Court of Appeal for Ontario
Date: 2023-04-03 Docket: C70385
Judges: Lauwers, Paciocco and Zarnett JJ.A.
Between: His Majesty the King, Appellant And: Kevin Davis, Respondent
Counsel: Catherine Weiler, for the appellant Adam Little, for the respondent
Heard: November 25, 2022
On appeal from the order of Justice Clyde Smith of the Superior Court of Justice, dated May 5, 2021, dismissing the appeal from the acquittal entered on October 7, 2019, by Justice Robert W. Beninger of the Ontario Court of Justice.
Paciocco J.A.:
Overview
[1] Kevin Davis was acquitted of having a blood alcohol concentration over the legal limit within two hours of operating a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46. The Crown unsuccessfully appealed the acquittal before a summary conviction appeal court judge (the “appeal judge”). A panel of this court granted leave to the Crown to appeal the appeal judge’s decision.
[2] The Crown appeal focuses on the appeal judge’s handling of the trial judge’s decision to exclude the results of evidential breath samples from evidence because of a police breach of Mr. Davis’s s. 10(b) “informational right” to be informed of his right to counsel immediately upon being detained. The “informational rights” that s. 10(b) provides are distinct from s. 10(b)’s “implementational rights”, which require the police to hold off in asking or demanding that detainees participate in the investigation against them until they have had a reasonable opportunity to consult counsel: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38.
[3] For the following reasons, I would dismiss the Crown appeal. Since I would dismiss the Crown appeal, it is unnecessary to decide whether to grant Mr. Davis’s motion, brought after the oral hearing to “reopen” the appeal to add a new ground for opposing the appeal.
Material Facts
[4] On January 10, 2019, because of concerns about the manner in which it was being operated, the arresting officer stopped a motor vehicle that Mr. Davis was driving. After approaching the motor vehicle, the arresting officer noted the smell of alcohol, and Mr. Davis admitted to having consumed alcohol. The arresting officer demanded that Mr. Davis provide a sample of his breath into an approved screening device. Mr. Davis failed this roadside test and was arrested.
[5] Upon his arrest, Mr. Davis was searched and placed in the back of the police vehicle, but the arresting officer failed to advise him of his right to counsel without delay. Mr. Davis was not advised of his right to counsel until eight minutes after the arrest. The arresting officer could not account satisfactorily for the delay, as he had no notes describing his activities during that period, and there was evidence contradicting his explanation of what transpired during the period of delay.
[6] Mr. Davis, who had initially declined to speak to counsel when finally advised of his right to counsel, ultimately spoke to duty counsel upon arrival at the police station before he provided evidential breath samples. Those evidential breath samples confirmed that his blood alcohol concentration moderately exceeded the legal limit.
[7] Mr. Davis was tried on October 7, 2019. At the trial, in the face of Mr. Davis’s Charter application, the trial Crown conceded that the arresting officer had breached Mr. Davis’s s. 10(b) informational right by failing to advise him of his right to consult counsel without delay “immediately” upon his detention, as required by Suberu, at paras. 38, 42.
[8] The trial Crown nonetheless submitted that the evidential breath test results should not be excluded from evidence pursuant to s. 24(2), the Charter’s exclusionary remedy, arguing that in all the circumstances the admission of the breath tests would not bring the administration of justice into disrepute. The Crown’s key argument was that since Mr. Davis spoke to counsel before he provided the evidential breath samples, he enjoyed s. 10(b)’s implementational right, rendering the breach of the informational right merely “technical”.
[9] It is common ground that s. 24(2) of the Charter, which sets out the standards to be used in determining whether evidence will be excluded to remedy a Charter breach, has two components. Before evidence can be excluded pursuant to s. 24(2) the party seeking exclusion must show: (1) the evidence was “obtained in a manner” that violated the Charter (the “obtained in a manner requirement"), and (2) in all of the circumstances the admission of the evidence would bring the administration of justice into disrepute (the “disrepute requirement”). When both requirements are met, the unconstitutionally obtained evidence must be excluded.
[10] The trial Crown did not contest that the breath test results met the “obtained in a manner requirement” of s. 24(2) but opposed Mr. Davis’s submission that he met the “disrepute requirement”, which is measured by evaluating and balancing three factors identified by the majority in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353: (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 an adjudication of the case on its merits”.
[11] In a brief oral decision rendered immediately after the trial, a practice not uncommon in the busy provincial courts where trial judges often adjudicate numerous matters in a given week and where cases of this kind are commonly tried, the trial judge accepted the trial Crown’s concession that the arresting officer had violated Mr. Davis’s informational s. 10(b) rights. He then applied the Grant test and found that Mr. Davis had satisfied the “disrepute requirement”.
[12] Specifically, he found that the informational breach was serious and not technical, commenting that “providing the right to counsel immediately is a well‑established concept” that “matter[s]” and is easily complied with. He noted that the immediacy requirement was confirmed by the Supreme Court of Canada in Suberu, a case that “is now about 10 years old.”
[13] The trial judge concluded that the impact of the breach on Mr. Davis’s Charter-protected interests was moderate, commenting that “[i]t was very important that Mr. Davis be advised of his right to counsel immediately upon arrest,” and noting that “[t]he requirement of immediacy [of notice] is what supports the suspension of [implementational] Charter rights at the roadside.” He arrived at his “moderate” impact finding after considering that Mr. Davis initially declined to speak to counsel, and then spoke to counsel before the evidential breath samples were taken.
