Court File and Parties

Court File No.: 13-03768 Central East Region – Newmarket

Date: August 3, 2016

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Shangara Mand

Before: Justice Peter C. West

Evidence Heard: December 3, 2015 and April 29, 2016

Submissions Heard: April 29, 2016

Reasons for Judgment: August 3, 2016

Counsel:

• Ms. J. Halajian and Mr. L. O'Neill for the Crown
• Mr. D. Locke for the accused

WEST J.:

Introduction

[1] On July 14, 2014, Shangara Mand was charged with operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood. The defence advised there was a Charter application relating to a breach of Mr. Mand's s. 10(b) rights, which should result in the exclusion of the breath results pursuant to s. 24(2). It was agreed at the outset of the trial the Charter application could be dealt with as a blended hearing.

[2] Mr. Mand pleaded not guilty and the Crown called one witness, P.C. Matthew Cutrara, the investigating officer. Prior to the Crown closing its case, Mr. Mand testified on the Charter application. After hearing the oral submissions of counsel I reserved judgment. It was agreed by the Crown if the Charter application was successful the charge of over 80 should be dismissed. Mr. Locke advised the defence would not call any evidence on the trial proper.

[3] I want to express my appreciation to counsel for narrowing the focus of this trial to the one issue which was important; namely, the s. 10(b) Charter breach.

Factual Background

[4] P.C. Cutrara was dispatched to attempt to locate a person wandering on the street in the area of Kipling Avenue north of Highway 7 in Vaughan at approximately 1:30 a.m. While proceeding southbound on Kipling Avenue, P.C. Cutrara observed a motor vehicle travelling northbound at an estimated speed of 80 km/hr in a 40 km/hr zone. The vehicle's driver's side tires were over the centre line and P.C. Cutrara had to move to the right to avoid a collision. He proceeded to do a U-turn and followed the vehicle, which eventually pulled into a driveway and stopped. The officer pulled his police cruiser behind the vehicle with his roof lights activated.

[5] P.C. Cutrara testified he was stopping the vehicle to investigate the driver for speeding and careless driving offences under the Highway Traffic Act. Three parties, including the driver, were getting out of the vehicle as the officer approached. He directed everyone to return into the vehicle.

[6] The driver advised he was home and P.C. Cutrara advised him what he was investigating him for and requested his driver's licence. The driver was slow in providing the documents requested and the officer noted his eyes were glossy. While speaking to the driver P.C. Cutrara detected an odour of alcohol coming from the driver's mouth. He asked if the driver had been drinking and the driver admitted to consuming one beer about 45 minutes previously.

[7] As a result of these observations and information P.C. Cutrara requested the driver, who was identified as Shangara Mand, to step out of the vehicle as P.C. Cutrara had formed the reasonable suspicion Mr. Mand had alcohol in his body. P.C. Cutrara read from his notebook an approved screening device demand.

[8] P.C. Cutrara had Mr. Mand walk to the front of his police cruiser and wait as he retrieved the ASD. After four attempts Mr. Mand provided a suitable sample at 1:39 a.m., which registered a fail. This meant Mr. Mand's blood alcohol concentration was 100 mg of alcohol or more in 100 ml of blood. As a result of the fail P.C. Cutrara formed the reasonable grounds to believe Mr. Mand was over 80 and arrested him for that offence.

[9] The officer searched Mr. Cutrara incident to arrest and found the keys to his vehicle in his pocket. The officer then handcuffed Mr. Mand and placed him in the rear of the police cruiser. P.C. Cutrara read Mr. Mand his right to counsel from the back of his police notebook.

I'm arresting you for over 80. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?

[10] Mr. Mand responded he understood his right to counsel. P.C. Cutrara also explained the rights in plain language and then asked him if he understood he had the right to a free lawyer, to which Mr. Mand replied, "I'm going to call my lawyer." The officer asked if he had a lawyer and Mr. Mand responded, "Yeah." When the officer asked Mr. Mand what his lawyer's name was, Mr. Mand responded, "I have to call my wife." P.C. Cutrara testified it was his understanding Mr. Mand needed to call his wife to get the name or number of his lawyer. P.C. Cutrara asked Mr. Mand again, "Do you want to speak to a lawyer," to make it clear he wanted to call his wife to get the name or number for a lawyer and not just to speak to his wife and Mr. Mand said "Yes." Finally P.C. Cutrara again asked Mr. Mand, "You understand you have the right to a lawyer" and he said "Yes."

[11] P.C. Cutrara testified it was his intention on arriving at the station to ask for the phone number of Mr. Mand's wife so he could call her to get the name or phone number of the lawyer and then to call that lawyer.

