R. v. Steele
Court Information
Court: Ontario Court of Justice (East Region) Location: Ottawa, ON Judge: Justice David M. Paciocco Date of Decision: October 31, 2014
Parties
Crown: Her Majesty the Queen Counsel for Crown: M. Geigen-Miller
Accused: Brent Jeffrey Steele Counsel for Accused: R. Sellar
I. Introduction
[1] On 1 February 2014 Cst. Laska's attention was drawn to a vehicle driven by Brent Steele after that vehicle swerved to miss a parked car. The car then accelerated rapidly after waiting at a red light. At that point Cst. Laska decided to conduct a traffic stop. I accept Mr. Steele's evidence that he checked the time as he pulled over, and that the stop occurred at 2:51 a.m.
[2] By 2:52 a.m. Cst. Laska was at his window. She told Mr. Steele that she pulled him over because of his erratic driving, and when he spoke she immediately smelled alcohol from his breath. She asked him if he had been drinking. He said he had a couple of beers at a friend's house a couple of hours before. Cst. Laska immediately formed reasonable suspicion that he had been driving with alcohol in his body and resolved to make a roadside demand. Yet she did not tell Mr. Steele that. She demanded his documents, took them and returned to her police car. Both witnesses agree that the interaction at the window was swift.
[3] By 2:55 a.m. Cst. Laska had made it back to her car, had run Mr. Steele's plate, recorded a page and a half of police notes, and called for a roadside testing device. Even though Cst. Laska could not be certain precisely when she requested an ASD device and the burden is on Mr. Steele on the Charter application that this evidence is relevant to, I find that it was probably at 2:55 a.m. when she made that request. I say this because this is what she testified to in chief, it is recorded in her notes as happening at 2:55 a.m., and she testified that her notes record matters in the sequence in which they happened.
[4] At 2:59 a.m. an ASD device was brought to Cst. Laska by Cst. Todd. Cst. Laska does not appear to have spoken to Cst. Todd directly before Cst. Todd's arrival. At the time she requested the device, Cst. Laska did not believe it would take long for the device to arrive as she was informed that Cst. Todd was not on call at the time of the request. Cst. Laska did not, however, receive concrete information about where Cst. Todd was when the ASD request was made.
[5] At 3:00 Cst. Laska was back at Mr. Steele's window with the ASD device. He had been waiting in the privacy of his car from the time Cst. Laska left his vehicle until then. During this time Mr. Steele had two cellphones with him, one containing a pre-programmed number of a criminal lawyer, who it is agreed, was available at the time and would have answered his phone had he received a call. Mr. Steele did not attempt to contact counsel.
[6] Immediately upon returning to Mr. Steele's car at 3:00 a.m. Cst. Laska gave the ASD demand. At 3:03 a.m. Mr. Steele furnished a sample, resulting in a fail. He was arrested and at 3:10 a.m. advised of his right to counsel, including being read his right to contact a lawyer immediately. He responded, "I would yes, at some point."
[7] Mr. Steele was taken to the police station and permitted to call a lawyer at 3:36 a.m. Mr. Steele spoke to the lawyer for no more than 6 minutes, since he was removed from the room at 3:42 a.m. Mr. Steele ultimately furnished two samples of his breath into an approved instrument, yielding readings of 110 milligrams and 100 milligrams of alcohol respectively in 100 millilitres of blood.
[8] As indicated, Mr. Steele raised Charter objections as a result of these events. His trial was conducted as a blended voir dire to accommodate his constitutional complaints. Specifically, Mr. Sellar, for Mr. Steele, contends that Cst. Laska failed to advise Mr. Steele of the reason for his detention, contrary to section 10(a) of the Charter. He argues that Cst. Laska also failed to give Mr. Steele the ASD demand "forthwith," as required by section 254(2)(b). While this would arguably render Mr. Steele's detention illegal and therefore arbitrary contrary to section 9, producing an unlawful search contrary to section 8, these potential breaches were not pleaded in the Charter notice although they were referenced in the factum filed in June of 2014. I will say more about this later. In any event, Mr. Sellar urges that in the absence of a legal demand, section 254(2)(b) cannot be used to ground a section 1 exception to the obligation of the police to advise a detainee of their right to counsel without delay. He argues that the section 10(b) right to be advised of the right to counsel without delay has therefore been violated. Finally, Mr. Sellar urges, in effect, that Mr. Steele had the opportunity to contact counsel pending the arrival of the ASD, and therefore the failure by Cst. Laska to advise him of his right to counsel undermined his ability to enjoy section 10(b)'s "implementational" right.