[14] The trial judge noted that the third Grant factor favoured admission but found, upon balancing the Grant factors, that “the administration of justice is best served by making it clear that the failing to comply with the s. 10(b) Charter requirements will be taken seriously by the courts.” He excluded the evidence and acquitted Mr. Davis.
[15] The Crown brought a summary conviction appeal from the acquittal. In its factum, the Crown argued that the trial judge erred in the Grant analysis in finding that the breach was serious, and that the impact of the informational breach was moderate.
[16] Notably, the Crown stated expressly that it was not appealing the decision based on s. 24(2)’s “obtained in a manner requirement”, which it referred to as the “nexus” requirement, stating, “[T]he Crown did not raise the nexus issue in the trial court in this case, so it will not do so here, but the evidence of subsequent Charter compliant conduct could not be ignored at the first stage of the Grant analysis.”
[17] The appeal judge dismissed the appeal. I will discuss the appeal judge’s reasoning in more detail below, but it is helpful to set out several key passages from the decision at the outset:
The trial judge was entitled to characterize the Charter breach as serious based on all of the circumstances of the case as well as the relevant case law, which includes the Suberu case. It was not an unreasonable decision. It was founded on widely accepted and widely held legal principles and Charter values. In his decision the trial judge correctly considered and applied those legal principles and values. His decision to characterize the breach as serious is not wrong in principle and is not unreasonable. It was open to him to make such a finding. The finding is therefore properly owed deference.
The trial judge in this matter elected to characterize the impact of the breach on the respondent as moderate, being mid-range. Reasonable people can certainly differ about such an assessment. Some would no doubt see the impact as minimal while others might see it as being even more impactful than the trial judge found it to be.
The test in Grant is considered every day by judges across the country, each of whom bring widely disparate backgrounds and life experiences to bear on the analysis. Inevitably, just as reasonable people may differ, different judges may reach different conclusions regarding the same set of facts. However, it is not the role of an appellate court to substitute its view of things for that of the trial judge. Rather, it is the role of an appellate court to determine whether the decision of the trial judge was correct in law and reasonable in the circumstances of the case.
In this case the trial judge correctly followed and applied the Grant analysis. He considered the fact that the respondent declined to speak with counsel when he was advised of his right to do so as well as the fact that the respondent ultimately decided to speak with counsel at the station. Having done so the trial judge assessed the impact of the breach on the respondent as moderate. In my view, that was a conclusion that was available to the trial judge on the facts of this case and on the applicable law. It is not an unreasonable decision nor was it wrong in principle. It is therefore owed deference.
In his decision in this matter the trial judge engaged in a correct and proper analysis by considering and applying the three-step analysis of the Grant test. I see no palpable or overriding error in that analysis, nor do I see any misapprehension of evidence. The decision the trial judge reached is a reasonable decision and was one that was available to him in the circumstance of this case.
The Issues
[18] The Crown advances four grounds of appeal, that can conveniently be analyzed in the following order:
A. Did the appeal judge err in failing to analyse whether the breath samples were “obtained in a manner” that violated Mr. Davis’s rights? B. Did the appeal judge err in making unreasonable findings which impacted upon the first Grant inquiry, the seriousness of the breach? C. Did the appeal judge err in treating the s. 10(b) breach as automatically serious and justifying exclusion of any evidence subsequently obtained, even after the breach had been cured? D. Did the appeal judge err in failing to consider mitigating factors relevant to the second Grant inquiry, the impact of the breach on Mr. Davis’s Charter-protected interests?
[19] I would not accept any of these grounds of appeal, nor am I persuaded by the more general challenges the Crown mounted in argument about the reasonableness of the appeal judge’s decision, or the trial judge’s conclusions.
Analysis
A. Did the appeal judge err in failing to analyse whether the breath samples were “obtained in a manner” that violated Mr. Davis’s rights?
[20] The Crown’s arguments in favour of its submission that the appeal judge erred in failing to analyse whether the breath samples were “obtained in a manner” that violated Mr. Davis’s rights are based on the “fresh start” doctrine. I will describe the “fresh start” doctrine in some detail below. Suffice it to say for introductory purposes that even where an initial Charter breach has occurred, the “fresh start” doctrine can lead to a finding that evidence discovered after that initial breach has not been “obtained in a manner” that violated the Charter because of subsequent Charter compliance that occurred before the evidence was discovered. The Crown argues that here, the “fresh start” occurred after the initial s. 10(b) informational breach, when the police later provided Mr. Davis with the required s. 10(b) information and gave him access to a lawyer before he furnished the evidential breath samples. The Crown argues that the trial judge and the appeal judge were obliged to address this issue, and that the appeal judge erred in not doing so.
[21] I would not give effect to this ground of appeal for two alternative reasons.
(1) It is not in the interests of justice in the circumstances of this case for this issue to be raised for the first time at the second appeal.
[22] The Crown did not raise the “obtained in a manner” issue as a ground of appeal before the appeal judge, and it is not in the interests of justice to permit it to be done for the first time now. As I have described, the Crown explicitly advised the appeal judge in its summary conviction appeal factum that it was not raising the “obtained in a manner” issue, which it called the “nexus” issue, because the trial Crown had not contested this issue before the trial judge.
