Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Tevon Grant
Before: Justice Marcella Henschel
Heard on: September 7, 2017 and November 29, 2017
Reasons for Judgment Released: January 10, 2018
Counsel:
- Ari Linds, counsel for the Crown
- Daniel Kayfetz, counsel for the defendant
HENSCHEL J.:
A. Overview
1Tevon Grant, the applicant, is charged with refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code. On January 16, 2016 at 3:21 a.m., PC Riemer conducted a Highway Traffic Act stop of the applicant's vehicle to investigate whether the driver was impaired by alcohol. PC Riemer smelled alcohol coming from the driver (the applicant) and made an approved screening device (ASD) demand. He arrested the applicant for operating a motor vehicle "over 80" after he failed the ASD test. He read the applicant the rights to counsel and the applicant said that he wanted to speak with his lawyer, who he later identified as Danny Kayfetz.
2At the police station, PC Riemer called Mr. Kayfetz's office and left a message. After waiting twenty minutes for Mr. Kayfetz to return the call, PC Riemer decided to contact duty counsel because it was the middle of the night and he did not believe that Mr. Kayfetz would call back. PC Riemer took the applicant to the privacy room to speak with duty counsel.
3Three minutes later, PC Riemer believed the conversation was complete and took the applicant to the breath technician, PC Chong, who made a breath demand pursuant to s. 254(3) of the Criminal Code. The applicant refused to provide a sample of his breath stating that he had not spoken to a lawyer. The applicant told PC Chong he did not talk to anyone when he was in the privacy room. As a result of his "refusal", the applicant was charged with failing or refusing to provide a breath sample.
4In advance of trial, the applicant filed a notice of application seeking to exclude the evidence of the refusal under s. 24(2) of the Charter. Most of the facts underlying the allegations are not in dispute. However, at issue is whether Mr. Grant spoke with duty counsel in the privacy room. The defence submits that I should accept Mr. Grant's evidence that he did not speak with duty counsel, and as a result should find that his right to counsel under s. 10(b) of the Charter was violated and, as a result, the evidence of the refusal should be excluded under s. 24(2). The Crown submits that I should find that Mr. Grant spoke with duty counsel and that there was no violation of s. 10(b) of the Charter. The Crown conceded that if I find that Mr. Grant did not speak with duty counsel, that the evidence of the refusal should be excluded under s. 24(2).
5The trial and Charter application proceeded as a blended hearing. The Crown called three witnesses. PC Riemer, the investigating officer, PC Nyagai, PC Riemer's coach officer, and PC Chong, the breath technician. Mr. Grant also testified. On November 29, 2017 I provided oral reasons for judgment with written reasons to follow. These are my written reasons for judgment.
B. Summary of the Facts
6On January 16, 2016 PC Riemer was on general patrol in an unmarked police cruiser with his coach officer PC Nyagai. He was observing the Luxy's night club parking lot in Richmond Hill. At approximately 3:21 a.m. he saw a white Infinity drive over a curb with all four wheels. The car travelled eastbound on Highway 7 and stopped four car lengths from the white stop line at a red light.
7PC Riemer decided to investigate if the driver was impaired and stopped the vehicle. He spoke with the driver, Mr. Grant, and asked him about his driving. Mr. Grant said it was foggy and he did not see the curb. When asked why he stopped so far back from the intersection, he said he did not know what the officer was talking about. PC Riemer smelled the odour of alcohol coming from the applicant's breath. He asked him if he had been drinking and he responded that he drank before going to the club.
8PC Riemer formed a reasonable suspicion that the applicant had alcohol in his body and made an ASD demand. After he read the demand, the applicant said he did not understand why he was being asked to provide a sample of his breath and that he did not want to provide a breath sample. PC Riemer explained the consequences of refusing and the applicant said he was confused about why that was the law, but agreed to provide a sample into the ASD which resulted in a fail reading. The "fail" indicated to PC Riemer that the applicant's blood alcohol concentration was over the legal limit.
