IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Duncan,

 

2008 BCSC 1348

Date: 20081010
Docket: X070921
Registry: New Westminster

Regina

v.

Kristopher Duncan

Before: The Honourable Madam Justice MacKenzie

Reasons for Judgment

Counsel for the Crown (Respondent):

J. Caldwell

Counsel for the Accused (Appellant):

H. Rubin, Q.C.

Date and Place of Trial/Hearing:

September 4, 2008

 

New Westminster, B.C.

A.         INTRODUCTION

[1]                Kristopher James Duncan, the appellant, appeals his conviction on September 11, 2007 for refusal to provide a breath sample contrary to s. 254(5) of the Criminal Code (R. v. Duncan (11 September 2007), Surrey 147358-1 (Prov. Ct.)).

[2]                The appellant alleges that:

(i)         the learned trial judge erred in ruling that the evidence of the appellant’s refusal to provide the sample was not obtained in violation of his s. 10(b) Charter right to retain and instruct counsel without delay;

(ii)        the learned trial judge also erred in failing to address whether the appellant’s reference to, or presenting of, his “rights card”, amounted to “special circumstances” that meant the officer had to inquire further as to whether the appellant was asserting his right to counsel, and therefore had to be given an opportunity to exercise it.

[3]                The appellant does not appeal the trial judge’s finding that he was properly advised of his right to counsel.  It appears to have been assumed that the appellant was seeking to exclude the evidence, pursuant to s. 24(2) of the Charter, of his refusal to provide a breath sample.

B.        GROUNDS OF APPEAL

[4]                The appellant advanced many grounds of appeal that may be reduced to the following:

1.         Did the trial judge err in finding the appellant did not assert his s. 10(b) right to counsel, was not reasonably diligent in exercising it, or that he “negated” or waived that right by his behaviour?

2.         Were there “special circumstances” that required the officer to take further steps to determine whether the appellant was asserting his right to counsel?

C.        THE STANDARD OF REVIEW

[5]                In F. H. v. McDougall, 2008 SCC 53, [2008] S.C.J. No. 54 [McDougall, cited to SCC], Rothstein J. for the court, held at para. 55:

An appellate court is only permitted to interfere with factual findings when “the trial judge [has] shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence” (H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, at para. 4 (emphasis deleted), per Fish J.)

See also McLachlin C.J.C.’s comments in R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52 at para. 54.

[6]                This deference is enhanced when dealing with issues of credibility.  As noted in McDougall at para. 72:

Assessing credibility is clearly in the bailiwick of the trial judge and thus heightened deference must be accorded to the trial judge on matters of credibility.  As explained by Bastarache and Abella JJ. in R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, at para. 20:

Assessing credibility is not a science.  It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.  That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

See also R.E.M. at para. 48.

[7]                Having seen and heard the witnesses, the trial judge was uniquely positioned to evaluate their testimony and his findings ought not to be disturbed absent palpable and overriding error.

D.        CHRONOLOGY OF EVENTS

1.  Background Facts

[8]                At 3:48 a.m. on May 7, 2005, the appellant drove a motorcycle into Canada from the United States of America, entering at the Pacific Border Crossing in Surrey, British Columbia.

[9]                The appellant drove up to a primary inspection booth and provided his photo identification to the border services officers.  The officers asked him routine questions about his citizenship, the goods in his possession, and the nature of his travel.  The appellant told them that he had consumed two beers at a party; the last had been at 7:00 p.m.

[10]            One officer, Andrew Newman (“the officer”) also noted an odour of alcohol on the appellant’s person and breath when he spoke.  These observations, together with the appellant’s admissions about drinking beer, led the officer to suspect the appellant had alcohol in his body.  Thus, the officer made a demand that the appellant provide a sample of breath using an approved screening device (“ASD”).

[11]            From a police services card, the officer read the formal demand for the ASD breath sample.  The appellant told the officer that he understood and would provide a breath sample.  The appellant blew into the ASD, but the ASD registered a “no-go”.  The officer explained how to provide a proper breath sample into the ASD, and the appellant provided a second sample which was adequate and which registered at 3:50 a.m., as a “fail”.

[12]            As a result, the officer arrested the appellant, brought him into the border crossing office and at 3:52 a.m., placed him in a cell.  He removed the appellant’s personal effects, including a wallet, and placed them outside the cell.  The officer then read the appellant the following from a police services card:

I’m arresting you for impaired driving.  It is my duty to inform you that you have the right to retain and instruct counsel in private, without delay.  You may call any lawyer you want.  There is a 24-hour telephone service available which provides a Legal Aid lawyer who can give you legal advice in private.  This advice is given without charge and the lawyer can explain the Legal Aid plan to you.  If you wish to contact a Legal Aid lawyer I can provide you with a telephone number.  Do you understand?

