Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

Firas Swaida

Before: Justice Peter Harris

Trial Judgment (Released June 22, 2015)

Counsel:

• Ms. B. McCallum for the Crown
• Mr. B. Daley for the Defence

Harris, J.:

Introduction

[1] Firas Swaida was charged with "excess alcohol" on December 29th, 2012.

[2] The defendant applies under sections 8, 9, 10(b) and 24(2) of the Charter for the exclusion of the breath sample evidence on the basis that police demanded and obtained samples of the Applicant's breath in violation of his section 8, 9 and 10(b) rights. On May 15, 2015, I advised the defendant that the excess alcohol charge was dismissed with reasons to follow. These are my reasons.

The Facts

[3] On December 29, 2012, P.C. James Bragg was patrolling on foot in the entertainment district, Adelaide Street at John Street, in Toronto when he observed a motor vehicle travelling the wrong way on Adelaide Street (a one way street) at about 3:08 am. P.C. Rhoel Ong (has since been promoted to the rank of sergeant, but at the time of this incident was a police constable) who was with P.C. Bragg flagged the vehicle down and spoke to the driver. He gave evidence that he detected a slight smell of alcohol on the driver's breath and "some issue with his talking… slurred speech or a speech impediment." The officer asked about alcohol consumption and was told by the driver that he had "a few glasses of wine about an hour before." On the basis of this information the officer requested that an A.S.D. be brought to the scene and at 3:17 am P.C. O'Brien arrived with the device and at 3:20 am the driver, Firas Swaida registered a "fail" and was arrested on a charge of "over 80 mgs.", provided his rights and an approved instrument demand. When asked if he wanted to speak with a lawyer, Mr. Swaida asked to speak to Bruce Daley and was told he could speak to a lawyer at the police division.

[4] Mr. Swaida was booked into Traffic Services at 3:49 and was placed in an interview room at 4:02 am and a call was placed to Bruce Daley at a Toronto law firm by the name of "Byers" using a telephone number obtained from a Google search conducted by P.C. Bragg in which it was determined that Mr. Daley was associated with that firm. At 4:08 am a message was left at the law firm to call the Division to provide Mr. Swaida legal advice. P.C. Bragg then told Mr. Swaida that he was also "calling duty counsel in case the lawyer doesn't call back." He testified that: "In a situation where there is a time limit, it's whoever calls back first." At 4:21 am duty counsel called Traffic Services. P.C. Bragg stated: "Duty counsel called so I didn't bother calling the lawyer back again." The officer testified that he: "put the accused on the phone." P.C. Bragg gave evidence that at 4:56 the accused was off the phone and he escorted him into the breath test room." When asked whether the accused at any point raised any concerns, the officer stated: "None that I am aware of. I didn't make any notations." Mr. Swaida subsequently provided breath samples into an approved instrument.

[5] When asked about the telephone number he called, P.C. Bragg stated he "looked it up on Google which was more than most would." When it was pointed out that Mr. Swaida had two cellphones in his property at the Division, P.C. Bragg stated that if had his lawyer's number "he should have provided it to me." He stated: "I did ask him if he knew the number and he said he didn't." P.C. Bragg was not present in the breath room when Mr. Swaida made a complaint about the advice he had received from duty counsel. P.C. Bragg was asked: "If the breath technician had told you that Mr. Swaida was not happy with the advice he had received [from duty counsel] you would have given him another try? P.C. Bragg answered, "Yes."

[6] In chief, P.C. Ong was asked if he was aware of any statements made by Mr. Swaida regarding his right to counsel and he replied: "I don't recall any." During the breath testing at the Division, P.C. Ong was present when the breath technician asked the defendant whether he had been given an opportunity to speak to counsel. On the Breath room video (Exhibit 1), Mr. Swaida answered that he preferred to speak to his lawyer. He said he "wasn't 100% who that was" (duty counsel) or whether the person was a lawyer. He said: "I would have liked to speak to Bruce. Is there anything you can do about that?" At this point the breath technician is heard to raise his voice in an abrupt and officious manner, saying: "Your lawyer's not available. It's 4:00 o'clock in the morning. He's sleeping. Mr. Swaida says: "I guess he's sleeping." The breath technician then says: "We gave you duty counsel. You agreed to speak to duty Counsel? Mr. Swada acknowledges he spoke to duty counsel. The officer then says: "Then that's it" and proceeds with the breath test instructions. P.C. Ong was asked (after viewing this exchange): "The breath technician tried to shut up my client?" He replied: "He's not listening to the answers of the qualified technician." When it was pointed out to P.C. Ong in cross-examination that Mr. Swaida appeared to be saying he was not satisfied with the advice from duty counsel, he stated: "As long as we tried to reach Daley, we got duty counsel so he could get advice." The breath certificate was introduced through P.C. Ong and marked Exhibit "A" for identification on the voir dire and the results were recorded as 120 and 110 mgs. per cent.