[9] Mr. Sellar agrees that if these Charter complaints fail to result in the exclusion of the breath samples ultimately secured, the charge against Mr. Steele will be made out.
II. Analysis
A. The Alleged Charter Breaches
1. 10(b) Alleged Informational Breach
[10] The lynch-pin to all of the alleged breaches is the delay that occurred in giving the ASD demand to Mr. Steele. It is not contested that under section 254(1)(b), not only must the ASD test be administered "forthwith," it is also implicit that the demand itself must be made "forthwith" or "immediately" once the officer forms the grounds to make a demand: R. v. Pierman, [1994] O.J. No. 1821 at para. 5 (Ont.C.A.); R. v. Woods, 2005 SCC 42, [2005] S.C.J. No. 42, para. 15. Mr. Geigen-Miller, for the Crown, appropriately conceded that in this case the demand was not "forthwith" as there are no reasonable grounds for the delay that occurred. Specifically, Cst. Laska formed her reasonable suspicion almost immediately upon approaching Mr. Steele's car but did not make that demand until 3:00 a.m. Mr. Geigen-Miller puts the material delay at 5 minutes, running from 2:55 a.m. Based on the facts I have outlined above I am satisfied that the delay was more in the order of 7-8 minutes. As indicated, by 2:55 a.m. Cst. Laska had completed her exchange with Mr. Steele, returned to her vehicle, made notes of what had transpired, ran his plate and called for a device. I am persuaded that she must have formed her grounds by 2:53 a.m. at the latest, which is consistent with the time required for her to return to her car and complete and record the tasks described. Moreover, both Mr. Steele and Cst. Laska agree that the initial encounter at the car was swift.
[11] In any event, since the demand was not made "forthwith" it is not a lawful demand as contemplated by s.254(2)(b). As a result, "the provision is [not] available to authorize the absence of a s.10(b) warning upon detention, and hence it cannot constitute a limitation on the s.10(b) rights to counsel 'prescribed by law' which would be capable of justification under s.1": R. v. Grant, [1991] S.C.J. No. 78 at para. 20. Put more simply, given that Mr. Steele was being detained in connection with a criminal investigation Cst. Laska was obligated to advise him of his right to counsel without delay. This was not done. I therefore find that the section 10(b) informational breach complained of by Mr. Steele has been established on the balance of probabilities.
2. The Alleged Right to be Informed 10(a) Breach
[12] What then of the section 10(a) breach? Was Mr. Steele's right "to be promptly informed [upon his detention] of the reasons therefore" satisfied?
[13] As is true of all Charter breaches, this provision speaks to the conduct of the relevant state agent, in this case Cst. Laska. Her obligation was to inform Mr. Steele promptly "in clear and simple language, of the reasons for the detention": R. v. Mann, 2004 SCC 52, 185 C.C.C.(3d) 308 at para. 21 (S.C.C.). By parallel reasoning to right to counsel authorities, unless an officer had reason to believe that the detainee did not understand the advice, the law proceeds on the assumption that a clear and simple explanation has informed the accused.
[14] In this case, however, at no time did Cst. Laska advise Mr. Steele of the operative reason for his detention. To be sure, when he was initially stopped Cst. Laska did inform Mr. Steele that he had been pulled over because of erratic driving. This is not a case, however, were his manner of driving accounted for Cst. Laska's decision to continue to detain him after she approached his car. It is not contested that after their conversation Cst. Laska was detaining Mr. Steele so that she could conduct an alcohol driving investigation. Cst. Laska walked away from his car in the full expectation that he would stay there so she could investigate him for a criminal alcohol driving offence. Mr. Steele's jeopardy had changed, and Cst. Laska was obliged to "promptly" advise Mr. Steele of this yet she did not do so.