[23] In spite of this direct assertion by the Crown before the appeal judge, the Crown now argues that it had raised the nexus issue on appeal, by relying on R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, a decision that found that evidence was not “obtained in a manner” because the police had made a “fresh start”. I reject this submission. The court in Manchulenko held that “fresh start” considerations could be relevant under s. 24(2) for two purposes, giving rise to two arguments: Argument (1) in determining whether evidence has been “obtained in a manner” that breached the Charter; and, Argument (2) in deciding how serious the breach is for the purpose of determining whether the “disrepute requirement” was met. Before the appeal judge the Crown relied on Manchulenko, and related cases to make Argument (2), specifically, that the “fresh start” shows that the police were acting in good faith in ensuring Charter compliance. But Argument (1), that the evidence was not “obtained in a manner” that violated the Charter, which had not been raised at the trial, was disavowed by the Crown before the appeal judge. I therefore reject the submission that the “obtained in a manner” issue was raised below. Indeed, given the Crown’s express indication that it was not raising this issue, it is not at all surprising that the appeal judge did not address it. In my view, it would be wrong to overturn an appeal judge’s decision for not addressing a matter the Crown said was not in issue.
[24] More importantly, it would be more unfair to Mr. Davis to permit the Crown to raise this issue for the first time during its second appeal. Absent exceptional circumstances, a party is not permitted to raise issues for the first time on its initial appeal. This is in part because of the interest in finality in criminal cases and the expectation that criminal cases will be disposed of fairly and fully at first instance after all appropriate arguments are raised at trial: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39-40, leave to appeal dismissed, [2017] S.C.C.A. No. 37214. These policy considerations are amplified, in my view, where a party, given leave to enjoy the exceptional privilege of a second appeal, seeks to raise a new ground of appeal relating to a matter that was not even litigated at trial.
[25] I see no basis for granting an exception to this sage rule in the circumstances of this case, even though the evidentiary record before us is sufficient to permit adjudication of the “obtained in a manner” issue. The “obtained in a manner” issue was not litigated at trial, and the Crown made a tactical decision, based on fairness considerations, not to attempt to raise that issue for the first time before the appeal judge. Having made a knowing and tactical decision not to raise this ground of appeal during the first appeal, the Crown is now poorly placed to argue that the failure by this court to address this issue would result in a miscarriage of justice. In my view, the most compelling risk of a miscarriage of justice that now arises is the prospect that Mr. Davis, having been acquitted in the face of the issues contested at trial and having prevailed on the issues raised on a first appeal, could face a new trial after a second appeal based on a new Crown argument invoked after those proceedings have been concluded.
[26] I would dismiss this ground of appeal, on this basis alone. I am not prevented from doing so because another panel of this court granted the Crown leave to appeal. Leave was granted without reasons, so we do not know on what basis the appeal panel found leave to be warranted. More importantly, a decision to grant leave provides permission to raise arguments before an appeal panel. It is ultimately the responsibility of the appeal panel to determine whether those arguments should be accepted, and I would not do so.
(2) The appeal judge did not err by failing to address the “obtained in a manner” issue.
[27] Second, I would not allow the appeal on the merits of this ground. I accept that, based on the subsequent Charter compliance, there is room on the facts for a “fresh start” argument to be made. But I am not persuaded that the application of the “fresh start” doctrine is so compelling that the appeal judge was required to address the “obtained in a manner requirement” of his own motion where it was disavowed by the Crown as a ground of appeal. Indeed, I am of the view that the facts of this case present only a weak basis for the application of the “fresh start” doctrine. I will explain, beginning with the general principles applicable to the “obtained in a manner requirement”.
[28] The Supreme Court of Canada has long taken a “purposive and generous approach” to the “obtained in a manner requirement”: R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147, at para. 78; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21. In 1988, the Court rejected the need for a causal connection to meet this requirement: R. v. Strachan, 1988 SCC 25, [1988] 2 S.C.R. 980, at pp. 1002-1004. It has repeatedly affirmed that the required connection between the breach and the evidence sought to be excluded “may be ‘temporal, contextual, causal or a combination of all three’” so long as the connection is not “remote” or “tenuous”: Wittwer, at para. 21, citing R. v. Goldhart, 1996 SCC 214, [1996] 2 S.C.R. 463, at para. 40; R. v. Plaha (2004), 2004 ONCA 21043, 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45.
[29] The reason for this generous approach is simple and compelling. The “disrepute requirement” is the “core inquiry” under s. 24(2): Strachan, at p. 1006. It is when analysing the “disrepute requirement” that close analysis is undertaken of all of the circumstances to determine whether courts must exclude evidence to demonstrate that Charter violations will not be condoned, or to show that Charter rights “count”: Grant, at para. 109; R. v. Pino, 2016 ONCA 389, 337 C.C.C. (3d) 402, at para. 56. In contrast, the “obtained in a manner requirement” is a “threshold requirement”: R. v. Beaver, 2022 SCC 54, at para. 95. Treating the “obtained in a manner requirement” as an exacting threshold would be contrary to the remedial scheme of s. 24(2) because it would foreclose trial judges from engaging in the close “core inquiry” that is needed to preserve the repute of the administration of justice, and potentially prevent trial courts from having an available remedy for Charter violations that should not be condoned. The idea is that so long as the connection between the breach and the evidence is not remote or tenuous, the evidence is sufficiently “tainted” to warrant evaluation of whether its admission would bring the administration of justice into disrepute: see Wittwer, at para. 21. The absence of a meaningful link between a breach and the evidence can be fully considered under the Grant test, as it can reflect not only on the seriousness of the breach, but also, and arguably even more clearly, on the impact of the breach on the Charter-protected interests of the accused. When this examination is undertaken as part of the core inquiry, rather than as a threshold issue, it brings the benefit of having all of the circumstances considered.