9PC Riemer arrested the applicant for operating a motor vehicle "over 80" contrary to section 253(1)(b) of the Criminal Code. He searched the applicant and placed him in the rear of the police cruiser. He read the applicant the rights to counsel from the back of his notebook. When PC Riemer asked the applicant if he understood, and if he wished to call a lawyer now, the applicant said "how does this apply to me now, I have a lawyer". Following clarification by PC Riemer, Mr. Grant said he understood the rights to counsel. He interrupted PC Riemer, and his partner as they tried to explain and shouted saying that he wanted to speak to his lawyer. En route to the police station the applicant told the officers that his lawyer was Daniel Kayfetz. PC Nyagai thought that he told the applicant that they would try to reach Mr. Kayfetz and if they could not reach him they would call duty counsel.
10At the roadside when PC Riemer read the caution and the secondary caution the applicant initially stated "I did not see 'over 80' nothing, it said fail". PC Riemer read the caution a second time, and Mr. Grant said"it didn't apply to me though". When PC Riemer read the caution a third time Mr. Grant responded "I don't understand nothing. I do not understand, the thing said fail. I don't need to say anything to you. I did not see anything all I saw was fail". In reply to the secondary caution, Mr. Grant said "I don't understand what you are talking about".
11PC Riemer believed that the applicant understood, but was being belligerent. PC Riemer testified that each time the applicant said he did not understand he explained the caution in plainer terms and the applicant continued to say he did not understand.
12PC Riemer acknowledged that he forgot to read the applicant the Criminal Code s. 254(3) breath demand while at the roadside.
13PC Riemer and Mr. Grant arrived at the police station at 4:06 a.m. Mr. Grant was paraded before Staff Sgt. Helm. PC Riemer and PC Nyagai testified that the applicant seemed confused about why he had been arrested. He kept saying he did not know why he was there and was told he was "there for the over 80". After the booking was completed, PC Riemer placed Mr. Grant in a cell, and at 4:32 a.m. attempted to contact Mr. Kayfetz at a phone number he thought had been provided to him by Mr. Grant. There was no answer and PC Riemer left a voice mail message.
14PC Riemer testified that he waited for a response from Mr. Kayfetz until 4:52 a.m., a period of only 20 minutes. He then decided to call duty counsel. He testified that he did this because it was an impaired driving investigation and time was of the essence to get the blood alcohol concentration readings. He did not go to the cells and speak with Mr. Grant prior to calling duty counsel.
15Duty counsel called back at 4:57 a.m. PC Riemer transferred the call to the privacy room. He spoke to duty counsel to explain the circumstances surrounding the arrest. He left the phone off the hook and at 4:59 a.m. he removed the applicant from the cell where he was sleeping and took him to the privacy room. PC Riemer testified that the applicant was groggy and smelled of alcohol. He testified that he probably told the applicant that he could not reach his lawyer and as a result he contacted duty counsel, but did not make any note of doing so. The audio of the station surveillance video, although somewhat inaudible, appears to establish that PC Riemer told Mr. Grant that he had duty counsel on the phone.
16PC Riemer testified that after entering the privacy room the applicant picked up the phone and said "hello". He closed the door to provide the applicant with privacy. He could not hear what was being said, but could hear talking. He testified that he thought he could hear the phone being hung up. Within three minutes of placing Mr. Grant in the privacy room, he looked through the peep hole and he was no longer on the phone. At 5:02 a.m. he removed the applicant from the privacy room and turned him over to PC Chong. PC Nyagai was also present when the applicant was placed in the privacy room. He also believed he could hear Mr. Grant on the phone.
17Sometime between 4:12 a.m. and 5:03 a.m., while in the booking area, PC Riemer advised PC Chong of the grounds for the applicant's arrest and PC Chong was satisfied that there were grounds to arrest the applicant for operating a motor vehicle "over 80" and to make a breath demand pursuant to s. 254(3) of the Criminal Code. PC Chong testified that while in the booking area PC Riemer confirmed to him that Mr. Grant had spoken to counsel. He is clearly mistaken on this point because contact with duty counsel, if any, was not complete until immediately before Mr. Grant was turned over to PC Chong.