[13]            The appellant then said to the officer, “I’ll read you my card”.  The officer again asked the appellant whether he understood what had been read to him.  The appellant responded, “No”.  The officer then asked, “What would you like me to explain?”  The appellant replied, “Nothing.  I’ll read to you from my card”.

[14]            The appellant then explained he had a printed card in his wallet advising him not to say anything to police, and that he did not have to incriminate himself.  The wallet was outside the cell at this time.  The officer agreed with the appellant, saying, “That’s basically what I’m reading you now, sir”.  The officer then asked the appellant, “Did you want to call a lawyer?”  The appellant did not respond at all to the officer’s question about contacting a lawyer.  Instead, he merely sat and looked at the officer.

[15]            The officer then had a discussion with the appellant regarding the appellant’s rights.  He told the appellant that he needed an answer and that he needed to know if the appellant wanted to speak to counsel.

[16]            The appellant did not ask to speak to counsel while in custody at the border.  The trial judge found that throughout that time, the appellant was vehement that he did not want to speak to anyone.  But also throughout this time, the officer advised the appellant that if he changed his mind about speaking to counsel, there would be no problem.

[17]            After making a formal breath demand of the appellant, the officer placed a current telephone book and a legal directory in the appellant’s cell in case the appellant changed his mind about speaking to a lawyer.

[18]            For safety reasons, based on its long cord, the officer did not put a telephone in his cell.  However, it was readily available just outside the cell and the officer was prepared to put the telephone inside had the appellant asked to speak to a lawyer.

[19]            Having left the appellant in the cell for about 20 minutes, the officer returned at 4:25 a.m.  He asked the appellant if he was going to provide a breath sample.  The appellant said, “No”, and shook his head.  The officer then told the appellant he would be charged with refusal to provide a breath sample if he refused, and that the refusal charge had the same penalty “as if you blew over the legal limit”.  The appellant replied, “Whatever”.

[20]            The officer again asked the appellant, “Are you going to provide a breath sample?”  Again, the appellant answered, “No”.  The officer then confirmed, “You are not going to provide a breath sample?”  The appellant replied, “No.  You can talk to my lawyer”.

[21]            The officer understood the appellant’s last comment to be a suggestion that the officer (rather than the appellant) could speak to the appellant’s lawyer, or that it was a reference about the matter going to court.  Having told the appellant he could change his mind about speaking to counsel, the officer thought it clear that the appellant’s comment was not an actual request to speak to counsel.

[22]            At one point while the appellant was in custody, the officer asked him whether he had any medical conditions.  Initially, the appellant did not answer.  He then advised the officer he had a shoulder problem from a previous motorcycle accident.  The officer therefore asked the appellant if he needed medical attention, but the appellant replied, “No”.

[23]            The appellant was ultimately released by the officer on an appearance notice.  Before leaving the border, the appellant was advised that his motorcycle would be towed if he could not get a sober person to come and drive it away for him.  The appellant asked if he could wheel his motorcycle to a secondary area where it would not block traffic.  The officer therefore escorted him to the motorcycle and allowed him to push it out of the way.

2.  The Trial

[24]            The appellant was charged with a single count of refusing to provide breath samples, contrary to s. 254(5) of the Code.  At trial, he sought for a ruling that the officer breached his s. 10(b) Charter rights.  The appellant gave some critical evidence diametrically opposed to the officer’s evidence on the Charter voir dire.  He testified on the voir dire that while the officer was reading his Charter rights and breath demand, he told the officer twice that he wanted to speak to counsel.

[25]            The appellant also claimed he again asked to speak to a lawyer at 4:25 a.m. when the officer returned to his cell and was asking him about providing a breath sample.  Furthermore, the appellant testified that he had handed a Charter of Rights card (“rights card”) to the officer from his wallet and had asked to read from it.  He claimed this occurred before his wallet was taken from him and placed outside the cell.  The appellant also claimed that a police officer had thrown telephone books into his cell after he had requested a pillow for his neck, because of his shoulder problem.  He testified that he expected to speak to legal counsel, but it never occurred.

[26]            The officer denied throwing the legal directory into the appellant’s cell, and repeated that the appellant never asked to speak to a lawyer.