[30] Without question, in this case there was a temporal and contextual link between the s. 10(b) informational breach and the provision of the breath samples. Both events occurred within 90 minutes, as part of the same investigation during the same detention. This no doubt would have been evident to both the trial judge, and more importantly, the appeal judge. It would reasonably have appeared to them, on the face of this case, that the “obtained in a manner requirement” was not a live issue that needed to be addressed.
[31] The Crown’s position is that the appeal judge should nonetheless have considered whether the temporal and contextual link that I have just described had effectively been severed by the “fresh start” doctrine. Initially, in its submissions before the panel, the Crown relied primarily upon Manchulenko. After oral argument, the Supreme Court of Canada released the Beaver decision which provides a more authoritative discussion of the “fresh start” doctrine. The panel received additional submissions from the parties on the significance of the Beaver decision. In my view, it has not changed the law.
[32] First, Jamal J. for the majority in Beaver said nothing to call into question the existing law relating to the “obtained in a manner requirement”, and indeed, reaffirmed the principles I have just described: Beaver, at para. 96.
[33] Second, Jamal J.’s description of the “fresh start” doctrine is explicitly grounded in the existing case law. After reviewing that case law, he recognized that “[i]n some cases” evidence will not be obtained in a manner that breached the Charter because the police have made a “fresh start” by later complying with the Charter, in circumstances that render the nexus between the initial breach and the evidence sought to be excluded too remote to satisfy the “obtained in a manner requirement”: Beaver, at para. 97. Relying on existing principles, he made it clear that the key issue is whether the evidence remains tainted after the “fresh start”: Beaver, at paras. 98, 99. And he explained that “[w]hether evidence was ‘obtained in a manner’ is not determined by whether the state eventually complied with its Charter obligation, but instead is based on whether [after the eventual Charter compliance] there remains a sufficient causal, temporal, or contextual connection between the Charter breach and the impugned evidence”: Beaver, at para. 99. He also cautioned that care must be taken because in some cases “evidence will remain tainted by a Charter breach despite subsequent Charter compliance.”
[34] I accept the Crown submission that the “fresh start” doctrine I have just described is capable of being applied to informational breaches of s. 10(b). In R. v. Simon, 2008 ONCA 578, 269 O.A.C. 259, at paras. 71-74 [^1], this court applied the “fresh start” doctrine to an informational breach of s. 10(b), finding that a saliva sample secured from the appellant was too remote from the informational breach to satisfy the “obtained in a manner requirement”. It is helpful to describe the Simon decision in some detail now and I will return to this decision below.
[35] Mr. Simon was initially arrested for the theft of a van. He was told of the reason for his arrest, and properly advised of his right to counsel and permitted to consult with counsel. During that consultation, Mr. Simon had the opportunity to discuss with counsel his rights as a detained person, and to receive advice relating to the charge being investigated – the theft. When the police interview commenced, Mr. Simon was questioned about the theft, but ultimately the focus of the investigation shifted from the stolen van to sexual assaults that the police suspected Mr. Simon of committing. This occurred without the police advising Mr. Simon that he had the right to consult counsel again, relating to this new ground of investigation. The failure to readvise Mr. Simon of his right to counsel when the investigation moved to the alleged sexual assaults was an informational breach of s. 10(b) because individuals are entitled to be readvised of their rights to counsel when the investigation against them takes on a new and more serious focus: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 51. Later, when he was asked by the police to provide the saliva sample in connection with the sexual assault investigation, Mr. Simon was told of his right to withhold his consent and to talk to a lawyer, but he gave an express, informed, and voluntary waiver of his s. 10(b) rights and he chose to consent to providing the saliva sample, which proved to be incriminating. Doherty J.A. held that since the purpose of s. 10(b) was fulfilled despite the initial informational breach, and since Mr. Simon provided his informed consent to the saliva sample, the saliva sample was not obtained in a manner that violated the Charter.
[36] As important a case as Simon is, the application of the “fresh start” doctrine is not to be based on the precedent of its application to similar categories of breaches in prior decisions. As Jamal J. emphasized in Beaver, at para. 97, the application of the fresh start doctrine “must be sensitive to the facts of each case.” In my view, a case-sensitive evaluation in the circumstances of this case does not support the Crown’s position that a “fresh start” put the “obtained in a manner” issue into such sharp relief that the appeal judge was obliged to raise the issue of his own motion.