[15] The law relating to section 10(a) does not stop here, however, because it is sensible. The purpose of the right informs it application. As Justice McLachlin explained in R. v. Evans, 63 C.C.C. (3d) 289 (S.C.C.) the purpose of section 10(a) is to equip detainees with the information required to be able to determine whether they are lawfully required to submit to the arrest or detention, and so that detainees can properly instruct counsel to secure relevant legal advice: at 302. If the officer manages successfully to communicate the reason for the detention, then, no breach will occur even where an officer has failed to provide the kind of clear, simple and direct explanation contemplated in R. v. Mann, supra.
[16] In R. v. Evans, 63 C.C.C. (3d) 289 at 303 the Supreme Court of Canada therefore said:
When considering whether there has been a breach of s.10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s.10(b).
[17] At first blush this passage appears to adopt a purely objective test – the accused is adequately informed of his right "if he can reasonably be supposed to have understood." In fact, the inquiry is not into what the subject should have known; when an officer fails to provide a clear, simple and direct explanation for the detention the question remains whether in spite of this the officer managed to inform the detainee of the reason. This is effectively an inquiry into what the subject ultimately understood, given all of the circumstances. Objective facts can, of course, inform this inquiry, but it is an inquiry into whether the subject was left informed by the officer in spite of the failure to provide direct and simple information.
[18] This subjective focus is supported by the purpose of section 10(a). Both objectives of equipping the detainee with the information needed to determine whether to submit, and to empower the detainee to contact counsel, assume actual successful communication to the subject.
[19] The subjective focus is also supported by the authority. Not surprisingly, when Justice McLachlin rejected Mr. Evans Charter breach she did not look at what he should have known. She did so only after making a finding on the basis of all of the circumstances that the he knew why he was being questioned: at 303. Similarly in R. v. Latimer, [1997] 1 S.C.R. 217 at paras 31-32, the focus of the Court was on what Mr. Latimer understood given all of the reasonable indicia. The Court concluded that even though the police had not been explicit when explaining things to Mr. Latimer in the circumstances the trial judge was "right in finding that Mr. Latimer understood the basis for his apprehension by the police and hence the extent of his jeopardy": at para. 32. And in R. v. Kumarasamy, [2011] O.J. No. 2114 (Ont.S.C.J.) the Court applied a subjective analysis. The net effect of this subjective component is that even if an officer does not address the reasons for detention directly and adequately with the subject, no breach occurs if "the circumstances are such that [the accused] knows why": R. v. Nguyen, 2008 ONCA 49, 231 C.C.C.(3d) 541 at para. 16 (Ont.C.A.).
[20] Has Mr. Steele established on the balance of probabilities, then, that Cst. Laska not only failed to advise him in clear, simple and direct terms of why he was being detained, but also left him uniformed of the reasons for his detention? The objective factors point away from this conclusion. Mr. Steele was told he was pulled over because he had been driving erratically and shortly after was asked whether he had anything to drink, and he responded "yes" before Cst. Laska left with his documents. Many reasonable people would have inferred that this was a drinking and driving investigation. In this case, however, I have the testimony of Mr. Steele that in spite of this he was left uninformed of the reason for his detention by Cst. Laska. He gave credible evidence that he thought he was being detained for a routine traffic stop and all Cst. Laska was doing was checking his documents. If I believe his evidence, given that Cst. Laska did not inform Mr. Steele in clear and direct terms, the Charter breach is made out even though others in his position may have figured things out.
[21] After considering the objective factors and Mr. Steele's testimony I believe that he honestly thought he was being processed for a highway traffic offence. He was a forthright witness. His evidence was not shaken in cross-examination. I therefore find on the balance of probabilities that Mr. Steele was not informed clearly, simply and directly of why he was detained, and he was not left informed of the real reason for his detention by what was communicated by Cst. Laska. I am therefore satisfied section 10(a) was also breached in this case.
3. The Alleged Unreasonable Search and Arbitrary Detention Breaches
[22] As indicated, the failure by Cst. Laska to give the ASD demand to Mr. Steele "forthwith" also undermined the legality of the demand, once given. Since he was detained after the initial stop under the authority to make that demand and the demand was not given according to law, Mr. Steele's detention was illegal. As a consequence, so too was the search that an ASD test entails. As a result, sections 8 and 9 of the Charter have been violated.