[12] P.C. Cutrara was satisfied Mr. Mand understood his right to counsel and he then cautioned him. When asked if he wanted to say anything Mr. Mand responded "No, I'm not saying anything." At 1:49 a.m., P.C. Cutrara read the breath demand to Mr. Mand and he indicated he understood.

[13] P.C. Cutrara then began to transport Mr. Mand to 4 District police station, as this was the closest police station where there was a breath technician. P.C. Cutrara testified as they were driving to the police station Mr. Mand wanted to speak to him about something but P.C. Cutrara told Mr. Mand he should not speak to the officer because he had asked to speak to a lawyer and he was required to observe Mr. Mand's right to silence.

[14] During the drive to the police station Mr. Mand did not raise with P.C. Cutrara again his right to speak to a lawyer or calling his wife. They arrived at 4 District at 2:03 a.m. The booking process began at 2:10 a.m. as they had to wait until Staff Sergeant Villamere was ready to process Mr. Mand.

[15] During the booking P.C. Cutrara testified Staff Sgt. Villamere asked Mr. Mand to read the right to counsel, which was printed on the wall. Mr. Mand indicated he could not read English. According to P.C. Cutrara, Staff Sgt. Villamere then tried to explain the rights to counsel; however, P.C. Cutrara could not recall what was said by Staff Sgt. Villamere. P.C. Cutrara did not make any notes concerning what Staff Sergeant Villamere said to Mr. Mand. He testified Staff Sergeant Villamere's explanation occurred over a period of several minutes and it was too long to take verbatim what was said by the Staff Sergeant or Mr. Mand. P.C. Cutrara testified he interjected at one point and told Mr. Mand he had earlier said he wanted to call his wife to get the name and/or phone number of his lawyer. P.C. Cutrara testified Mr. Mand now said he no longer wanted to call his wife.

[16] P.C. Cutrara testified he told Mr. Mand if he just provided the lawyer's name the officer could look it up on the database and make the call. Mr. Mand told the officer the lawyer was probably not available and he did not want to call. P.C. Cutrara testified he offered the services of a free lawyer and he told Mr. Mand he would get a lawyer who spoke English or Punjabi. P.C. Cutrara did not recall exactly how he knew Mr. Mand's native language was Punjabi but he believed he may have asked what language he spoke.

[17] P.C. Cutrara testified Mr. Mand refused to speak to a lawyer several times and he also said multiple times he just wanted to listen to the police. The officer testified he did not make a note of the number of times he refused but he would estimate at least 10 times. He never asked to speak to his wife again.

[18] P.C. Cutrara testified he believed that Mr. Mand no longer wished to speak to a lawyer despite his earlier request to speak to a lawyer and to call his wife to get the lawyer's name and telephone number.

[19] P.C. Cutrara was asked by the Crown why he did not put a call into duty counsel and he testified, for the first time, he did not call duty counsel because Mr. Mand had explicitly refused to speak to duty counsel and further, it was his duty to provide Mr. Mand an opportunity to give the breath sample forthwith, which weighed on his decision not to contact duty counsel and he did not have another lawyer to contact for Mr. Mand.

[20] Mr. Mand was placed in a cell and P.C. Cutrara advised the qualified breath technician, P.C. Flint, of his grounds for arrest. At 2:40 a.m., Mr. Mand was taken to the breath room. The tests were complete at 3:15 a.m. and P.C. Cutrara was provided with the Certificate of a Qualified Breath Technician (Exhibit 2).

[21] In cross-examination P.C. Cutrara agreed Mr. Mand told him he did not understand the right to counsel, which P.C. Cutrara had read from his notebook. Although he attempted to explain the right to counsel in plain language and said to him "Do you understand you have the right to a free lawyer?" P.C. Cutrara agreed he did not explain the options between a free lawyer versus Mr. Mand's own lawyer. P.C. Cutrara also agreed Mr. Mand had requested to speak to a counsel of his choice but needed to call his wife to get the name.

[22] P.C. Cutrara testified Mr. Mand initially said "Uh-huh" when asked if he understood the right to counsel and when the officer asked him again if he understood he said, "I don't understand." The officer testified he tried to explain the right to counsel in plain English. When the officer told him he had the right to a free lawyer, Mr. Mand's response was "I'm going to call my lawyer." P.C. Cutrara testified when he received this response from Mr. Mand he asked if Mr. Mand had a lawyer and Mr. Mand said "Yes." P.C. Cutrara testified he did not speak again about duty counsel because he believed Mr. Mand had his own lawyer. When P.C. Cutrara asked Mr. Mand the name of his lawyer, Mr. Mand told him he had to call his wife to get the name and number. P.C. Cutrara testified he asked Mr. Mand again if he wanted to speak to a lawyer and Mr. Mand confirmed he did but he had to call his wife to get the name and telephone number.

