Court File and Parties

Date: 2015-11-03

Court File No.: Brampton 14-15236

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Tahir Ahmad

Before: Justice P.A. Schreck

Heard on: September 17, 2015

Released: November 3, 2015

Reasons for Judgment

Counsel:

C. Presswood – counsel for the Crown

T. MacKay – counsel for the defendant, Tahir Ahmad

SCHRECK J.:

I. Introduction

[1] Tahir Ahmad is charged with operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit, contrary to section 253(1)(b) of the Criminal Code. He has applied, pursuant to sections 8, 9, 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms, to exclude from evidence the results of an analysis of his breath by an approved instrument. The constitutional admissibility of that evidence is the sole issue to be determined.

II. Evidence

A. The Arrest

[2] On November 24, 2014, Cst. Kadar Harriott, who at the time had been a member of the Peel Regional Police for about a year, was conducting "RIDE" checks outside a licensed establishment in Mississauga. At 12:41 a.m., he stopped Mr. Ahmad's vehicle, which had just left the establishment. When asked whether he had had anything to drink, Mr. Ahmad replied that he had consumed two beers approximately one hour earlier. Based on this response, Cst. Harriott formed a reasonable suspicion that Mr. Ahmad had alcohol in his body and accordingly made a demand that he provide a breath sample into an approved screening device ("ASD"). Mr. Ahmad provided a sample which registered a "fail". At 12:51 a.m., Cst. Harriott arrested Mr. Ahmad. He handcuffed and searched him before placing him in the back of the police cruiser.

B. Right to Counsel at the Roadside

[3] At some point, Cst. Harriott had requested that another officer attend the scene, and one arrived soon thereafter. Cst. Harriott briefed him and provided him with the keys to Mr. Ahmad's vehicle. Cst. Harriott then conducted an inventory search of Mr. Ahmad's vehicle, where he located a bottle of rum.

[4] At 12:58 a.m., Cst. Harriott returned to his car and read Mr. Ahmad his rights to counsel. Mr. Ahmad indicated that he did not wish to call a lawyer at that time. Cst. Harriott was asked in cross-examination why he decided to brief the other officer and conduct an inventory search before advising Mr. Ahmad of his right to counsel:

Q. Why is it more important to talk to your partner than to read the arrested person his rights to counsel?

A. It's not necessarily being an issue of more important. It just was more efficient because as I've said I was already outside and my partner was already standing next to me, so I thought it was prudent to do it the way I did it.

Q. And then why was it either prudent or whatever, more important for you to search the vehicle before you read him his rights to counsel?

A. Because like I said, it was raining heavily and I was already outside and I thought that it would have been the prudentest [sic] way to do things and the quickest way to actually get him back to the division, read him his rights to counsel and then do that process.

Cst. Harriott did not agree that he should have read Mr. Ahmad his right to counsel earlier. He maintained that what he had done was more efficient and that he had been right to proceed in this manner.

C. Consultation With Duty Counsel at the Police Station

[5] At 1:01 a.m., Cst. Harriott left the scene with Mr. Ahmad and drove to the nearest police station. At 1:15 a.m., Cst. Robert Bell, the qualified breath technician, asked Mr. Ahmad if he wanted to speak to a lawyer. He replied that he did. He did not know any lawyers and agreed to speak to duty counsel. At 1:16 a.m., Cst. Harriott placed a call to duty counsel. The call was returned at 1:29 a.m. and Mr. Ahmad spoke to duty counsel until 1:40 a.m.

[6] At 1:41 a.m., Mr. Ahmad entered the breath testing room with Cst. Bell. After Cst. Bell introduced himself and explained his role, the following exchange took place:

BELL: . . . Uh, I had this conversation with you out there quite a few minutes ago, uh, about getting some legal advice. You told me that yes you did wanna speak to a lawyer. So we got the free lawyer on the phone, it's Mr. Mike Roberts, okay? He had a conversation with you in private. That conversation you had is to be kept secret at all times, okay? I don't wanna know what advice you were given, okay? I just need to know you understood Mr. Roberts. Did you understand the conversation?

AHMAD: Yes, I did.

BELL: Okay, as long as you understand then that's all I care about.

AHMAD: If you don't mind an addendum, do I trust him? Is a different story.

BELL: (Laughing) Well, he is a lawyer, so.

AHMAD: But I did understand it, yes.