[27]            The officer did confirm he had briefly seen the card in the appellant’s effects, but that the appellant had not handed him the card.  The officer said he did not read it, but was familiar with similar cards he had seen before that typically said the person had a pre-paid legal plan, or was not obliged to say anything, or both, and that the person had the right to speak to a lawyer, or wanted to speak to a lawyer.  The officer specifically did not infer from the appellant’s request to read the card that he wanted to speak to counsel.

[28]            A photocopy of the card was an exhibit at trial.  It was in fine print and read as follows:

Officer, please understand I refuse to talk to you, other than to identify myself, until I consult with my lawyer.  I also refuse to consent to any search of these premises, or any other premises under my control with which I have a possessory, proprietary or privacy interest, including my car, my body or effects.  I further refuse to consent to the taking of any portion of my property, or specimen of my breath, bodily fluids or tissue for scientific analysis without the opportunity to obtain the advice of my lawyer.  I desire to exercise all my rights guaranteed by the constitution of Canada to be free from your interference with my person or affairs.  If you attempt to question me, I want my lawyer present.

I refuse to participate in any line up or to perform any physical acts, or to speak or display my person and property at your discretion, without first consulting my lawyer.  If I am under arrest, I wish to invoke and exercise my constitutional rights.  If you ignore my exercise of these rights and attempt to procure a waiver, I want to confer with my lawyer prior to any conversation with you.  If I am not under arrest, I want to leave.  If I am free to leave, please tell me immediately so that I may go about my lawful business.  Please return card and other properties.  Thank you.

E.         THE TRIAL JUDGE’S REASONS

1.  The Trial Judge’s Ruling on the Voir Dire

[29]            On the voir dire, the trial judge made significant findings of credibility against the appellant and in favour of the officer.  The trial judge identified a direct conflict in the evidence on the “very key point” as to whether the appellant said, as summarized by the trial judge, “Several times I asked for a lawyer and I was never given the opportunity” (para. 16).  The trial judge rejected the appellant’s evidence and accepted that of the officer, finding that he “gave the accused every opportunity to call a lawyer and the accused refused” (para. 16).

[30]            The trial judge went on to specifically address the appellant’s rights card, and found the appellant “was trying to rely on the rights that may be set out in the card, but not actually exercise those rights” (para. 17).  He found in this case that the officer was under absolutely no obligation to read “this card” to try to understand it (para. 18) [my emphasis].  The trial judge continued at para. 18:

It is a very difficult card to understand.  It is written in fine print.  Much of it is totally out of context to anything that is going on.  It talks about searches of property and searches of body, none of which are applicable to this particular case.  It talks about participating in line-ups.  Again, nothing to do with this case.

[31]            Furthermore, the trial judge found at paras. 19–22:

19.       So the officer, I suppose, would have to try and read through all these lines and become a lawyer and try and figure out what it is that this accused is trying to say.  I do not find that there is any obligation at all on the officer in this case, or a peace officer in any other case, to start reading cards setting out legal rights produced by accused.  In fact, some of the alleged rights in here are not rights.  For example, “If you attempt to question me, I want my lawyer present.”  Well, there is no legal right in the Constitution to have a lawyer present under questioning.  So it is just a very difficult exercise for the officer to get involved in trying to read these cards.

20.       In this particular case, I accept the officer’s evidence he did not read the card.  The accused had produced the card.  The accused, in my view, had a bit of a chip on his shoulder, and when he was told that the officer would read his rights from his card his response is “I’ll read you my card,” as if somehow his card is more important.  He is carrying the card around for a reason, and I can only speculate what that reason is, but most people, I would think, don’t have cards of this nature on their person.  Frankly, it is the first one I have ever seen of this type.  I do not know where he got it, why he got it, or what he was told to do with it, but it really did not have much to do with this particular case.

21.       So the officer gave him his right to counsel.  The accused did not exercise his right to counsel.  The accused’s story, in my view, was not believable and, as I say, I accept the evidence of Mr. Newman and reject the evidence of the accused.

22.       That, frankly, takes care of one of the two issues in this case, and that is was there a Charter breach in that the accused was denied his right to counsel or was not advised of his right to counsel, because the accused said he was not even told of his right to counsel.  I just reject that evidence totally.  I am satisfied that Mr. Newman did everything he could to try and get this person to speak to a lawyer, and that the accused virtually did everything he could to make sure he did not speak to a lawyer.

2.  The Trial Judge’s Reasons for Judgment

[32]            In his reasons for judgment at paras. 2-5, the trial judge concluded:

2.         I find in this particular case that the Crown has proven the case beyond a reasonable doubt.  The accused’s evidence, in my view, is not believable.  I did not believe it.  I do not believe it is believable evidence and, frankly, it does not raise a reasonable doubt in my mind.

