Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Steven Tyndall
Before: Justice Paul F. Monahan
Heard on: January 9, September 20, and November 30, 2017
Judgment Released on: December 22, 2017
Counsel
Ms. S. Duffey — for the Crown
Mr. S. Price — for the defendant Steven Tyndall
MONAHAN J.:
Introduction
1Mr. Steven Tyndall is charged that on or about January 6, 2016 that he did operate a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Criminal Code (the "Code"). He is further charged with having operated a motor vehicle on or about January 6, 2016 while his ability to do so was impaired by alcohol contrary section 253(1)(a) of the Code.
2At trial, Mr. Tyndall brought a Charter application. The principal Charter violations alleged were sections 8, 9 and 10(b) of the Charter. The defence sought the exclusion of the breath samples pursuant to section 24(2) of the Charter.
3The Charter application and the trial were held, on consent, on a blended basis. The Crown called four witnesses on the trial proper and on the Charter application: Joan Schraa, a civilian witness whose vehicle was hit from behind by a vehicle driven by Mr. Tyndall; Constable Krista Levesque, the arresting officer; Constable Melissa Kolodziechuk, the breath technician; and Dr. Daryl Mayers, an expert witness. The defence called Mr. Tyndall on the Charter application and the trial proper.
Factual Overview
4While there were some contested facts, the vast majority of the facts were not contested. At approximately 5:40 PM on January 6, 2016, Mr. Tyndall's vehicle rear ended Ms. Schraa's vehicle at a stop light on Highway 10 near Monora Park in the Town of Mono. Police were called and Ontario Provincial Police Constable Levesque arrived at approximately 6:14 PM. She came into contact with Mr. Tyndall who had been waiting at the scene in the driver's seat of his vehicle. She detected alcohol on his breath and she made an ASD demand. She testified that she had with her and was operating an approved screening device namely a Draeger Alcotest 6810 (the "ASD" or the "6810"). On the second try, Mr. Tyndall provided a breath sample which registered a fail with the ASD. He was placed under arrest for over 80, given rights to counsel and cautioned and given an approved instrument demand.
5At the roadside and again at the police station (Dufferin OPP detachment), Mr. Tyndall asked to speak to duty counsel and a private consultation was arranged at the police station. Afterwards, Mr. Tyndall indicated that he was not satisfied with his consultation with duty counsel and that he wanted to call another lawyer. He did not have the name of any lawyer to give to the police but asked if he could call someone to help him get a lawyer and was told that he could not. He was given the yellow pages and invited to contact any lawyer he wished. He asked the police to tell him who he should call but they declined to advise him. He briefly glanced at the yellow pages, pointed to some unknown lawyer and suggested that the police call that person but then essentially withdrew the request and said he did not wish to contact anyone at that point and that he was content to proceed based on the advice of duty counsel.
6Mr. Tyndall then proceeded to provide breath samples of 231 and 224 mg of alcohol in 100 ml of blood at 7:38 PM and 8:00 PM respectively.
7In final argument, the defence conceded that if the breath samples were admitted, then the Crown had proved both the over 80 and the impaired charges. If the breath samples were excluded pursuant the Charter, as the defence submitted they should be, then the defence submitted that the over 80 and the impaired charges would not be proved beyond a reasonable doubt.
8In final argument, the Crown submitted that the breath samples should not be excluded pursuant to the Charter. The Crown submitted further that even if the breath samples were excluded that the Crown had nevertheless proved the impaired charge beyond a reasonable doubt.
9I will expand upon the relevant facts in my discussion and analysis of the issues below.
10The issues that arise in the case are as follows:
Issues
Issue 1 – Was there a section 8 (and resulting section 9) Charter violation? In particular, has the Crown established that the reliance on the fail result from the ASD demand was reasonable?
Issue 2 – Was there a section 10(b) Charter violation?
Issue 3 – If there was a violation section 8, 9 or 10(b), should the breath samples be excluded pursuant to s. 24(2) of the Charter?
11I will examine each issue in turn.
Issue 1 – Was there a section 8 (and resulting section 9) Charter violation? In particular, has the Crown established that the reliance on the fail result from the ASD demand was reasonable?
Law and Analysis
12In the case at bar, the defence alleges that there was a section 8 Charter violation because the evidence calls into question whether the arresting officer could reasonably rely on the fail result from the device used at the roadside and said by the arresting officer to be an ASD 6810. The defence submits that this led to a section 9 arbitrary detention because there were not proper grounds for the arrest in the first place.
13Where there is a warrantless search or seizure, the Crown has the burden of establishing, on a balance of probabilities, that the search or seizure was a reasonable one: R. v. Collins, [1987] 1 S.C.R. 265 at paras. 21-23. This proposition is applicable to the case at bar as the ASD sample and the approved instrument samples were all warrantless searches. In order to establish that a search or seizure was reasonable, the Crown must show that the police had reasonable and probable grounds to conduct the search or seizure. In the case of alleged drinking and driving, this will relate to, among other things, the demands made and subsequent obtaining of the breath samples.