BELL: Okay, I'll take your word for that.

[7] When asked what he thought about Mr. Ahmad's statement about not trusting duty counsel, Cst. Bell said: "He advised that he understood his conversation. If he understood his conversation, then he got advice."

[8] Cst. Bell testified that in retrospect, he should have followed up with Mr. Ahmad about what he meant by the comment and allowed him to consult another duty counsel if he wished to. However, he would not have suspended the breath tests to allow a second consultation with counsel. By this, I presume that he meant he would wait until the tests were over before allowing the second consultation.

[9] Mr. Ahmad eventually provided two breath samples resulting in readings of 137 and 130 mg. of alcohol per 100 ml. of blood.

III. Analysis

A. Sections 8 and 9 of the Charter

[10] Mr. Ahmad submits that despite the fact that he registered a "fail" on the ASD, Cst. Harriott did not have grounds to arrest him or make a breath demand. The argument, as I understand it, is that in the circumstances of this case, it was incumbent on Cst. Harriott to wait 15 minutes before administering the ASD in order to ensure that the result was not tainted by alcohol residue that may have been in Mr. Ahmad's mouth from a recently consumed drink. Because he failed to do so, it was not reasonable for him to rely on the ASD result.

[11] Cst. Harriott acknowledged in his testimony that he was aware that if a person had consumed an alcoholic beverage in the past 15 minutes, this could affect the results of the ASD. He testified that it was for this reason that he asked Mr. Ahmad when he had had his last drink. When Mr. Ahmad said that it had been an hour earlier, Cst. Harriott concluded that he could safely rely on the ASD results. I am asked, however, to reject Cst. Harriott's evidence on this issue because of a supposed inconsistency in his notes. At one point in his notes, he wrote that Mr. Ahmad said that he had had two beers an hour ago. At another point, he wrote that Mr. Ahmad said that he had had two beers in the past hour.

[12] The law respecting the role residual mouth alcohol plays in the assessment of whether reasonable and probable grounds for arrest existed has been recently reviewed by my colleague, Monahan J., in R. v. McGauley, [2015] O.J. No. 4959 (C.J.) at para. 47:

The issue of residual mouth alcohol has been canvassed in a number of decisions, including by the Supreme Court of Canada in R. v. Bernshaw, [1995] 1 S.C.R. 254, by the Ontario Court of Appeal in R. v. Einarson, [2004] O.J. No. 852 (C.A.) and by Mr. Justice Durno of the Ontario Superior Court in R. v. Mastromartino (2004), 70 O.R. (3d) 540 (Sup. Ct.). Some of the relevant principles are as follows:

(i) Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay: R. v. Mastromartino, supra at para 23;

(ii) Where the screening device used is an approved one, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary: R. v. Bernshaw, supra at paras. 80;

(iii) The mere possibility that the driver has consumed alcohol in the previous 15 minutes is not enough to prevent an officer from relying upon a fail result from an ASD device: R. v. Mastromartino, supra at para. 23;

(iv) The fact that a driver is seen leaving a bar moments earlier does not compel an officer to delay a breath demand in respect of an ASD device. It is only one circumstance to consider when the officer is deciding whether to delay the taking of a test: R. v. Mastromartino, supra at para. 23 and see R. v. Einarson, supra at para. 33;

(v) Officers are not required to ask drivers when they last consumed alcohol: R. v. Mastromartino, supra at para. 23; and

(vi) A flexible approach applies to the issue such that different officers may assess similar circumstances differently. The particular officer's assessment must be tested against the litmus of reasonableness: R. v. Einarson, supra at para. 34.

[13] Applying those principles to this case, in my view regardless of whether Mr. Ahmad said he had had his beers an hour ago or in the past hour, it was in my view entirely reasonable for Cst. Harriott to rely on the ASD results. Mr. Ahmad's section 8 and section 9 Charter rights were not violated.

B. Section 10(b) of the Charter

[14] Mr. Ahmad alleges that his section 10(b) Charter rights were infringed in two ways. First, Cst. Harriott failed to advise him of his right to counsel "without delay". Second, Cst. Bell failed to afford him a second opportunity to consult with counsel after he expressed dissatisfaction with the advice he had received from duty counsel.

(i) "Without delay"

[15] Cst. Harriott arrested Mr. Ahmad at 12:51 a.m. He then briefed the other officer who had arrived, following which he conducted an inventory search of Mr. Ahmad's car. He then returned to his police cruiser and advised Mr. Ahmad of his right to counsel at 12:58 a.m., seven minutes after he was first arrested.