[23] P.C. Cutrara agreed he never advised Mr. Mand that he would call Mr. Mand's wife when they got to the police station. When they arrived at the station Mr. Mand was seated on a bench in the booking area. There is a camera which records what takes place; however, the camera does not record the audio so what is said cannot be heard.

[24] When P.C. Cutrara first brought Mr. Mand before Staff Sergeant Villamere he did not advise the Staff Sergeant that Mr. Mand had requested to speak to a lawyer but needed to call his wife for the name and number. He agreed when Staff Sergeant Villamere asked Mr. Mand to read the right to counsel printed on the wall Mr. Mand said he could not read English. Staff Sergeant Villamere then provided an explanation of the right to counsel, which P.C. Cutrara did not make any notes of because it went on for several minutes. He also did not make verbatim notes of everything said by Mr. Mand to Staff Sergeant Villamere. It was only after Mr. Mand told the Staff Sergeant he no longer wished to speak to a lawyer that P.C. Cutrara interjected and said Mr. Mand had originally said he wanted to speak to a lawyer but needed to call his wife. His notes indicate, "I reminded him that he stated to me earlier he did want a lawyer and to call his wife for the name." P.C. Cutrara's notebook also reflected, "Not available/didn't want to," which he testified was not verbatim but he believed Mr. Mand was saying his lawyer would not be available at that time of night and he did not want to speak to him. P.C. Cutrara testified he did not have any notes as to his explaining to Mr. Mand he would still make an attempt to call the lawyer despite Mr. Mand's belief the lawyer would not be available. He knows this is something he would have explained.

[25] P.C. Cutrara reiterated Mr. Mand refused multiple times to call a lawyer and kept saying he would just listen to the police. He did not note the number of times Mr. Mand refused but believed there were at least 10. P.C. Cutrara did not note exactly what Mr. Mand said when he refused. P.C. Cutrara agreed Mr. Mand repeated on a number of occasions he trusted the police and just wanted to listen to them. P.C. Cutrara agreed there was a power imbalance between Mr. Mand and he and his Staff Sergeant as Mr. Mand was in police custody. P.C. Cutrara maintained he made it clear to Mr. Mand he had a right to speak to a lawyer and it would not be held against him if he wanted to speak to a lawyer, although this was not something he noted in his notes.

[26] P.C. Cutrara agreed neither he nor the Staff Sergeant told Mr. Mand he should not worry about listening to the police as the police have an obligation to hold off and not do anything until Mr. Mand has had a reasonable opportunity to speak to a lawyer. He agreed he never told Mr. Mand that Mr. Mand was not under any pressure to listen to the police.

[27] P.C. Cutrara testified he did not try to get a Punjabi officer to explain the right to counsel to Mr. Mand when they were at the police station. It was his belief Mr. Mand understood what was being said to him by the police in English.

[28] P.C. Cutrara agreed that after Mr. Mand said he had his own lawyer and wanted to speak to his lawyer, P.C. Cutrara never provided any further explanation of duty counsel or a "free lawyer." P.C. Cutrara also agreed that after Mr. Mand said he needed to call his wife to get the name of the lawyer, P.C. Cutrara confirmed a second time with Mr. Mand that he wanted to speak to a lawyer.

[29] P.C. Cutrara testified although he did not have any notes of his asking Mr. Mand his native language he recalled he or the Staff Sergeant asking that question and Mr. Mand indicating "Punjabi."

[30] Mr. Mand testified on the blended hearing respecting the s. 10(b) Charter application. Mr. Mand testified he had a lawyer but did not remember his name, so he told the officer he needed to call his wife to get the name and number of the lawyer. When he was read the right to counsel he said he wanted to speak to a lawyer but needed to call his wife to get the name.

[31] Mr. Mand testified when he got to the police station he got nervous because there were more police officers present. He was concerned if he gave the police officers a hard time they would go against him. He agreed they asked him a number of times if he wanted to speak to a lawyer and he said "No."

[32] The officers did not tell him at the station he had a right to speak to a lawyer and nothing would be held against him if he said he wanted to speak to a lawyer. Mr. Mand testified he thought the police would get mad at him so he decided to remain quiet. If they had explained they must let him speak to a lawyer if he requested to speak to one he would have definitely called his wife.

[33] He did not understand who duty counsel was. No police officer ever explained to him who duty counsel was or their role. No one told him duty counsel is a free legal service that he could call immediately.

[34] His wife had the name and phone number of a lawyer. He testified he now knew the name of the lawyer was Paul Dhaliwal.