[37] First, it bears repeating that the trial Crown had not identified the “obtained in a manner requirement” as an issue of importance, and the appeal Crown made a tactical decision not to argue “fresh start” as an “obtained in a manner” issue before the appeal judge. This would doubtlessly and reasonably dampen any sense the appeal judge may have had that this was an issue that required exploration. Indeed, as I have explained, the Crown’s explicit representation that it was not raising this issue on appeal is enough on its own to undercut the Crown’s current position that it was an error for the appeal judge to have failed to address the “obtained in a manner requirement”.
[38] Second, as I will explain, unlike the cases relied upon by the Crown, in the circumstances of this case, the eventual compliance with s. 10(b) obligations did not dispel the damage that the initial breach of Mr. Davis’s s. 10(b) informational rights caused to his Charter-protected interest, making this a poor case for the application of the “fresh start” doctrine. In Beaver, Jamal J. recognized that a relevant consideration in applying the “fresh start” doctrine is whether the subsequent compliance by the police dispelled the effect of the initial breach: Beaver, at para. 103. By parallel consideration, the “fresh start” doctrine has more obvious application in cases where the impact of an earlier Charter violation has been effectively dispelled by subsequent Charter compliance that occurs before the discovery of the subject evidence.
[39] In Manchulenko, for example, the accused ultimately fully enjoyed the implementational right to counsel he was initially deprived of, when he spoke to counsel before providing the subject breath test. The subsequent compliance was with the identical right that had initially been breached, and it occurred before the evidence was obtained. In the end, the initial breach had no effect, making Manchulenko a clear case for the “fresh start” doctrine.
[40] Similarly, in Simon, as Doherty J.A. found, after Mr. Simon was readvised of his right to speak to a lawyer before providing a saliva test, the underlying purposes of s. 10(b) were fulfilled. Importantly, there was no breach of Mr. Simon’s right to immediate information upon detention about his rights to counsel because he was told upon his initial arrest of his right to counsel. As a result, Mr. Simon enjoyed the benefits of the immediacy requirement, which I will describe below. He then spoke to a lawyer, thereby providing him with the opportunity to obtain legal advice on everything but the sexual assault investigation, of which, at the time, he was unaware. Then, before the saliva sample was taken, he was told about that sexual assault investigation and given a chance to get further advice, which he knowingly waived. This subsequent Charter compliance was able to dispel the effect of the Charter breach of failing to readvise Mr. Simon of his right to counsel in the context of the evolving sexual assault investigation. Manifestly, once this occurred, the links between the breach and the obtainment of the saliva sample became remote and tenuous.
[41] The contrast is that, in this case, the subsequent compliance with s. 10(b) did not repair the damaging effects of the breach of Mr. Davis’s s. 10(b) immediacy rights. As the Crown concedes, during the period of delay, Mr. Davis was without the benefit of information about his right to counsel, a consequence that the belated advice he received did not change. Nor did Mr. Davis’s ultimate enjoyment of the s. 10(b) implementational rights remedy this breach of his informational rights. After all, informational rights are not provided solely as a means of enjoying implementational rights. A detained person requires the immediate assurance that “they are not entirely at the mercy of the police while detained” and are entitled to a “lifeline to the outside world” through which they can learn whether they are lawfully detained, and of their legal rights and obligations relating both to their liberty and the investigation: Pino, at para. 105; R. v. Rover, 2018 ONCA 745, 366 C.C.C. (3d) 103, at para. 45; R. v. Noel, 2019 ONCA 860, at para. 24-26; R. v. O’Brien, 2023 ONCA 197, at paras. 48, 49. Compliance with the immediacy requirement provides these constitutionally assured benefits; something Mr. Davis was deprived of even after the belated compliance with s. 10(b). Put simply, because the subsequent compliance with s. 10(b) in this case did not fully dispel the effects of the informational breach, the justification for the application of the “fresh start” doctrine is materially weakened.
[42] Third, in this case the temporal and contextual links between the breach and taking the breath samples were strong, reducing the prospect that the “fresh start” doctrine could sever those links: the informational breach occurred as part of an arrest undertaken for the very purpose of securing the evidential breath samples from Mr. Davis; the informational breach and the provision of the evidential breath samples occurred during the same event and as part of the same investigation; and the breach and the evidential breath samples were proximate in time.
[43] For these reasons, the appeal judge did not err in failing to consider the impact of the “fresh start” doctrine on the “obtained in a manner requirement”. In summation, the Crown did not raise the “obtained in a manner” issue at trial and disclaimed it on appeal, the prospect that the “fresh start” doctrine could sever the link is weak on the facts of this case because the subsequent Charter compliance was incapable of dispelling the effect of the Charter violation, and the contextual and temporal connections in this case that the Crown now seeks to sever were strong.
[44] In my view, the “fresh start” doctrine should be applied to breaches of the immediacy requirement of the informational component of s. 10(b) only in clear cases. If belated s. 10(b) compliance is readily accepted as making an earlier immediacy breach too remote to warrant the exclusion of evidence, then s. 10(b)’s immediacy requirement will become a right without a remedy, and no Charter right should be without remedy: Nelles v. Ontario, 1989 SCC 77, [1989] 2 S.C.R. 170, at para. 50. The “fresh start” doctrine was not intended, and should not serve, as a mechanism for systematically undermining the effective enforcement of informational Charter rights.
[45] I would reject this ground of appeal.
B. Did the appeal judge err in making Unreasonable findings which impacted upon the first Grant inquiry, the seriousness of the breach?
