Impaired appeal results in ‘business as usual’

Law360 Canada (March 7, 2024, 12:50 PM EST) --

John Hill

When Wilton Edwards appeared in the Ontario Court of Justice for trial, many would have expected the case to unfold as many others had previously.

The facts were unremarkable and consistent with many impaired driving cases. Police had spotted Edwards sleeping in the early morning hours after he had pulled over from an off-ramp of Highway 401 with his lights on and engine running. Police tapped on the driver’s side window to awaken him. When he rolled down the window, police detected an odour of alcohol. His eyes were glossy, and he spoke with slurred speech. He was asked to put his vehicle in park but mistakenly put it in reverse.

All these were typical signs of impairment. He was removed from his car, charged with impaired driving, and taken to the police station. He participated in a breathalyzer test where he blew .130.

As might be expected, the court found Edward guilty of impaired driving and exceeding the permitted alcohol level on the breathalyzer test. Since the two criminal infractions were from the same incident, the Kienapple principle applied. He was convicted on the “over 80” charge, and the impaired operation of a motor vehicle charge stayed.

Cases such as this are standard fare in Ontario’s provincial courts. These cases proceed to trial as routinely as if the court process were a manufacturing assembly line, with convictions rolling off the assembly line daily in Ontario.

However, Edwards appealed. His appeal was heard by a Superior Court judge sitting as a Summary Conviction Appeal Court (SCAC). The court found that the trial judge had not given adequate reasons for the impaired driving conviction and erred in law in not recognizing that Edwards’ Charter s. 10(b) rights, his right to instruct counsel without delay, had been breached. The SCAC quashed the convictions and ordered a new trial.

Cases such as this were so common that a defence such as Edwards's could disrupt the assembly line operation in the provincial courts. Worse yet, could all prior cases have resulted in wrongful convictions as they rolled off the assembly line? Of course, the Crown appealed.

The Court of Appeal decision in R. v. Edwards 2024 ONCA 135 was handed down on Feb. 23, 2024, with Justice David H. Doherty writing on behalf of the three-judge panel. The Appeal Court decision set out a detailed timeline of all police activity relating to their contact with Wilton Edwards. The appellate analysis then reaffirmed that the intended purpose of s. 10(b) of the Charter is to mitigate the legal jeopardy and psychological disadvantage that inevitably flows from police detention and cites R. v. Willier 2010 SCC 37.

The court determined the arrest was correctly made, and if any Charter rights violation occurred, it happened at the police station. Defence counsel on appeal argued such a breach occurred because the police failed to advise Edwards that he was allowed to wait a reasonable time for his counsel of choice to make contact before speaking with duty counsel.

The requirement of telling a detainee of the right to contact duty counsel is well-established: R. v. Brydges [1990] 1 S.C.R. 190; R. v. Bartle [1994] 3 S.C.R. 173. The SCAC had found that the breach occurred because the police left Edwards with the impression he could wait no longer. The Court of Appeal concluded that the SCAC misapplied the words of Chief Justice Lamer in R. v. Prosper [1994] 3 S.C.R. 236 as later explained in Willier, no waiver of the right to counsel exists when a detainee is unsuccessful in contacting the lawyer of choice and speaks with duty counsel.

In the present case, there was no finding that Edwards was misled or coerced by police into believing his only option was to speak with duty counsel.

The fallback position for Edwards was to argue that police did not take reasonable steps to afford Edwards to speak with counsel of choice. The SCAC judgment had been critical of police for not acting more diligently in assuring Edwards could talk with his choice of counsel. The SCAC went so far as to suggest the police steered Edwards to duty counsel.

The Court of Appeal disagreed. Here, the police acted with reasonable diligence as required under Willier and R. v. McCrimmon 2010 SCC 36. The Court of Appeal found that police had waited over an hour for counsel to call before offering to speak with duty counsel after three unsuccessful attempts to contact counsel of choice. The call to duty counsel provided Edwards with advice he found satisfactory.

The Court of Appeal was critical of the SCAC in accepting the credibility of Edwards when it ran contrary to the trial judge's finding. There was no reason to set aside the trial judge’s findings of fact, and the SCAC was wrong to do so.

In the end, the Court of Appeal restored the findings and conviction of the trial judge. The SCAC reappraisal of the requirements for compliance with Charter s. 10(b) was not accepted. In impaired driving cases, it will be business as usual. Restart the assembly line conveyor.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). Contact him at johnlornehill@hotmail.com.

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