R. v. Murdoch (M.), (2015) 374 Nfld. & P.E.I.R. 308 (NLPC)

JudgeGorman, P.C.J.
CourtNewfoundland and Labrador Provincial Court (Canada)
Case DateNovember 30, 2015
JurisdictionNewfoundland and Labrador
Citations(2015), 374 Nfld. & P.E.I.R. 308 (NLPC);2015 NLPC 1314

R. v. Murdoch (M.) (2015), 374 Nfld. & P.E.I.R. 308 (NLPC);

    1164 A.P.R. 308

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. DE.033

Her Majesty the Queen v. Mark Murdoch

(2015 NLPC 1314A00717)

Indexed As: R. v. Murdoch (M.)

Newfoundland and Labrador Provincial Court

Gorman, P.C.J.

November 30, 2015.

Summary:

The accused was charged with operating a motor vehicle while having an excessive blood-alcohol level. The accused applied to have the certificate of analyses excluded on the basis of an alleged breach of his s. 10(b) Charter right to contact counsel of choice.

The Newfoundland and Labrador Provincial Court allowed the application and found the accused not guilty.

Civil Rights - Topic 4602

Right to counsel - General - Denial of - Evidence taken inadmissible - The accused failed an approved screening device test - The arresting officer (Hoddinott) advised him of his right to counsel and made a breathalyzer demand - The accused indicated that he wanted to speak to a particular lawyer (Goudie), who was a family friend - Hoddinott transported the accused to the police station and placed him in a room with a telephone - The accused was distraught and crying - Hoddinott dialed duty counsel, gave the phone to the accused and left the room - The accused was surprised to discover that he was not speaking with Goudie - Duty counsel advised him to hangup and advise the police of his desire to speak to Goudie - The conversation lasted 30 seconds - Five minutes later he spoke to Hoddinott and told him that he wanted to speak to Goudie, but did not tell him that he had not received legal advice - Although it was 2:30 a.m., Hoddinott called Goudie's office and then advised the accused that he had been unable to contact Goudie - The accused suggested calling his parents to get Goudie's number - Hoddinott told him that he would be charged with refusal if he did not comply with the demand - The accused was then taken to a qualified breathalyzer technician (Goss) - He advised Goss that he was not satisfied with his consultation with counsel - Goss administered the breathalyzer tests - The accused was charged with driving while having an excessive blood-alcohol level - The Newfoundland and Labrador Provincial Court stated that the police had to understand that a call to a lawyer's officer at 2:30 a.m. was likely to be unsuccessful and thus other reasonable alternatives had to be considered - Going through the motions was not sufficient - The police breached the accused's s. 10(b) Charter right to contact counsel of choice - Applying the three lines of inquiry set out in R. v. Grant (D.) (2009, SCC), the court concluded that the admission of the certificate of analyses would bring the administration of justice into disrepute - The court excluded the certificate and found the accused not guilty.

Civil Rights - Topic 4604

Right to counsel - General - Denial of or interference with - What constitutes - [See Civil Rights - Topic 4602 ].

Civil Rights - Topic 4605

Right to counsel - General - Denial of - Due to lack of time or opportunity - The Newfoundland and Labrador Provincial Court stated that "In R. v. Sinclair [2010, S.C.C.], the Supreme Court indicated that 'in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b).' The Court, however, also indicated that if there is 'reason to believe that the first information provided was deficient' the police must give the detained person 'an additional opportunity to receive advice from counsel.' The Supreme Court clearly indicated that the 'categories' as to when this will be necessary 'are not closed' ... Finally in Sinclair ... the Court indicated that 'normally, s. 10(b) affords the detainee a single consultation with a lawyer. However, they also recognize that in some circumstances, a further opportunity to consult a lawyer may be constitutionally required. These circumstances, as discussed more fully below, generally involve a material change in the detainee's situation after the initial consultation.' I do not see how this can be characterized as a one-call rule." - See paragraph 42.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - [See Civil Rights - Topic 4602 and Civil Rights - Topic 4605 ].

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - The Newfoundland and Labrador Provincial Court stated that "Thus the police have a dual obligation: (1) they must advise the detained person of their right to contact counsel; and (2) facilitate access to counsel if the detained person seeks to exercise their right to speak to counsel." - See paragraph 39.