[46] The Crown argues that the appeal judge made unreasonable findings [^2] in upholding the trial judge’s conclusion that the informational breach was serious, specifically by: (1) finding that the informational breach was systemic, without an adequate evidential foundation, and (2) finding that the breach showed “wilful disregard”, in the absence of a finding by the trial judge. I would reject this ground of appeal because I accept neither argument.
(1) The Systemic Breach Issue
[47] I do not accept the Crown submission that the appeal judge’s decision should be overturned because he erred in finding the breach was serious because it was systemic. I am not persuaded that the appeal judge made the errors that the Crown asserts, or that, if he did, the appeal decision should be reversed on that basis.
[48] It is important to begin by describing the appeal judge’s systemic breach comments with precision, so that they can be understood in context. The Crown had argued before the appeal judge that the trial judge erred in finding a systemic breach, in the absence of evidence that there was a systemic problem among the Peterborough County OPP detachment. The appeal judge rejected this argument after concluding that “[t]he trial judge did not make a specific finding that there was a systemic problem in his jurisdiction with police failing to advise detainees of their right to counsel” (emphasis added). [^3] The appeal judge then went on to express his own view that the breach was systemic, after inferring that the trial judge had referred to one of his own earlier decisions where a similar breach had occurred in order to illustrate that “too many police officers throughout Ontario either still do not know the law or are refusing to act in accordance with their constitutional obligations.” The appeal judge commented that whether noncompliance throughout Ontario is occurring because of a refusal to comply or a failure to know the law, it is a “systemic problem”, and he said that such “systemic concerns” favour the exclusion of evidence.
[49] The Crown argues that in doing so the appeal judge made a systemic breach “finding” without an evidential foundation, thereby erring in characterizing the breach as serious. I am far from persuaded that the appeal judge did so. He understood fully that it was not his function to make factual findings, cautioning himself to this effect at the outset of his decision. Rather than purporting to make an evidential finding that the breach was systemic, what the appeal judge did was to characterize the breach as systemic, based on the implications of the trial judge’s reasoning. This, in my view, is enough to answer this ground of appeal.
[50] In any event, whether it is an evidential finding or not, the appeal judge’s characterization of the breach as systemic did not play a material role in his reasoning. It is evident from a review of the pleadings before him and of the appeal judge’s decision that the parties effectively reargued the case before him by engaging in wide-ranging submissions in order to persuade him to accept their views relating to the seriousness of the breach, or its impact on Mr. Davis’s Charter-protected interests. Included in those submissions was a debate about whether the breach was systemic. Not surprisingly, the appeal judge engaged those arguments, expressing his own views, including his opinion that the breach was systemic. However, it is evident that ultimately, the appeal judge upheld the trial judge not based on his own findings but because he deferred to the trial judge’s reasoning. It is helpful to repeat what I am satisfied is the key, material passage in the appeal judge’s decision:
The trial judge was entitled to characterize the Charter breach as serious based on all of the circumstances of the case as well as the relevant case law, which includes the Suberu case. It was not an unreasonable decision. It was founded on widely accepted and widely held legal principles and Charter values. In his decision the trial judge correctly considered and applied those legal principles and values. His decision to characterize the breach as serious is not wrong in principle and is not unreasonable. It was open to him to make such a finding. The finding is therefore properly owed deference.
[51] Of importance, in the reasoning the appeal judge deferred to, the trial judge did not use the word “systemic” in explaining why the breach was serious. Although he did cite a systemic breach decision, as the appeal judge recognized, the trial judge did so as authority for the simple proposition that “Charter rights matter”. When explaining the seriousness of the breach, the trial judge made no comment on the prevalence of similar breaches. Instead, he focused on the fact that Suberu affirmed, more than a decade before, that detainees must be advised “immediately” of their right to counsel. His point in making this observation was that it is unreasonable for a police officer to fail to give proper attention and respect to well-known and settled Charter obligations. This was an entirely appropriate basis for finding the breach to be serious, supported by decisions of the highest authority: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 24, 25; R. v. Feeney, 1997 SCC 342, [1997] 2 S.C.R. 13, at paras. 73-75. This reasoning has nothing to do with whether breaches are systemic or not, and everything to do with where breaches fall on the good faith, bad faith continuum. An officer truly respectful of Charter rights attends to and exercises care in complying with settled and simple Charter precedents.
[52] Moreover, the trial judge made his seriousness finding in a trial where it was shown that the arresting officer demonstrated a lack of interest in the delay that had occurred in giving Mr. Davis his informational rights by not recording what had transpired during that period, and where his testimony about what he was doing during that delay was difficult to reconcile with other evidence.
[53] I am therefore unpersuaded that the appeal judge made an unsupported systemic breach finding or that, if he did, it mattered to his decision to dismiss the appeal.
