Court File and Parties

Ontario Court of Justice

Date: 2015-01-23

Court File No.: Halton 13/1899

Between:

Her Majesty the Queen

— and —

Ronald Hegedus

Before: Justice L.M. Baldwin

Heard on: April 11, 2014 and November 18, 2014

Reasons for Judgment scheduled for release on: July 15, 2015 and brought forward to January 23, 2015

Counsel

S. Bradley — counsel for the Crown

D. Lent — counsel for the defendant Ronald Hegedus

Judgment

BALDWIN J.:

[1] Ronald Hegedus is charged with operate Over 80 on June 22nd, 2013 in Halton Hills.

[2] The Charter issues at the end of trial were:

(1) whether the Applicant's section 10(b) rights had been violated with respect to facilitation of the right to speak to counsel of choice;

(2) whether the Applicant's section 10(b) rights to counsel had been violated with respect to speaking to counsel in private;

(3) whether, if Charter breaches had been established, the breath readings should be excluded pursuant to s. 24(2) of the Charter.

[3] The non-Charter issue was whether the tests had been taken as soon as practicable.

[4] These reasons will focus on s. 10(b) – facilitation of the right to speak to counsel of choice.

[5] I have determined that this Charter right has been breached.

Summary of the Evidence on s. 10(b) – Facilitation of the Right to Contact Counsel of Choice:

[6] Officer Shawn Hexter has been an officer with HRPS for 9 years.

[7] On June 22, 2013 he was on duty in an unmarked police cruiser as the passenger.

[8] Officer David McInnis, an officer with HRPS for 10 years, was the driver. Officer McInnis was also the qualified Intoxilyzer technician in this case.

[9] At approximately 6:00 p.m., they were travelling westbound on 32 Sideroad in Halton Hills.

[10] They observed the car driven by Mr. Hegedus coming toward them drifting partly into their lane across the centre line.

[11] Officer McInnis executed a U-turn and initiated a traffic stop on 32 Sideroad just east of Trafalgar Road.

[12] The requisite suspicion was formed and an ASD demand was made.

[13] At 6:05 p.m. a breath sample was provided and the result was a fail.

[14] Officer Hexter formed reasonable and probable grounds to arrest for Over 80 and Mr. Hegedus was arrested accordingly.

[15] At 6:07 p.m. Officer Hexter read Rights to Counsel from the back of his police issued duty book.

[16] The standard Rights to Counsel were read into the court record and appear at page 14 of the April 11, 2013 transcript.

[17] Officer Hexter asked the accused if he understood.

[18] The accused replied, "Yeah, shit."

[19] Officer Hexter asked, "Do you wish to call a lawyer now?"

[20] The accused answered, "Maybe duty counsel later, please give me a break."

[21] The caution and breath demand were read and understood.

[22] The tow truck arrived on scene at 6:23 p.m. and they parted the scene at 6:24 p.m. for 11 Division.

[23] The 11 Division is located in Acton. It was described in the evidence as a substation – there is no 24-hour Staff Sergeant stationed there. It also turns out that there is no privacy booth for detainees to speak with their counsel by phone.

[24] They arrived at 11 Division at 6:35 p.m.

[25] At 6:36 p.m. Mr. Hegedus was in the booking room. Staff Sergeant Williams was the booking officer.

[26] At 6:40 p.m. Officer Hexter placed a call for duty counsel as requested by Mr. Hegedus.

[27] The issue on this Charter Application is, what conversation if any, happened with Mr. Hegedus during this 4-minute period in the booking room that resulted in Officer Hexter calling duty counsel.

Why the Call was Made to Duty Counsel:

[28] Duty counsel called back at 6:54 p.m. and Mr. Hegedus was on the phone at 6:56 p.m. The call ended at 6:59 p.m. (4 minutes later).

[29] In cross-examination, Officer Hexter agreed that he makes accurate and comprehensive notes of investigations in his duty book.

[30] Officer Hexter agreed that after recording Mr. Hegedus' responses to Rights to Counsel given at the scene, he has no notes about any further conversation with the Mr. Hegedus on that subject.

[31] Officer Hexter testified that it was during the booking process with Staff Sergeant Williams that Mr. Hegedus was asked "Do you require duty counsel?" and he said "yes".

Q. …do you say that Sergeant Williams has a discussion with my client regarding a lawyer?

A. Yeah, the booking procedure again, during that time they ask, okay, do you wish to contact a lawyer now…"

Q. Okay. Who has conversations with my client regarding a lawyer?

A. Sergeant Williams while filling out the booking sheet.

Q. What was the conversation she had with my client?

A. The same, do you wish to contact a lawyer now?

Q. She says that to my client and how does my client respond?

A. I don't know word-by-word but, as requested by your client, we contacted duty counsel at that time.

[32] Officer Hexter repeated that he cannot recall what Mr. Hegedus said in the booking room. Only that he requested to speak to a lawyer.

[33] Officer Hexter testified that he does not recall any conversation with Mr. Hegedus about speaking to a counsel of choice at 11 Division.

Ruling on Charter Application:

[34] The Applicant bears the onus of proof on a balance of probabilities.

[35] This is yet another judgment where this Court is being asked to make inferences and come to conclusions based on poor police note-taking on the critical issue as to whether or not an accused requested or declined to speak to a counsel of choice.

[36] Police officers, like in this case, are making notes of details like when the accused asked for a drink of water, but they have no notes on whether the accused was asked about speaking to counsel of choice and then declined it. They have no notes on what exact words were used to trigger the call to duty counsel.

[37] The accused's words at the scene "maybe duty counsel later" are ambiguous. Mr. Hegedus said maybe. How did the police go from maybe to making a call to duty counsel at 11 Division? I do not know because there were no notes made of this crucial conversation.