[35] In cross-examination Mr. Mand agreed the investigating officer was polite and was a nice guy. When he got to the police station and they put him in a cell he had to complain the handcuffs were too tight and they had to be loosened. The first time he was put into the cell he had the handcuffs on. He testified he told the arresting officer the handcuffs were too tight when he was in the backseat of the police car. He agreed the officers were not physically abusive towards him.

[36] He agreed his nervousness was because he was feeling the police could be worse than they were. This is what he thought. He was in the police station with more police officers and he did not want it to get worse. He did not know everything that happened in the police station was on video. He testified he could not say anything about how calling his wife to get the name of a lawyer would cause the police to beat him up.

[37] He did not remember the other officer behind the desk explaining his right to counsel or the first officer interjecting and saying that Mr. Mand had said he wanted to call his wife.

[38] After concluding his cross-examination Mr. O'Neil requested permission to ask questions relating to one more area, which I permitted. Mr. Mand agreed he did not have a Punjabi interpreter assisting him during his trial. When asked if he understood English, Mr. Mand testified "I understand but some words I don't understand." The Crown then asked, "You've had no difficulty following the trial evidence, correct?" and Mr. Mand responded, "Yeah, I understand." There was no re-examination.

Position of the Parties

[39] It was Mr. Locke's position the police had an implementational obligation to contact Mr. Mand's wife upon arrival at the police station because Mr. Mand had clearly indicated he wanted to speak to a lawyer but he needed to call his wife to get the lawyer's name. P.C. Cutrara should have advised Staff Sgt. Villamere that Mr. Mand had requested to speak to a lawyer and needed to call his wife to obtain the lawyer's name when he first arrived at the station. He did not do that. Instead, Staff Sgt. Villamere asked Mr. Mand to read a sign on the wall relating to the right to counsel, to which Mr. Mand advised he could not read English. It is Mr. Locke's submission the police should have given Mr. Mand a Prosper warning when he told them he no longer wanted to speak to a lawyer. Mr. Locke argued this failure by the police breached Mr. Mand's right to counsel under s. 10(b). Further, the officers' failed to meet their informational duty when Mr. Mand changed his mind about contacting counsel and needing to call his wife to obtain the name and telephone number.

[40] The Crown argued Mr. Mand was not sufficiently diligent in exercising his right to counsel. I should accept P.C. Cutrara's evidence that when Mr. Mand told the Staff Sergeant he did not wish to call a lawyer, P.C. Cutrara advised Mr. Mand he had originally told P.C. Cutrara at the scene he wanted to speak to a lawyer but needed to call his wife and that P.C. Cutrara told Mr. Mand he could still call his wife to get the name. It was the Crown's position Prosper did not arise on the facts of this case. Finally, it was the Crown's position even if there was a breach of Mr. Mand's s. 10(b) Charter rights, the breath results should not be excluded pursuant to a s. 24(2) Grant analysis.

Analysis

The Right to Counsel Under Section 10(b)

[41] Section 10(b) of the Charter is comprised of two components: an informational component and an implementational component: see R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192. Ordinarily, the informational component only requires the police to inform a detainee of his right to retain and instruct counsel without delay and to inform the detainee of the availability of Legal Aid and duty counsel: see Bartle; R. v. Devries, 2009 ONCA 477, [2009] O. J. No 2421 (C.A.), at paras. 21-23 and 28; and R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 29-30.

[42] In R. v. Brydges (1990), 53 C.C.C. (3d) 330 (S.C.C.), the Supreme Court held the police must give a detainee his rights to counsel before breath samples are provided and must give the detainee sufficient information to make an informed decision about speaking to counsel and a reasonable opportunity to exercise those rights without delay. Second, the police have an obligation to facilitate contact with counsel. Third, the police are required to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and consult counsel; see R. v. Manninen, (1987), 34 C.C.C. (3d) 385 (S.C.C.) at p. 391.

[43] The Supreme Court of Canada has consistently held since R. v. Baig, [1987] 2 S.C.R. 537, that the implementation duties of the police "are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel": R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 30, 33; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 23-24. The Ontario Court of Appeal has also held that implementation obligations arise only when detainees express a wish to exercise their right to counsel: R. v. Fuller, 2012 ONCA 565, 295 O.A.C. 309, at para. 17. The question of whether a detainee asserted a desire to consult with counsel is essentially a question of fact: R. v. Backhouse, [2005] O.J. No. 754 (Ont. C.A.), at paras. 77-78 and R. v. Owens, 2015 ONCA 652, [2015] O.J. No. 4972 (C.A.), at para. 28.

[44] In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 27, the Supreme Court has also made it clear the implementational duties of the police flowing from s. 10(b) are not absolute. Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended. This has been recently confirmed in R. v. Owens, supra, at para. 25.