[7] Firas Swaida gave evidence that he had reached Mr. Daley in the past for a friend at 4:00 or 5:00 am in the morning and had his number in his 2 cell phones which were taken from him at the front desk. He stated he was not told where police obtained the number for Mr. Daley. Had he known he said he would have requested that they "get it from my phones." He testified he complained about the advice from Duty counsel. He said: "I didn't know who they (Duty counsel) were." "I said I was not happy. I didn't feel I got proper advice." When asked what the response was to the request (Is there anything you can do?) he stated: "They brushed off my question." In cross-examination he was asked: "They said they tried to call Daley and left a message. Then they gave you duty counsel? He replied: "I complained but then I agreed. I thought I had to." He said: "After I spoke to duty Counsel we [Officer Bragg and I] never talked." "I told them in the [breath] room and complained." Mr. Swaida was asked why he said the advice he received was inadequate and he replied: "I didn't know who duty counsel was, if they were a lawyer and what their background was." He was then asked: "Your only complaint about duty counsel was about who it was? He answered: "Yes."

ANALYSIS

[8] First, in terms of credibility, I accept the police evidence as credible. I do believe however, that Mr. Swaida likely voiced some initial reluctance to receiving advice from duty counsel after only waiting a short while for his counsel of choice, but P.C. Bragg kept no notes of the exchange and has no present memory of that discussion. Pursuant to the credibility formula enunciated in R. v. W(D), [1991] 1 SCR 742 (SCC), I note that the fact I have found the police generally credible, does not mean that I necessarily find that the defendant was not credible. The burden of proof at trial always remains with the Crown even though the defendant faces an onus of proof on a balance of probabilities with respect to the section 9 and 10(b) Charter applications. In fact, Mr. Swaida's evidence is believable for the most part, save and except his assertion in evidence that he had Mr. Daley's home phone number in his cell phone that was taken from him at the front desk. It seems to me he would have mentioned that fact on the video in the breath room when he asked the officers present if there was anything they could do to help him reach counsel. I did accept his evidence that he was not happy with his contact with duty counsel and didn't feel he got "proper advice." Secondly, as is evident from watching the video, when he asked: "Is there anything you can do?" the video corroborates his evidence that the officers "brushed off [the] question." Finally, I accept that when he was "put on the phone" to duty counsel he complained but then agreed to speak to duty counsel because he "thought [he] had to." This position was entirely consistent with his expressed dissatisfaction with duty counsel on the video.

The Section 8, 9 and 10(b) Charter Applications

Charter, section 9

[9] As to the section 9 Charter application, in my view Mr. Swaida's detention was not arbitrary or an infringement of the Applicant's rights under the Charter at least in the initial stages. The officers in this case observed a vehicle travelling the wrong way on a one-way street at 3:08 am. They stopped the driver for the Highway Traffic Act violation. P.C. Rhoel Ong spoke to the driver. He detected a slight smell of alcohol and "some issue with his talking… slurred speech or a speech impediment." The driver stated that he had "a few glasses of wine about an hour before." On the basis of a (subjectively and objectively) reasonable suspicion the officer requested that an A.S.D. be brought to the scene and at 3:17 am P.C. O'Brien arrived with the device and at 3:20 am the driver, Firas Swaida registered a "fail" and he was arrested on a charge of "over 80 mgs." In my view, there was both a reasonable suspicion to demand an ASD roadside test and on the basis of the "fail" on the ASD, reasonable grounds to demand that he provide breath samples into an approved instrument. This investigative detention was reasonably necessary on an objective overview of the totality of the circumstances and at the outset there was no section 9 infringement of his Charter rights: R. v. Mann 2004 SCC 52, [2004] S.C.J. No. 49 (S.C.C.). As noted below, the failure to make a proper ASD demand under s. 254(2) of the Code had implications for Mr. Swaida's section 9 rights at a later stage.

Charter, section 8

[10] Upon stopping the Defendant's vehicle, as noted above, there were reasonable grounds to suspect that the defendant had alcohol in his body and P.C. Ong was entitled to make a demand for a roadside breath sample. However, rather than making a formal demand, at some point he advised Mr. Swaida that he had requested an ASD to conduct an alcohol test. First, the defence took the position that the Crown had not proven the roadside breath instrument was approved. While the Crown has not specifically proven that the device was authorized, the officer's reference to an ASD implies an understanding the instrument was an Approved Screening Device. Case authorities have accepted what has been called 'incomplete descriptions' as proof the device was approved. (See for example R. v. Cross et al., [1994] O.J. 1817 (OCA) in which the Court held that a reference to an A.L.E.R.T. was sufficient). Further, while the Crown has not specifically proven that the device was properly calibrated, it is not necessarily fatal to the Crown's case that the officer forming the opinion did not know whether "the screening device was properly calibrated." In my view, on an objective basis the officer had reasonable grounds for believing the ASD was in good working order and in the absence of evidence of a high degree of unreliability, the officer was entitled to rely on the device for reasonable and probable grounds: R. v. Topalitsis, [2006] O.J. 3181 at 49 (OCA); R. v. Paradisi, [1998] O.J. 2336 (OCA).