[16] The meaning of the term "without delay" in section 10(b) of the Charter was explained in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at para. 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.

[17] Cst. Harriott did not advise Mr. Ahmad of his right to counsel immediately after arresting him. Rather, he did so seven minutes later, after briefing the other officer and conducting an inventory search. There is no suggestion that the delay was because of concerns about officer or public safety. Rather, it was because Cst. Harriott felt that it was more efficient or prudent to do things in the order that he did.

[18] In support of its submission that there was no section 10(b) violation, the Crown relies on R. v. Vyas, 2014 ONSC 5821, [2014] O.J. No. 5527 (S.C.J.), where it was held that an officer who performed other investigative steps for 12 minutes between the time of arrest and the time rights to counsel were given was held to have acted reasonably. However, the issue in that case was whether the breath demand was made "as soon as practicable", as required by section 258(1)(c) of the Criminal Code. There was no Charter application. Vyas simply does not consider the issue in this case. In any event, if Vyas had stood for the proposition that a 12-minute delay before complying with section 10(b) is permissible, it would have been inconsistent with Suberu.

[19] Complying with section 10(b) of the Charter is not simply one of many items on the investigative checklist, commensurate in importance with officer briefings and inventory searches, to be done at a time convenient to the officer. Rather, it is a duty, imposed by the Constitution, which the police must carry out immediately upon arrest. Cst. Harriott failed to appreciate this and, as a result, there was a violation of Mr. Ahmad's section 10(b) Charter rights.

(ii) Additional Consultation With Counsel

[20] The issue here is whether Mr. Ahmad's comment suggesting that he did not trust duty counsel gave rise to an additional implementational duty on the police to facilitate further contact with counsel. Generally speaking, once the police have provided an accused with an opportunity to speak to counsel and the accused has done so, their implementational duty has been fulfilled and they are not under any obligation to facilitate further contact with counsel. This was explained in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 at para. 47:

Section 10(b) should be interpreted in a way that fully respects its purpose of supporting the detainee's s. 7 right to choose whether or not to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation at the time of detention or shortly thereafter. This gives the detainee the information he needs to make a meaningful choice as to whether to cooperate with the investigation or decline to do so. However, as the cases illustrate, sometimes developments occur which require a second consultation, in order to allow the accused to get the advice he needs to exercise his right to choose in the new situation.

[21] In most of the cases where a second consultation is required, it is because there has been some change in the accused's jeopardy. However, this is not the only situation in which the duty will arise, as was made clear in Sinclair at paras. 54-55:

The cases thus far offer examples of situations where the right of another consultation arises. However, the categories are not closed. Where the circumstances do not fall into a situation previously recognized, the question is whether a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)'s purpose of providing the detainee with advice in the new or emergent situation.

The change of circumstances, the cases suggest, must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.

[22] Thus, the police will be under a duty to implement further contact with counsel if there is some objectively observable basis to believe that a further opportunity to consult a lawyer is necessary to fulfill section 10(b)'s purpose. That an indication that counsel's advice was inadequate can provide such a basis was made clear in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 at para. 42:

As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview.

Thus, where the accused indicates that the advice received was inadequate, there arises a further implementational duty on the police to provide further access to counsel.

[23] Counsel have referred me to two decisions which raise similar issues. In R. v. Keats, [2013] O.J. No. 2336 (C.J.), relied on by the applicant, the accused advised the police that she believed that the duty counsel she had spoken to was drunk. The police, who apparently disbelieved her, took no action, and this was held to be a breach of section 10(b). In R. v. Watling, [2015] O.J. No. 4063 (S.C.J.), the accused told the police that he "did not care for" the advice duty counsel had given him. This comment was held not to have given rise to any additional implementational duty as it was not a clear indication that the accused believed that the advice he had received was deficient. In any event, the police in that case had provided the accused with the opportunity to contact a different lawyer if he wished to do so.

[24] These two decisions involve applications of the principles in Sinclair and Willier to the particular facts of each case. Ultimately, the issue to be resolved is whether there was an indication from the accused that the advice received was inadequate such that there was an objectively observable basis to believe that a further opportunity to consult a lawyer was necessary to fulfill section 10(b)'s purposes. An indication that duty counsel is intoxicated is an indication that the advice received was inadequate. An indication that the accused "did not care for" duty counsel's advice, however, is ambiguous and therefore not a clear indication that the advice received was inadequate.