14Where a roadside test from an ASD is used to confirm or reject an officer's suspicion that a motorist might be impaired or over the legal limit, it is sufficient for the officer to reasonably believe that the device is in good working order: R. v. Coutts, [1999] O.J. 2013 (C.A.) at para. 20.
15There is no requirement that the officer know the calibration date of the device, when it was last calibrated or whether the device is in fact in good working order: R. v. Mastromartino (2004), 70 O.R. (3d) 540 (Sup. Ct. per Durno J.) at para. 79. As long as the officer reasonably believes the device to be in good working order, it can be used to confirm or reject the officer's suspicion that the motorist has alcohol in their system: see for example R. v. Coutts, [1999] O.J. No. 2013 (C.A.) (per Moldaver J.A. for the Court) at para. 20; R. v. Mastromartino (2004), 70 O.R. (3d) 540 (S.C.J.) at para. 79 and R. v. Topaltsis (2006), 214 O.A.C. 115 at paras. 8-9.
16One of the important points that comes out of these cases is that the ASD does not have to, in fact, be in proper working order. The officer must simply have a subjectively honest belief, which is objectively reasonable in the circumstances, that the device is in proper working order. This limited perspective on the operation of the ASD is permitted by the courts because the evidence derived from the ASD does not prove that the accused person was over 80. It is only used for the purpose of confirming or rejecting a police officer's suspicion that a motorist may be impaired (Coutts at para 21). Where there is a fail on the ASD test, it permits the officer to make an approved instrument demand under s. 254(3) of the Code.
17The defence can potentially undermine the Crown's ability to establish the reasonableness of the officer's subjective belief that the device was working properly by pointing to evidence that suggests that the officer did not know how to properly operate the device. One the leading cases in support of this argument is R. v. Au-Yeung (2010), 2010 ONSC 2292 , 209 C.R.R. (2d) 140 (Ont. S.C.J.) where, among other things, the officer had forgotten his training on the ASD and was not sure if he had used the device properly. While it is not expressly stated in that decision, it is apparent that the device in that case was not a 6810, given that the evidence in the case at bar establishes that the 6810 first came into use in December 2011. As I will explain below, it is apparent that the 6810 operates differently than the device referred to cases such as Au-Yeung and, in my view, this can affect the Court's assessment of whether the subjective belief of the officer that the device used was in good working order was objectively reasonable.
18Further, even where the Crown establishes that the officer using the ASD honestly believed that the device was in good working order and that belief was objectively reasonable, the accused can undermine reliance on such a device if the accused can show that there was "a high degree of unreliability with respect to the screening device" at the time it was administered to the accused: see R. v. Paradisi, [1998] O.J. 2336 (C.A.) at para 1.
19The defence submits that the arresting officer Constable Levesque may have had a subjective belief that the device she was using was an ASD 6810 and was in good working order. However, the defence submits that Constable Levesque's subjective belief that the device was an ASD 6810 and in good working order was not objectively reasonable.
20Constable Levesque testified that she was using an ASD and that it was a 6810. She explained that she did a self-test on the device at the beginning of her shift and that it registered "O mg" of alcohol. She did a further self-test at the scene before taking a sample from Mr. Tyndall. The second self-test yielded the same result as the first self-test.
21Constable Levesque further explained that before taking the sample from Mr. Tyndall she checked the calibration date and accuracy check dates which appeared on the screen of the device itself. She said that this check was in accordance her training and that the dates were in the acceptable range to give a reliable sample. She gave the last calibration date as being December 6, 2015 and the last accuracy check date as being January 3, 2016.
22Constable Levesque further testified that a 6810 will not accept a breath sample if it is outside the acceptable range of calibration and/or accuracy dates. When she turned the device on it said on the screen that it was "Ready" to receive a sample.
23Constable Levesque testified that she considered the issue of residual mouth alcohol and that she asked Mr. Tyndall when his last drink was and he advised that it had been many hours earlier.
24It was based on the foregoing that Constable Levesque formed the view that the ASD was in good working order.
25It is recognized, as noted above, that the Crown has the onus of proving, on a balance of probabilities, that the search and seizure was reasonable. It was the defence's submission that the Crown had not done so in this case. The defence pointed to various points in the evidence in support of its submission that Constable Levesque did not know how to operate the device she was using and that the device either was not a 6810 at all or was not a properly functioning 6810. In any event, the defence submitted, in effect, that Constable Levesque did not know how to operate the device so her subjective belief that it was in good working order was not objectively reasonable.