3.         I have dealt with the card and what I think it means.  I find, as I say, the officer had no obligation to look at the card.  He agrees that he glanced at it, that he had seen similar cards in the past, or something similar, but it would be impossible for him to say he has seen the same card unless he read it.  The card is very convoluted.  He may or may not have seen some sort of card before.

4.         But even if it did assert a right to counsel, which it does, then that is negated by the officer continually asking the accused if he wanted to speak to a lawyer and the accused continually saying no.  So it is one thing to produce a card, but there is an obligation on the accused to assert his rights.  He has to do more than just hand in a card to somebody.  If you are asked do you want to call a lawyer and you say no, then that would negate any rights that you might otherwise be putting forward.

5.         I do not have a reasonable doubt in this case.  I find the accused guilty of the count as charged.

[33]            Thus, having been advised of his s. 10(b) Charter right, the appellant was not reasonably diligent in asserting that right.  Furthermore, even if the rights card did contain an assertion of the right to counsel, the appellant had “negated”, or waived, any assertion in his rights card by his refusal to speak to anyone, including a lawyer.

[34]            The trial judge therefore found no violation of the appellant’s s. 10(b) Charter right, admitted the evidence of his refusal to provide a breath sample, convicted the appellant of that offence, and sentenced him to a $600 fine, a victim fine surcharge of $90 and a one year driving prohibition.  The appellant was given six months to pay.

F.         ARGUMENTS ON APPEAL

1.  The Appellant’s Position

[35]            The appellant argues that: (1) the trial judge failed to make sufficient findings of fact to determine whether the appellant’s attempt to read the card amounted to an assertion of his s. 10(b) Charter right; and (2) the appellant’s attempt to have the card read constituted special circumstances that required the officer to take further steps to determine whether the appellant meant to assert his right to counsel.

[36]            As to whether the appellant’s request to read his rights card was an assertion of his s. 10(b) Charter right, the appellant submits it was not enough for the trial judge to say, in effect, that the appellant did not diligently assert or exercise his right.  Instead, the appellant contends the trial judge ought to have determined the effect of the appellant’s request to read his rights card, and that he erred in failing to make sufficient findings of fact.

[37]            In particular, the appellant says the officer had a duty to inquire further as to whether, by producing the card, the appellant intended to assert and exercise his s. 10(b) Charter rights.  The appellant says the Crown conceded as much on the voir dire when he submitted at p. 43, l. 45 to p. 44, l. 7:

MR. ELLAN.    …if the officer was aware, and he appears to be, that this card was an attempt by him to exercise all of his constitutional rights and he didn’t put that telephone in there, and he was aware of that, I think that presents a real problem for the Crown.  If Your Honour accepts that that presenting of the card is sufficient to invoke a request for access to counsel, then it’s fatal to the Crown’s case.  [emphasis added by appellant]

[38]            The appellant argues that the question is whether the officer should have known that the appellant was attempting to assert his Charter rights, given the appellant’s referral to his card.  Therefore, the officer should have probed further to see if that was the case.  I observe that implicit in this argument is a recognition that the appellant sufficiently understood his Charter rights to attempt to assert them.

[39]            Nevertheless, the appellant submits this case falls under a new category of special circumstances.  He relies on R. v. S.L.H., 2004 BCSC 410, 118 C.R.R. (2d) 14, where Melnick J. explained that the categories of special circumstances are not closed.  He said at para. 24:

The Supreme Court of Canada recognized in Baig that an accused has a responsibility to bring forth evidence of circumstances to prove that he or she did not understand his or her right to retain counsel.  But putting that responsibility on an accused, in my opinion, does not restrict the types of circumstances that can, in any given case, result in a finding of a genuine lack of understanding.

[40]            The appellant thus argues that he actually asserted his right to counsel, so the officer was therefore under a duty to suspend his investigation (the “Manninen duty”) to clarify whether the appellant wanted to exercise that right.  The appellant submits that by proceeding with the breath demand absent a positive response about whether the appellant either understood or was asserting his rights, the officer breached this duty.

[41]            Counsel for the appellant concedes the officer later revisited the question of whether the appellant wished to assert his rights, and took steps to determine it before demanding the breath sample.  However, he submits there was an irrevocable breach of the appellant’s s. 10(b) Charter right the moment the officer made the demand because the appellant did not unequivocally waive that right.