[54] The Crown advances other submissions related to the appeal judge’s treatment of systemic breaches. First, the Crown argues that the appeal judge erred in principle in finding a systemic breach based on a province-wide problem. In the Crown’s view, a pattern of similar breaches across Ontario cannot make a breach systemic, since systemic breaches must relate to a pattern of breaches within the breaching police force or region. In support of this proposition, the Crown points out that reported systemic breach cases involve a pattern of breaches by the same officers, or the same police force, or breaches occurring within the same region. I do not agree that breaches are systemic only if they are somehow localized. Even if reported cases address localized patterns, this does not mean that broader patterns of disregard for Charter rights cannot also be discerned and considered in assessing the “disrepute requirement”. Principled reasoning suggests that if a particular kind of breach is occurring frequently across the province, this may elevate the seriousness of the breach. After all, one of the primary objectives of the exclusionary remedy is to avoid “the danger that admitting the evidence may suggest that Charter rights do not count, thereby negatively impacting on the repute of the administration of justice”: Grant, at para. 109. If, in their exclusionary decisions, courts were to disregard the fact that the Charter right in issue is commonly being breached by police officers across the province, it would doubtlessly send the message that the Charter right does not matter. The appeal judge appreciated this, commenting that not to take such “systemic” breaches seriously “would only serve to minimize the significance and importance of the right to counsel”. I see no error in this reasoning.
[55] Finally, the Crown argues that the 56 cases of informational breach in the last six years produced by Mr. Davis in his appeal factum represent an unreliable basis for finding a systemic problem across Ontario, and should not have been relied upon by the appeal judge in finding a systemic breach. Again, I disagree. In my view it is not an error of principle to consider the frequency of a kind of breach in reported case law when determining the prevalence of that kind of breach. In R. v. Thompson, 2020 ONCA 264, 62 C.R. (7th) 286, at paras. 92-94, this court upheld a systemic breach finding which was based on a pattern of reported cases within a region, coupled with reliance on an experienced trial judge’s own observation. Subject to considerations of weight, I can see no reason why a similar basis would not be available for finding a broader pattern of Charter breaches across the province.
[56] Even if I am incorrect, and the appeal judge did err in characterizing the breach as systemic because it is prevalent across the province, or by considering the frequency of such breaches in reported cases, or even in making an unsupported finding of his own that the breach was systemic, I would not allow the appeal and grant the relief the Crown seeks on these bases. The trial judge made none of these “errors”. He did not find the breach to be systemic and it does not appear that the 56 cases were even before the trial judge. Certainly, they were not cited in argument before him, nor did he refer to them in his decision. Although I appreciate that an appeal to this court from a summary conviction appeal decision is technically an appeal of the appeal decision and not the trial decision, it would not be in the interests of justice to set aside a trial decision based on errors made in the appeal decision that were not made at the trial.
[57] I would dismiss this ground of appeal.
(2) THE “WILFUL DISREGARD” COMMENT
[58] The Crown also argues that the appeal judge erred by “finding” that the arresting officer’s conduct showed wilful disregard for Mr. Davis’s rights, when the trial judge never found the arresting officer’s breach to have been wilful. The appeal judge made no such finding. He simply commented that the fact that the arresting officer took no notes of what he was doing during the delay in advising Mr. Davis of his right to counsel “is highly suggestive of a wilful disregard for his duty to comply with, and apply, the provisions of the Charter” (emphasis added). A comment that something is “highly suggestive” of a fact is not a finding of that fact, particularly not in a decision where the appeal judge making that comment has recognized that it is not his role to find facts, and where the appeal judge ultimately denies the appeal because of deference to the trial judge’s decision.
[59] I would dismiss this ground of appeal.
C. Did the appeal judge err in treating the s. 10(b) breach as automatically serious and justifying exclusion of any evidence subsequently obtained, even after the breach had been cured?
[60] The Crown argues that the appeal judge’s refusal to apply the “fresh start” doctrine sends the message that such breaches are inevitably serious, and effectively creates a bright-line rule for the exclusion of breath samples following any s. 10(b) informational breach. I see no merit in this argument. As I have explained, the appeal judge denied the Crown’s appeal after deferring to the trial judge’s characterization of the seriousness of the breach, which was made in all of the circumstances of the case. The appeal judge’s decision does not establish a bright-line rule.
[61] It is therefore unnecessary to consider the Crown’s argument that the appeal judge signalled that such breaches are serious, even where they are cured, but I will reference my conclusion above that the informational breach was not, in fact, “cured”.
D. Did the appeal judge err in failing to consider mitigating factors relevant to the second Grant inquiry, the impact of the breach on Mr. Davis’s Charter-protected interests?
[62] The Crown maintains that the appeal judge committed two errors in characterizing the impact of the breaches as “moderate”, specifically: (1) by ignoring the absence of a causal relationship between the breach and the evidence, and (2) by ignoring the fact that the police did not seek to obtain evidence from Mr. Davis during the period of delay. I am not persuaded.
(1) The Absence of a Causal Relationship
[63] The appeal judge did not explicitly mention the absence of a causal relationship in his decision. This was not an error.
[64] First, the Crown did not rely at trial on the absence of causation as a factor mitigating the impact of the breach, and the trial judge’s failure to consider absence of causation was not raised as a ground of appeal at the first appeal. I would not entertain it now.
