nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 508 Date: 2006 11 24 Docket: QBCA of 2006 Judicial Centre: Saskatoon BETWEEN: HER MAJESTY THE QUEEN and BRUCE H. BASKO Counsel: R. D. Ritter for the appellant M. W. Owens for the respondent JUDGMENT ROTHERY J. November 24, 2006 [1] The Crown appeals the decision of the learned Provincial Court judge that found the respondent’s rights under s. 10 (b) of the Canadian Charter of Rights and Freedoms had been violated and, in excluding the certificate of analyses, acquitted the respondent. The Crown argues that the learned Provincial Court judge misapplied the reasoning of the Supreme Court of Canada in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236 in his analysis of the circumstances surrounding the police officer’s demand for the respondent to provide his breath sample. [2] The only evidence led in the voir dire at the trial was that of the police officer who had stopped the respondent in routine traffic stop of vehicles entering Saskatoon from the east. After the police officer determined that he had reasonable and probable grounds to believe that the respondent was operating his motor vehicle while impaired, he arrested the respondent, read the respondent his right to retain counsel and gave the requisite police warning. About twenty minutes later, at 12:27 a.m. on July 30, 2005, Cst. Michael Lerat arrived at the Saskatoon detachment of the R.C.M.P. with the respondent. [3] The testimony in chief of Cst. Lerat, which was uncontradicted in cross-examination, is as follows: Okay. And what did you do when you got to the police station? The accused was booked in, completing our prisoner arrest report. Q. Okay. Once that was complete the phone room was occupied by -with another officer and his, his prisoner. Okay. So advised the accused of that, and asked if he would like to use the phone room to speak with lawyer once the phone room was available, and he said he would like to. Okay. asked him if he had particular lawyer, if he would like to look through the phone book, or if he’d like to speak with Legal Aid, and he indicated he’d like to speak with Legal Aid. Okay. So what did you do then? When did the phone room become free? When recorded in my notes when the phone room became free. We went into the phone room, and dialled Legal Aid. Legal Aid was busy, so hung up, re-tried, it was still busy. gave the phone to the accused, telling him the phone line was busy, and he listened for himself. Okay. We waited short time, went back into the phone room, Legal Aid was still busy. gave him the phone again to show him that the line was busy, at which time the accused told me that he knew what the lawyer was going to tell him anyway, so just that he would call him the next day, or tomorrow. Okay. And did you say anything to him when he said that? asked if he’d like to try possibly calling different lawyer and he indicated no, that he’d like to get it over with. Okay. What happened THE COURT: Just moment, just moment. Sorry, write slow. Okay. MR. RITTER (continuing): Now, this if could just ask you the the times, sir. When you first called Legal Aid, and you said the line was busy? That’s correct. Okay. And what time was that? To be accurate can refer to my notes again? THE COURT: Yes. MR. RITTER: Please. first asked the accused told him the phone room was busy, and asked if once it was available if he would like to speak to lawyer, and that was at 12:32 a.m. on July 30th. He indicated yeah, he’d like to speak to lawyer. Okay. Right after that would ask him, “Do you know the name, or have lawyer?” And he says. “No, don’t.” And asked him at 12:34, “Would you like to look for one in the phone book, or speak with Legal Aid?” The accused’s response was “Yeah, Legal Aid”. So you said, “Would you like to look for one in the phone book or speak with Legal Aid,” after he told you he didn’t have lawyer in mind? That’s correct. Okay. And the time of that again? Was at 12:34 a.m. Okay. At 12:36 a.m. was when first dialled Legal Aid. It was busy. would have hung up immediately and re-tried and it was busy at that time again. Okay. The third time would have tried Legal Aid was at 12:40 a.m., and again it was busy. This is when the accused responds again, at 12:40, “I know what they are going to tell me, so I’ll call one tomorrow.” asked at 12:41, “Would you like to try different lawyer?” The accused’s response, “No, let’s get it over.” So he was removed from the phone room and placed in holding spot until his samples were ready to be taken. [4] On this evidence the learned Provincial Court judge made the following ruling: So if you look at the facts in our case, as I’ve reviewed, I’ve concluded that the case is almost directly on all fours with Prosper. The police did not