[45] In R. v. Prosper, [1994] 3 S.C.R. 236, the Supreme Court examined the implementational component as it related to the availability of duty counsel concluding:

34 As this Court has stated on a number of occasions, s. 10(b) imposes both informational and implementational duties on state authorities who arrest or detain a person. (See Bartle, [1994] 3 S.C.R. 173, at pp. 192-94; R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1241-42; R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; Brydges, at pp. 203-4.) Once a detainee has indicated a desire to exercise his or her right to counsel, the state is required to provide him or her with a reasonable opportunity in which to do so. In addition, state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. As the majority indicated in R. v. Ross, [1989] 1 S.C.R. 3, at p. 12, once a detainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. In other words, the police are obliged to "hold off" from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. [Emphasis added]

35 In my view, what constitutes a "reasonable opportunity" will depend on all the surrounding circumstances. These circumstances will include the availability of duty counsel services in the jurisdiction where the detention takes place. As the majority in Brydges suggested (at p. 216), the existence of duty counsel services may affect what constitutes "reasonable diligence" of a detainee in pursuing the right to counsel, which will in turn affect the length of the period during which the state authorities' s. 10(b) implementational duties will require them to "hold off" from trying to elicit incriminatory evidence from the detainee.

36 ... In determining what is a reasonable opportunity, the fact that the evidence may cease to be available as a result of a long delay is a factor to be considered.

39 Making the police hold off in situations where a detainee has been reasonably diligent in exercising his or her right to counsel, including where appropriate trying to reach a private lawyer, and where "Brydges duty counsel" is not available would accommodate a detainee's privilege against self-incrimination. The police investigation with respect to evidence in the construction of which a detainee must necessarily participate (e.g., confessions, identification evidence, and breath and blood samples) would have to be held in abeyance until such reasonable time as a detainee is able to make contact with a private lawyer or whatever duty counsel service is in existence in the jurisdiction.

[46] In R. v. Prosper, supra, at para. 43, Lamer C.J., for the majority, made the following comments, which have been referred to as the Prosper warning:

In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.

[47] Lamer C.J. went on to indicate, at para. 44, "Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown." The standard required for an effective waiver of the right to counsel is very high and must be free and voluntary.

[48] Mr. Mand bears the onus to satisfy me on a balance of probabilities that his right to counsel pursuant to s. 10(b) was breached.

Finding of Invocation of Right to Counsel

[49] There can be no doubt that at the scene after the arrest and after he was read his right to counsel, Mr. Mand clearly and unequivocally indicated his desire to speak to a lawyer. In fact, when P.C. Cutrara asked Mr. Mand a second time if he wanted to call his lawyer Mr. Mand was quite firm in his request to speak to his lawyer. I find Mr. Mand invoked his right to counsel and communicated to P.C. Cutrara his desire to speak to a lawyer and his need to call his wife to obtain the name and telephone number of that lawyer. I find Mr. Mand has established on a balance of probabilities that he invoked his right to counsel.

[50] It is my view the implementational duties on the police were triggered as a result of Mr. Mand's request such that when they arrived at the police station P.C. Cutrara should have contacted Mr. Mand's wife to obtain the name of his lawyer and then made attempts to put Mr. Mand in touch with that lawyer. Consequently, the onus shifts to the Crown to establish Mr. Mand subsequently and unequivocally waived his right to consult counsel. As noted above, the standard required for an effective waiver is "very high" once the detainee has established he has asserted the right: R. v. Prosper, supra, at para. 44; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 27-28.

Failure to Facilitate Contact with Counsel

[51] I find when P.C. Cutrara arrived at the police station he did not advise Staff Sergeant Villamere that Mr. Mand, in response to being read the right to counsel after his arrest, had clearly indicated he had a lawyer and wanted to exercise his right to counsel but needed to speak to his wife to get the name. Instead, P.C. Cutrara said nothing to Staff Sergeant Villamere about Mr. Mand's request to speak to his wife and then to his lawyer, even after Mr. Mand indicated to Staff Sergeant Villamere he could not read English, when the Staff Sergeant asked him to read the pre-printed right to counsel, which was posted on the wall. It is my view P.C. Cutrara should have advised the Staff Sergeant as soon as he brought Mr. Mand before him for booking that Mr. Mand wanted to speak to a lawyer and needed to contact his wife to obtain the lawyer's name. I find P.C. Cutrara also said nothing to Staff Sergeant Villamere when he began to read and explain the right to counsel to Mr. Mand for several minutes. In my view it was P.C. Cutrara's obligation to facilitate Mr. Mand's contact with counsel of choice upon their arrival at the police station, which necessitated P.C. Cutrara advising his Staff Sergeant Mr. Mand wanted to speak to his lawyer but needed to contact his wife to obtain the lawyer's name, yet he did nothing.

