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Arrestee must express desire to consult lawyer

Once an accused has been advised of their rights, it is up to them to exercise them.

In R. v. MacGregor, 2012 NSCA 18, police stopped the accused at a checkpoint sometime after midnight. The officer smelled alcohol when speaking to MacGregor, who admitted he had a couple of drinks earlier in the evening and also noted he’d used mouthwash before leaving his office, about 15 to 30 minutes before being stopped.

The officer believed MacGregor had alcohol in his body and gave the approved screening device (ASD) demand. He failed and the breathalyzer demand followed. MacGregor was then arrested for impaired driving and informed of his right to counsel. He said he understood his rights and, when asked if he would like to speak to counsel, said, “Not right now, thank you”.

The officer then said “I’ll let you know that if you change your mind at anytime tonight during this whole process, that you want to talk to a lawyer, just let myself or any other officer know and we will make sure that you get in contact with a lawyer, okay?”

“Yeah,” MacGregor responded. When the officer provided information about legal aid MacGregor indicated he understood and the standard police caution was given.MacGregor did not ask to speak to a lawyer at the police station, nor was he asked if he would like to consult one. He was introduced to a breath technician, provided two breath samples and charged with impaired driving and over 80mg%.

At trial in Nova Scotia Provincial Court MacGregor testified he didn’t want to speak to a lawyer at the roadside because he didn’t have a cell phone and neither a phone or privacy was offered to him at that point. He said he intended to call a lawyer from the police station, expecting he would be given an opportunity to do so, but didn’t tell police because he was in an unfamiliar setting and merely did what they asked. Had he been offered a telephone, he claimed, he would have phoned a lawyer.

The trial judge concluded MacGregor’s response “not right now” was equivocal; he had not waived his right to counsel and police were obligated to either provide him with a reasonable opportunity to call a lawyer or obtain a clear and unequivocal waiver. Since police did neither, s. 10(b) of the Charter was breached, the breathalyzer results were excluded under s. 24(2). MacGregor was acquitted and the Crown appealed.

The “not right now” response was an adequate waiver of MacGregor’s right to counsel, a Nova Scotia Supreme Court judge found. In his view, even though MacGregor understood his rights and intended to call a lawyer, there was no evidence that anything interfered with his opportunity to ask to do so before he submitted to Breathalyzer testing.

He further held that there was no further obligation upon the police to reiterate the offer of contacting counsel at the police station. In the alternative, the appeal judge opined that the breath test results were admissible. He ordered the case be sent back to the trial judge. MacGregor again appealed.

S. 10(b) Charter

Section 10(b) provides that “Everyone has the right on arrest or detention… (b) to retain and instruct counsel without delay and to be informed of that right.” This imposes two duties on police:

There are two elements to a s. 10(b) right. The first is informational and the second implementational. In other words, a detained person has to be properly informed about his or her rights. The second element requires that the detained person has to be given an opportunity to consult a lawyer if he or she chooses to do so (para. 23).

Informational duty

Justice Bryson, delivering the appeal court’s decision, agreed with the lower courts that MacGregor’s “not right now” response was equivocal. However, Bryson was of the view that police had properly discharged their duties.

“The police certainly had no obligation to seek and obtain a waiver from Dr. MacGregor,” he said. “Their obligation was to convey to Dr. MacGregor that his right to counsel was ongoing. This is precisely what they did.” The police response to “not right now” was appropriate and could not be clearer:

• It recognized that MacGregor did not want to call a lawyer then and there but may wish to later that evening “during the process;”
• It confirmed that his right to consult counsel was ongoing through the process and not limited to “then and there” in the police cruiser; and
• It told him how to implement his right to consult counsel. He need only advise police at any time during the process and they would then ensure he was able to contact a lawyer.

Once MacGregor was aware of his rights, he had an obligation to pursue them. There was no evidence to indicate a lack of understanding, failure to adequately inform nor an indication he thought he had lost the right to speak to a lawyer once at the police station. Police had met the duty to inform MacGregor of his s. 10(b) rights.

Implementational duty

Once police have discharged the informational component of s. 10(b), the implementation component arises only when the accused expresses a desire to exercise those rights. MacGregor never testified that he had no opportunity to express a desire to call a lawyer. There was ample time for him to utter a few words in order to exercise his right to consult counsel. Throughout his time in custody he was in the presence of police officers but said nothing.

“The fact that he was in unfamiliar circumstances and probably found the experience novel and intimidating may explain his subjective state of mind,” said Bryson, “but it is not objective evidence that there was no opportunity to call a lawyer.”

MacGregor’s right to counsel wasn’t breached, his appeal was dismissed and a new trial ordered.