18PC Chong read the breath demand to Mr. Grant at 5:03 a.m. When asked if he understood Mr. Grant said "no", and, as a result, PC Chong read the demand a second time. Mr. Grant again stated that he did not understand and said that he wanted a lawyer. PC Chong told Mr. Grant that he had already spoken with a lawyer, stating that he had spoken with duty counsel. The applicant said that he did not speak to anyone, and explained that there was no one on the phone.
19PC Chong explained the breath demand again and the applicant indicated that he understood. PC Chong read the secondary caution, and the applicant said that he did not understand. PC Chong repeated the secondary caution and the applicant replied 'ok". PC Chong read the caution for refusing a breath sample, and asked the applicant if he would provide a breath sample. At 5:03 a.m. the applicant refused. He explained that he was refusing because he wanted to talk to a lawyer before he did anything. PC Chong immediately turned custody of the applicant back to PC Riemer and the applicant was charged with refusing to provide a breath sample. The applicant's dealings with PC Chong lasted less than five minutes.
20When the applicant said he had not spoken with a lawyer and did not speak to anyone in the privacy room, PC Chong did nothing to clarify what had transpired with duty counsel in the privacy room. In the alcohol influence report PC Chong checked off that the accused contacted his counsel of choice. He testified that he checked that box off because the accused spoke to duty counsel. When asked to explain what counsel of choice meant, PC Chong testified that if a detainee calls duty counsel that is automatically the detainee's counsel of choice. He testified that counsel of choice meant the "first available one". PC Chong did not know the name of the specific lawyer Mr. Grant requested.
21In cross-examination PC Chong testified that it was not his responsibility to confirm that the accused had spoken to duty counsel. He testified that he asks the officer-in-charge and then he does his checklist, and the accused answers his questions. He did not believe it was his job to find out what happened in the privacy room. He testified that in an impaired driving case it is the responsibility of the officer-in-charge to call duty counsel or a lawyer. His responsibility, as the breath technician, is to make the demand and conduct the test.
22PC Riemer was present during the applicant's dealings with PC Chong. PC Riemer testified that when he heard the applicant tell PC Chong that he did not speak to a lawyer, he did not say anything to clarify what had happened because the accused was in the custody of PC Chong and was being spoken to by another officer.
23The applicant testified that when he provided a breath sample into the ASD, it said "fail", and he was not sure what happened. The officer arrested him and read him his rights to counsel. He said that he wanted to call a lawyer, and provided the name Danny Kayfetz. He testified that he was unable to provide the phone number because the officer had his cell phone. He testified that at the station, between the time he was first placed in the cell and when he was taken to the privacy room, he did not have any contact with a police officer. No one informed him that his lawyer could not be reached.
24The applicant testified that when he was removed from the cell the officer woke him up and placed him in another room. He did not hear the officer tell him that duty counsel was on the phone. He did not speak to anyone when he was placed in the privacy room. He did not see a phone and no one said that duty counsel was on the phone waiting for him. While he was in the room he was simply trying to keep warm. He had just woken up.
25Mr. Grant explained that after he was removed from the privacy room and turned over to PC Chong, he told PC Chong he would not take the test because he had not spoken to a lawyer. He thought that PC Chong would help him speak to a lawyer. He testified that he wanted to talk to a lawyer about what he should do. He had never been in the same situation previously and he found the language and technical talk difficult to understand and did not want to agree to provide a sample without first talking to a lawyer.
C. Findings of Fact
26I have made the following findings of fact:
At the time Mr. Grant was initially provided his rights to counsel he made clear that he wanted to exercise his right to counsel and asked to speak with a specific lawyer, Danny Kayfetz.
Mr. Grant was not read the breath demand by PC Riemer. At the point he was booked at the police station, although he knew he had been arrested for operating a motor vehicle "over 80", no one had informed him that he was required to accompany the officer to the police station for the purpose of providing samples of his breath and he was confused about why he was under arrest. His confusion was not clarified during the booking process.
PC Riemer attempted to contact Mr. Grant's counsel of choice, Daniel Kayfetz. After waiting only 20 minutes PC Riemer decided, without consulting Mr. Grant, that he would contact duty counsel. He did this because he was worried about securing the breath samples as quickly as possible.
PC Riemer spoke with duty counsel and advised duty counsel of the circumstances of the arrest. He transferred the call to the privacy room and he believed that duty counsel was on the line when he went to get Mr. Grant from the cell.