Inadequate Note-Taking and Lack of Audio Recording

[52] I am further troubled by what occurred during the booking process respecting the right to counsel, as P.C. Cutrara did not make any notes respecting what was said by Staff Sergeant Villamere, despite Mr. Mand's clear and unequivocal previous request to speak to counsel of choice. P.C. Cutrara also did not make any notes as to what Mr. Mand was saying in response to Staff Sergeant Villamere. The cavalier attitude respecting note taking by P.C. Cutrara with respect to these important conversations is critical. The importance of taking detailed notes is particularly important given the lack of audio on the booking room video. The reason P.C. Cutrara gave for not taking notes was because of the length of Staff Sergeant Villamere's comments, which lasted for several minutes. It is my view this does not provide a satisfactory explanation for P.C. Cutrara failing to make notes of this important conversation. Further, P.C. Cutrara does not recall what Staff Sergeant Villamere said to Mr. Mand concerning the right to counsel. It was as a result of whatever was said by Staff Sergeant Villamere to Mr. Mand that caused Mr. Mand to change his mind and now say he did not wish to speak to counsel.

[53] I am also concerned by the Crown not calling Staff Sergeant Villamere as a witness to provide evidence of what he said concerning the right to counsel when Mr. Mand advised he could not read English. The Crown was certainly on notice as to what the s. 10(b) issue being raised by the defence was. Staff Sergeant Villamere's evidence was potentially critical in determining whether there was a valid waiver by Mr. Mand.

[54] This becomes of greater concern given there is only a video recording of the booking process due to York Regional Police having made a decision not to install equipment capable of producing an audio recording of the booking process. In light of today's technological advances, where York Regional Police have now installed in-car cameras that video and audio record police interactions with suspects/detainees, where the breath rooms in York Regional Police stations have both video and audio capabilities and where I have viewed numerous booking room videos with audio in other municipal police stations, such as Durham Regional Police, Toronto Police Service and Peel Regional Police, it is inexcusable for the video equipment in York Regional Police booking rooms not to be equipped with audio recording capability.

[55] The lack of audio recording in the booking area has become a recurring issue in Newmarket Court in cases involving allegations of breaches of s. 10(b). This is yet another case where an audio recording would have greatly assisted in understanding and resolving the issues to be decided.

[56] As a result of Staff Sergeant Villamere not being called and P.C. Cutrara not making any notations as to what was said to Mr. Mand respecting his right to counsel by the Staff Sergeant, I am left to speculate what Staff Sergeant Villamere said to Mr. Mand after Mr. Mand advised he could not read English. What changed from the roadside to his arrival before the booking staff sergeant? P.C. Cutrara knew Mr. Mand had requested counsel of choice yet he said nothing until Mr. Mand told Staff Sergeant Villamere he did not want to speak to a lawyer.

Inadequate Explanation of Duty Counsel

[57] Mr. Mand testified he was not told at the police station he had the right to speak to a lawyer or that nothing would be held against him if he spoke to a lawyer. He wanted to speak to a lawyer. He testified no police officer ever explained duty counsel was a free legal service he could call immediately. P.C. Cutrara agreed in cross-examination he never provided any explanation in simple English as to who and what the role of duty counsel was after he understood Mr. Mand wanted to speak to his own lawyer. Mr. Mand testified if he had understood duty counsel's role he would have requested he be allowed to speak to one.

[58] It is also noteworthy that P.C. Cutrara, near the end of his examination in-chief, testified when asked by the Crown why he had not placed a call to duty counsel that Mr. Mand had explicitly refused to speak to duty counsel. I do not believe Mr. Mand explicitly refused to speak to duty counsel given P.C. Cutrara admitted he never really explained who duty counsel was or their role because Mr. Mand had indicated he had his own lawyer he wished to speak to. Further, P.C. Cutrara's testimony concerning his duty about providing Mr. Mand with an opportunity to provide samples of his breath forthwith, in my view, was an after-the-fact justification. His duty and obligation, given Mr. Mand's request to speak to counsel of choice was to facilitate his request prior to obtaining samples of his breath.

Lack of Effective Waiver

[59] Not knowing the details of what was said to Mr. Mand by Staff Sergeant Villamere or what exactly P.C. Cutrara said to Staff Sergeant Villamere about Mr. Mand previously requesting to speak to his lawyer is further compounded by P.C. Cutrara's recollection of Mr. Mand saying he trusted the police and would just listen to them when he was saying he did not want to speak to his lawyer. As I have indicated above, it would be mere conjecture, given the lack of evidence, to find the Crown has satisfied the high standard for effective waiver by Mr. Mand of his right to counsel.