[23] During argument Mr. Geigen-Miller urged that sections 8 and 9 are not before me because they were not pleaded in the Charter notice. Mr. Steele's factum does, however, reference these sections and alleges their breach in paragraph 6. I am satisfied that despite the technical deficiency in the notice itself the Crown was put on notice that these sections were at play. Moreover, given that these breaches arise from the same factual foundation as the section 10(a) and 10(b) breach, neither of which would have occurred had Cst. Laska made the ASD demand "forthwith," the Crown is not prejudiced by the omission of reference to these provisions in the formal notice. Given the absence of prejudice to the Crown, the specific nature of the Charter argument including its factual overlap with directly pleaded Charter claims, and the complete lack of impact that this could have had on the manner in which the trial was conducted, I am permitting Mr. Steele to rely on these Charter claims: see R. v. Tash, [2008] O.J. No. 200 at para 15 (Ont.S.C.). I am therefore finding that both sections 8 and 9 were violated in this case.
4. The Alleged Section 10(b) Implementational Breach
[24] What then of the "implementational" breach of section 10(b) that has been alleged? This breach was pled and the subject of argument. Although the decision was not cited before me, this issue is governed by the principles in R. v. George, [2004] O.J.No. 3287 (Ont.C.A.), which holds, at para. 33, that even where an ASD demand has been made immediately, "if an officer is not in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel, then the officer's demand is not a demand made under s.238(2)." There being no reasonable limitation prescribed by law on the implementational right to counsel in such a case, the failure to accommodate the exercise of the right to counsel constitutes a violation of the section 10(b) implementational right.
[25] In R. v. Ruck, 2013 ONCJ 527, [2013] O.J. No. 4429 (Ont.C.J.) I found that it is helpful to approach George issues in two stages, each related to the question of whether there was in the particular circumstances of the case a "realistic opportunity" to consult counsel before the ASD device can be administered. Before a George breach has been established, the answer to both questions must be established in the affirmative by the accused, on the balance of probabilities.
[26] "The first question has to do with whether the facilities required to consult counsel are available. That inquiry can be answered by asking whether it was feasible in the circumstances for the subject to contact and speak to counsel in a private, secure fashion where the integrity of the investigation could be secured": at para. 31. In this case it is conceded by the Crown that it was feasible for Mr. Steele to contact counsel given that he was left in the privacy of his automobile, holding two cellphones, one of which had a programmed number of a criminal lawyer who was available to be reached on that phone at the time of the detention.
[27] "The second George inquiry that must be satisfied before a Charter violation is found asks whether the period of delay is long enough in the particular circumstances to enable the right to counsel to be accommodated. To be clear, the applicant must establish not only that contact could be achieved in the time in question, but also that meaningful consultation could, on the balance of probabilities, have been accomplished": at para.39, citing R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355 (Ont.C.A.).
[28] This second element is to be determined in all of the circumstances, including with the benefit of hindsight. The case law makes clear that the exercise is not simply one of determining the length of the delay, although the period of delay is relevant, for if in fact there was not time to consult counsel a breach is not possible: R. v. George, supra.
[29] In R. v. Ruck I concluded that determining whether there has been a meaningful opportunity to consult counsel must be seen not solely as a purely objective fact, but also through the reasonable perspective of the officer at the time. This is because the essence of the Charter complaint is that the officer failed to act reasonably in facilitating the right to counsel when contact would have been possible. "The only way to judge sensibly whether an officer has taken reasonable steps is to evaluate the officer's conduct objectively, given what the officer knew or should reasonably have known. Simply put, it is reasonable for an officer to take steps to facilitate a detainee's right to counsel when it is apparent that there will be time to do so. It is not reasonable to expect an officer to do so where, objectively viewed, it appears as though the right to counsel cannot possibly be accommodated in the time available. The officer's reasonable belief about the expected delay is therefore, in my view, a central factor": R. v. Ruck at para 41. If this was not so every case will be resolved only with the benefit of hindsight based on the proved time of delay, regardless of how reasonably the officer acted in not facilitating the right to counsel. The net effect of such a doctrine would be that officers who do not possess an ASD device would feel obliged to facilitate access to counsel in every case, which, of course, the law does not require.
