Date: 20011115
NOVA SCOTIA COURT OF APPEAL
[Cite as: R. v. Nickerson, 2001 NSCA 161]
Glube, C.J.N.S., Roscoe and Saunders, JJ.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
MURIEL IVA NICKERSON
Respondent
REASONS FOR JUDGMENT
Counsel: Kenneth W. F. Fiske, Q.C., for the appellant
Timothy D. Landry, for the respondent
Appeal Heard: November 13, 2001
Judgment Delivered: November 15, 2001
THE COURT: Leave to appeal is granted but the appeal is dismissed, per reasons for judgment of Saunders, J.A.; Glube, C.J.N.S. and Roscoe, J.A., concurring.
Saunders, J.A.:
[1] Following a trial in the Provincial Court, the respondent, Muriel Nickerson, was convicted by Judge Robert M. Prince on a charge of refusing the breathalyzer contrary to s. 254(5) of the Criminal Code. She appealed her conviction. Justice Charles E. Haliburton of the Supreme Court, sitting as a summary conviction appeal court, allowed her appeal on the basis that the police denied the respondent her right to counsel guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms.
[2] Pursuant to s. 839 the Crown now seeks leave to appeal and appeals the decision of the summary conviction appeal court, asking that its decision and order be set aside, a conviction entered, and the sentence imposed by the Provincial Court judge restored.
[3] The material facts are not in dispute. In the early morning hours of Sunday, May 7, 2000, RCMP officer Kevin Surette was patrolling the streets of the town of Yarmouth in a marked police cruiser, accompanied by Clayton Doucette, a civilian “ride along”. At approximately 2:10 a.m. Cst. Surette observed a car being driven very slowly, without lights, as it left the parking lot of a local drinking establishment. He saw it turn right without any signal indicator activated. After stopping the car, Cst. Surette questioned the sole occupant, Ms. Nickerson, and observed that her eyes were red and her speech was somewhat slurred. He asked the respondent to provide a breath sample for the roadside screening device. Ms. Nickerson failed the test. At 2:17 a.m., Cst. Surette read from a card the demand that the respondent provide samples of her breath for analysis, followed by advice of her right to counsel, in these words:
You have the right to retain and instruct counsel without delay and the right to apply for legal assistance without charge through the provincial Legal Aid Program. Do you understand and do you wish to contact a lawyer now?
[4] The respondent replied to the demand by saying:
Can I just go now or what?
[5] At trial Officer Surette testified that he explained the nature of the demand and the right to counsel to the respondent. He told her that she had the right to call a lawyer immediately upon their arrival at the RCMP detachment and that a telephone and phone numbers would be made available to her. When asked on cross-examination whether he advised her of the existence of the 24-hour Legal Aid duty counsel system, Officer Surette replied:
Not in those terms, no. Not that I recall.
[6] The officer told her that if she refused to comply with the breath sample demand she would be charged with refusal. The respondent maintained her position that she just wanted to be handed her papers for court so that she could leave. Officer Surette seized the vehicle, handed her an appearance notice, and released the respondent into the custody of her friends who were waiting nearby.
[7] Mr. Doucette had been sitting in the police cruiser and was able to confirm the dialogue between Cst. Surette and the respondent. He testified that the respondent answered “yes” when asked if she understood the demand and to her right to counsel. Mr. Doucette could not recall if the specific words “duty counsel” had ever been used by Cst. Surette. When asked whether the officer advised the respondent what options she might have about contacting counsel, Mr. Doucette testified:
Yes, he did . . . He told her that if she couldn’t afford a lawyer one would be provided. She had 24 hours access to a lawyer.
[8] The respondent took the stand in her own defence and testified that the police never advised her of her right to counsel and never asked whether she wished to contact a lawyer. She told the court that had she been advised of her right to counsel, she probably would have called a lawyer.
[9] The trial judge accepted the evidence of the Crown’s witnesses and rejected the respondent’s testimony. In convicting her of the offence, he said:
Viewed against the backdrop of these comments I must make certain rulings. Firstly, I reject the testimony of the Defendant. I considered what she had said and when viewed against all of the evidence that I have heard and what one would anticipate as reasonable in all of the circumstances especially from the perspective of what I have concluded was her impaired condition. I accept the evidence of the Crown. I found the evidence of Constable Surette and Mr.Doucette when taken as a whole, as conclusive of the fact that there was advice relating to right to counsel given to the Defendant. While she was not given the exact text of what is generally on cards in the possession of the police she certainly received the information required at law.
Further, I am satisfied that the Defendant was given appropriate advice and that her words indicate a waiver of her right to retain counsel. She simply wanted to get the procedure over with and as a consequence refused the Constable’s demand.
That being the case I am satisfied that there was no denial of right to counsel and no reasonable excuse for her refusal. I find her guilty because the Crown has proven her guilt beyond a reasonable doubt.