Comprehension Issues

[60] A further area of concern is the extent to which Mr. Mand fully understood his right to counsel. I observed the manner Mr. Mand answered questions both by his counsel and by the Crown when he testified. There were a number of occasions when he clearly did not understand the question being asked as his answers did not respond appropriately to his lawyer's or the Crown's questions. His answers were often in broken English. Although Mr. Mand advised through his counsel at the beginning of the trial he did not require an interpreter and he told the Crown, when I allowed the Crown to ask questions in one further area in cross-examination that he had understood the trial proceedings, it was my opinion Mr. Mand's understanding of the English language was somewhat deficient, particularly as it related to legal terminology. This is confirmed by the evidence of P.C. Cutrara that he or Staff Sergeant Villamere inquired about Mr. Mand's first language and it was determined he spoke Punjabi, yet no Punjabi-speaking police officer was arranged to assist in explaining to Mr. Mand his Charter right and police procedures. I can think of no other logical reason for this issue to be raised unless there was some concern as to Mr. Mand's level of comprehension.

[61] When Mr. Mand indicated to Staff Sergeant Villamere he could not read the pre-printed right to counsel because it was in English, this was a second occasion demonstrating his inability to fully comprehend what was being said to him as it related to his right to counsel. The first was after being arrested and P.C. Cutrara read him his right to counsel. Mr. Mand's initial response when he was asked "Do you understand?" was "uh huh." When P.C. Cutrara asked him if he understood a second time Mr. Mand responded, "I don't understand." P.C. Cutrara then began to explain the right to counsel in simpler language. It was when P.C. Cutrara began to explain about Mr. Mand's right to speak to a free lawyer that Mr. Mand advised he had a lawyer but needed to call his wife. P.C. Cutrara admitted he never really explained in simple English who duty counsel was or their role.

Right to Counsel of Choice

[62] In R. v. McCallen, [1999] O.J. No. 202 (Ont. C.A.), at paras. 34-36, O'Connor J.A. wrote that it is well established that the s. 10(b) rights include not only the right to retain and instruct, "but the right to retain and instruct counsel of the accused's choice ...".

34 There are sound reasons why this right was considered to be a fundamental component of the criminal justice system well before the enactment of the Charter and why it was recognized as a right deserving of constitutional protection in the Charter. The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests. Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence and will be used or not used, within the boundaries of counsels' ethical constraints, in the clients' best interests. The law recognizes the uniqueness of this confidential relationship by providing special protection from compelled disclosure of information that is exchanged between clients and their counsel.

35 In addition, the relationship of counsel and client requires clients, typically untrained in the law and lacking the skills of advocates, to entrust the management and conduct of their cases to the counsel who act on their behalf. There should be no room for doubt about counsel's loyalty and dedication to the client's case. It is human nature that the trust and confidence that are essential for the relationship to be effective will be promoted and more readily realized if clients have not only the right to retain counsel but to retain counsel of their choice.

36 The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected. Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf.

(See also R. v. Kumarasamy, [2002] O.J. No. 303 (Ont. S.C.), Durno J., at paras. 21-25 and R. v. Ellies, [2015] O.J. No. 4231 (Ont. S.C.), at para. 49).

Conclusion on Charter Breach

[63] Considering the totality of the evidence relating to Mr. Mand's right to counsel I find there was a breach of s. 10(b) of the Charter. Mr. Mand clearly and unequivocally requested to speak to his lawyer, a Punjabi-speaking lawyer, by contacting his wife to obtain the name and phone number. P.C. Cutrara did not facilitate contact with Mr. Mand's wife to obtain the name of the lawyer and he did not advise Staff Sergeant Villamere of Mr. Mand's request to speak to counsel when he first paraded Mr. Mand. P.C. Cutrara did not in my view adequately explain to Mr. Mand the role of duty counsel. P.C. Cutrara did not have an independent recollection of what was said by Staff Sergeant Villamere or himself to Mr. Mand concerning his right to counsel at the police station. The lack of audio on the booking video, which is a systemic issue throughout the York Regional Police stations, is a serious deficiency. If the video contained audio it could have provided significant assistance in determining what was said by the Staff Sergeant to Mr. Mand and what impact that had on his decision to no longer want to speak to counsel. This coupled with P.C. Cutrara's recollection that Mr. Mand kept saying he trusted the police and wanted to listen to them causes me to find the Crown has been unable to demonstrate an effective waiver by Mr. Mand of his right to counsel. Consequently I find Mr. Mand's s. 10(b) Charter rights were breached.