[30] What, then, of this case? As I have found, Mr. Steele had 7-8 minutes at the roadside to contact and secure advice from counsel. On the evidence before me he could have contacted counsel and secured advice in that period. First, in R. v. Torsney, supra at para 13, the Ontario Court of Appeal held that where a subject does exercise the right to counsel at the station, the time and complexity of those efforts is relevant in assessing what would have been reasonable at the roadside. The call that was placed by Mr. Steele at the station took 6 minutes or less to complete. Second, on the evidence before me, including the availability of counsel to receive the call, there would have been no material delay in achieving contact. Mr. Steele could have found his speed dial number as quickly as it took him to pick a name from the list of lawyers at the station and make contact. From a purely objective perspective, consultation was feasible.
[31] What then of Cst. Laska? Did she take reasonable steps to facilitate counsultation? She believed that it would not take long for the ASD device to arrive given that she was informed that Cst. Todd, who she was advised would be bringing a unit, was not occupied on a call. Subjectively Cst. Laska believed there would not be time for Mr. Steele to consult a lawyer.
[32] The problem is that her belief that Cst. Todd would not be long was not a reasonable one on the information available to Cst. Laska. Ottawa is a large city and Cst Laska did not seek or receive any information about where Cst. Todd was. She therefore had no reasonable basis for estimating the length of time it would take and decide whether to accommodate section 10(b). Moreover, she contributed modestly to the overall delay by not calling for the ASD device immediately, something that she should have done given that her obligation was to administer the test "forthwith." Instead, she ran Mr. Steele's details and made her notes before making that call. She did not take reasonable steps; once she had reasonable grounds to suspect that Mr. Steele had alcohol in his body, she should have made the ASD demand, called for an ASD device immediately, and acquired the means to make a real as opposed to speculative assessment as to how long it would take the device to arrive. If the delay was going to be short, she could have delayed giving the right to counsel otherwise she should have facilitated Mr. Steele's right to call.
[33] Mr. Geigen-Miller argued that an important consideration in determining whether this breach occurred notwithstanding such considerations is Mr. Steele's response when he was advised of his right to consult counsel without delay after his arrest at 3:10 a.m. Mr. Steele said, "I would yes at some point." The inference Mr. Geigen-Miller seeks is that Mr. Steele would not have exercised his right at that point, and therefore there is no breach of his implementational rights.
[34] As creative as it is, I cannot make the inference that Mr. Geigen-Miller is inviting. In my view, how Mr. Steele would have reacted if advised without delay of his right to counsel while waiting at the side of the road is not predicted by how he responded when advised of his right after a delay that was long enough that he was already in handcuffs about to be taken to the station after failing a roadside test. The circumstances are not comparable. In any event as I have indicated I accept the evidence of Mr. Steele when he testified that had he been advised of why he was being detained at the roadside he would have called Mr. Boxall. Finally, although the point is moot in light of the factual finding I have made, the Charter breach issue is whether Cst. Laska complied with her obligations. That obligation is not removed unless there is a knowing and unequivocal waiver by Mr. Steele of his right to contact counsel without delay, and there are no facts before me sufficient to conclude that when he was at the roadside he made that waiver.
[35] I therefore find that in the unusual circumstances of this case notwithstanding the relatively brief delay that given her own dilatory conduct, Cst. Laska was not in a position to require that a breath sample be provided by Mr. Steele before he would have had a realistic opportunity to consult counsel. She therefore contravened Mr. Steele's section 10(b) implementational right.
III. Remedy
[36] To determine whether to grant the remedy of exclusion the trial judge must determine after applying appropriate principles whether the accused has established in the particular circumstances of the case that the admission of the evidence in the proceedings would bring the administration of justice into disrepute, bearing in mind its long-term interests. Only if this is so can the evidence be excluded. In making this determination the trial judge is to have regard to the intensity of the concern in all the circumstances that admitting unconstitutionally obtained evidence can appear to condone the Charter violations and be taken to signal that Charter rights are unimportant. At the same time the trial judge is to be mindful that the exclusion of relevant, reliable and important evidence can undermine public confidence in the enforcement of the law among reasonable minded, properly informed people. These competing interests are to be evaluated and then brokered through the three-part Grant test, which is not to be applied in a formulaic fashion. The trial judge is to balance these factors and gauge whether the applicant has shown that the repute of the administration of justice is best guarded by exclusion.
A. The Seriousness of the Breaches
[37] The first component of the test requires the trial judge to gauge the seriousness of the Charter violation, given that the more serious the violation is the more reticent courts should be to appear to condone a Charter breach. Not surprisingly, Mr. Sellar contends that the breaches were serious while Mr. Geigen-Miller argues that any breaches that may have occurred in this case are not high on the seriousness scale.
