DATE: 20040128
DOCKET: C39952

COURT OF APPEAL FOR ONTARIO

O'CONNOR A.C.J.O., FELDMAN and GILLESE JJ.A.

On appeal from the judgment of Justice William Festryga of the Superior Court of Justice, dated April 11, 2003, dismissing the appeal from conviction by Justice Morris J. Perozak of the Ontario Court of Justice on March 19, 2002.

BY THE COURT:

[1] The appellant, Jill Cairns, was convicted at trial of driving with over 80 milligrams of alcohol in 100 millilitres of blood.

[2] At trial, the defence brought a motion under ss. 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms seeking the exclusion of the appellant's breath samples on the basis that she had not had an opportunity to exercise her right to counsel in private. The trial judge dismissed her motion on the basis that here was no breach of her Charter rights and entered a conviction against the appellant. Her appeal to the summary conviction appeal court was dismissed. She now appeals to this court.

[3] For the reasons given below, we are of the view that the appeal should be dismissed.

THE FACTS

[4] The appellant was stopped by the police while driving her car on highway 403 in Hamilton. After failing a roadside screening test, she was taken to the Burlington police detachment to provide a breath sample. The appellant was informed of her right to counsel and the police arranged to have duty counsel contact the appellant.

[5] When duty counsel called, the call was transferred to the holding cell area where the appellant spoke in private with counsel for between three and five minutes. The room was equipped with a video camera. The camera was not operating while the appellant was in the room. The camera had no audio monitoring capabilities. The appellant was not told that the camera was not on nor was she told that it did not have audio capabilities. The appellant did not say anything to the police or act in a manner so as to indicate that she had any concern about the video camera.

[6] Following her conversation with duty counsel, the appellant provided two breath samples each of which had readings of 138 milligrams of alcohol in 100 millilitres of blood.

[7] At trial, the sole issue was whether the appellant's s. 10(b) right had been infringed. The appellant testified that she believed that the video camera was on, that the police were watching and listening to her, and that this bothered her. She did not testify that her conversation with duty counsel had been affected by the presence of the camera or her reaction to the camera. She acknowledged that the police officers had been nice to her. There was no evidence that the appellant had discussed her concern with duty counsel during their conversation.

[8] The trial judge was not satisfied that the appellant had proved, on a balance of probabilities, that her right to counsel had been breached by a failure of the police to provide her with privacy. He made the following ruling on the s. 10(b) motion:

The evidence in this voir dire in this court's view does not disclose evidence that the privacy was breached, or the right to consult counsel was infringed. There is no evidence that the machine was on, or whether the video camera was being monitored, and certainly no evidence that any officer could overhear, in the circumstances, the conversation of the accused with duty counsel.

The officer testified here that privacy was allowed, and this court is not satisfied that the applicant was proven, on the balance of probabilities, that rights to counsel have been breached by failing to provide privacy.

The presence of the camera is entirely speculative, and the court finds the cases cited are distinguishable, and the video camera presence, per se, is not tantamount to the officer being present, and the application is denied.

The summary conviction appeal judge affirmed the trial decision.

THE ISSUE

[9] The right to retain and instruct counsel includes the right to do so in private. The appellant, in fact, did speak to counsel in private. The police could not and did not overhear her conversation with duty counsel. The question then becomes whether her right was infringed because of the presence of the video camera which caused her concern that the police were listening to her while she spoke with duty counsel.

ANALYSIS

[10] It is the appellant who bears the burden of establishing, on the balance of probabilities, that her Charter right has been violated. In cases where there is no actual invasion of privacy, there may still be a breach of s. 10(b) where the accused establishes that he or she believed that he or she could not retain and instruct counsel in private and further, that such a belief was reasonably held in the circumstances.

[11] In the case at bar, the appellant testified in examination in chief that when she was on the telephone to duty counsel she saw a camera in the corner of the left hand side of the room. She had no idea whether the camera was capable of allowing officers to hear her conversation but she believed she was being watched and that officers were listening to her as well. In cross-examination she said that it bothered her but she did not think to ask the officer about it.

[12] The trial judge accepted the evidence of the officer that the appellant was accorded privacy. There was no evidence that the camera was on, that it was being monitored or that an officer was able to overhear the appellant's conversation with duty counsel. The trial judge was not satisfied that he could conclude that the presence of the camera, without more, was tantamount to an officer being present in the room.

[13] In other words, the presence of the camera alone was not enough to found either a breach in fact, or a reasonable belief in a breach by the appellant.

[14] The latter conclusion by the trial judge is a finding of fact. In our view, based on the evidence, the trial judge was entitled to reach the conclusion he did. The appellant was informed of her right to counsel; she was provided with the opportunity to speak with duty counsel by telephone in a room alone; she spoke with counsel for several minutes; she gave no indication to the officer of any concern that her conversation was not private; she made no inquiry of the officer of the status of the camera; she did not suggest that her conversation was inhibited; duty counsel did not complain. This case can be compared with R. v. Carroll (2002), 24 M.V.R. (4th) 248 where Lane J. found that the appellant had established that his belief that his conversation with counsel could be heard by officers was reasonable.

[15] Based on the totality of those circumstances, it was open to the trial judge in this case to conclude that the appellant had not satisfied him on a balance of probabilities that at the time of her call to duty counsel she had a reasonable belief that the video camera in the holding cell where the telephone was located allowed officers to overhear her conversation, and that she was therefore not being accorded her right to have a private consultation with counsel.

[16] Accordingly, we agree with the judgments below that the appellant has failed to establish that her s. 10(b) right was infringed.

"D. O'Connor A.C.J.O."
"K. Feldman J.A."
"Gillese J.A."

RELEASED: "KNF" JANUARY 28, 2004