As can be seen on the security system video, Mr. Grant was sound asleep. PC Riemer made reference to duty counsel being on the phone, but gave no explanation to Mr. Grant about why he had contacted duty counsel, or why Mr. Grant was unable to speak to Mr. Kayfetz. At no point did he ask Mr. Grant if he had another number for Mr. Kayfetz, or consider making additional efforts to contact Mr. Kayfetz. He did not tell Mr. Grant that he could continue to wait to hear from Mr. Kayfetz. At no point did PC Riemer ask Mr. Grant if there was another lawyer he wanted to speak to instead of Mr. Kayfetz. He did not ask Mr. Grant if he wanted to speak with duty counsel. I am satisfied that although PC Riemer told Mr. Grant that duty counsel was on the line, that Mr. Grant either did not hear or did not understand PC Riemer. He had just woken up and was extremely groggy. Mr. Grant did not agree to speak to duty counsel instead of his lawyer, Mr. Kayfetz.
While I accept that PC Riemer believed that Mr. Grant spoke with duty counsel in the privacy room, I am not satisfied that any conversation with duty counsel actually took place. Although aspects of Mr. Grant's evidence are unreliable, including his evidence that there was no phone in the privacy room, and that he did not pick up the phone, I accept his evidence that he did not have a conversation with duty counsel. PC Riemer said he saw Mr. Grant pick up the phone, and he and PC Nyagai thought they heard him speaking on the phone. However, when PC Riemer looked in a short time later, Mr. Grant was not on the phone. PC Riemer's and PC Nyagai's evidence that they thought they overheard something that sounded like talking in the duty counsel room, does not establish that a conversation with duty counsel actually occurred. It is unclear why the conversation did not occur, it may have been because Mr. Grant was confused due to the effects of alcohol and because he had just woken up; because he did not want to speak to duty counsel and wanted to speak to his own lawyer, or because the call disconnected for some reason. However, I accept the evidence of Mr. Grant that he did not have a conversation with duty counsel. I have reached this conclusion taking into account:
- Mr. Grant was only in the privacy room for three minutes.
- After he was placed in the privacy room, within a very short period of time PC Riemer looked in and saw that Mr. Grant was not on the phone.
- Within minutes of coming out of the privacy room, Mr. Grant told the officers that he had not spoken with a lawyer.
I find that the applicant was duly diligent in informing PC Riemer and PC Chong that he had not spoken with duty counsel, however, they concluded that he was being belligerent, and as a result failed to take any steps to determine whether Mr. Grant had spoken with a lawyer or to ensure that their implementational duties had been fulfilled.
Having viewed the video of the interaction between Mr. Grant and PC Chong in the breath room, I do not believe that Mr. Grant was being difficult or argumentative. Although Mr. Grant said a number of times he did not understand, English is not PC Chong's first language and I accept that Mr. Grant was having difficulty understanding PC Chong. This combined with the technical nature of the demand, and the fact that Mr. Grant was not read the breath demand earlier, and was confused about the reason why he was arrested and transported to the police station, satisfies me that he was genuinely seeking clarification.
27As a result of PC Riemer's inexperience, once Mr. Grant was in the custody of PC Chong, PC Riemer failed to take steps to ensure that Mr. Grant had a reasonable opportunity to consult with counsel before being required to provide breath tests.
28In addition, PC Riemer did not appreciate the importance of Mr. Grant's right to counsel of choice. When Mr. Kayfetz did not call back within twenty minutes, he was of the mistaken view that putting Mr. Grant in contact with duty counsel was sufficient to fulfill the right to counsel, even though Mr. Grant did not agree to speak with duty counsel, and once turned over to the breath technician, made clear that he was not satisfied that his right to counsel had been fulfilled.