[11] However, it is apparent that there was an interference with the defendant's constitutional rights in this case as a result of the delayed ASD demand or the complete failure to make the ASD demand pursuant to s. 254(2) of the Code. The case authorities specify that where an officer makes an ASD demand, the demand must be made forthwith upon the officer forming the opinion that the demand is justified. More specifically, it must be made "immediately" or "without delay" unless there is a reasonably necessary delay due to equipment requirements ― such as a 15 minute delay to clear "mouth alcohol" as was the case in R. v. Bernshaw, [1995] 1 SCR 254 (SCC) or where it may be necessary to continue an investigation for weapons or alcohol consumption etc.: R. v. Quansah 2012 ONCA 123, [2012] O.J. No. 779 (OCA).

[12] The general rule is that where there is no reasonably necessary delay that flows from the circumstances of the case, "forthwith" means 'immediately or without delay': R. v. Woods 2005 SCC 42, [2005] 2 S.C.R. 205 (SCC). In the instant case P.C. Bragg testified that shortly after 3:08 am when Mr. Swaida's car was stopped they called for an ASD to their location and P.C. O'Brien arrived with the instrument at 3:17 am. and at 3:20 the defendant registered a "fail." P.C. Bragg was asked if he knew the time of the ASD demand and he replied that he did not know. He said it was: "Not up to me." P.C. Ong was asked who made the demand and he said he did not make it: "It might have been my partner." He later testified that it [the demand for an ASD sample] may have been made by P.C. O'Brien. P.C. Ong further stated that he was not sure when the demand was read and he did not know whether P.C. O'Brien read the demand. P.C. O'Brien did not give evidence at this trial and there is therefore no evidence of an ASD demand being made at all.

[13] For these purposes, I am assuming that the sometime casual mention to the defendant of a request for an ASD to conduct an alcohol test does not constitute a valid, timely demand as required by s. 254(2) of the Code. As the Ontario Court of Appeal confirmed in R. v Torsney 2007 ONCA 67, [2007] O.J. No. 355 (C.A.) leave refused [2007] S.C.C.A. No. 126:

"The demand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his or her breath forthwith. [2] This can be accomplished through words or conduct, including the "tenor [of the officer's] discussion with the accused". See R. v. Horvath, [1992] B.C.J. No. 1107 (B.C.S.C.) (A.D.). What is crucial is that the words used be sufficient to convey to the detainee the nature of the demand. See R. v. Ackerman (1972), 6 C.C.C. (2d) 425 at 427 (Sask. C.A.) and R. v. Flegel (1972), 7 C.C.C. (2d) 55 at 57 (Sask. C.A.)."

[14] As well, where the effect of the demand is to suspend an accused's constitutional rights, it is clear there has to be some formality as well as informational content for a valid demand. (See R c. Laroche [2005] Q.J. 9117 (C.S.) in which it was held that: "A demand is sufficient as long as the words used and the circumstances in which the demand is made indicate to an accused that a demand is being made that he or she provide a sample of their breath and that in default he or she will be charged with refuse.")

[15] Where there is no evidence of a demand being made forthwith, or at all, it follows that the failure to make a valid and timely demand infringes the defendant's right to counsel and other relevant Charter rights and such infringements will not constitute a valid section 1 Charter limit on those rights. As LaForme J.A. in Quansah 2012 ONCA 123, supra, explained:

[21] The "forthwith" requirement of s. 254(2) is inextricably linked to its constitutional integrity: see Woods, at para. 29. This justifies what would otherwise be sustained as violations of ss. 8, 9 and 10(b) of the Charter. Thus, in interpreting "forthwith", this court must bear in mind Parliament's choice of language and Parliament's intention, which is to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights: see Woods, at para. 29.

[22] So long as the demand is validly made pursuant to s. 254(2) – that is, so long as it is made "forthwith" – for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel. This is because this statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights, given the extreme danger represented by unlicensed or impaired drivers on the roads: see Degiorgio, at para. 37.

[23] As this court noted in Degiorgio, at para. 46, the "forthwith" period is the time in which Charter rights are justifiably infringed. That is to say, within this time a detained person can be required to comply with an ASD demand and respond to that demand – be it blowing and registering a "fail" or be it refusing or failing to blow – and incur criminal liability that is justified despite ss. 8, 9 and 10(b) of the Charter.

[16] Consequently, in the absence of a valid ASD demand made forthwith pursuant to s. 254(2) –– for Charter purposes ― what took place had to have been an unjustified seizure, arbitrary detention and breach of the requirement to advise the detainee of his or her right to counsel. What is most troubling is the systemic misconception entertained by both P.C. Bragg and P.C. Ong to the effect that the right to counsel only arises upon the arrest of a subject. P.C. Bragg was asked: "Once he is detained you have the obligation to give him his rights?" He replied: "Only if he is arrested." P.C. Ong was asked: Why not [give him his rights to counsel] "while you waited for O'Brien?" He replied that: "The investigation was ongoing. We didn't know if he was 'over 80' on the ASD" - the implication being that he believed there was no obligation to provide rights to counsel until a person is arrested. On the evidence before me I find there was a violation of the defendant's section 8, 9, and 10(b) rights with systemic implications.