[42]            Finally, the appellant argues that the onus of proving he was reasonably diligent in asserting his right to counsel was never engaged on the grounds that he remained silent.  He seeks to distinguish Baig because in that case, there was some, though irrelevant, response to the question, “So you understand”.  On this basis, he submits there was no onus to prove a denial of his right.  The appellant also argues that by depriving him of his rights card, the officer denied him the opportunity to even ask for his right to counsel.

2.  The Respondent’s Position

[43]            The Respondent Crown submits that on the basis of the evidence accepted by the trial judge, there was no breach of the appellant’s s. 10(b) right to counsel.  The Crown says that on the facts as found by the trial judge, the appellant neither asserted his right, nor pursued it with reasonable diligence.  Absent both an assertion of the right to counsel and reasonable diligence by the appellant, the officer was not obliged to hold off on obtaining evidence from the appellant.

[44]            The Crown says the trial judge’s findings of fact are entitled to deference and were supported by the evidence, considering his findings of credibility.

[45]            The Crown also contends there were no special circumstances to require the officer to take further steps to ensure the appellant could properly exercise his right to counsel.  On the contrary, the appellant had no apparent difficulty in understanding or communicating with the officer.

[46]            As to the rights card, the Crown submits that neither the appellant’s reference to it, nor his apparent desire to read it relieved him from his obligation to be reasonably diligent in exercising his right to counsel.  The appellant was obliged to answer the simple question as to whether he wished to call a lawyer.  By refusing to answer it, he either failed to assert his right, or failed to be reasonably diligent in exercising it.

[47]            The Crown also says the trial judge properly addressed the rights card when he found it of little relevance in the circumstances.

G.        ANALYSIS

1.  Did the trial judge err in finding the appellant did not assert his right to counsel, was not diligent in exercising it, or that he “negated” or waived it?

a.         Duties under Section 10(b) of the Charter

[48]            Section 10(b) of the Charter provides:

10.       Everyone has the right on arrest or detention

b) to retain and instruct counsel without delay and to be informed of that right;

[49]            The basic s. 10(b) principles are set out in R. v. Bartle, [1994] 3 S.C.R. 173 at 191-192, 118 D.L.R. (4th) 83 [cited to S.C.R.]:

(b)        The Duties Under Section 10(b)

This Court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:

(1)        to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2)        if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3)        to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

(See, for example, Manninen, at pp. 1241-42; R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; and Brydges, at pp. 203-4.)  The first duty is an informational one which is directly in issue here.  The second and third duties are more in the nature of implementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel.

Importantly, the right to counsel under s. 10(b) is not absolute.  Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, [1989] 2 S.C.R. 138, at pp. 154-55.  Furthermore, the rights guaranteed by s. 10(b) may be waived by the detainee, although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit: Clarkson, at pp. 394-96; Manninen, at p. 1244; Black, at pp. 156-57; Brydges, at p. 204; and Evans, at pp. 893-94.

[50]            Of particular significance to this case is the principle that before any duty was imposed upon the officer to provide the appellant a reasonable opportunity to exercise his right to counsel, the appellant had to assert that right.  On the voir dire, the appellant had the onus of proving on a balance of probabilities that he asserted the right before the officer had any duty to facilitate it: Bartle at 192.  As the court explained in R. v. Hollis (1992), 76 C.C.C. (3d) 421 at 435, [1992] B.C.J. No. 2066 (C.A.) [cited to C.C.C.]:

In the absence of any evidence from which it could reasonably be inferred either that the detainee does not have a constitutionally sufficient understanding of the right, or that he is physically incapable of asserting it, it is completely consistent with a purposive interpretation of s. 10(b) to put the onus on the detainee to assert the right to counsel before any duty to facilitate its exercise is imposed on the police.

[51]            Though state authorities have a duty to refrain from eliciting evidence from a detainee and to provide a reasonable opportunity to exercise the right guaranteed by s. 10(b), this “Manninen” duty does not arise until the detainee indicates the desire to exercise the right: see Bartle at 192; R. v. Manninen, [1987] 1 S.C.R. 1233 at 1241, 41 D.L.R. (4th) 301 [cited to S.C.R.]; R. v. Evans, [1991] 1 S.C.R. 869 at 890, 63 C.C.C. (3d) 289 and R. v. Brydges, [1990] 1 S.C.R. 190 at 203, [1990] 104 A.R. 124.  In R. v. Tremblay, [1987] 2 S.C.R. 435, 45 D.L.R. (4th) 445, Justice Lamer (as he then was) held for the court at 439:

Generally speaking, if a detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this Court’s decision in R. v. Manninen, [1987] 1 S.C.R. 1233, imposed on the police in a situation where a detainee has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath.

