Teddy Waterson liked his lawyer; apparently he liked him alot. That is a good thing. However, unreasonable insistence on speaking to his lawyer when his lawyer was not reasonably available deprived Waterson of an opportunity to speak to counsel. While the trial judge felt this deprivation violated section 10(b), Gunsolus J, sitting on the appeal, disagreed: 2011 ONSC 2310
Waterson was stopped by Kawartha Lakes Police at approximately 3:46 pm. Ultimately Waterson was arrested and advised of his right to counsel. Once back at the station Waterson used the phone in the booking room to call his wife to obtain the number of his lawyer. At 4:25 the police placed a call to the office number for his lawyer and left a message. The police then placed a call to the home number for that lawyer and also left a message. At 4:55 - having received no call back - the police placed a second call to the office and residence of the lawyer. The officer also apparently called Waterson's wife back to see if she had any success contacting the lawyer.
After receiving no call back again the police determined there was no reasonable expectation that the lawyer was going to call back. The officer then advised Waterson that he could call another lawyer and provided him a phone book - as well as advising him about duty counsel - to do so [para 8].
Waterson continually indicated that he would only speak with his lawyer [para 9]. Waterson refused to speak to any other counsel. Waterson eventually did provide breath samples and was charged.
At trial Waterson argued that his right to counsel of choice, pursuant to section 10(b) of the Charter, was violated. The trial judge agreed and excluded the evidence. The Crown appealed.
On appeal Gunsolus J recognized that in some circumstances an obligation may arise for the police to provided additional information to an arrestee. In the present case Gunsolus J held that no such additional informational obligation had arise.
Gunsolus J noted that the respondent had not waived his right to counsel [para 21] while on the other hand the police had made two attempts to contact his counsel of choice [para 20]. In the end Gunsolus J held:
In this case the respondent never waived his right to speak to his counsel of choice. He refused the option of contacting another lawyer, including available duty counsel. Therefore, an additional information obligation was not triggered, as in the Prosper case. The respondent continued to assert his right to speak only to counsel of choice. This is not a circumstance where the respondent had previously asserted his right to counsel, then indicated a change of mind such that he no longer wished legal advice. The respondent would not waive his right to speak to Mr. Beninger. He failed to exercise due diligence in obtaining legal advice by pursuing alternate counsel or to make use of the available duty counsel system... [para 24]; [emphasis added].