26The points in evidence which the defence submits support the foregoing argument include the following:
(i) Constable Levesque did not check the calibration date on the calibration log in the pelican carrying case for the device to see if it was consistent with the information provided on the screen of the device itself. This practice is listed as a "start of shift" step to be taken under the 6810 "Operating Procedures" issued under the insignia of the Ontario Provincial Police which was marked as Exhibit 3 at trial;
(ii) Mr. Tyndall had to make two attempts before providing the sample which registered a fail. Constable Levesque testified that the first sample resulted in a message from the device that said "insufficient air". Exhibit 3 shows that there is no such message with the 6810. Exhibit 3 indicates that there is an "insufficient volume" message which results when the subject is not blowing hard enough or evenly enough;
(iii) When Constable Levesque was asked in cross-examination to recount in detail as to how the 6810 device operated when she did her self-test she initially failed to mention that there is a green light when the device is ready to receive a sample. Shortly thereafter in this same line of questioning, she said she thought there was a solid green light. Exhibit 3 indicates that there is a flashing green light in these circumstances (see page 6);
(iv) The defence submits that Constable Levesque failed to accurately recount some of the tones that apparently occur when the device leads to an insufficient volume sample or a fail sample (three tones) or a 0 mg/100 ml sample. I note that the defence acknowledged that not all of these tones are mentioned in the Operating Procedures document marked as Exhibit 3;
(v) Constable Levesque failed to mention that the ASD will make a "click" sound when the breath sample meets the requirements of the device and testified that there were no other sounds;
(vi) When the device is analyzing a sample it will read "wait analyzing". Constable Levesque testified that she could not remember if there was anything on the screen on the device during this time;
(vii) The officer testified that when she did the self-test it led to a message of "0 mg". She failed to mention that the correct message is apparently "0 mg/100 ml". She made no reference to the "100 ml"; and
(viii) The "insufficient volume" reading apparently also displays a flashing red light whereas Constable Levesque said it was a solid red light when she got the reading "insufficient air".
27As I said at the outset of this issue, it was the defence's submission that the device that Constable Levesque used was either not a 6810 or was not a properly functioning 6810 and that, in any event, Constable Levesque did not know how to properly operate it such that any subjective belief she had as to it being in good working order was not objectively reasonable.
28On my view of the evidence, Constable Levesque was in fact operating an ASD 6810. Further, in my view, she had a subjective belief which was objectively reasonable that the ASD 6810 she was using was functioning properly. None of the points raised by the defence considered individually or collectively come close to undermining the reasonableness of the subjective belief of the arresting officer in this case. Let me explain why:
(i) The 6810 came into use on December 15, 2011 as indicated by Exhibit 3. The 6810 is very different than another ASD which is often referred to in some of the older cases namely the Alcotest 7410. The 6810 will not accept a sample if the 6810 is outside of its calibration and accuracy date parameters for its proper use and Constable Levesque was aware of this fact. The Operating Procedures Exhibit 3 document explains "if the accuracy/calibration period has exceeded, the device will lock out until an accuracy check or calibration is performed". This was the testimony of Constable Levesque as well. This is a major point in support of the assessment of the officer's subjective belief that the ASD was functioning properly. It means that if the device accepts a sample and generates a fail it is operating within it accuracy and calibration check requirements. This is not a question of whether the officer could properly remember whether a light was flashing or solid. This evidence goes to the heart of the proper functioning of the device because it relates to the accuracy and calibration of the device. Therefore, this fact provides significant support for the objectively reasonable nature of Constable Levesque' belief that when the device produced a fail result the device was operating properly because it was operating within its required calibration and accuracy check parameters. It could not accept a sample otherwise;
(ii) The fact that Constable Levesque did not check the calibration log in the pelican case is irrelevant. I recognize that the Operating Procedures document suggests that the officer should take this step. Operating manuals do not conclusively determine the legal requirements for the proper use of an ASD, the Courts do: see for example Mastromartino, supra. Even before the introduction of the 6810, the Courts had held that the officer did not need to know the calibration and accuracy check dates of an ASD. Knowledge by the officer using the 6810 of the calibration and accuracy check dates are even more irrelevant in the context of a 6810 device which will not accept a sample if the dates are not within the proper parameters. Understood in this context, the failure to check the pelican case log is of no moment whatsoever;
(iii) Constable Levesque testified to receiving an "insufficient air" reading when the first sample was provided. There is clearly no such error message associated with the 6810. I have no doubt whatsoever that the message she received was in fact "insufficient volume". As noted above, the Operating Procedures document indicates that there is a message associated with the 6810 of "insufficient volume" when the subject does not blow properly. I am fully satisfied that when Constable Levesque referred to "insufficient air" the message she actually saw was "insufficient volume". She understood that the detainee was not providing a proper sample. I note as well that this first sample played no role in her grounds for the arrest of Mr. Tyndall. More importantly, it does not undermine the objective reasonableness of Constable Levesque's subjective belief that the device was operating properly;