[65] Second, because causation is not a realistic factual concern where purely informational breaches of s. 10(b) occur, to treat the absence of causation as mitigating the impact of the breach on the Charter-protected interests of the accused would systemically and artificially devalue the vitality of informational rights. It is therefore not generally instructive to consider causation relating to purely informational breaches of s. 10(b), since a purely informational breach is not apt to “cause” the discovery of evidence in any case. Informational breaches turn on what the accused is told, not on what the accused does during the investigation or the investigative steps that the police undertake. Unlike a breach by the police of their implementational obligation to facilitate communication between a detainee and counsel, which can realistically result in the accused producing evidence that may not otherwise have been obtained, it is difficult to see how the simple failure to comply with purely informational rights can lead to the discovery of evidence. Given that an absence of causation is inherent in all informational breaches of s. 10(b), and that it can be perilous to the integrity of s. 10(b)’s informational rights to use the absence of causation as a mitigating factor, it is neither surprising nor concerning that the appeal judge did not do so.
[66] I would therefore reject this argument.
(2) The Failure of the Police to Seek to Obtain Evidence
[67] The Crown argued that the appeal judge erred by not treating, as a mitigating factor in assessing the impact of the breach on Mr. Davis, the failure of the police to use the accused as a source of evidence during the period of the breach. I do not accept this argument either. Had the police attempted to use Mr. Davis as a source of evidence before giving him the full benefit of s. 10(b), an additional breach, beyond the informational breach, would have occurred. It is obvious that the seriousness of a Charter breach that has been committed “cannot be attenuated by the fact that the police did not commit an additional breach”: Noel, at para. 19. The failure by the police to commit an additional breach simply means that the seriousness of the initial breach is not aggravated by the presence of multiple breaches: R. v. Griffith, 2021 ONCA 302, 408 C.C.C. (3d) 244, at para. 71; R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 53. I do not read R. v. Culotta, 2018 ONCA 665, 364 C.C.C. (3d) 191, at paras. 35, 65, aff’d 2018 SCC 57, [2018] 3 S.C.R. 597, as holding otherwise. Nordheimer J.A.’s comments in that decision are entirely consistent with an observation by him that the aggravating feature of an additional breach – using the detainee as a source of evidence – was not present in the circumstances of that case.
[68] I would reject this ground of appeal.
Conclusion
[69] In its submissions the Crown cautioned the panel repeatedly against taking a “categorical” approach to s. 24(2), an admonition that I endorse. This explains, in part, why the Crown’s own invitations to treat brief breaches of the immediacy requirement of s. 10(b) as “technical” or inherently non-serious, or “cured” by compliance with other s. 10(b) rights, do not resonate. Such determinations are to be made on a case-by-case basis by individual judges. In this regard, I fully accept that not all judges would have found the informational breach in this case to be serious, or its impact to have been moderate, and I recognize that not all judges would have found the balancing of factors to require the exclusion of the evidence. That, however, is not a basis for allowing the appeal.
[70] I close with two points. First, as the appeal judge aptly observed, in a passage from his decision that I quote above:
The test in Grant is considered every day by judges across this country, each of whom bring widely disparate backgrounds and life experiences to bear on the analysis. Inevitably, just as reasonable people may differ, different judges may reach different conclusions regarding the same set of facts. However, it is not the role of an appellate court to substitute its view of things for that of the trial judge. Rather, it is the role of an appellate court to determine whether the decision of the trial judge was correct in law and reasonable in the circumstances of the case.
[71] The appeal judge found no such errors, and so, appropriately deferred to the decision of the trial judge. I am not persuaded that the appeal judge erred in this regard.
[72] Second, the Crown made arguments before us challenging the reasonableness of the appeal judge’s decision in finding the trial judge’s decision to be reasonable. I have serious concerns about whether the Crown, which is entitled to appeal only errors of law, can appeal an acquittal on this basis. Even leaving these concerns aside, I am not persuaded. Both judges came to decisions that were open to them in all of the circumstances.
[73] I would dismiss the appeal.
Released: April 3, 2023 “P.L” “David M. Paciocco J.A.” “I agree. P. Lauwers J.A.” “I agree. B. Zarnett J.A.”
[^1]: The Crown also relies upon the decision in R. v. Upston, 1987 BCCA 2835, 42 C.C.C. (3d) 560 (B.C.C.A.), aff’d 1988 SCC 35, [1988] 1 S.C.R.1083, as an illustration of the “fresh start” doctrine being used to find that evidence was not obtained in a manner that violated the Charter despite a prior informational breach. I do not read Upston in this way. Upston turned on the absence of a causal connection between the breach and the discovery of the voluntary statement that Upton made and was decided before the Supreme Court of Canada resolved in Strachan that a causal connection is not, in fact, needed to meet the “obtained in a manner” requirement. The Upston decision is not a helpful illustration of the “fresh start” doctrine. [^2]: The Crown may only appeal errors of law: Criminal Code, s. 839(1). Mr. Davis did not question whether the Crown’s “unreasonable” finding arguments raise questions of law. This can be a question of some subtlety: see R. v. Schuldt, 1985 SCC 20, [1985] 2 S.C.R. 592; R. v. J.M.H., 2022 SCC 45, [2011] 3 S.C.R. 197. I need not resolve this jurisdictional question because I would reject the Crown appeal on its merits. I raise this point because, given that the jurisdictional issue was not argued before the panel, I do not want the fact that I have addressed these grounds of appeal to be taken as confirmation that all of the grounds of appeal raised before the panel involved questions of law. [^3]: The Crown did not take issue on this appeal with this conclusion by the appeal judge. It is a reasonable reading of the trial judge’s decision, supported by the record. I will say no more about it.