[52]            The duty of reasonable diligence is imposed on the accused to avoid needless frustration of police investigations.  This was explained in R. v. Smith, [1989] 2 S.C.R. 368 at 385, 61 D.L.R. (4th) 462:

The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights.  They must be exercised in a way that is reconcilable with the needs of society.  An arrested or detained person cannot be permitted to hinder the work of the police by acting in a manner such that the police cannot adequately carry out their tasks.

b.         Did the appellant assert his s. 10(b) right?

[53]            The appellant bore the onus of proving on a balance of probabilities that he had asserted his right to counsel and was diligent in exercising it.  The trial judge had to decide whether to accept all, some, or none of a witness’ evidence.  He explicitly accepted the evidence of the officer, and rejected that of the appellant, finding the appellant had done “everything in his power not to speak to a lawyer”.  These findings of fact were supported by the evidence, given the trial judge’s findings of credibility as summarized at paras. 21-22 of the voir dire ruling.  They were open to him on a reasonable interpretation of the evidence and supported by the record.  I find no palpable or overriding error that affected his assessment of the evidence.  His findings are therefore entitled to deference.  There is no reason to interfere with his findings that the appellant did not assert his right to counsel, or did not use reasonable diligence in exercising it.

c.         Did the appellant’s rights card contain an assertion of his s. 10(b) right and was that assertion waived by the appellant’s behaviour?

[54]            The appellant argued that there was an assertion of the s. 10(b) right to counsel contained within his rights card.  Based on the trial judge’s findings, I cannot find that such an assertion existed.  I also affirm the trial judge’s finding that even if the card did contain an assertion, that assertion was later negated, or waived, by the appellant’s behaviour.

[55]            The trial judge found at para. 18 of his voir dire ruling that much of the rights card was totally irrelevant to the circumstances:

With respect to the card, I find that the officer in this case is under absolutely no obligation to read this card and try to understand it.  It is a very difficult card to understand.  It is written in find print.  Much of it is totally out of context to anything that is going on.  It talks about searches property and searches of body, none of which are applicable to this particular case.  It talks about participating in line-ups.  Again, nothing to do with this case.

[56]            I agree with the Crown that far from being helpful, much of the card’s content is misleading and confusing as to the appellant’s rights in the context of this case.  The card suggests a number of other legal rights which did not exist in the appellant’s situation.  The appellant was a traveller crossing the border.  In entering a sovereign country, as a matter of law, he was not “free from [state] interference with my person and or affairs”, but was obliged to answer questions regarding his travels and to submit to routine searches: see R. v. Simmons, [1988] 2 S.C.R. 495, 55 D.L.R. (4th) 673; and R. v. Jones (2006), 81 O.R. (3d) 481 at paras. 30-32, 211 C.C.C. (3d) 4 (C.A.).  As the driver of a motor vehicle, the appellant could be asked questions about alcohol consumption without having the opportunity to speak to a lawyer: see R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3.  Similarly, he was also required to provided the ASD breath sample without first speaking to a lawyer: see R. v. Thomsen, [1988] 1 S.C.R. 640, 40 C.C.C. (3d) 411.  The trial judge also observed that the card’s suggestion of a right to have a lawyer present during questioning was not a constitutional right.  As the Crown says, the trial judge was essentially correct: see R. v. Ekman, 2000 BCCA 414, 146 C.C.C. (3d) 346.

[57]            Far from containing an assertion of the right to counsel, the card appears to be an attempt to provide information to the detainee about the extent of his rights in all situations of detention.  However, a detainee does not have the right to consult a card, pamphlet, textbook or generally even another person if that person is not a lawyer, before exercising due diligence in asserting his rights.

[58]            The trial judge was correct in holding that the officer was under no obligation to read the card.  This is so because the officer’s first duty under s. 10(b) is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel.  This is the “informational component”: Bartle at 191.  Once the officer has fulfilled his constitutional obligation of providing the informational component such that the detainee understands the nature of his right, the onus shifts to the detainee to assert his right to counsel before the officer is obliged to provide him a reasonable opportunity to exercise that right.  It is important to emphasize that the “Manninen” obligation imposed on state authorities to refrain from eliciting evidence from a detainee until a reasonable opportunity has been provided to exercise the s. 10(b) right does not arise until the detainee has actually indicated a desire to exercise the right: see Bartle at 192 and Manninen at 1241.