(iv) I note that Constable Levesque was subjected to a lengthy cross-examination in which she was literally tested on her memory of whether certain tones, clicks or lights occurred at various times during the testing process. In some cases, she was unable to recall and in other cases she got it wrong. I note that the breath technician and Dr. Mayer, who was qualified as an expert witness with respect to the 6810 (and as a toxicology expert), were literally given the "correct" answers by defence counsel as to the various tones, clicks and lights. This was part of the manner by which the defence sought to establish that Constable Levesque was wrong in her evidence as to how the device operated. I note two important points here. First, even the Operating Procedures document issued under the insignia of the Ontario Provincial Police does not mention all of the tones or lights which defence counsel says Constable Levesque got wrong thereby seeking to undermine her subjective belief that the device was operating properly. In this regard, I note that the "start of shift instructions" which includes the self-test, makes no mention of any tones or any lights at all. Second, Dr. Mayer, the expert witness with respect to, among other things, the "theory and operation" of the 6810 said that he did not have all of the error messages memorized and said "my mind … is not clear to do that". In further evidence regarding the "insufficient volume" message when Dr. Mayer was asked about the tone (and was literally told the "right answer" by defence counsel), he still was not sure and stated as follows "I don't recall the tone… I believe it's one tone". In summary on this point, if the expert witness cannot recall the tone or all of the error messages and if the Operating Procedures document for the 6810 does not even mention all of the tones and lights that defence counsel now criticizes Constable Levesque for failing to recall, I do not consider that a frontline officer called upon at trial to recount all of the precise tones and lights can reasonably be expected to do so. In my view, if the breath technician (a more senior experienced officer including with respect to the 6810) and the expert witness were asked to do the same as Constable Levesque, they would fare no better than she did. So what does it mean that the front line officer could not recite all of the tones and lights? What is the court to compare her failings to? To the expert witness who was not asked to do the same but when given the answer for a similar question still was not sure and expressly stated that he could not remember all of the error messages? None of this evidence (or related evidence) reasonably suggests that Constable Levesque did not know how to properly operate the 6810; and
(v) The Operating Procedures document makes it clear that the ASD 6810 is a relatively simple device to operate properly with minimal training. The failure of a front line officer to be unable to recall (or get wrong) some of the flashing lights and tones (or not to mention or note the "100 ml" when she received the "0 mg" reading for her self-test), is largely meaningless in light of the steps that Constable Levesque took to properly operate the device including two self-tests and her knowledge, based on her training and experience, that the device will not accept a sample outside of the proper accuracy and calibration dates. In that context, the device generated a fail in respect of a breath sample from Mr. Tyndall. I am satisfied, based on a fair consideration of all of the evidence, that Constable Levesque did know how to properly operate the ASD 6810 and that she did so with Mr. Tyndall substantially in accordance with her training.
29In summary and considering all of the evidence, I am satisfied that the Crown has established on a balance of probabilities that the searches in this case requiring the breath samples for both the ASD and the approved instrument were reasonable. In particular, for the reasons outlined above, Constable Levesque's subjective belief that the ASD 6810 she was operating was in good working order was a belief that was objectively reasonable in the circumstances. In coming to this conclusion, I have considered all of the defence points summarized above both individually and collectively as well as related arguments made in final argument. The fail result with respect to the ASD sample provided reasonable and probable grounds for the arrest and the approved instrument demand.
Issue 2 – Was there a section 10(b) Charter violation?
Law and Analysis
30The law on right to counsel has been recently summarized by my colleague Justice Stribopoulos in R. v. Maciel, 2016 ONCJ 563 , [2016] O.J. 4789 (C.J.) where he in turn relies on the Supreme Court of Canada's decision in R. v. Bartle, [1994] 3 S.C.R. 173 among other cases. Briefly stated, the position may be summarized as follows:
(i) Police must inform the detainee of the right to retain and instruct counsel without delay and as to the availability of duty counsel;
(ii) If the detainee has indicated a desire to exercise the right to counsel, police must provide the detainee with a reasonable opportunity to exercise that right; and
(iii) Where the right to counsel is invoked, police must refrain from eliciting evidence from the detainee until he or she has had the reasonable opportunity to consult counsel
31There is an informational and implementational component to the right to counsel. The onus is on the detained person to prove a breach of the right to counsel on a balance of probabilities: R. v. Bartle, [1994] 3 S.C.R. 173 at p. 192.
32A detained person has an obligation to be "reasonably diligent" in exercising the right to counsel: R. v. Prosper, [1994] 3 S.C.R. 236 at para. 35 and Maciel at para. 35.
33Once the right to counsel has been asserted, the Supreme Court of Canada has made it clear that police are under a duty to facilitate contact with counsel at the first reasonably available opportunity: Maciel at para 34.
34Some police forces assume the responsibility of contacting the lawyer of choice themselves. Other police forces give an accused person access to a telephone, a lawyer's directory, phone books and in some cases the Internet: see R. v. Panigas, 2014 ONCJ 797 , [2014] O.J. 1244 (C.J. per Horkins J.) at para 37; and see also Maciel at para. 41.