take the opportunity, as required, to give the additional information to the accused. And that is, where the person has previously asserted the right to counsel and indicates that he or she has changed her mind and no longer wants to give that advice, the police will be required to tell the detainee of his or her right to reasonable opportunity to contact lawyer, and of the obligation on the part of the police during this time to refrain from having them participate in any process that would incriminate him. As result, find that there has been breach of 10(b), and as to the exclusion of evidence, as in Prosper, the breach of the accused’s right to counsel goes directly to his right against self-incrimination. The receipt of the breathalyzer certificate in this case was direct result of the breach, and because of that it must be kept out, as it would be unfair to proceed with the trial with it going in, given the circumstance. So the certificate is excluded. [5] Crown submits that the learned judge erred in his application of Prosper to the case before him, not only because of the conclusion he reached on the evidence, but on the interpretation of Prosper with respect to the case at hand. [6] Counsel for the respondent argues that the ratio decidendi in Prosper required Cst. Lerat to provide the respondent with an additional component of information once the respondent, after first asserting his right to counsel, waived that right. Counsel for the respondent relies upon para. 43 of Prosper, which states: 43 In circumstances where detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter‑protected right to counsel is not too easily waived. Indeed, find that an additional informational obligation on police will be triggered once detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to reasonable opportunity to contact lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up. [7] This additional informational obligation has come to be known as the “Prosper warning.” The learned trial judge concluded such warning was required in this case, and none was given to the respondent by Cst. Lerat. That being so, the trial judge found breach of the respondent’s s. 10(b) rights under the Charter. [8] The issue on this appeal is whether Prosper requires the police in the Saskatchewan jurisdiction, where faced with a detainee that has changed his mind and declined legal advice, to inform that detainee that he has a right to a reasonable opportunity to contact a lawyer and that the police have an obligation not to require the detainee to participate in any incriminating process until the detainee has had a reasonable opportunity to contact a lawyer. The answer is found in the Prosper decision itself. [9] Prosper, along with four other cases, decided the scope of the state’s obligations with respect to duty counsel services under s. 10 (b) of the Charter. Prosper addressed the question of what state obligations exist in jurisdictions where “Brydges duty counsel” is not available to detainees. [10] “Brydges duty counsel” describes the 24-hour duty counsel that is available to all detainees and accessed through toll-free number. This system is in place in certain provinces, including Saskatchewan. As stated by the Supreme Court of Canada in R. v. Brydges, 1990 CanLII 123 (SCC), [1990] S.C.R. 190, the police are required to not only advise detainees of their right to immediate free legal advice, but to advise detainees of the existence and availability of the applicable systems of duty counsel and Legal Aid in that jurisdiction. [11] On May 18, 1991, when Mr. Prosper was arrested for impaired driving in Halifax, Nova Scotia, the police officer advised him that he had the right to retain counsel, could contact any lawyer he wished, and could apply for legal assistance without charge. Unknown to both Mr. Prosper and the arresting officer at the time, the Legal Aid lawyers had advised the Attorney General few days prior that they would no longer take telephone calls outside regular business hours. Thus, Halifax had no established duty counsel system for detainees to receive immediate, although temporary, free legal advice after regular business hours. Thus, as Mr. Prosper attempted to telephone lawyer throughout that Saturday afternoon, he was unsuccessful. Over thirty-seven minute period, Mr. Prosper attempted fifteen calls, without success. He told the police officer he could not afford to retain private counsel, and shortly after, agreed to submit to the breathalyzer test. [12] It is upon this set of facts that the Supreme Court of Canada outlined the requirement of police to “hold off” from trying to elicit incriminating evidence from detainee until reasonable opportunity to reach counsel has been provided to the detainee. At