[38] The primary factor in gauging the seriousness of the violation is the blameworthiness of the responsible officer's conduct. I agree with Mr. Geigen-Miller that Cst. Laska did not act in bad faith. She was aware that if there was a reasonable opportunity for Mr. Steele to contact counsel she would have been obliged to accommodate him. This is not an officer who acted in a heavy-handed way. Still, Cst. Laska should have known better, in my view. She was either ignorant of her obligations, or non-attentive to them.
[39] First, she did not even attempt to communicate to Mr. Steele that he was being detained for an alcohol driving investigation. She asked some questions and left for her car with his papers, leaving him sitting there waiting. She either did not know that she had to tell him why he was being detained, or she gave no thought to her obligation to advise him. In either case the omission is troubling.
[40] Second, she appears to have been entirely unaware that if she did not make the ASD demand "forthwith" she would be obliged to advise Mr. Steele of his right to counsel. The line of authority that shows this to be so is not obscure. The requirement that the ASD demand be given "forthwith" before the right to counsel is suspended is well-established by long-standing authority. This was affirmed in 1994 in the Ontario Court of Appeal in R. v. Pierman, R. v. Dewald, 19 O.R. (3d) 704 (C.A.) and confirmed by the Supreme Court of Canada in R. v. Woods, 2005 SCC 42, [2005] S.C.J. No. 42. The meaning of "forthwith" was reinforced in R. v. Bernshaw, [1995] 1 S.C.R. 254, again in R. v. George, supra, and most recently in R. v. Quansah, supra. Indeed, in Quansah Justice Laforme recognized that there are ongoing problems with officers failing to discharge this obligation. He agreed with the comments of Justice T. Ducharme in R. v. Au-Yeung, 2010 ONSC 2292 that police officers have been interpreting "the opportunity for reasonable delay in exceptional cases" as meaning that they are not required to make an ASD demand as soon as reasonable suspicion is acquired. While the roadside demand rules can be difficult to apply where there are unusual features, there are no unusual features at play here. Cst. Laska's obligation was simple. Yet she failed to know what she should have known on a legal issue that arises frequently.
[41] Third, while she believed she was being Charter compliant in not facilitating Mr. Steele with his right to counsel given her expectation that the delay in the arrival of the ASD would not be long, her failure to take steps to arm herself with concrete information that would enable a reasonable time estimate reflects insufficient urgency in her attitude about facilitating constitutional rights.
[42] It is important that in making this overall assessment to allow for the fact that while Cst. Laska did not actively facilitate the right to counsel she did nothing to impede his right to call, had Mr. Steele attempted to do so while left alone in his car. Her material failing was in omitting to give him the information he needed before he could appreciate the importance of legal advice. At the same time, the importance of the fact that Cst. Laska did not actively impede Mr. Steele's ability to call a lawyer cannot be given undue weight. After all, it was not her intention to accommodate his right to counsel when she left.
[43] Given this mix of concerns and taking all of these factors into account I consider Cst, Laska's level of blameworthiness to be neither egregious nor modest. Her failings either expose unacceptable ignorance of her obligations, or reveal carelessness in attending to them.
[44] Another relevant factor in gauging seriousness is the number of breaches. Where there are multiple breaches the Charter violation will ordinarily be more serious. In this case I have found an unusual number of breaches, namely two section 10(b) breaches as well as breaches of section 8, 9, and 10(a). It is important to bear in mind, however, that if Cst. Laska had simply read the ASD demand to Mr. Steele when she formed her grounds three of these breaches would not have occurred. Mr. Steele would have been advised of why he was detained, and the use of the ASD would have been lawful, negating the section 8 and 9 complaints. Moreover, the two section 10(b) breaches are linked to each other. Had Cst. Laska advised Mr. Steele of his right to counsel he had the means and opportunity to contact counsel and neither section 10(b) breach would have occurred. Given the overlapping nature of the complaints the Charter violations are not materially increased in seriousness because of their apparent number.
[45] Ultimately, when all is considered this is a case where the breaches are serious enough to agitate with some force in favour of exclusion.
B. The Impact of the Breaches on Charter-Protected Interests
[46] The second component of the Grant test is the "impact of the breach" on the Charter protected interests of the accused.