[38] Judges have been writing about this very issue for years now and experienced officers are still making the same mistakes.

[39] Reference R. v. Cody Smith, 2014 ONCJ 595, released November 6, 2014; R. v. Kumarasamy, [2002] O.J. No. 303 (Summary Conviction Appeal) and R. v. McCallen (1999), 131 CCC (3d) 518 (OCA) as just 3 examples.

[40] The Applicant has met his onus of proof.

Section 24(2) Analysis:

[41] I adopt the analytic framework as articulated in the case of R. v. McMeekin, a decision of Justice Stephen Brown of the OCJ released March 5, 2014, indexed as 2014 ONCJ 107.

[42] Because of my finding of the s. 10(b) breach, I now move on to the issue of whether the evidence obtained after the breach is to be excluded. The revised approach to the lines of inquiry concerning the factors to weigh in this analysis are set out in the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32 at paras. 67-71 and paras. 85 and 86 and instruct courts to utilize a more flexible, balanced and comprehensive test under s. 24(2) as follows:

67 The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The term "administration of justice" is often used to indicate the processes by which those who break the law are investigated, charged and tried. More broadly, however, the term embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole.

68 The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

69 Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

70 Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence...

85 To review, the three lines of inquiry identified above - the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits - reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

86 In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible. However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved. Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination.

[43] In assessing the seriousness of the breach in Grant, supra, and in R. v. Harrison, 2009 SCC 34, the Court suggested that the conduct causing the breach be assessed on a continuing fault line. At para. 23 of the Harrison decision, the Court stated:

...The metaphor of a spectrum used in R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), per Doherty J.A., may assist in characterizing police conduct for purposes of this s. 24(2) factor:

Police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for Charter rights... . What is important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct. [para. 41]

Seriousness of the Breach

[44] Inadequate facilitation of the right to communicate with counsel of choice is a serious breach.

[45] The seriousness of this breach is compounded by the lack of note-taking with respect to this very important area of implementing rights to counsel.

[46] In this case the original notes were deficient – to the point of being non-existent – on crucial questions and answers given, if any, with respect to rights to counsel.

[47] Officer Vittie created a second set of notes months after the alleged event and after the first trial date that resulted in confusion as to when discussion regarding rights to counsel of choice or duty counsel may have occurred, be that at the scene, in the police car or at the station.

[48] I find that the unreliability and inconsistency with respect to this very important evidence reflects poorly on the Crown's case and is bad police procedure.

[49] The late facilitation of access to Duty Counsel and the imposing of same upon the Applicant amplifies the seriousness of the breach, and the comments of Justice Durno in Regina v. Kumarasary, supra, are applicable to this case.

[50] I, therefore, assess the impact of this factor to favour exclusion of the breath samples and all statements made by the Applicant to the police after the rights to counsel were read at the scene in the analysis.

Impact upon the Applicant's Charter-Protected Interests

[51] The importance of the right to counsel of choice is set out in paragraphs 34 through 40 of Regina v. McCallen, supra. It is not for the Court to speculate what consequences would have flowed if the Applicant had been given access to counsel of choice as opposed to Duty Counsel. The comments in Regina v. McCallen emphasize the important principle of allowing an accused party to have access to counsel of his choice. The police erroneously felt they could use the delayed access to Duty Counsel and that would comply with section 10(b) of the Charter. Officer Vittie was wrong in that regard.

[52] I assess the impact of the police conduct on the Applicant's Charter-protected interests as being a serious one and, therefore, favouring exclusion.

Society's Interest in Adjudication on the Merits

[53] It is the evidence of the Intoxilyzer readings that the Applicant seeks to have excluded, as well as statements made to the officers after rights to counsel were read at the scene. Acknowledging that the Intoxilyzer results are crucial to the Crown's case regarding the charge of over 80, this factor favours inclusion.

[54] Breath samples provided into approved screening devices and the Intoxilyzer are generally considered reliable evidence absent evidence of malfunction or improper operator error. As stated by Hill J. in Bryce, supra, at para. 67:

Although the seriousness of the charge "must not take on disproportionate significance" (Harrison, at para. 34), impaired operation of a motor vehicle is a notorious threat to public safety: Stillman (1997), 113 C.C.C. (3d) 321 (S.C.C.) at 356; R. v. Hufsky, [1988] 1 S.C.R. 621 at 636-7; R. v. Saunders (1988), 41 C.C.C. (3d) 532 (Ont. C.A.) at 537, 545.

[55] Also, these offences are serious offences. The carnage caused on our roadways to innocent victims is a notoriously recognized fact.

[56] Notwithstanding that the drinking and driving sections of the Criminal Code are serious offences, this case does not involve personal injury or death.

[57] The Intoxilyzer readings, while over the proscribed limit, were at the very low end of the prohibited scale.

Balancing the Factors

[58] This arrest occurred more than 2 years after the decision in R. v. Suberu, 2009 SCC 33 and this principle had more than enough time to filter through to frontline officers. In that case at paragraphs 40 to 43 the Court states:

40 As with "detention", any interpretation of the phrase "without delay" must be consistent with a purposive understanding of the Charter provision in which it occurs. As this Court noted in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-42, and in R. v. Bartle, [1994] 3 S.C.R. 173, the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

41 A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

42 To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

Conclusion

[59] In balancing all the factors, I have decided that the admission of the Intoxilyzer test results would bring the administration of justice into disrepute. Accordingly, that evidence will be excluded.

[60] Mr. Hegedus is found not guilty of Over 80.

[61] Comment: Because I have found a section 10(b) breach and excluded the breath readings, it is not necessary for me to analyze the alleged failure to provide privacy during the call with duty counsel at the 11 Division 'substation' in Acton.

Released: January 23, 2015

Signed: Justice L.M. Baldwin