March 15, 2021 By Mike Novakowski
New Brunswick’s top court has sent a clear signal to police that denying access to counsel at the scene of an arrest and delaying it until arriving at the police station as a usual practice amounts to an “egregious” Charter breach.
In R. v. Landry, 2020 NBCA 72, the accused was stopped driving by police at 2:48 a.m. The officer detected the odour of alcohol on Landry’s breath, who admitted to having consumed some. An approved screening device demand was made for a breath sample but Landry refused to exit his vehicle. After three orders to exit and an obstruction warning, Landry exited his vehicle while holding his cell phone. The officer asked him to leave the phone in his vehicle or it would be seized. On the sixth attempt for a sample, Landry complied and registered a fail. He was arrested and, at 3:15 a.m., was informed of his s. 10(b) Charter rights.
Landry told the officer he had a lawyer and wanted to speak with him immediately using his cell phone. The officer refused the request before they arrived at the police station. After arriving at the station (at 3:40 a.m.), the first attempt to contact his lawyer was made by police at 3:45 a.m. to no answer. He made several more attempts to reach his lawyer and others without success. At 4:34 a.m., Landry was given the following Prosper warning:
“You have already been informed of your right to contact duty counsel or another lawyer. You have clearly indicated that you want to talk to a lawyer, but you have changed your mind (or you have not clearly indicated to me whether you want to talk to a lawyer). You have the right to a reasonable opportunity to contact a lawyer for advice and, before obtaining evidence from you, I am required to wait until you exercise or waive that right. Do you want to waive your right to contact duty counsel or another lawyer?”
Landry replied, “I do not waive it, but what do you want me to do?” Within four minutes, he was then turned over to the qualified technician who took two breath samples—the first was taken at 4:45 a.m. In New Brunswick Provincial Court, the trial judge found Landry had been provided a reasonable opportunity to consult a lawyer but had not been diligent in exercising his right, meaning the Prosper warning did not matter. Landry was convicted of operating a motor vehicle while over 80mg per cent.
He later appealed to the New Brunswick Court of Queen’s Bench. The appeal judge found Landry’s s.10(b) Charter right was breached. Although he too found a Prosper warning unnecessary, he held the investigating officer did not provide Landry with a reasonable opportunity to retain and instruct counsel without delay at the time of his arrest. As a consequence, the certificate of analysis was excluded under s.24(2) and Landry was acquitted.
The Crown challenged the finding of a s.10(b) breach to New Brunswick’s highest court but the Court of Appeal rejected the Crown’s arguments. In this case, the Court of Appeal recognized there were two s.10(b) breaches. First, the initial refusal by the officer at the time of arrest to permit access to counsel was one breach. Although Landry told the officer he wanted to consult his lawyer without delay by using his cell phone, he was told he would have to wait until they arrived at the police station.
“The case law could not be clearer on the issue of when an accused is entitled to avail himself or herself of his or her right to counsel,” said Justice LeBlond. “The right applies immediately following arrest and reading of constitutional rights. No evidence may be obtained before the right is exercises. In this case, Mr. Landry was entitled to use his cell phone to try to contact his lawyer, but the police officer refused to let him do so. He went so far as to threaten Mr. Landry that his cell phone would be seized if he did not leave it in his car.”
The second breach occurred when Landry was read the Prosper warning. The Prosper warning is to be given when a detainee, who has asserted a desire to speak to counsel, changes their mind and waives their right to counsel or does not respond clearly to a police officer. Neither of these situations applied here.
“Mr. Landry never waived his right and, moreover, he was completely unaware of the legal import of the Prosper warning,” said LeBlond. “The warning makes no reference to the attempts made until it was read and simply informs Mr. Landry that his right under s.10(b) of the Charter subsists and that he continues to have a reasonable opportunity to contact a lawyer. All Mr. Landry can be expected to understand from the warning is that the police officer is telling him, at 4:34 a.m., that he still has a reasonable opportunity to exercise his right and that the police officer has to wait until he does so before obtaining, in this case, samples of his breath…The police officer did not allow Mr. Landry to exercise, within a reasonable time, the right he had just confirmed to him and instead told him there was nothing more to be done. At 4:38 a.m., only four minutes after receiving the warning from the police officer, the qualified technician took charge of Mr. Landry.”
The Court of Appeal went on to uphold the Court of Queen’s Bench decision to exclude the certificate of analysis. Although the evidence was reliable and society’s interest in an adjudication of this case on its merits favoured the admission of the certificate of analysis, the other two factors in the s.24(2) analysis favoured exclusion. Firstly, the officer’s usual practice (not allowing access to counsel at the place of arrest)was very serious Charter-infringing conduct. Secondly, the two s.10(b) breaches undermined Landry’s right to counsel. The violation of his constitutional right was “committed deliberately and egregiously”. The Crown’s leave to appeal was denied.
Mike Novakowski is Blue Line’s case law columnist.
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