[47] Mr. Sellar urged that the breaches were intrusive because they had the net effect of leaving Mr. Steele detained in his car for close to 10 minutes in ignorance of why he was actually being held. It is not so much the time delay per se. Mr. Sellar contends that the informational breaches had a tangible and important consequence for Mr. Steele. Given the failure of Cst. Laska to alert Mr. Steele that he was under investigation for an alcohol driving offence Mr. Steele did not appreciate his jeopardy and so did not contact counsel as he was entitled to do in the circumstances of this case. In the result Mr. Steele lost the benefit of the right to consult counsel before being used as a source of evidence in his own prosecution. This self-incriminatory evidence, improperly secured, led ultimately to the breath samples the Crown now seeks to rely upon.
[48] The Crown takes a different view. Mr. Geigen-Miller argues that the ASD sample that was secured from Mr. Steele was an unobtrusive and fleeting inconvenience, having little meaningful impact on his Charter rights. If I understand his argument it is that according to R. v. Grant, supra this is the only impact that is to be considered in breath sample cases where a breach has occurred. The Crown also urges that, in any event, the breach had little impact because Mr. Steele did consult counsel at the station, removing any causal connection between the breach and the evidence sought to be excluded. All he experienced was an immaterial delay in enjoying the right that he ultimately received.
[49] I will address the Crown's latter argument first because this "causation" argument is not compelling and must be put aside. It fails to recognize that in the particular circumstances of this case Mr. Steele had the right to consult counsel before providing a roadside sample. By the time Mr. Steele was subsequently given his right to counsel at the station this opportunity had been irretrievably lost and he had been used as a source of evidence against himself. The later consultation therefore did nothing to ameliorate the earlier breach. In effect, this is not a case where Mr. Steele's right to counsel was simply delayed; it is a case where an important component of that right was lost in its entirety.
[50] The Crown attempted to support this causation argument by urging that a judge cannot speculate about the advice that counsel would have provided, submitting that it would therefore be wrong to infer that counsel may have advised Mr. Steele not to have furnished a sample. This argument is also untenable. If I cannot leave open the possibility that Mr. Steele may not have provided a sample had he received legal advice, it means I must necessarily have to operate on the premise that he would have provided a sample, which would be equally speculative. In substance, the admonition against speculating about advice is intended to prevent the very kind of causation argument being made by the Crown. The fact is we do not know what would have happened because Mr. Steele lost the opportunity the Charter promised him. Causation does not inform this application.
[51] What, then, of the Crown's main argument, that the law requires that Charter violations related to ASD samples are to be treated as having only modest impact on the Charter-protected interests of the accused. This argument is predicated on R. v. Grant, supra, para 111, where Justice Charron commented that a breath sample is a relatively non-egregious intrusion into the privacy and bodily dignity of individuals.
[52] The Summary Conviction Appeal Court decision in R. v. Ho, [2014] O.J. No. 4019 (Ont.S.C.J.) was cited in support of this proposal. In Ho the Summary Conviction Appeal Judge disagreed with R. v. Au-Yeung, 2010 ONSC 2292 at paras. 57-62, where a different Summary Conviction Appeals Court judge took into consideration all of the collateral effects of a breath demand when considering the impact of a related Charter breach on the accused, including the arrest, handcuffing, placement in the rear of the police cruiser for a trip to the police station and period of significant detention in the cells. The Summary Conviction Appeal Judge in Ho reasoned that the Supreme Court of Canada in Grant could not have been oblivious to such consequences, and if they were tenable considerations in assessing the impact of the breach they would have been mentioned in R. v. Grant.
[53] With respect, I do not think this is a proper reading of R. v. Grant. In the passage in question the Court was concerned solely with the impact that compelled breath samples have on privacy interests and human dignity and offering this as an illustration of the varying ways in which breaches can intrude on Charter protected interests. Justice Charron was not, in my view, purporting to provide a comprehensive catalogue of all "breach impact considerations" in breath sample cases.
