check stop.  His breath smelled of alcohol.  He admitted that he had been drinking, and he failed a roadside testing device.  He was arrested for impaired driving and a demand was made that he provide a breath sample.  The accused exercised his right to counsel.  His counsel asked the arresting officer to tell him what grounds the officer had to believe that his client’s ability to operate a motor vehicle was impaired.  The police officer declined to provide that information.  The lawyer advised his client to refuse to take the test.  The accused was convicted of failing to provide a breath sample and his appeal was dismissed by the summary conviction appeal court.  He appealed to the Court of Appeal.

[20]            Mr. Justice Côté considered Sherwood, and stated, at paras. 19-23:

R. v. Sherwood (1991) 29 M.V.R. (2d) 21 … is a decision of a British Columbia Supreme Court judge, sitting on appeal from Provincial Court.  There the constable would not speak to the lawyer at all.

The reasoning of Oliver J. was that legal advice had to be effective, and that any statement obtained without advice of the immediate right to instruct and retain counsel should be excluded.  The cases cited were not on point, being about whether the arrested person was told of his right to counsel

Nor did Oliver J. go into any of the considerations discussed above, such as whether the lawyer had or could get the facts another way.

With respect, I do not find the Sherwood judgment an adequate discussion of the topic and would not follow it.

[21]            Côté J.A. concluded that the rights of the accused in Stenset had not been breached.

[22]            Stenset and Sherwood were both considered by the Ontario Court of Appeal in R. v. Fitzsimmons, (2006), 84O.R. (3d) 266, 219 O.A.C. 200.  Mr. Fitzsimmons was stopped by the police while driving erratically.  He exhibited signs of impairment and a roadside screening device was administered which he failed.  The accused, at first, asserted his right to counsel but when he could not contact a lawyer he waived his rights to counsel.  The arresting officer handed Mr. Fitzsimmons over to another officer, a breathalyser technician.  Mr. Fitzsimmons was again informed of his rights including his right to counsel.  With the help of the second officer he contacted a lawyer.  The lawyer asked the technician why Mr. Fitzsimmons was stopped and whether there had been an accident.  The officer refused to provide that information even though he had been told those facts by the arresting officer.  Mr. Fitzsimmons’ counsel testified that he required the information in order to give his client advice as to whether to comply with the demand for the breath sample.  He said his advice would depend on when his client had been stopped in order to determine whether there were reasonable grounds for the demand to be made.  Mr. Fitzsimmons testified that his lawyer told him only that he did not have to do sobriety tests or answer any questions and that he could not give complete advice because the officer did not provide the necessary information.

[23]            Madam Justice Weiler gave the reasons for the court, agreeing with Stenset and noting that the Alberta Court of Appeal had disapproved of the ruling in Sherwood.  She observed that the burden was on the accused to show that he had not been able to exercise his s. 10(b) rights in a meaningful manner.  She concluded at para. 24:

We are not satisfied that there was any information necessary to the giving of legal advice that counsel could not have obtained by other means such as asking his client.

[24]            She went on to say at para. 25:

In the circumstances we need not address the question of whether s. 10 (b) gives rise to any obligation on the part of the police to provide counsel with information that counsel cannot obtain from the detainee.

[25]            Mr. Fitzsimmons sought leave to appeal to the Supreme Court of Canada.  His application for leave was denied without reasons on May 3, 2007: [2007] S.C.C.A. No. 81.

Stare Decisis

[26]            Sherwood is a decision of this court.  Re Hansard Spruce Mills (1954), 13 W.W.R. (N.S.) 285, [1954] 4 D.L.R. 590 (B.C.S.C.) authoritatively sets out the circumstances in which a judge is permitted to differ with another judge of a court of coordinate jurisdiction.  The application of Hansard Spruce Mills may be less strict in criminal than in civil matters: R. v. Northern Electric Co. (1955), 111 C.C.C. 241 (Ont. H.C.); R. v. The Star Luzon, [1984] 1 W.W.R. 527 (B.C.S.C.).  Hansard Spruce Mills sets out three categories of cases that need not be considered binding.  The first is when “subsequent decisions have affected the validity of the impugned judgment”.  In these circumstances that ground has been satisfied. Sherwood has been disapproved of by both the Alberta Court of Appeal and the Ontario Court of Appeal.  The decision in Fitzsimmons is inconsistent with the wide principle set forth in Sherwood.  Leave to appeal the decision in Fitzsimmons was denied by the Supreme Court of Canada. 

[27]            Accordingly, I do not consider the decision in Sherwood binding authority.

Application to this Case

[28]            The accused has applied for relief under the Charter.  He bears the burden of satisfying the court that his Charter rights under s. 10(b) have been infringed. In Fitzsimmons, the court concluded that the applicant had not shown:

(1)        that the information sought was necessary to the giving of legal advice, and

(2)        that counsel could not have obtained the information by other means such as asking the client.

[29]            The court in Fitzsimmons found that the appellant had not satisfied the onus on him to establish that the information was necessary to the giving of legal advice. The court expressly declined to rule on the question of whether s. 10(b) imposes an obligation on the police to provide counsel with information that could not be obtained by other means including asking the client.

[30]            In this case, unlike Fitzsimmons and Stenset, there is no evidence before the Court concerning the nature of the legal advice sought or given or the limitations on the information available to counsel.  Counsel proceeded to argue on the basis of hypothetical scenarios.  He submitted that because the information he was seeking was the state of mind of the investigating officer at the time the demand was made, and therefore could not have been obtained by other means, it was necessary that it be obtained from the officer.  He said in submissions that the information was almost always necessary to the provision of legal advice when the charge was impaired driving causing death.

[31]            There is no doubt that the police are often in possession of information that could be useful to counsel when providing legal advice.  There is also no doubt that accused persons must make the decision whether to provide a breath sample or not under considerable time pressure when a demand is made under s. 254(3) of the Criminal Code.  However, courts will be very cautious about imposing disclosure obligations upon the police at the investigation stage.

[32]            In my view, it would be dangerous to endorse a constitutional requirement that an investigating officer disclose, upon demand by counsel, information about his state of mind.  The accused is entitled to know with some particularity the nature of the charges he may face.  He is not constitutionally entitled to a cross-examination of the investigating officer in preparation for meeting those charges should they be laid.

[33]            In this case, I am satisfied that the accused has failed to establish that he was denied information that was necessary to the giving of legal advice that counsel could not have obtained by other means such as asking his client.

[34]            Accordingly, the accused’s application to have the certificate of analysis excluded from evidence is dismissed.

“B.M. Preston J.”

______________________________

The Honourable Mr. Justice Preston