[10] In allowing the appeal and acquitting the respondent, Justice Haliburton carefully considered the decision of the Supreme Court of Canada in R. v. Bartle, [1994] 3 S.C.R. 173, together with the more recent decision of this court in R. v. Chisholm (2001), 191 N.S.R. (2nd) 369. He discerned the principles to be taken from those cases and correctly applied them to the issues and the evidence before him. After noting the testimony of the Crown’s witnesses, Justice Haliburton accepted the submission of counsel for Ms. Nickerson and said:
I would simply observe . . . that there is, in that testimony, no evidence or no succinct statement that a toll free telephone call could be made. There is no suggestion that there would be free advice and there is no suggestion that there was a 24 hour service or that there was duty counsel available on a 24 hour basis. I may be being picky but from having reviewed the cases, it looks to me as if, at least, some of those things are essential to the appropriate communication to the accused, that is; free, toll free, and duty counsel available at all times. (Underlining in original)
[11] I agree. The advice given to the respondent by the officer concerning her right to counsel was deficient and as a consequence her rights guaranteed by s. 10 of the Charter were denied. Let me repeat what the officer said he told the respondent in his police cruiser. First, he read from the card:
You have the right to retain and instruct counsel without delay. You have the right to apply for legal assistance without charge through the Provincial Legal Aid Program, do you understand?
After the respondent communicated that she did understand, the officer asked her:
Do you wish to call a lawyer now?
[12] Later he explained it in layman’s terms, telling the court:
I indicated that if she wanted to call a lawyer she could do that immediately upon arrival at the detachment and that we could make the - the phone and the numbers and everything available to her at that time.
[13] When asked:
Did you advise her, officer, of the existence of the 24 hour legal duty counsel?
The officer answered:
Not in those terms, no, not that I recall.
[14] While it was certainly open to the trial judge to take into account the combined effect of both the police officer’s testimony and that of his passenger, Mr. Doucette, there is nothing in the latter’s evidence to make up for the deficiencies in the constable’s explanation. All Mr. Doucette could say was that the officer:
. . . told her that if she couldn’t afford a lawyer one would be provided, She had 24 hour access to a lawyer. (Underlining mine)
[15] The important distinction between possibly qualifying for Legal Aid, or accessing immediate legal advice at no financial cost whatsoever, was never explained to the respondent.
[16] It is disappointing so many years after the Supreme Court’s decisions in R. v. Bartle, and R. v. Brydges, [1990] 1 S.C.R. 190, that concise, accurate, unambiguous wording cannot be printed on laminated cards for quick and easy reference by police officers when informing detainees of their right to counsel. As this court observed in Chisholm where - as in Nova Scotia - a duty counsel system exists and is accessible at the time of arrest or detention, the principles articulated by Chief Justice Lamer in Bartle are engaged. To satisfy the informational component of s. 10(b) of the Charter, the detainee is to be advised of whatever system exists for free, preliminary legal advice and how such advice can be accessed, for example, by calling a 1-800 number or by being shown a roster of available duty counsel and their phone numbers. Constable Surette’s advice to Ms. Nickerson was that she had a right to “apply” for Legal Aid. The advice overheard and repeated by Mr. Doucette was expressed in the alternative, that is if the respondent could not afford a lawyer, one “would be provided”. Anyone given such advice would logically assume that financial means first had to be considered before even accessing a lawyer for free. Here, as in Chisholm, the respondent was not clearly and fully informed of her right to counsel. No one told her that she was entitled to free, immediate, preliminary legal advice. Nobody explained that she could telephone a lawyer toll free just as soon as she arrived at the RCMP detachment. No one explained that free duty counsel was available to her around the clock. Justice Haliburton was correct when he said that in Nova Scotia:
. . . in order to fulfil the informational component, the police officer is under a duty to ensure that the detainee understand that they have immediate access to free advice, that the telephone call is going to be free and that there is duty counsel available at the other end of the telephone 24 hours a day regardless if whether it’s in the middle of the night, as it obviously was in this case, or whether it is during business hours.
[17] Having found a violation of the respondent’s right to counsel and a breach of her s. 10 Charter rights, the summary conviction appeal court judge did not go on to consider s. 24(2) and whether the evidence of her refusal to comply with the breathalyzer demand ought to be admitted under s. 24(2) of the Charter. In this respect, I agree with the Crown that the summary conviction appeal court judge erred. However, applying R. v. Cobham, [1994] 3 S.C.R. 360, I find that this is a case where the admission of Ms. Nickerson’s refusing the breathalyzer would adversely affect the fairness of her trial. Her refusal is self-incriminating and of a particularly serious nature, as it amounts to evidence of the crime itself. Thus, as Chief Justice Lamer noted in Cobham at 92 CCC (3rd) 333 at 342:
The direct connection between the incriminating refusal evidence and the offence creates a strong presumption that its admission would render the trial unfair. This is because the appellant may not have refused to take the breathalyzer test if he had been properly advised under s. 10(b) of his right to duty counsel. What would have happened thereafter is not a matter upon which I am prepared to speculate.
[18] Similarly, on the evidence in this case it cannot be said that Ms. Nickerson would have persisted in refusing to take the breathalyzer test even if fully informed of her s. 10(b) Charter rights. The respondent said she was not given advice about calling a lawyer nor asked if she wanted to consult counsel, but that if she had she likely would have called a lawyer.
[19] In the result, I find that the evidence of the respondent’s refusal should be excluded on the basis that its admission would bring the administration of justice into disrepute.
[20] I would grant leave but dismiss the appeal.
Saunders, J.A.
Concurred in:
Glube, C.J.N.S.
Roscoe, J.A.