[54] Indeed, Grant is not even a breath sample case. There is no reason to believe that the Court was intending to offer a ready-made conclusion on the intrusiveness of all breaches that lead to compelled breath samples.[1]
[55] To take this kind of approach would not only be inconsistent with the "in all the circumstances" requirement of section 24(2) but it would also impede a material "inquiry [that] focuses on the seriousness of the impact of the Charter breach on the protected interests of the accused": R. v. Grant, supra at para. 76. That impact varies with different kinds of breaches and from cases to case. For that reason, I prefer the approach in R. v. Au-Yeung, supra which permits judges to look at the real consequences that follow from the breach, provided that judges do bear in mind that the test itself is unobtrusive of privacy interests and the dignity of the offender.
[56] So, the actual provision of the ASD sample in this case was not intrusive. Moreover, this case is not a case such as Au-Yeung where the accused was detained and handcuffed and transported only because of the Charter breach. Officer Laska had good grounds to make the ASD demand. He would have experienced these consequences even had she complied with the law.
[57] This is, however, a case where Mr. Steele lost the opportunity to consult counsel before being called upon to become a source of self-incriminating evidence. This is an important deprivation, even bearing in mind that most suspects are obliged by law to provide ASD samples without consulting counsel. Mr. Steele was entitled to that legal advice before furnishing the ASD sample yet he was made to do so without enjoying its benefits. No-one knows where such advice would have led. The impact of the breach on his Charter protected interests cannot therefore be trivialized. It was real and it was meaningful.
C. Society's Interests in Adjudication on the Merits
[58] Mr. Steele is seeking the exclusion of the heart of the Crown's case – the reliable breath samples that are needed to support this prosecution. These are important pro-inclusionary considerations.
[59] The parties disagree on the affect that should be given to the seriousness of the offence. Mr. Sellar argues that this is a low-end alcohol driving offence given the absence of evidence of bad driving and the relatively low blood alcohol readings; it is not as though exclusion would free an impaired driver who caused a fatality because the Constable has blundered. Mr. Geigen-Miller counters that all alcohol driving offences are serious and that I must take this into account.
[60] In my view, society does have an interest in the adjudication on its merits of any alcohol driving offence and the loss of an opportunity to see a case decided without consideration of key evidence is always problematic for the repute of the administration of justice. That cannot be ignored. My role, however, is to bear in mind not only this but also that the prosecution of serious offences in reliance on evidence obtained in breach of the Charter is taken to increase the impact of the breach on the accused. I am also to be careful to bear in mind that what I am to concern myself with is the long-term repute of the administration of justice in the eyes of reasonably informed persons cognizant of the importance of Charter rights, not just the desire to get the outcome right in the case at hand.
D. Ruling
[61] These factors do not provide a ready-made outcome. I must exercise my best judgment in assessing the impact of the evidentiary determination I make on the repute of the administration of justice. Considering that the failings of Cst. Laska demonstrate either unacceptable ignorance of her obligations in areas where the law has long been settled, or carelessness in attending to those obligations; and that those breaches led to the not insignificant consequence of Mr. Steele being called upon to participate in his own investigation without the benefit of legal advice he was entitled to receive, my best judgment is that the long-term interest of the repute of the administration of justice is best served by excluding the ASD results and the intoxilyzer results they led to. It is important, in the circumstances, to refuse to condone the breaches and avoid devaluing the Charter interests at stake by admitting this evidence. I pass this judgment notwithstanding that the participation by Mr. Steele in his own investigation did not assail his dignity or deeply offend his privacy interests, and notwithstanding the societal interest in seeing reliable and crucial evidence admitted so that prosecutions of this kind can be adjudicated on their merits.
IV. Holding
[62] The breathalyser results required by the Crown to prove that Mr. Steele exceeded the legal limit of alcohol in his blood while operating a motor vehicle having been excluded, I therefore find Mr. Steele not guilty of the offence, contrary to section 253(1)(b) of the Criminal Code.
Dated at Ottawa this 31 October 2014.
The Hon. Justice David M. Paciocco
Corrigendum
After this decision was delivered orally the Crown, Mr. Geigen-Miller, clarified that he had not intended to communicate an objection to sections 8 and 9 of the Charter being raised, a clarification I accept.
Footnote
[1] Nor, with respect, am I persuaded that R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35 adds anything. The reason the Court was disinterested in detention arguments in that case was not, as appears to be suggested in Ho, because the consequences of detention are uninformative in a breath sample exclusion application. As I read that decision the Court was simply intimating that because reasonable and probable grounds existed, there were no breaches possible.