29Of greater concern was PC Chong's indifference to ensuring that Mr. Grant had a reasonable opportunity to consult with counsel. He did not appreciate the importance of the right to counsel to a detainee nor the continuing duty of the police to ensure the implementational duties of the right to counsel are fulfilled. PC Chong could have:
asked Mr. Grant what happened when he was in the privacy room and asked him to explain what his concerns were regarding contact with counsel;
asked PC Riemer about what happened and requested him to look into the issue;
contacted duty counsel or asked PC Riemer to contact duty counsel to determine whether the call had been unexpectedly cut off.
made further attempts to put Mr. Grant in touch with Mr. Kayfetz, and after waiting a reasonable period of time for Mr. Kayfetz to call back, if he could not be reached, informed Mr. Grant of his options and taken steps to put Mr. Grant in contact with another lawyer of his choice, or duty counsel, if agreed to by Mr. Grant.
PC Chong did none of those things. Instead, PC Chong assumed that the applicant was being difficult.
30PC Chong's lack of appreciation of the importance of the right to counsel was also evident from his records of what transpired that day. In his documentation he recorded that the accused had spoken to counsel of choice. He did this believing that the applicant had spoken to duty counsel. His evidence that counsel of choice simply meant the "first available one" showed a fundamental misunderstanding of the right to counsel of choice.
31Mr. Grant was duly diligent. He informed the police that he had not spoken with counsel after he came out of the duty counsel room. Neither PC Riemer nor PC Chong did anything to ensure that the police duty to implement the right to counsel had been fulfilled. Throughout their dealings with Mr. Grant the police conduct showed a lack of concern, and recognition for the important role that counsel, including counsel of choice, plays to a detainee who is under the control of the police and is unable to take steps on their own to obtain advice from a lawyer.
D. Summary of the Law, Analysis, and Conclusions
32Under s. 10(b) of the Charter the police have an informational duty to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel. Where a detainee communicates their desire to talk to a lawyer the police also have an implementational duty which requires that the detainee be given a reasonable opportunity to exercise his or her right to consult counsel. Implied in the second component is a duty on the police to hold off questioning a detainee, or otherwise seeking to gather evidence, until the detainee has had a reasonable opportunity to consult with counsel. Failure to comply with either of these components frustrates the purpose of s. 10(b) and results in a breach of the detainee's rights.
33The police obligations flowing from s. 10(b) are not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising the right, the correlative duties on the police to provide a reasonable opportunity to consult with counsel and to refrain from eliciting evidence will either not arise or will be suspended.
34Included in the s. 10(b) right to counsel is the right to counsel of choice. It is important than an individual who is detained or arrested and under the control of the police have a reasonable opportunity to receive legal advice, not from any lawyer, but from someone they know and trust if there is a specific lawyer that they wish to contact.
35Where an individual is in police custody and has identified a lawyer that he or she wishes to contact, because the police control an accused's ability to take steps to contact the lawyer of his choice, the police are obligated to pursue that constitutional right with all the same effort and diligence that the accused himself would apply were he or she not in custody.
36In Willier the Supreme Court made clear that the duty to provide a detainee with a reasonable opportunity to consult with "counsel of choice" is triggered by the request of a detainee to speak with a specific lawyer. Where a detainee has opted to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond.
37In this case Mr. Grant invoked his right to counsel, and the police failed to provide him with a reasonable opportunity to exercise his right to counsel. They failed to provide him with a reasonable opportunity to speak to his lawyer of choice, and they failed to hold off in attempting to elicit evidence from him. The request by PC Chong that Mr. Grant comply with the breath demand was an attempt to elicit incriminating evidence. I find that the police breached Mr. Grant's rights under section 10(b) of the Charter.
E. Section 24(2)
38The Crown conceded that if I find that there was a breach of s. 10(b) that I should exclude the evidence of the refusal. I agree with this concession. Although some courts have concluded that a refusal of a breath demand should not be excluded under s. 24(2) because it is the actus reus of a separate offence, in my view the evidence of the refusal can and should be excluded.
39Section 10(b) of the Charter aims to ensure that a detainee has an opportunity to be informed of his or her rights and obligations under the law, and to obtain advice on how to exercise those rights and perform those obligations. In the context of an "over 80" investigation an important aspect of the detainee's consultation with counsel is the opportunity to obtain advice about the detainee's legal obligation to comply with a s. 254(3) breath demand. Such advice may be critical to the detainee's decision to comply with or refuse the demand. Where the right to counsel has been denied, and that denial has potentially contributed to or resulted in a refusal, to leave a detainee without a remedy, would render the right to counsel meaningless.