para. 36 37 of Prosper, Lamer C.J. states: 36 In situation such as the one in this case, where duty counsel services are available during regular office hours (although only to those eligible for legal aid) and detainee expresses desire to contact counsel and is duly diligent in exercising that right, but is prevented from doing so due to institutional factors beyond his or her control, s. 10(b) requires that the police hold off from trying to elicit incriminatory evidence from the detainee until he or she has had reasonable opportunity to reach counsel. Similarly, the "reasonable opportunity" provided to detainees in jurisdictions lacking duty counsel might extend to when the local Legal Aid office opens, when private lawyer willing to provide free summary advice can be reached, or when the detainee is brought before justice of the peace for bail purposes and his or her needs can be properly assessed and accommodated. In determining what is reasonable opportunity, the fact that the evidence may cease to be available as result of long delay is factor to be considered. 37 The holding‑off requirement described above flows logically from the two implementation duties. am also satisfied that making the police hold off from trying to elicit incriminatory evidence from detainee in jurisdictions where no duty counsel is available at the time of request, and where the detainee has been sufficiently diligent upon being informed of the right to counsel to trigger and sustain his or her ensuing rights under s. 10(b), is consistent with the underlying purposes of s. 10(b). [13] In answering the question whether governments must provide Brydges duty counsel system, Lamer C.J. stated at para 42: 42 In sum, then, find that s. 10(b) does not impose positive obligation on governments to ensure that free, preliminary legal advice is available on 24‑hour, on‑call basis. However, s. 10(b) does require, in situations where detainee has asserted his or her right to counsel and been duly diligent in exercising it, that the police hold off in order to provide the detainee with reasonable opportunity to contact counsel. It must also be noted that, although there is no constitutional obligation on governments to provide duty counsel services, the non‑existence or unavailability of such services could, in some circumstances which need not speculate on, give rise to issues of fair trial. Thus, in those situations, the state runs the risk of having evidence excluded under s. 24(2) of the Charter. [14] Prosper addresses the issue of the police’s obligation to hold off in jurisdictions where free, preliminary legal advice is unavailable. Oppositely, Saskatchewan has Brydges duty counsel available to detainees and no such obligation exists. Having reviewed the law as stated in Prosper, I must conclude that the learned trial judge erred in finding that this case was analogous to the facts in Prosper, and in finding that Cst. Lerat had an obligation to provide a “Prosper warning” to the respondent once the respondent had changed his mind and declined legal advice. [15] The police in Saskatchewan are required to provide any detainee with information so that detainee may access that legal advice. Once the police are confronted with detainee who changes his mind and declines legal advice, this waiver must be clear and unequivocal. As reiterated in Prosper, the burden is upon the Crown to prove that waiver given by detainee is unequivocal. Lamer C. J. stated at para. 44: 44 Given the importance of the right to counsel, would also say with respect to waiver that once detainee asserts the right there must be clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Ross, at pp. 11‑12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high: Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] S.C.R. 383, Manninen, and Evans. As said in Bartle, at pp. 192‑94 and 206, person who waives right must know what he or she is giving up if the waiver is to be valid. That being said, it stands to reason that the right to counsel guaranteed under s. 10(b) must not be turned into an obligation on detainees to seek the advice of lawyer. [16] In this case, the lack of Prosper warning does not mean that the respondent’s waiver was not valid. The court must examine the evidence to determine whether the Crown had met the burden of establishing that the respondent gave an unequivocal waiver when he changed his mind about seeking legal counsel. [17] Any review of the evidence on appeal must be in accordance with the role permitted of the appellate court. The standard of review is outlined in R. v. Burns, [1994] S.C.R. 656 and applicable to summary conviction appeals. The Supreme Court of Canada stated at p. 663: In proceedings under s. 