[59]            Based on the trial judge’s findings, it is clear the officer adequately discharged his duty to provide the informational component to the appellant.  The officer explained the appellant’s rights in plain language.  There was no evidence of special circumstances which might indicate the appellant lacked a constitutionally sufficient understanding of his right to counsel.  I will elaborate on the notion of special circumstances below, including whether the request itself that the officer read the card constituted a special circumstance.  In any event, the appellant’s own evidence demonstrates that he understood the information as provided by the officer.  He testified on the voir dire that he asked the officer three times to speak to a lawyer [my emphasis].  The trial judge rejected this evidence and found the appellant did not verbally assert his right to counsel.  However, the appellant’s own testimony implies that he understood that his s. 10(b) right when it was provided to him.  He did not testify that he did not understand his right and that he required the card in order to interpret the officer’s words.  Instead, the appellant testified that he asked explicitly for a lawyer, which leads to the obvious inference that he understood the nature of his right.  Thus, the officer had complied with the informational component of the s. 10(b) right.  Absent special circumstances to indicate a misunderstanding or a lack of understanding, the onus will switch to the detainee to exercise his right to counsel with reasonable diligence once the officer has provided the informational component.

[60]            As an informational device, the rights card is therefore irrelevant once the officer provides the informational component and the detainee understands it.  Because the appellant did not then assert his right to counsel with reasonable diligence upon being informed of his right, on the facts as found by the trial judge, the appellant cannot complain of any Charter breach.

[61]            The question then becomes whether the rights card itself contained an assertion of the right to counsel.  In this particular case, the trial judge found that even if the card did contain such an assertion, the appellant’s later behaviour negated that assertion.  The trial judge found that despite the appellant’s expressed desire to either read the card to the officer, or to have the officer read the card himself, the appellant did not in fact read it.  These findings were made in the context of the finding that throughout his dealings with the officer, the appellant vehemently refused to speak to anyone, including a lawyer.

[62]            As well, despite the finding that the officer had told the appellant that he could call a lawyer if he changed his mind, the appellant never did change his mind and never did ask to speak to a lawyer.  The trial judge’s finding in his reasons for judgment at paras. 3-4 that the appellant’s behaviour ”negated” an assertion of a right to counsel in the “very convoluted” card is similar to finding that the accused’s behaviour amounted to an unequivocal waiver of that right: Bartle at 203-204.  These findings are entirely supported by the evidence and entitled to deference.

[63]            This particular card did not relieve the appellant from his obligation to be reasonably diligent in exercising his right to counsel.  The card in question had little meaning, relevance or specificity.  Therefore, the appellant was obliged to answer the officer’s very basic and simple question about contacting counsel.  To respond to the important question, “Did you want to call a lawyer?” by insisting on reading a pre-printed card that touched on many irrelevant matters, rather than simply saying “Yes” or “No” was neither reasonable nor diligent.  It follows that the “Manninen” obligation was not triggered either because the appellant did not indicate a desire to exercise his right to counsel, or by his behaviour, “negated” or waived any right as asserted by his card.

2.         Were there “special circumstances” arising out of the rights card or otherwise, to indicate to the officer that the appellant was attempting to assert his right to counsel, or that there was a need for further inquiry?

[64]            In the alternative, the appellant argues that his attempt to read from his rights card was a special circumstance such that the officer had to inquire whether the appellant was asserting his right to counsel, regardless of whether that card actually contained an assertion of the right.  The appellant submits that the “special circumstances rule” is engaged whenever there is any doubt or question in the mind of the officer.  He further contends, relying on R. v. Anderson (1985), 45 O.R. (2d) 225, 7 D.L.R. (4th) 306 (C.A.) [cited to O.R.], R. v. Baig, [1987] 2 S.C.R. 537, 45 D.L.R. (4th) 106 [cited to S.C.R.] and R. v. Stowe (1983), 22 M.V.R. 273, [1983] B.C.J. No. 1128 (Co. Ct.), that this issue is a question of a law open to appeal.

[65]            In Anderson, the Ontario Court of Appeal said this about “special circumstances” at 239:

In conclusion, I am of the view that, 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.  No such evidence was put forth in this case.

[66]            The Supreme Court of Canada adopted that statement in Baig at 540.

[67]            The appellant relied on the following description of the “special circumstances rule” in R. v. Prodan, 2007 ONCJ 551, [2007] O.J. No. 4567, at paras. 11, 14:

…  In most cases, it is possible to infer from the circumstances that the accused understands what he or she has been told.  In such cases, the police are required to go no further.  However, where there is a positive indication that the accused does not understand their rights to counsel, the police cannot rely on a mechanical recitation of the rights.  They must take steps to facilitate that understanding [citations omitted]…

…  Courts apply a modified objective test to the issue of whether an accused understands his or her section 10(b) rights where special circumstances exist: R. v. S.L.H.  The test contains an objective element that can be applied by a court viewing the circumstances after the fact.  It is therefore not dependant on the bona fides of the opinion formed by the officer on the spot, or the credibility of the accused assessed against the officer’s opinion: R. v. Lukavecki, [1992] O.J. No. 2123 (Ont. Ct. (Gen. Div.)) K. Feldman, J.