Charter, section 10(b)

[17] The defence further argues that in all the circumstances the defendant was not given a reasonable opportunity to exercise the right to counsel of choice and instead of facilitating that contact, police defaulted to duty counsel and refused further assistance in reaching counsel in breach of his s. 10(b) right. The Crown takes the position that on the basis of binding authorities such as R. v. Richfield [2003] 0.J. 3230 (C.A.) and R. v Blackett, [2006] O.J. 2999 (S.C.J.) - a good faith perfunctory effort by the police to locate counsel of choice is sufficient to "suspend the correlative duties on the police" if it is followed by an offering of access to duty counsel.

[18] The facts are that Mr. Swaida stated he wished to contact Bruce Daley for legal advice. P.C. Bragg did an internet search and found a "Bruce Daley" at a Toronto law firm by the name of "Byers." At 4:08 am a message was left at the law firm to call the Division to provide Mr. Swaida with legal advice. P.C. Bragg then told Mr. Swaida that he was also "calling duty counsel in case the lawyer doesn't call back." He testified that: "In a situation where there is a time limit, it's whoever calls back first." At 4:21 am duty counsel called Traffic Services. P.C. Bragg stated: "Duty counsel called so I didn't bother calling the lawyer back again." The officer testified that he: "Put the accused on the phone." Mr. Swaida was then taken for the approved instrument test at which time he told the officers that he preferred to speak to his lawyer. He said he wasn't "100% who that was" (duty counsel) or whether the person was a lawyer. He said: "I would have liked to speak to Bruce. Is there anything you can do about that?" At this point the breath technician is heard to raise his voice in a stern and officious manner, saying: "Your lawyer's not available. It's 4:00 o'clock in the morning. He's sleeping. Mr. Swaida says: "I guess he's sleeping." The breath technician then says: "We gave you Duty counsel. You agreed to speak to Duty Counsel? Mr. Swada acknowledges that. The officer then says: "Then that's it" and proceeds with the breath test.

[19] In cross-examination Mr. Swaida was asked: "They said they tried to call Daley and left a message. Then they gave you duty counsel? He replied: "I complained but then I agreed. I thought I had to."

[20] The first issue to resolve is – what should police be reasonably expected to do in this set of circumstances? The governing principle in this jurisprudence is − if the detainee is not diligent, the correlative duties on the police are suspended: R. v. Tremblay, [1987] 2 S.C.R. 435. In my view, there can be no claim in these circumstances that the defendant was not reasonably diligent. In R. v. Brydges, [1990] 1 S.C.R. 190 (S.C.C.) the Supreme Court of Canada summarized the principles relating to "reasonable diligence on the part of the detainee" in the context of section 10(b) rights:

Fair treatment of an accused person who has been arrested or detained necessarily implies that he be given a reasonable opportunity to exercise the right to counsel because the detainee is in the control of the police, and as such is not at liberty to exercise the privileges that he otherwise would be free to pursue. There is a duty then, on the police to facilitate contact with counsel because, as I stated in R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43:

"The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. ... For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence."

As a result, s. 10(b) of the Charter imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First the police must give the accused or detained person a reasonable opportunity to exercise the right to retain and instruct counsel, and second, the police must refrain from questioning or attempting to elicit evidence from the detainee until the detainee has had that reasonable opportunity. The second duty includes a bar on the police from compelling the detainee to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until the person has had a reasonable opportunity to exercise the right to counsel: R. v. Ross, [1989] 1 S.C.R. 3, at p. 12.

It is the case, however, that the rights set out in the Charter are not absolute. Indeed, this Court has held that the right to retain and instruct counsel must be exercised diligently by the detainee. If the detainee is not diligent, the correlative duties on the police are suspended: R. v. Tremblay, [1987] 2 S.C.R. 435. What constitutes reasonable diligence on the part of the detainee has been considered by this Court in R. v. Ross, supra, at p. 11:

"Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer."

[21] Applying the facts to all of the foregoing, it is clear that Mr. Swaida wished to consult with counsel of choice and he was as diligent as he could be in agreeing to speak to duty counsel (even though he complained but felt he had no choice but to speak to duty counsel).

[22] The second issue for consideration is whether the chosen lawyer's unavailability for 13 minutes and the police officer's decision to short-circuit the process and put Mr. Swaida "on the phone" to duty counsel, could be considered a reasonable opportunity to exercise the right to counsel. The message was left for Mr. Daley at 4:08 am. The waiting was terminated thirteen minutes later when duty counsel called at 4:21 am and the officer "put the accused on the phone." It is clear the officer believed the right to counsel could be reduced to a simple formula: "where there is a time limit, it's whoever calls back first." The first point to be made is that police must be scrupulous in not steering a defendant towards any particular counsel whether it be duty counsel or one who is privately retained. It has been held that police officers are not to participate in an accused's choice of counsel by telling an accused that it was unlikely that his lawyer would return the call given the time of night. The court expressed the view that by encouraging an accused to use legal aid duty counsel rather than any other counsel, a police officer has impermissibly participated in the accused choice of counsel. The Alberta Court of Queen's Bench concluded that "the officer's remarks served to reduce that scope and, by doing so, reduced the scope or pool of potential lawyers of choice available for the accused's consideration": R. v. Dumontier 2008 ABQB 360, [2008] A.J. No. 648 (Q.B.).