686(1)(a)(I), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168; R. v. W. R., 1992 CanLII 56 (SCC), [1992] S.C.R. 122. Provided this threshold test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order new trial. [18] The uncontradicted evidence before the learned trial judge in this application was that of Cst. Lerat. Cst. Lerat testified that, over five minute time frame, he telephoned the Legal Aid telephone number for the respondent three times, and each time the telephone line gave “busy” signal. After the third telephone call, the respondent said, “I know what they are going to tell me, so I’ll call one tomorrow.” Cst. Lerat then asked the respondent, “Would you like to try different lawyer?” The respondent replied, “No, let’s get it over.” [19] The learned trial judge characterized the exchange between Cst. Lerat and the respondent in the following way, as stated at p. 104 of the transcript: To me, the accused was obviously frustrated and agreed to provide the sample without first talking to lawyer after these attempts were made. We’re talking about at least three attempts over period of twelve minutes. It is useful to compare those circumstances with the facts in the case that went to the Supreme Court, R. v. Prosper. [20] In reviewing the evidence that was before the learned trial judge, the judge could not have reasonably reached the conclusion he did. Not only does this case have no comparison to the facts in Prosper, the evidence falls far short of proving that the respondent was frustrated. Impatient, probably, but not frustrated. The exchange lasted about five minutes. The evidence shows a detainee who chose to neither wait for the telephone line to be available nor to telephone a private lawyer. [21] The trial judge was required to address the issue of whether the Crown had proved that the respondent had given clear and unequivocal waiver. By equating this situation to the facts in Prosper, the trial judge has failed to address the real issue, and in turn, has reached wrong conclusion. [22] On all the evidence before the trial judge, the Crown has proved that when the respondent changed his mind and decided not to obtain legal advice, the respondent gave an unequivocal waiver. That being so, no breach of s. 10(b) of the Charter exists, and the certificate of analyses is admissible at trial. [23] The Crown succeeds on its appeal. However, it would be incorrect to simply enter conviction on appeal. As advised by counsel for the respondent, if the certificate of analyses is rendered admissible there may be other evidence tendered on behalf of the respondent to challenge the accuracy of the certificate. Therefore, it is ordered this matter be remitted back to the learned trail judge for continuation of the case, according to law. J. A. R. Rothery
The Crown appeals the decision of the Provincial Court judge that found the respondent's rights under s. 10(b) of the Charter has been violated and in excluding the certificate of analysis, acquitted the respondent. The Crown argues that the trial judge misapplied the reasoning of the Supreme Court in R. v. Prosper in his analysis of the circumstances surrounding the police officer's demand for the respondent to provide his breath sample. The issue on this appeal is whether Prosper requires the police in the Saskatchewan jurisdiction, where faced with a detainee that has changed his mind and declined legal advice, to inform that detainee that he has a right to a reasonable opportunity to contact a lawyer and that the police have an obligation not to require the detainee to participate in any incriminating process until the detainee has had a reasonable opportunity to contact a lawyer. HELD: 1) Prosper addresses the issue of the police's obligation in jurisdictions where free, preliminary legal advice is unavailable. Oppositely, Saskatchewan has Brydges duty counsel available to detainees and no such obligation exists. Having reviewed the law as stated in Prosper, the Court concluded that the trial judge erred in finding that this case was analogous to the facts in Prosper, and in finding that the police officer had an obligation to provide a 'Prosper warning' to the respondent once the respondent had changed his mind and declined legal advice. 2) The police in Saskatchewan are required to provide any detainee with information so that detainee may access that legal advice. Once the police are confronted with detainee who changes his mind and declines legal advice, this waiver must be clear and unequivocal. 3) The evidence falls far short of proving that the respondent was frustrated, impatient probably, but not frustrated. The exchange lasted about minutes. The evidence shows a detainee who chose to neither wait for the telephone line to be available nor to telephone a private lawyer.