Civil Rights - Topic 4609.1

Right to counsel - General - Duty of police investigators - The Newfoundland and Labrador Provincial Court stated that "The police have 'their investigative realities' ... and their attempts to facilitate access to counsel need only be reasonable. There is for instance, no constitutionally protected right to consult with multiple lawyers when detained or to make multiple calls. The police have a multitude of duties and their presence on patrol is important to the safety of the community. The police cannot be expected to make multiple calls to contact a lawyer for a detained person. A detained person must understand the reality of the difficulty of contacting counsel of choice in the early morning hours. This is one of the reasons the duty counsel system exists. A detained person cannot be allowed to frustrate the police investigation with requests to speak to more than one lawyer ... " - See paragraph 58.

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - [See third Civil Rights - Topic 4609.1 ].

Civil Rights - Topic 4620.4

Right to counsel - General - Duty of accused to act diligently - The Newfoundland and Labrador Provincial Court stated that "In summary, when a detained person indicates that they wish to exercise the right to counsel by speaking with a specific lawyer, section 10(b) of the Charter entitles the detained person to a reasonable opportunity to contact that specific lawyer. If the lawyer is 'not immediately available, the detainee has the right to refuse to contact another counsel and wait a reasonable amount of time for counsel of choice to become available.' However, if that lawyer cannot be contacted 'within a reasonable period of time, the detainee is expected to exercise his or her right to counsel by calling another lawyer, or the police duty to hold off will be suspended' ... " - See paragraph 46.

Civil Rights - Topic 4620.6

Right to counsel - General - Right to counsel of choice - [See Civil Rights - Topic 4602 and Civil Rights - Topic 4620.4 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4602 ].

Criminal Law - Topic 1379

Motor vehicles - Impaired driving - Breathalyzer - Admissibility where counsel denied - [See Civil Rights - Topic 4602 ].

Police - Topic 2211

Duties - General duties - Duty to arrested persons - [See Civil Rights - Topic 4602 and second and third Civil Rights - Topic 4609.1 ].

Cases Noticed:

R. v. Prokofiew (E.), [2012] 2 S.C.R. 639; 435 N.R. 1; 296 O.A.C. 1; 2012 SCC 49, refd to. [para. 31].

R. v. Phelan (D.B.) (2013), 337 Nfld. & P.E.I.R. 64; 1047 A.P.R. 64; 2013 NLCA 33, refd to. [para. 31].

R. v. J.K. (2015), 365 Nfld. & P.E.I.R. 53; 1138 A.P.R. 53; 2015 NLCA 14, refd to. [para. 31].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 32].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161, refd to. [para. 32].

R. v. J.M.H., [2011] 3 S.C.R. 197; 421 N.R. 76; 283 O.A.C. 379; 2011 SCC 45, refd to. [para. 32].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 33].

R. v. Singh (J.) (2007), 369 N.R. 1; 249 B.C.A.C. 1; 414 W.A.C. 1; 225 C.C.C.(3d) 103 (S.C.C.), refd to. [para. 35].

R. v. Furlong (L.) (2012), 323 Nfld. & P.E.I.R. 77; 1004 A.P.R. (N.L.C.A.), refd to. [para. 35].

R. v. Poole (A.D.) (2015), 379 B.C.A.C. 129; 654 W.A.C. 129; 2015 BCCA 464, refd to. [para. 35].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 36].

R. v. Hebert (1990), 110 N.R. 1; 57 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 38].

R. v. Latimer (R.W.), [1997] 1 S.C.R. 217; 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, refd to. [para. 38].

R. v. Willier (S.J.), [2010] 2 S.C.R. 429; 406 N.R. 218; 490 A.R. 1; 497 W.A.C. 1; 2010 SCC 37, refd to. [para. 38].

R. v. Taylor (J.K.), [2014] 2 S.C.R. 495; 460 N.R. 101; 572 A.R. 81; 609 W.A.C. 81; 2014 SCC 50, refd to. [para. 39].

R. v. Manninen, [1987] 1 S.C.R. 1233; 76 N.R. 198; 21 O.A.C. 192, refd to. [para. 40].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124; 53 C.C.C.(3d) 330, refd to. [para. 40].

R. v. Suberu (M.), [2009] 2 S.C.R. 460; 390 N.R. 303; 252 O.A.C. 340; 2009 SCC 33, refd to. [para. 41].

R. v. Sinclair (T.T.), [2010] 2 S.C.R. 310; 406 N.R. 1; 293 B.C.A.C. 36; 496 W.A.C. 36; 2010 SCC 35, refd to. [para. 42].