35Where the police take control over the accused's means of accessing counsel of choice, at least two of my colleagues in this Court have stated that when the right to counsel is invoked, the police must implement the right to counsel with the same effort and diligence the accused himself would apply: see Panigas at para 52 and Maciel at para 43). I agree with this proposition.
36The right to retain and instruct counsel includes the right to contact a third party to obtain counsel of choice: see R. v. Kumarasamy, [2002] O.J. No. 303 (Sup. Ct. per Durno J.) at paras. 24-26; see also R. v. Tremblay, [1987] 2 S.C.R. 435 at para. 8. That is not to say that a detainee is always entitled to contact friends or relatives to get counsel. This might not be permitted where they could jeopardize an ongoing investigation.
37As concerns contacting counsel of choice, the test of whether there has been a right to counsel breach is not whether the police could have done more to contact counsel of choice. The question is whether the police provided the detainee with the information required to assist and whether the police facilitated that contact: R. v. Gentile, [2008] O.J. 3664 (Sup. Ct. per Durno J.) at para. 24.
38Section 10(b) of the Charter requires that the police afford a reasonable opportunity to a detainee to contact counsel and to facilitate that contact. It does not require the police to monitor the quality of the advice once contact with counsel is made. There is a wide range of what is considered reasonable, sufficient or adequate advice: R. v. Willier, 2010 SCC 37 , [2010] S.C.J. 37 at para. 41.
39I have concluded that the police violated Mr. Tyndall's right to counsel by failing to permit him to contact a third party to try to obtain the name and contact information of a lawyer. I will explain below the reasons for my conclusion in this regard.
40When Mr. Tyndall was first arrested and read his rights to counsel and again when he was at the police station, he indicated that he wished to speak to duty counsel. Police promptly arranged for that consultation and it took place between approximately 7:16 PM (when duty counsel call back) and 7:20 PM.
41Mr. Tyndall's experience in the breath room was recorded on video and part of that video was introduced into evidence at trial. Shortly after Mr. Tyndall first came into the breath room he was asked if he had spoken to duty counsel and he mumbled something to the effect about speaking to someone "in a wall" or something that sounded like that. The breath technician then made the approved instrument demand and gave him a caution.
42At 7:24 PM the following exchange took place between Mr. Tyndall and the breath technician (this is based on the Court's notes after watching the video and is not an official transcript):
Tyndall: How about I call a lawyer? (repeated twice)
B.T.: Did you speak to a lawyer just now?
Tyndall: I don't know who that was.
B.T.: Do you have a lawyer you want to speak to?
Tyndall: I can find one.
B.T.: You indicated to Constable Levesque and to me that you wanted to speak to duty counsel. Has that now changed?
Tyndall: Yes.
B.T.: What lawyer would you like to speak to?
Tyndall: I don't know. Can I Google it?
B.T.: We don't have access to Google back here. I think we have some yellow pages that we could set you up with.
Tyndall: So I don't know the name.
B.T.: That would be a helpful place to start because we don't know who you are contacting. We have a centralized number for duty counsel.
Tyndall: Well I can call someone to get me a lawyer? (emphasis added)
B.T.: No. We will afford you with the opportunity to find a lawyer and we facilitated your conversation with duty counsel. We will get you the yellow pages.
Tyndall: yeah all right.
43Mr. Tyndall was then given the opportunity to review the yellow pages. This part is not captured on video. In his testimony at trial Mr. Tyndall said he could not recall which geographical area the yellow pages were for. Surprisingly, neither police officer knew what area the yellow pages were for either. In my view, the only reasonable inference is that the yellow pages must have been for the area in which the Dufferin OPP detachment is located.
44Mr. Tyndall looked at the yellow pages which were open to the lawyers' section. He apparently asked the breath technician who he should call and was told that she could not advise him. Mr. Tyndall then pointed to a random name in the yellow pages and said in effect "call this person" clearly not wishing to have that person called at all. Shortly thereafter, he said he did not wish to contact anyone in the yellow pages and that he was satisfied with duty counsel.
45Based on my consideration of the evidence, the yellow pages review lasted no longer than two minutes and Mr. Tyndall barely glanced at the yellow pages. In his trial testimony he said he was not sure even if he had looked at more than one page. The officers were prepared to facilitate a call to anyone he wished from the lawyers' section in the yellow pages.
46Mr. Tyndall also testified that he had asked for and was denied access to his cell phone but he was not sure precisely when this done. I am not satisfied that this in fact happened. Neither officer remembered it or had a note that it happened but said it could have. Mr. Tyndall did not request it on that part of the video that was admitted in evidence. As I say, I am not satisfied he asked for it expressly. In any event, whether it was or was not requested does not matter in my view and does not affect my assessment of the right to counsel and s. 24(2) issues.
47Shortly thereafter, Mr. Tyndall provided breath samples of 231 and 224 mg of alcohol in 100 ml of blood at 7:38 PM and 8:00 PM respectively.
