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Without invocation there can be no waiver

An arrestee must first invoke their right to counsel under s. 10(b) before the issue of waiver arises.

In R. v. Owens, 2015 ONCA 652 two police officers approached an accused in a pickup truck who had ran out of gas and was parked beside the highway. The officers formed a reasonable suspicion that he had been drinking and demanded a breath sample into a roadside screening device. When he failed, they arrested him and demanded that he provide further breath samples at the police station.

He was advised of his right to counsel from a police issued card. When asked, “Do you understand?” he answered: “Yes.” When asked, “Do you wish to call a lawyer now?” he replied, “No, not right now.” He was then taken to the station and provided two breath samples registering 160mg%. He was again asked whether he wished to speak to counsel but said “No, I have nothing to hide.” He did not ask to speak to a lawyer at any point while in police custody. Owens was charged with over 80mg%.

In the Ontario Court of Justice Owens claimed his rights under s. 10(b) of the Charter were breached. The arresting officer testified the reply of “No, not right now” did not indicate to him a desire to speak to a lawyer during their interaction. Owens argued that he replied that way because he did not understand how he could call counsel “now” at 2 AM when he was handcuffed in the back of a police cruiser.

The judge found that the informational component of s. 10(b) had been satisfied when the arresting officer read from the police issued card and held that Owens had not invoked his right to speak with a lawyer. Police were not acting officiously or in an intimidating manner, there was nothing to suggest that Owens was confused or did not understand his right to counsel, nor did the arresting officer mislead him.
His right to counsel was not breached, the breath samples were admitted as evidence and he was convicted of operating a motor vehicle over 80mg%.

An appeal to the Ontario Superior Court of Justice was successful. Owens argued that his rights were violated. This time, the appeal judge found that Owens’ words “No, not right now” was not a clear and unequivocal waiver of the right to counsel but instead implied a future exercise of the right. Since Owens did not unequivocally waive his rights, the collection of breath samples before he had a meaningful opportunity to contact counsel amounted to a s. 10(b) breach. The breath samples were excluded under s. 24(2), the conviction was set aside and an acquittal entered.

The Crown appealed further, suggesting the Superior Court judge erred, in part, because it was necessary first to determine whether Owens invoked his right to counsel before deciding whether the issue of waiver arose. Owens opposed the appeal because, in his view, the statement “No, not right now” implied a future exercise of the right to counsel and that he thereby invoked his right to counsel.

The implementation duties under s. 10(b) are only triggered when a detainee indicates a desire to exercise his or her right to counsel.

“Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended,” said Justice Hourigan for the appeal court.

While the onus rests with the Crown to prove that a detainee has unequivocally waived his right to consult counsel, and the standard required for an effective waiver is ‘very high’, the issue of waiver arises only if a detainee first asserts the right. Further, ‘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’.

In this case, the appeal judge addressed the issue of waiver of the s. 10(b) implementational duties first, rather than considering whether Owens had invoked his right to consult with counsel.

[O]nce the trial judge found that the police had complied with the informational component of s. 10(b), the next question for determination was not whether the Crown had established that the [accused] had waived his right to consult counsel, but whether the [accused] had established that he invoked his right to consult counsel and thereby triggered the implementational duties [para. 27].

Thus, a properly informed detainee must invoke their right to counsel before any implementation duties on the part of the police are triggered. Without an invocation of the right to counsel, there can be no waiver of the right.

“The issue of waiver of s. 10(b) rights only arises when the accused has established on a balance of probabilities that he invoked his right to counsel,” said Hourigan. “Waiver must be tethered to an existing request to consult counsel.”

Here, the trial judge made no error in finding that Owens did not invoke his right to consult counsel.

On the facts of this case, it was open to the trial judge to find that the arguably ambiguous statement “No, not right now” did not qualify as an invocation of the right to counsel. The [accused] testified that he answered “Yes” to the arresting officer’s question “Do you understand?”, and further that he understood his right to counsel when it was given to him by the arresting officer.

The trial judge indicated that she did not believe the [accused’s] explanation for why he declined to contact counsel when he was asked at the police station. Further, she found that the interactions between the police and the [accused] were polite and non-confrontational, that the arresting officer did not mislead the [accused] as to his rights and that the [accused] was not confused [paras. 29-30].

Since there was no breach of s. 10(b), it is not necessary to consider s. 24(2). The Crown’s appeal was allowed, the appeal judge’s order was set aside and Owens’ conviction was restored.