R. v. J.B. (2015), 341 O.A.C. 23; 2015 ONCA 684, refd to. [para. 43].

R. v . Owen, [2015] O.J. No. 652 (C.A.), refd to. [para. 43].

R. v. Briscoe (M.E.) (2015), 593 A.R. 102; 637 W.A.C. 102 (C.A.), refd to. [para. 57].

R. v. Fearon (K.), [2014] 3 S.C.R. 621; 465 N.R. 205; 326 O.A.C. 1; 2014 SCC 77, refd to. [para. 60].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, appld. [para. 64].

R. v. Vu (T.L.), [2013] 3 S.C.R. 657; 451 N.R. 199; 345 B.C.A.C. 155; 589 W.A.C. 155; 2013 SCC 60, refd to. [para. 64].

R. v. Cole (R.), [2012] 3 S.C.R. 34; 436 N.R. 102; 297 O.A.C. 1; 2012 SCC 53, refd to. [para. 68].

R. v. Kiene (C.A.) (2015), 607 A.R. 314; 653 W.A.C. 314; 2015 ABCA 326, refd to. [para. 69].

R. v. Blake (O.) (2010), 257 O.A.C. 346 (C.A.), refd to. [para. 70].

R. v. Harrison (B.), [2009] 2 S.C.R. 494; 391 N.R. 147; 253 O.A.C. 358; 2009 SCC 34, refd to. [para. 70].

R. v. Beaulieu (G.), [2010] 1 S.C.R. 248; 398 N.R. 345; 2010 SCC 7, refd to. [para. 70].

R. v. Loewen (D.J.), [2011] 2 S.C.R. 167; 415 N.R. 397; 502 A.R. 3; 517 W.A.C. 3; 2011 SCC 21, refd to. [para. 70].

R. v. Ramage (R.) (2010), 265 O.A.C. 158; 257 C.C.C.(3d) 261; 2010 ONCA 488, refd to. [para. 70].

R. v. U.P.M., [2010] 1 S.C.R. 253; 399 N.R. 200; 346 Sask.R. 1; 477 W.A.C. 1; 2010 SCC 8, refd to. [para. 70].

R. v. Morelli - see R. v. U.P.M.

R. v. Côté (A.), [2011] 3 S.C.R. 215; 421 N.R. 112; 2011 SCC 46, refd to. [para. 70].

R. v. Atkinson (S.) (2012), 292 O.A.C. 231 (C.A.), refd to. [para. 70].

R. v. Reddy (C.J.) (2010), 282 B.C.A.C. 51; 476 W.A.C. 51; 2010 BCCA 11, refd to. [para. 70].

R. v. Stevens (L.) (2011), 282 O.A.C. 16; 2011 ONCA 504, refd to. [para. 70].

R. v. Martin (G.W.) (2015), 438 N.B.R.(2d) 17; 438 A.P.R. 17 (C.A.), refd to. [para. 70].

R. v. Mahmood (A.) (2011), 284 O.A.C. 94; 2011 ONCA 693, refd to. [para. 70].

R. v. Dhillon (R.S.) (2012), 323 B.C.A.C. 28; 550 W.A.C. 28 (C.A.), refd to. [para. 70].

R. v. Pearson (B.J.) (2012), 536 A.R. 37; 559 W.A.C. 37 (C.A.), refd to. [para. 73].

R. v. MacDonald (A.) (2012), 294 O.A.C. 232 (C.A.), refd to. [para. 79].

Sivia v. Superintendent of Motor Vehicles (B.C.) et al. (2015), 476 N.R. 3; 2015 SCC 46, refd to. [para. 85].

Goodwin v. British Colmbia (Superintendent of Motor Vehicles) - see Sivia v. Superintendent of Motor Vehicles (B.C.) et al.

R. v. Spencer (M.D.), [2014] 2 S.C.R. 212; 458 N.R. 249; 438 Sask.R. 230; 608 W.A.C. 230; 2014 SCC 43, refd to. [para. 85].

Counsel:

T. Simms, for Her Majesty the Queen;

J. Goudie, for Mr. Murdoch.

This matter was heard at Corner Brook, N.L., on November 10 and 24, 2015, by Gorman, P.C.J., of the Newfoundland and Labrador Provincial Court, who delivered the following judgment on November 30, 2015.

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