48As noted above and as stated in Panigas and Maciel where the police take control of how counsel will be contacted, as was the case here, they must exercise the same diligence and effort that the accused person would himself or herself exercise were they to have been provided the resources directly.
49In this case, after indicating that he was not satisfied with his consultation with duty counsel, Mr. Tyndall was asked if he had a specific lawyer and he said that he did not but that he could find one. He also said "I can call someone to get me a lawyer". In my view, by posing this question, he was conveying to the breath technician that he wanted to call a friend or relative to help him get a lawyer. He was immediately told that he could not do this but that he would be afforded the yellow pages. In my view, even though Mr. Tyndall did not know the name of a lawyer that he wished to call nor did he say the name of the third party that he wished to call, he should have been given the opportunity to call a friend or relative to get a lawyer's name. This is what he was asking to do.
50Although Mr. Tyndall did not tell the officer this, he testified at trial that he had a friend (whose name he stated in evidence) whose relative had been charged with drinking and driving and who had retained a lawyer. At trial, Mr. Tyndall said that he wanted to call this friend and that he would have attempted to do so had he been given the opportunity. I accept this evidence which was not challenged at trial by the Crown. I have considered whether giving the yellow pages to Mr. Tyndall could be said to have "cured" the failure to permit Mr. Tyndall to call a friend or relative but I don't think that it does. The yellow pages offer will be a factor to be considered in the section 24(2) analysis but it does not change my conclusion that it was a breach of Mr. Tyndall's right to counsel to fail to permit him to try to contact a friend or relative to try to get the name and contact information for a lawyer. The Kumarasamy and Tremblay cases outlined above, amongst other cases, hold that the right to counsel extends to the right to call a friend or relative to get the name and contact information of a lawyer. In final argument at trial, the Crown did not contest that this was a correct statement of law.
Issue 3 – If there was a violation section 8, 9 or 10(b), should the breath samples be excluded pursuant to s. 24(2) of the Charter?
51I have concluded that Mr. Tyndall has established that the police breached his right to counsel by failing to permit him to call a friend or relative to get the name and contact information of a lawyer. This engages section 24(2) of the Charter which provides as follows:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute
52Section 24(2) of the Charter requires a consideration of the analytical framework laid down by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. The test is well known and involves a consideration of three factors: (i) the seriousness of the Charter infringing conduct; (ii) the impact of the breach on the Charter protected rights of Mr. Tyndall; and (iii) society's interest in adjudication on the merits. The Court must balance an assessment of each one of these factors in order to determine whether, considering all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.
(i) The Seriousness of the Charter Infringing State Conduct
53Concerning the seriousness of the Charter infringing state conduct, the question is whether the admission of the evidence would bring the administration of justice into disrepute by suggesting that the courts will condone breaches of the Charter and the need for the courts to dissociate themselves from unlawful conduct. This factor involves an examination of the conduct of the police. The more severe or deliberate the state or police conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct so as to preserve public confidence in the rule of law: see Stuart, Charter Justice in Canadian Criminal Law (sixth edition 2014) at page 651; see also R. v. Orlandis-Habsburgo, 2017 ONCA 649 at para. 130.
54In the case at bar, while I have found a section 10(b) breach, the overall actions of the police must be considered. This is not a "default to duty counsel" case like in R. v. Vernon, 2015 ONSC 3943 , [2015] O.J. No. 4157 (Sup. Ct.). Here, Mr. Tyndall initially said that he wished to contact duty counsel and police facilitated that contact in a timely way. When Mr. Tyndall indicated he was not satisfied with his consultation with duty counsel, the police provided him with the yellow pages and offered to assist him in contacting any lawyer he wished listed in the book. Defence counsel submits that the breath technician (Constable Kolodziechuk) initially ignored Mr. Tyndall's comments that speaking to the duty counsel was like speaking to a wall. Initially, her testimony supported this argument but considering her testimony as a whole and viewing the breath room video on this point, I believe that she initially did not understand that Mr. Tyndall was not pleased with his duty counsel consultation and that as soon as she clearly understood that point she offered to facilitate contact with counsel of choice by providing him the yellow pages and the option to call any lawyer he wished.
55I note as well that the breath technician testified that she thought Mr. Tyndall may have been seeking to delay the testing when he first asked to call someone to help him get a lawyer. She did not ultimately conclude that he was seeking to delay but it was not an unreasonable question to have arisen her mind in my view as Mr. Tyndall's very first comments when he entered the breath room revolved around whether he could delay the breath testing because he was scheduled to have a meeting to get a U.S. visa the next day.