[23] Second, the section 10(b) right trumps any consideration of time strictures within which to take the breath test. One of the fundamental principles iterated in bedrock decisions such as R. v. Prosper, [1994] SCJ No. 72 (SCC) is that the evidentiary presumption under s. 258(1)(d) of the Code, which provides that readings taken within two hours of an alleged offence are proof of the blood alcohol level at the time of the offence, is not a sufficiently "urgent" factor to override a detainee's right to counsel under s. 10(b). In other words, it is not a race in which the first lawyer to call wins, it is a right of such fundamental importance that it supersedes any statutory time pressures within which the breath samples are to be taken. As well, it is not within the officer's prerogative to terminate the waiting for counsel of choice within 13 minutes of the call to counsel – and put the accused "on the phone" to duty counsel as if any opportunity to speak to any lawyer will do. And as noted above, police should have no involvement in an accused's choice of counsel.

[24] Finally and most perplexing is the fact that there are no police notes or recollection of the discussion with the defendant in connection with his right to counsel. In the absence of any note-taking as to the questions asked and responses given, it is impossible to know precisely what the defendant was told and what he had to say about speaking to duty counsel (Mr. Swaida says he complained but then spoke to duty counsel thinking he had no choice). It is clear that P.C. Bragg did not think the questions and answers regarding rights to counsel were important enough to memorialize in his notebook. Ideally, police should be instructed to make careful notes of all right to counsel communications to the accused and the accused's responses to avoid the perpetual contest about what information was conveyed and what answers were given and this information process should take place on video prior to any request to provide breath samples.

[25] The critical question then becomes – does the 'police obligation' to provide a reasonable opportunity to exercise the s. 10(b) right require nothing more than a perfunctory effort where access to duty counsel may be offered? It is now well accepted that s. 10(b) serves to protect the privilege against self-incrimination, a basic tenet of our criminal justice system which has been recognized by members of the Supreme Court to be a "principle of fundamental justice" under s. 7 of the Charter: R. v. P. (M.B.), [1994] 1 S.C.R. 555, and R. v. Jones, [1994] 2 S.C.R. 229. It seems to me that many of the section 10(b) principles have had a tendency to be lost in a "blended analysis of the overall situation" and notions of police duties and the availability of duty counsel have a tendency to become jammed together as if police efforts are a function of the presence or absence of duty counsel in every case. For example, in R. v. Richfield [2003] 0.J. 3230 (C.A.) the Ontario Court of Appeal considered the question of "reasonable diligence:" and concluded that:

12 The appellant, upon being informed that the lawyer that he had asked the police to call had not called back, did not ask to make a further call to his counsel of choice or to another counsel. When asked if he wished the assistance of duty counsel, the appellant indicated that he did not. The appellant was not reasonably diligent in exercising his right to counsel in the circumstances. The fact that the police could have made greater efforts earlier does not detract from the appellant's own lack of diligence at a later stage in exercising his right to counsel.

[26] As well, in R. v Blackett, [2006] O.J. 2999 (S.C.J.) Ferguson J. dealt with held with police duties and diligence in the following commentary:

25 It seems inescapable that the appellate courts have decided that, where duty counsel is available, the scope of the police duty to facilitate contact with counsel of choice is minimal. It would appear from the decision in Richfield that a good faith perfunctory effort by the police to locate counsel of choice is sufficient to "suspend the correlative duties on the police" if it is followed by an offering of access to duty counsel and the failure by the accused to take advantage of duty counsel.

[27] Superficially, these oft-quoted paragraphs may seem to suggest that a minimalist, perfunctory approach to section 10(b) was all that was required and when the accused speaks to duty counsel, no matter what the circumstances or context, the correlative duties on the police are suspended. In fact the above cases are entirely consistent with the Supreme Court jurisprudence. It is noteworthy that in both Richfield and Blackett the accused requested counsel of choice and when counsel was not available, the accused were offered duty counsel, which they refused, and continued to insist on counsel of choice. These Courts quite properly found that the accused were not being reasonably diligent in exercising their right to counsel. That is a much different set of circumstances from the instant case where police "put the accused on the phone" to duty counsel thirteen minutes after a call to counsel of choice, particularly where this defendant later makes it known that he is not satisfied with the advice he received and has no confidence in the person to whom he spoke ("I am not 100% [sure] who that was [duty counsel] or whether he was a lawyer.") He said: "I would have liked to speak to Bruce. Is there anything you can do about that?").