40The applicant's refusal had a clear nexus to the breach of the right to counsel. There was both a close temporal connection and an inseparable factual nexus. If Mr. Grant had spoken with a lawyer he may not have refused to provide the breath sample.
41In Bagherli, Krauss, and Soomal the courts concluded that evidence of a refusal can be subject to an exclusion under s. 24(2). Significantly, in Cobham the SCC excluded the evidence of a refusal following a breach of section 10(b) of the Charter, concluding that the accused's refusal was self-incriminating evidence of a particularly serious nature because it was evidence which itself constituted the crime. The Court concluded that the direct connection between the incriminating refusal evidence and the offence created a strong presumption that its admission would render the trial unfair. As in the present case, the Supreme Court in Cobham concluded that the appellant may not have refused to take the breathalyser test if he had been properly advised under s. 10(b) of his right to duty counsel.
42According to the Supreme Court of Canada decision in Grant, there is a three pronged test that must be applied when considering the admissibility of evidence under 24(2) of the Charter. The court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to the following factors:
(1) the seriousness of the Charter infringing state conduct;
(2) the impact of the breach on the Charter-protected interests of the accused; and
(3) society's interest in the adjudication of the case on its merits.
43In my view the breach in this case was serious. I find that PC Chong and PC Riemer did not understand the importance of the right to counsel, and were indifferent to their duty to ensure that the applicant had a reasonable opportunity to exercise the right to counsel. There were multiple errors that compounded the seriousness of the breach, including PC Riemer's failure to read the breath demand to Mr. Grant. Although counsel did not rely on a breach of counsel of choice, I find that PC Riemer's unilateral decision to contact duty counsel, motivated by his concern to obtain breath readings as quickly as possible, breached Mr. Grant's right to counsel of choice. Most significantly, when Mr. Grant informed them that he had not exercised his right to counsel the officers did nothing to inquire into or address his concerns.
44The analysis on the second line of inquiry in Grant is on the impact of the breach on an accused's Charter-protected interests. The greater the impact, the more there is a need for the court to disassociate itself from the breach to preserve the public confidence. Like in Cobham I believe that the applicant may not have refused the breath test if he had been given a reasonable opportunity to consult with counsel. The impact in this case was significant and favours exclusion.
45The third factor requires a consideration of society's interest in adjudication of the case on its merits. The refusal was videotaped and is reliable evidence, central to the Crown's case. The effect of excluding the refusal evidence is to leave the Crown without the evidence essential to establishing the offence. This factor favours admission. However, in light of my conclusions on the first two factors, along with the concession of the Crown, I am satisfied that the applicant has established on a balance of probabilities that the evidence of the refusal by Mr. Grant should be excluded.
F. Proof of the Offence
46Even if I had not concluded that the evidence of refusal must be excluded under s. 24(2), I would still not be satisfied that the Crown had established the essential elements of the offence beyond a reasonable doubt. This is because I am not satisfied that there was an unequivocal refusal.
47Section 254(5) of the Criminal Code makes it an offence to refuse to comply with a breath demand under s.254(3) of the Criminal Code. The section provides that "everyone commits an offence who "without reasonable excuse" fails or refuses to comply with a demand made under this section. To establish the offence of refusing to comply with a s. 254(3) demand the Crown must prove that:
(1) A proper demand has been made;
(2) A failure or refusal to provide the required breath sample; and
(3) The requisite mens rea. As a general intent offence the Crown must prove the accused had knowledge, or cognitive awareness, of the doing of the act.
48I am not satisfied that there was an unequivocal refusal because there was no final or definitive refusal to comply, but rather an initial provisional indication of the accused's intentions, combined with a desire to speak to counsel. Mr. Grant's response to the breath demand was equivocal, given his clear request for legal advice. I am not satisfied that the actus reus of the offence, an unequivocal refusal, has been established beyond a reasonable doubt.
49As a result of my conclusions excluding the evidence under s. 24(2), and my finding that the actus reus of the offence has not been established beyond a reasonable doubt, there is a finding of not guilty.
Released: January 10, 2018
Signed: Justice Marcella Henschel