56While there is no doubt in my view that it was a breach of s. 10(b) for the breath technician to fail to permit Mr. Tyndall to contact a third-party to see if he could get a lawyer's name and contact information, I also consider that the yellow pages offer has to be considered. I note that in many cases, making available telephone directories is seen as being a positive step towards compliance with the implementational aspect of the right to counsel. For example, in Maciel at para 47, Justice Stribopoulos recommends, among other things, that police make the yellow pages available to detainees or use them themselves to help locate the contact information for counsel of choice. Further, in R. v. Eakin, [2000] O.J. 1670 (C.A.), the Court of Appeal considered a case in which an accused person asked to speak to a particular lawyer but did not have the contact information. He was provided with a phone book to do so. He "merely thumbed through the telephone book in a manner that was carefree" and "made no earnest attempt" to locate the contact information for the lawyer he wanted. The Court ultimately made a finding that he had waived his right to counsel. I do not consider that Mr. Tyndall waived his right to counsel in this case and I recognize that Eakin was a different case as Mr. Eakin had the name of a lawyer but did not bother to use the directory to get the lawyer's contact information. I simply observe that it can be said of Mr. Tyndall that he made no earnest effort to use the yellow pages to try to contact a lawyer that might have been be able to assist him. I recognize that, in light of the internet, a hard copy version of the yellow pages is a somewhat outdated mode for searching for information but it nevertheless lists lawyers by practice area. The defence submits that Mr. Tyndall did not use the yellow pages because he was frustrated by the previous breach of his s.10(b) rights because of the failure to facilitate the contact with a third party. That is not a full and fair characterization of what happened in my view. He likely was frustrated but in my view, it was not specifically linked to the failure to have access to a third party; it was in my view a frustration with the overall circumstances that he found himself in which included his arrest, his anxiety and likely included the fact that he did not know the name of a lawyer to call and was not permitted to call a third party. Nevertheless, in my view, notwithstanding his frustration, Mr. Tyndall could have easily found contact information in the yellow pages for a criminal lawyer competent in drinking and driving if he had made any reasonable effort to do so and he could have tried to reach them.
57The fact that Mr. Tyndall made no earnest effort to find a lawyer using the yellow pages does not change the fact that police breached his right to counsel by failing to permit him to call a friend or relative who might be able to give him a lawyer's name and contact information. However it does place the police conduct in context.
58This is not a case where the police acted in a callous or bad faith manner. However, I don't think it can be said that the breath technician acted in good faith either. She should have known that the law required her to permit a detained person to call a friend or relative to get a lawyer's name. It seems to me that the law is relatively clear that a detained person should be permitted to call a third-party to contact a lawyer. However, to be fair to the officer and to properly place the police conduct in context, I note that the position may be slightly less clear where the detained person has no lawyer in mind but simply wants to call a friend to see if they have a lawyer they can recommend. Many of the cases which deal with the question of the right to call a third-party in order to get a lawyer deal with situations where the person knows the name of a specific lawyer and makes it clear to the police that they wish to call the third-party to get the contact information. See for example Kumarasamy supra at para. 9 where it is clear that the detainee had a personal lawyer and simply needed to call a third party to get the contact information. The same is true of R. v. Popal, [2015] O.J. 2238 at paras. 24 and 94 where the detainee identified a specific lawyer and was permitted to call a relative to try to get the number.
59Having said that, in my view, the law does not require that a specific lawyer be identified so as to be permitted to call a third party. That was not the case, for example, in R. v. LaPlante, [1987] 40 C.C.C. (3d) 63 (Sask. C.A.) where the detained person wanted to call his wife to see if she had retained a lawyer for him. He was not permitted him to call her and the Saskatchewan Court of Appeal found a breach of the right to counsel and excluded an incriminating statement pursuant to section 24(2). In Tremblay, surpa, the Supreme Court of Canada stated that "the police… as they must afford the accused a reasonable opportunity to contact a lawyer through his wife before calling upon him to give a breath sample". It is unclear whether the man or his wife had a specific lawyer in mind. In that case, the detained person called his wife to help him get a lawyer but the police did not wait sufficient time for counsel to call before proceeding with the breath samples. There was a breach of the right to counsel but the breath samples were not excluded under s. 24(2).
60I have no doubt that if Mr. Tyndall had identified a specific lawyer and said that he needed to contact someone to get their number, the breath technician would have permitted him to do this. Having said that, she should have known that her obligation to properly implement Mr. Tyndall's rights to counsel required that she go further and permit him to contact a third-party even though he had not identified a specific lawyer nor had he yet identified a specific person that he wanted to call.
61Let me summarize on the first branch of the Grant test. In my view, police conduct for a breach of the Charter right can range on a continuum from a technical breach at the low end to a serious breach at the high end. In my view, taking into account all of the police conduct in this case including the significant efforts that were made to implement Mr. Tyndall's rights to counsel, I have concluded that the breach falls somewhere in the middle and was moderately serious but no more. It points somewhat towards the exclusion of the evidence.