[28] It seems to me the traditional high standards required for the effective implementation of a s. 10(b) process remain in play and continue to require the police to provide a reasonable opportunity to contact counsel of choice where the accused expresses an unequivocal dissatisfaction with the routine default to duty counsel and asks for further assistance to reach his lawyer. This set of facts represents the complete corollary to the rule in R. v. Littleford, [2001] O.J. No. 2437 (CA). Feldman J.A. explains the Court's position when an accused speaks to duty counsel:

[7] The appellant argues that his s. 10(b) rights were violated because he expressed the wish to speak to his own lawyer, and was not given a reasonable opportunity to do so. The basis for this submission is his assertion that after a perfunctory attempt was made by the officer to reach that lawyer, the officer immediately contacted and put the appellant in touch with duty counsel, contrary to his wishes and therefore contrary to his rights.

[8] On a Charter motion, the onus is on the accused person to prove a breach of his or her Charter rights on a balance of probabilities. The difficulty with the appellant's position in this case is that he did speak to duty counsel before taking the breathalyzer test. He neither raised any concern at the time, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights. The trial judge made a finding that speaking to duty counsel "seemed to satisfy him at the time." There is no basis on the record to disturb that finding.

[29] It follows therefore that when an accused is quite obviously not satisfied with speaking to duty counsel and police refuse to assist him any further, in most cases, unless the accused is deliberately attempting to delay the investigation, the perfunctory attempt to reach counsel of choice followed by an immediate default to duty counsel will not represent a reasonable opportunity to exercise the right to counsel. There is no suggestion being made here that police have to commit to an ideal process with which to implement the s. 10(b) right. Police are not responsible for the quality of advice provided by counsel and are under no duty to inquire into it: R. v. Willier 2010 SCC 37 (SCC). If one applies a "reasonability" test to the police management of the right to counsel in this case, the only conclusion available is that it was inadequate. Pringle J. in R. v. Hajovska discusses what police might reasonably consider when contact with duty counsel proves unsatisfactory to the accused: (unreported, May 13, 2015):

[100] When Ms. Hajovska agreed to do the tests, I find that she did so out of hopelessness; if she had been provided with a reasonable opportunity to consult with counsel, I find that she would have taken that opportunity. However, the police did not provide her with a Prosper warning, and they did not turn their minds to other alternatives that would allow her to consult with counsel. Keeping in mind that it was about 6:15 a.m., other alternatives might have included waiting for a shift change for a new duty counsel at 8 a.m., a Legal Aid office opening soon, or allowing Ms. Hajovska to pursue other options for private counsel through use of the phone book or internet or calling her husband.

[30] It is noteworthy that P.C. Bragg, when asked if he would offer another chance to an accused who had expressed dissatisfaction with duty counsel, replied: "Yes." The final point to be made is that when an individual finds himself (or herself) in a police division under arrest and in detention, the relationship between the individual and the police is not a level playing field. It stands to reason that a person in custody who is required to make some very stressful choices about counsel and whether to provide a breath sample, is likely to feel quite overwhelmed. This is precisely why the s. 10(b) implementational duties are so vitally important. The conclusions of the Court in R. v. Bourgeois are entirely applicable to the case at bar:

With reference to the circumstances of this accused, I note that, once he as under detention, any potential access to a lawyer was completely controlled by the police. The only access by the accused to a phone was through the police. For such access, the procedure was for the police to make the phone calls and receive the phone calls, with the accused person only then being able to speak to someone, who had already been screened by the police, on the phone. The police had the phone books, which provided the information required to contact a lawyer. The police had established a Mobile Command Centre (a modified Winnebago trailer) in a location of their convenience to expediently and efficiently process their investigations. With that level of control over the accused, the duty on the police to fulfill their informational and implementation duties under s. 10(b) of the Charter is substantial.

[31] As well, in R v. Brydges (1990), 53 CCC (3d) 330 (S.C.C.), the Court stated, "fair treatment of an accused person who has been arrested or detained necessarily implies that he has been given a reasonable opportunity to exercise the right to counsel because the detainee is in the control of the police and as such is not at liberty to exercise the privilege that he otherwise would be free to pursue." The moment Mr. Swaida made his complaint on video would have been the perfect opportunity to demonstrate their respect for the right to counsel, but instead, in a cavalier display of indifference, the officers in the breath room brusquely ended the discussion. It begs the question: how difficult would it have been to retrieve his cell phones and a phone book and give him a reasonable period within which to try to reach his lawyer?

[32] In regard to the exchange between Mr. Swaida and the police at the Division regarding the exercise of the right to counsel, I find he was not offered a reasonable opportunity to exercise the right to counsel of choice. The information given by police and responses by the defendant before he entered the breath room is unavailable as a result of the absence of a full and proper record or notebook entry. The default to duty counsel within minutes of the call to his lawyer and the abrupt manner with which his request for assistance in reaching counsel was rejected in the breath room, lead me to conclude that he was not offered a reasonable opportunity to exercise his s. 10(b) right. Given the high standard for s. 10(b) implementation duties mandated by the Supreme Court in R. v. Bridges, supra, R. v. Manninen, supra, and the cases that followed, I find in all the circumstances that the rights of the accused under s. 10(b) of the Charter were breached.