[25] In this case, what Mr. Ahmad said was, in effect, that he was not sure whether to trust duty counsel. The relationship between a recently-arrested accused and duty counsel is a solicitor-client relationship, albeit one of brief duration. Trust is an essential aspect of any solicitor-client relationship: R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A.) at para. 34. In my view, Mr. Ahmad's expression of mistrust of duty counsel was an indication that the advice he received was inadequate. Advice one does not trust is not meaningful legal advice. In these circumstances, further implementation of section 10(b) was necessary to ensure that the objectives of the section were met.

[26] Crown counsel submits that by failing to specifically ask for another opportunity to speak to duty counsel, Mr. Ahmad was not being diligent. However, Willier only requires that the accused indicate, reasonably and diligently, that the advice received was inadequate. It does not require him to specifically request another lawyer. For example, in R. v. Quindipan, [2015] B.C.J. No. 1437 (S.C.), the accused's statement that he did not believe that the lawyer he had spoken to was "looking out for his best interest" was held to give rise to an obligation on the police to provide him with a second opportunity to consult counsel. In R. v. Brown, [2015] O.J. No. 1571 (S.C.), the accused told the police that he did not believe that the person he had spoken to was a lawyer. Although the police believed that the person was a lawyer (and the court assumed that to be the case), they nonetheless had an obligation to take further steps to ensure that the accused had had meaningful legal advice. See also R. v. Badgerow (2008), 2008 ONCA 605, 237 C.C.C. (3d) 107 (Ont. C.A.) at para. 46; R. v. Bennight, [2010] B.C.J. No. 885 (S.C.) at paras. 75-76.

[27] In this case, Mr. Ahmad advised Cst. Bell of his concerns shortly after entering the breath room. In my view, he behaved reasonably and diligently in the circumstances. By failing to take steps to allow Mr. Ahmad to speak to another counsel, the police violated Mr. Ahmad's section 10(b) Charter rights.

C. Section 24(2) of the Charter

(i) The Seriousness of the Violation

[28] The determination of whether evidence ought to be excluded pursuant to section 24(2) of the Charter requires a consideration of the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the first of which is the seriousness of the violation. In this line of inquiry, the court must consider the nature of the police conduct and locate it on a continuum that runs between minor and technical breaches and those that result from a blatant and flagrant disregard for the Charter. The more severe the violation, the greater the need for the court to disassociate itself from the police conduct in order to maintain confidence in the administration of justice.

[29] I view the breaches in this case as relatively serious for two reasons. First, there were two distinct breaches of section 10(b) of the Charter, which suggests a pattern of disregard for the Charter.

[30] The second reason relates primarily to the first breach. Although it was clearly established in R. v. Suberu, supra in 2009 that section 10(b) must be complied with "immediately", numerous cases decided in this jurisdiction in the last five years show that many members of the Peel Regional Police fail to appreciate this immediacy requirement. The problem was noted by Hill J. in R. v. Lam, [2014] O.J. No. 3645 (S.C.J.) at para. 337:

While the denial of the right to counsel, over 10 months after Suberu, was deliberate on the part of the officers in the sense of intended, it was without individual knowledge of its wrongness. However, once again, the PRPS as an institution failed to equip its officers with the knowledge required of a reasonably trained police officer by unreasonably delaying formal notification of its officers of this change in the law until an August 2013 Training Bulletin, over four years after the Suberu (SCC) decision - a Bulletin which still does not make it explicitly clear that both the informational and implementational duties of the s. 10(b) Charter right are to be provided immediately upon the imposition of investigation detention.

See also R. v. Evans, [2015] O.J. No. 2907 (C.J.) at paras. 56, 88; R. v. Johnson, [2015] O.J. No. 1245 (C.J.) at para. 29; R. v. Moulton, [2015] O.J. No. 865 (S.C.J.) at paras. 86-88; R. v. Ramocan, [2014] O.J. No. 6142 (C.J.) at paras. 66, 76; R. v. Volkov, [2014] O.J. No. 5346 (C.J.) at para. 28; R. v. Thompson, [2013] O.J. No. 3570 (C.J.) at para. 5; R. v. Dinh, [2011] O.J. No. 6260 (S.C.J.) at paras. 42-48; R. v. Watson, 2010 ONSC 448, [2010] O.J. No. 280 (S.C.J.) at para. 109. The existence of a systemic problem renders the breach more serious: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 25.