(ii) The Impact of the Breach on the Charter Protected Interests of the Accused
62I recognize that there was a major power imbalance between Mr. Tyndall and the police and that this imbalance, among other things, must be considered in assessing the impact of the breach on his Charter protected interests. The police were controlling Mr. Tyndall's access to counsel. Mr. Tyndall suffers from anxiety and needed Ativan at the police station which the police obtained for him by locating his prescription drugs and providing them to him. Having said that, it is worth asking what would have happened if Mr. Tyndall had been permitted to call a friend or relative to get a lawyer's name and number. I note that in R. v. Wilding, 2007 ONCA 853 , [2007] O.J. 4776 (C.A.), the trial judge found there was a breach of the right to counsel when the defendant spoke to duty counsel after the officer could not reach counsel of choice. The trial judge apparently found that the efforts to reach counsel of choice were not sufficient. The Court of Appeal held that, assuming that there was a breach of the right to counsel, it was "minor and inconsequential". The Court of Appeal noted that any breach of the right to counsel was attenuated by speaking to duty counsel and that the record was silent as concerns the likelihood of reaching the detainee's counsel of choice (my emphasis). In this case at bar, the record is equally silent as to the likelihood of Mr. Tyndall being able to obtain the name and contact information for counsel and being able to reach counsel if he could get the contact information of a lawyer. It was 7:30 PM in the evening. That was not exactly late in the day but it was also not during working hours. Mr. Tyndall testified at trial that he had the name of a friend in mind who in turn had had a relative charged with drinking and driving who had in turn retained a lawyer. I accept Mr. Tyndall's evidence in this regard. However, the record is silent as to whether Mr. Tyndall could have reached the friend (or someone else); whether the friend (or someone else) had the lawyer contact information and if so, whether the lawyer would have been available to conduct a consultation within a reasonable period of time.
63I note as well that Mr. Tyndall was quick to give up on the yellow pages option which, while not his preferred option, would have permitted him to attempt to contact a criminal lawyer. He may well have taken the same approach were he permitted to contact a friend. That is to say, he may not have pursued it with much vigour and, as noted above, even if he had pursued it there is no evidence upon which it can be said that his friend could have been reached and the unidentified lawyer reached as well.
64In addition, notwithstanding that Mr. Tyndall was not content with his consultation with duty counsel, there is nothing to suggest that Mr. Tyndall got in adequate legal advice from duty counsel. The brevity of the consultation (I would estimate it as being 3 to 4 minutes), and the fact that he wanted to call a different lawyer, does not in any way establish that the legal advice that he was given was incorrect or incomplete. As the Supreme Court of Canada has observed, there is a wide range of what is considered to be reasonable or adequate legal advice: Willier supra at para. 41.
65I note as well that the breath samples are taken by virtue of a relatively non-intrusive process and this is a factor to be considered in the s.24(2) analysis.
66I note as well that despite the power imbalance, Mr. Tyndall handled himself well with the police by declining to make any statement to the police and declining to answer the questions they posed to him between the two breath samples. That part of the video was not put in evidence at trial but Mr. Tyndall testified to this point in cross-examination.
67In summary, on the impact on his Charter protected rights I would say it was limited and favours the inclusion of the evidence or is neutral.
(iii) Society's Interest in Adjudication on the Merits
68Under this heading, the Court considers whether the truth seeking function of the Court process would be better served by admission of the evidence or by its exclusion. The reliability of the evidence and the importance of it to the Crown's case are to be considered. In this case, the breath samples are highly reliable and critical to the Crown's case on the over 80. The breath samples are important to the impaired driving charge as well. While the impaired driving charge could be pursued without the breath sample evidence, in my view that prosecution would be seriously undermined without it. I note as well that the facts of this case involve a collision with another vehicle, albeit a minor one. Overall, this issue clearly favours inclusion of the evidence.
(iv) Balancing
69The seriousness of the Charter infringing state conduct points somewhat towards the exclusion of the evidence. The impact on the Charter protected rights of the accused was limited and favours inclusion or is neutral. Society's interest in adjudication on the merits favours inclusion of the evidence.
70Summarizing and balancing all of the three Grant factors, I consider that the long-term interests of justice and the reputation of our justice system would not be damaged by the admission of the breath sample evidence. The breath sample evidence should not be excluded.
71It is conceded by the defence that if the breath sample evidence is admitted then both the over 80 and impaired charge would be proved. I note that Dr. Mayer testified that in his view any blood-alcohol reading of at or over 50 mg of alcohol in 100 ml of blood would lead to impairment. While I do not necessarily accept this (50 mg) proposition as being true in all cases, there can be no doubt that the expert evidence, which I accept, clearly supports the proposition that readings of more than 200 mg of alcohol per 100 ml of blood would have caused and did cause Mr. Tyndall to be impaired in his operation of a motor vehicle.
72Accordingly, there will be a finding of guilt on the over 80 and impaired charges. When I deliver these reasons, I will raise with counsel as to whether or not one of the charges should be stayed.
Released: December 22, 2017
Justice Paul F. Monahan