The Section 24(2) Analysis – (R. v. Grant)

[33] According to the majority in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the fact of a Charter breach means that damage has already been done to the administration of justice – understood in this long term prospective sense of maintaining public confidence in the justice system viewed in the long term. The inquiry is objective. It asks whether a reasonable person, informed of all the relevant circumstances would conclude that the admission of evidence would bring the administration of justice into disrepute. Section 24(2) starts from the proposition that the Charter breach means that damage has already been done to the administration of justice and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. There is one further purpose achieved by a determination under s. 24(2) according to R. v. Grant:

[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.

[34] As noted in Grant, the s. 24(2) inquiry engages 3 avenues of inquiry – each rooted in public interests engaged by s. 24(2) viewed in a long term, forward looking, and societal perspective.

First Inquiry: Seriousness of Charter Infringing Conduct

[35] R. v. Grant sets out the parameters for this analysis. There are several considerations to be applied. The more severe or deliberate the conduct the more the need for courts to dissociate themselves from that conduct to preserve public confidence in the rule of law and its processes. The point being made is that the rule of law requires state authorities to uphold the rights guaranteed by the Charter. There is a spectrum from inadvertent or minor to instances where evidence is obtained through wilful or reckless disregard of the Charter which would inevitably have a negative effect on public confidence in the rule of law. Good faith will reduce the need for the Court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be condoned and negligence or willful blindness cannot be equated with good faith.

[36] The majority in Grant provided some additional guidance. Deliberate police conduct in violation of established Charter standards may require that the Court disassociate itself from such conduct. It follows that such conduct tends to support exclusion. "For every Charter breach, many others may go unidentified and unaddressed because they do not turn up evidence that leads to a charge." The recognition of evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[37] In this case, one has the distinct impression that the right to counsel was some type of distraction to be given token recognition, but nothing of any real importance in the drive to secure incriminating evidence. The officers were oblivious to the obligation to reasonably facilitate communication with the counsel of choice. One officer waited only 13 minutes and then put Mr. Swaida on the phone to duty counsel. Other officers then effectively silenced him when he asked for assistance to reach his lawyer. These were serious breaches of his Charter rights that were made worse by the systemic concerns that arise as a result of the fact that the officers in this case apparently believe that s. 10(b) duties are complete when an accused speaks to duty counsel, even where the accused clearly states he is not satisfied with his communication with duty counsel and still wishes to speak with counsel of choice.

[38] As well, it is noteworthy that the arresting officer in this case was not aware of any duty to provide a proper record of all communications with an accused person in detention concerning the right to counsel and the performance of the implementational duties the constitution imposes on the detaining authorities. There was never any record made of communications regarding the defendant's right to counsel or any of his responses. Ideally, to avoid perpetual litigation about what information was conveyed and what answers were given, this information/implementation process should take place on video prior to any request to provide breath samples. What took place in this case was a perfunctory exercise in which a reasonable opportunity to contact counsel was not provided and officers failed to maintain a proper recordkeeping process. This section 10(b) breach in combination with Charter breaches under sections 8, 9, and 10(b) at the roadside for failure to make a proper and timely demand, as noted above, have the effect of compounding the seriousness of the Charter infringing conduct and magnifying the concerns with systemic failures in police training.

[39] While good faith may reduce the need for the Court to disassociate itself from the police conduct, a major gap in the officer's training resulting in a lack of appreciation of Charter standards must not be condoned. These Charter requirements have existed for more than twenty years and should be well known and well recognized by the police who are called upon to uphold those standards. There is no question this Charter-infringing conduct was serious.

Second Inquiry: Impact of Charter Protected Interests of the Accused

[40] This inquiry focuses on the extent to which the breach actually undermined the interests protected by the right infringed. According to R. v. Grant, the impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that the admission of the evidence may signal to the public that Charter rights are of little avail to the citizen breeding public cynicism and bringing the administration of justice into disrepute.

[41] In terms of the breach's impact on protected interests – it must be said that the protected interests under section 8, 9 and 10(b) of the Charter are the rights against self-incrimination, privacy and security of the person and the right to retain and instruct counsel without delay on arrest or detention. The taking of a breath sample constitutes a conscriptive search of the body in respect to which the defendant enjoys a constitutional protection against self-incrimination. Consequently, any breach of an accused's s. 10(b) rights followed by the obtaining of incriminating evidence is deemed more serious than another type of intrusion upon protected interests because of the impact of a violation on the defendant's fair trial interests. The right to counsel "information and implementation" duties prevent the police from compelling the detainee to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until the person has had a reasonable opportunity to exercise the right to counsel: R. v. Ross, supra. These type of violations favour exclusion in order that the court is not seen to condone or associate itself with trial unfairness.