In most cases, whether an accused understands his or her rights to counsel will be determined objectively.  However, there will be rare cases when, despite the best efforts of the police officer to communicate the rights, special circumstances will exist such that the accused will not understand them…Accordingly, if the accused truly does not understand his or her rights to counsel, for whatever reason, their section 10(b) rights have been infringed.  This will be so even when the accused has communicated to the police officer that he or she understood: R. v. S.L.H., paras 26 and 27.

[68]            Thus, according to the appellant, the question is whether the officer should have known, objectively speaking, that the appellant did not understand his rights.

[69]            Again, the trial judge’s findings were open to him on a reasonable assessment of the evidence.  Although the appellant testified, he gave no evidence of special circumstances as described in the case law that would require the officer to pursue further whether the appellant understood his right, or wanted to exercise it.  There was nothing to suggest the appellant did “not have a constitutionally sufficient understanding” of his rights as per the principle established in Hollis at 435.  There was no evidence the appellant was extremely intoxicated, suffered from a cognitive impairment, or had any language or communication problems.  Neither is there any suggestion that he was in shock, or afraid to answer or communicate with the officer.  There were no indicia at all that the appellant did not understand his right to counsel.  Instead, the evidence discloses he was quite capable of communicating with the officer on a variety of matters, and understood what the officer said to him.

[70]            Even if it could be said that the appellant’s reference to the rights card alone constituted a special circumstance, the officer did indeed take further steps to confirm the appellant’s understanding of his right by repeatedly telling the appellant that he could change his mind about speaking to counsel.

[71]            On the facts found by the trial judge, there was no doubt in the officer’s mind as to the appellant’s understanding of his right.  In fact, as noted above, the appellant’s own evidence on the voir dire demonstrates he understood his right.  Though rejected by the trial judge, the fact that the appellant testified that he requested a lawyer three times means he understood the nature of his s. 10(b) right.  The officer had complied with the informational component of the right, so the onus switched to the appellant to exercise that right with reasonable diligence.

[72]            The appellant had cooperated earlier in all respects with the officer without recourse to the card.  Yet, when entitled to speak to a lawyer and so advised, the appellant did not ask to speak to one.  Although he was given ample opportunity to obtain legal advice regarding his particular situation, the appellant did not pursue that opportunity with reasonable diligence.  The circumstances disclose that the appellant was avoiding a direct answer to a simple question.  As the trial judge observed in his ruling on the voir dire at para. 17:

Now, we get back to the card.  The card, in my view, appears to be an attempt by the accused to set up a defence to a charge where perhaps no defence exists.  What he is trying to do is rely on the rights that may be set out in the card but not actually exercise those rights.  If he actually asks for a lawyer or speaks to a lawyer, then any hope he has of a defence in that regard is out the window, whereas, if he produces a card allegedly setting out some rights and does not get them it is potentially a defence.  [emphasis added]

[73]            I have considered the cases on which the appellant relies, but I need not discuss them because they are distinguishable on their facts.  Here, the trial judge specifically found not only that the appellant did not ask for counsel, but that he expressly refused this option by refusing to speak to anyone, including counsel.  Any potential assertion contained in his rights card was thus negated by his express refusal.

[74]            The fact the appellant refused to answer the simplest question as to whether he wished to speak to a lawyer cannot, in these circumstances and given his attitude and the officer’s efforts, amount to special circumstances as described in the jurisprudence.  I see no error in the trial judge’s ruling on this issue.

3.  General Comments on Rights Cards

[75]            The appellant submits that a rights card acts as a crutch for unsophisticated and uneducated detainees that would allow them to express non-waiver of their s. 10(b) Charter rights while providing them with detailed assistance in exercising those rights.  In other circumstances, or on other facts, a detainee might be able to assert his right by using a clearly worded card.  However, the case before me is confined to its own facts.  I make no further comment on whether a “rights card” could ever be used to assert the right to counsel in other circumstances.

H.        DISPOSITION

[76]            This case depended upon the trial judge’s findings of fact.  I defer to his findings.  The appeal is dismissed.

“The Honourable Madam Justice MacKenzie”