[31] It is perhaps understandable why some may view section 10(b) of the Charter as having less importance in the drinking and driving context. Because the breath tests are statutorily compelled, the reality is that the scope of advice a lawyer can give a person who has been arrested for a drinking and driving offence is very limited: R. v. Bartle, [1994] 3 S.C.R. 173 at para. 61. In the vast majority of cases, the only advice lawyers can give is to tell individuals that they are required to provide breath samples. In most cases, whether or not the person speaks to a lawyer will have no impact on how the investigation progresses. In these circumstances, it would not be surprising if some police officers treated compliance with section 10(b) as no more than a formalistic requirement with no real purpose. However, while such an attitude may be understandable, it is not acceptable. Section 10(b) is part of the Constitution, the supreme law of Canada. Police officers are duty-bound to understand what it requires and to comply with it: R. v. Grant, supra at para. 133. When they do not, the courts cannot be seen as condoning their behaviour.

[32] In this case, Cst. Harriott maintained at trial that he was correct to proceed as he did. While I do not find that he intentionally breached Mr. Ahmad's rights, he appears to have no appreciation of what section 10(b) requires. While Cst. Bell acknowledged that he should have made further inquiries after Mr. Ahmad questioned whether he could trust duty counsel, he also testified that he would not have delayed the breath tests in order to allow for a second consultation with counsel. Allowing Mr. Ahmad a second consultation with counsel after the evidence has already been gathered would defeat the purpose of section 10(b). Like Cst. Harriott, while Cst. Bell did not intend to violate Mr. Ahmad's rights, he does not appear to appreciate what is required of him.

(ii) The Impact of the Breach

[33] The impact of the breach occasioned by Cst. Harriott's failure to immediately advise Mr. Ahmad of his right to counsel was, in my view, minimal. At that point, Mr. Ahmad indicated that he did not wish to speak to counsel. In any event, Mr. Ahmad did not have an opportunity to contact counsel until he was taken to the police station. The investigation would likely have unfolded exactly as it did even if there had been no breach.

[34] The impact of the breach occasioned by Cst. Bell's failure to provide Mr. Ahmad with a second opportunity to contact counsel was more significant. It is of course impossible to know what advice Mr. Ahmad would have obtained had he consulted another lawyer. As noted earlier, the scope of available advice is limited. Nonetheless, the Supreme Court of Canada has cautioned against engaging in speculation in these circumstances. In R. v. Bartle, supra, Lamer C.J.C. stated (at paras. 62-64):

Although the scope of available legal advice in the impaired driving context is necessarily limited, one must be mindful of the fact that this Court has clearly stated in the past that, where the right to counsel has been infringed, it is improper to speculate about the nature of the advice that a detainee would have received and whether the evidence would have been obtained had the right not been infringed.

I am satisfied that there is sufficient scope for legal advice to a detainee who has received a breathalyser demand pursuant to s. 254(3)(a) of the Code to say that courts must not speculate about the nature of that advice and whether it would have made any difference to the outcome of the case. . . . One of the purposes of s. 10(b) is to provide detainees with an opportunity to make informed choices about their legal rights and obligations. This opportunity is no less significant when breathalyser charges are involved. [Citations omitted].

[35] The impact of the breach was therefore significant.

(iii) Society's Interest in an Adjudication on the Merits

[36] This line of inquiry requires the court to determine whether the truth-seeking function of the trial process would be better served by the admission or the exclusion of the evidence. This branch clearly favours admission. The breath sample results are reliable and conclusive evidence of the offences and indispensable to the Crown's case.

(iv) Balancing

[37] The balancing exercise that I must engage in was described in R. v. Harrison, supra at para. 36:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[38] In this case, having balanced the various factors, I am of the view that the long-term repute of the administration of justice is best served if the evidence is excluded. In coming to this conclusion, I put particular weight on the systemic problems in Peel respecting compliance with section 10(b) of the Charter.

[39] For the foregoing reasons, the results of the breath tests are excluded from evidence.

IV. Disposition

[40] As there is no admissible evidence of Mr. Ahmad's blood alcohol concentration, the charge is dismissed.

Justice P.A. Schreck

Released: November 3, 2015