[42] Even though Charron J. in Grant, in a wide-ranging discussion, referred to breathalizer tests as being relatively non-intrusive, the majority in R. v. Bernshaw, [1995] 1 S.C.R 254 (S.C.C.) thought otherwise and in my view the intrusiveness factor associated with the process of arrest, handcuffs, search, detention, parading before a staff sergeant, and being held in custody for hours and deprived of contact with friends and family, amounts to a relatively serious incursion into the protected interests of privacy, liberty and security of the person. I would adopt the phraseology in R. v. Bartle [1994] (S.C.C.), "Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him ─ or herself." In my view, the impact on these Charter-protected interests is serious and would also favour exclusion.

Third Inquiry: Society's Interest in an Adjudication on the Merits

[43] The Court in Grant emphasizes that the public generally expects that a criminal allegation will be adjudicated on the merits. Consequently, the third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion. The exclusion of relevant and reliable evidence may undermine the truth seeking function of the justice system and render the trial unfair. However, if a breach (such as one that effectively results in incriminatory evidence) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence.

[44] According to Grant, the Court must balance the interests of truth with the integrity of the justice system (see also R. v. Mann 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.) per Iacobucci J). The Court must ask whether the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial. The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. The admission of evidence of questionable reliability is more likely to bring the administration into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the administration of justice where the remedy effectively guts the prosecution.

[45] The evidence being considered for exclusion in this case is the Intoxilizer result. This highly reliable evidence is the core of the Crown's case on the very serious charge of operating a motor vehicle with excess alcohol in the blood. As had been said so often, the public expects the justice system to reliably deal harshly with conduct that is perennially so dangerous to life and limb. This favours inclusion. However, as noted above, there is another aspect to the societal interest besides the adjudication of a criminal charge on the merits. Section 24(2) is focused on the broad impact of admission of the evidence on the long-term repute of the justice system. Which is to say there is a strong public interest in the law being followed as intended by the Supreme Court of Canada, particularly in regard to vitally important s. 10(b) procedural requirements that ensure meaningful compliance with a Charter-protected right that is, "A basic tenet of our criminal justice system which has been recognized by members of this Court to be a "principle of fundamental justice" under s. 7 of the Charter": R. v. Prosper.

[46] One of the purposes of section 10(b) is to provide detainees with an opportunity to make informed choices about whether to exercise their legal rights and if they choose to avail themselves of counsel, to do so in a way that is meaningful and fully understood by the detainee. This opportunity is no less significant when police officers intend to obtain incriminating breath sample evidence. Law enforcement officers play a vital role in facilitating a detainee's right to counsel. To not appreciate the duty to facilitate access to counsel at the roadside where: (1) there is no breath sample demand, or (2) recognition of the obligation to provide a reasonable opportunity to contact counsel of choice whether or not duty counsel is available and particularly where an accused speaks to duty counsel and is not satisfied with the advice received, raises major concerns about police training. These systemic concerns are exacerbated by the lack of awareness of the fact that s. 10(b) rights arise on arrest or detention, by the flawed understanding of the s. 10(b) process as a contest as to "which lawyer calls first", and by the failure in police training to recognize the importance of proper record-keeping of communications regard s. 10(b). The only record of s. 10(b) communications is the video exchange ― which reveals inadequacies in police section 10(b) training. All of the foregoing reflects a serious failure to adhere to constitutional standards.

[47] The casual institutional disregard for an individual's section 10(b) rights in this case suggests a systemic deficiency and a major gap in police training. On the one hand, the reception into evidence of the defendant's breath samples would be in the interests of justice based on the fact the public generally expects criminal allegations to be adjudicated on the merits. On the other hand, in terms of protecting societal values ─ where the police have fallen rather significantly below accepted constitutional standards, the admission of the intoxilyzer results would bring the administration of justice into disrepute.

[48] I can well imagine the pressure to rush through what might seem to be a meaningless ritual to police in order to procure the breath samples 'as soon as practicable' and within the two-hour evidentiary presumption available to the Crown under s. 258(1)(c)(ii) of the Code. The fact is that the Prosper principle states that an accused's rights to counsel trumps the two-hour evidentiary presumption, and in this case there was no justification for such a thoughtless and casual response to the implementation duties where this defendant was not satisfied with simply being put on the phone to duty counsel. This is one case in which the court should disassociate itself from an institutional disregard for constitutional rights. As has been the subject of previous comment on this subject, the significance of an individual's right to counsel on arrest or detention must be communicated to policing agencies: it is one key feature that differentiates constitutional democracies from regimes in which individual rights are not part of the social fabric.

Conclusion

[49] Having made the above three inquiries, which encapsulate considerations of "all the circumstances of the case", I have determined that, after engaging in a balancing process, and having regard for s. 24(2)'s focus on "systemic concerns" (Grant, paragraph 70), the Charter infringing conduct of the state was serious. The accused's liberty, privacy, and right to counsel interests were significantly undermined. The admission of the evidence regarding the taking and analysis of the seized breath samples would bring the administration of justice into disrepute in the long term. Accordingly, the breath sample evidence obtained following the breach of the defendant's section 8, 9 and 10(b) rights will be excluded pursuant to section 24(2) of the Charter. In the result, the excess alcohol charge is dismissed.

P. Harris J.

June 22, 2015