Section 24(2) Analysis: Exclusion of Evidence

[64] Having found what I would describe as a serious breach of Mr. Mand's right to counsel I must now consider whether the breath tests, which were obtained after the Charter breach, should be admitted or excluded pursuant to the analysis in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. At paragraph 71, the Supreme Court of Canada summarized the proper approach to s. 24(2) of the Charter in the following words:

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.

A. Seriousness of the State Conduct

[65] Under this factor, 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.

[66] A number of recent decisions have addressed what must be examined and considered under the first prong of the Grant test. Justice Campbell in R. v. Rehill, 2015 ONSC 6025, [2015] O.J. No. 5068 (Ont. S.C.) held the court

…must consider whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other end. Extenuating circumstances (e.g. the need to prevent the disappearance of evidence) may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Even a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, at paras. 72-75; R. v. Taylor, at para. 39.

[67] The right to speak to counsel after arrest and before questioning by police or the eliciting of evidence by police is one of the most basic rights enshrined in the Charter. There is no hierarchy of Charter rights; but in the context of a criminal investigation, access to counsel is vital. Access to legal advice ensures that a detainee is able to make a free and informed choice whether to cooperate with the police and guards against the risk of involuntary self-incrimination (see R. v. Taylor, 2014 SCC 50, [2014] S.C.J. No. 50, at para. 21; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40).

[68] It is my view a breach of the right to counsel such as in this case, where a detainee has unequivocally requested to speak to his own counsel but needs to speak to his wife to obtain the name and phone number of the lawyer, yet the police do not implement or facilitate putting the detainee in contact with his wife or his counsel, is a serious one and more than a trivial violation or inadvertence on the part of the police officer. Mr. Mand clearly and unequivocally requested to speak to counsel of choice but needed to contact his wife first. P.C. Cutrara did not facilitate or implement Mr. Mand's request. P.C. Cutrara's notes are sparse or non-existent and leave much to be desired on this very important Charter right, in terms of his conversation with Mr. Mand and the Staff Sergeant's conversation with Mr. Mand respecting the right to counsel. There is a very real issue in my opinion as to whether Mr. Mand fully understood his right to counsel given his later comments that his lawyer probably would not be available and he trusted the police and wanted to listen to them. Without knowing exactly what was said by the officers to Mr. Mand it is impossible to know why he changed his mind.

[69] This is not the situation where the police contacted the third party, obtained the name of the lawyer, then attempted to contact the lawyer with negative results and ultimately put the detainee in contact with duty counsel. Here, P.C. Cutrara did not call Mr. Mand's wife when they arrived at the police station. P.C. Cutrara did not advise Staff Sergeant Villamere that Mr. Mand had requested to speak to his lawyer but needed to contact his wife to get the name. No steps were taken by the police to contact Mr. Mand's wife. No steps were taken to facilitate Mr. Mand's contact with his lawyer. I find P.C. Cutrara did not properly explain the role and function of duty counsel and I accept Mr. Mand's evidence he did not appreciate fully who duty counsel was. The failure to implement and facilitate the right to counsel is at the extreme end of seriousness. This factor favours exclusion of Mr. Mand's breath results as they were taken without his exercising his right to retain and instruct counsel.

B. The Impact on Mr. Mand's Charter Protected Interests

[70] The assessment under this factor calls for an evaluation of the extent to which the breach actually undermined the Charter interests protected.

[71] The section 10(b) right exists in part so that the defendant can obtain legal advice to assist him or her in regaining his or her liberty. See R. v. Bartel, [1994] 3 SCR 173, at paragraph 16 and R. v. Provo, 2015 ONCJ 311, at paragraph 42. The failure to facilitate the right to counsel of choice directly impacted on Mr. Mand's ability to obtain advice.

[72] As noted in R. v. Badgerow, supra, at paragraph 50:

The right to seek advice from counsel of choice on arrest for detention is not limited to receiving perfunctory advice to keep quiet. Rather, it entitles an accused to obtain sufficiently meaningful advice to enable him or her to make an informed choice concerning whether to exercise his or her right to silence.

[73] The right to counsel is therefore designed to protect the interest in making informed choices when interacting with the police. Here Mr. Mand was effectively denied the right to speak to counsel of choice at any time. I would refer again to the comments of Justice O'Conner in McCallen, supra, respecting the significance of speaking to one's counsel of choice. Particularly where, as I have found, there is a realistic concern about Mr. Mand's comprehension of the English language. The police had a concern because they asked what his native language was, yet they did not involve a Punjabi-speaking police officer to more fully explain his Charter rights or police procedures.

[74] There are numerous cases where the police have defaulted to duty counsel and put a detainee in contact with duty counsel where the detainee has requested counsel of choice and courts have found a s. 10(b) breach, which has led to the exclusion of the breath samples (see R. v. Kumarasamy, [2002] O.J. No. 303 (Ont. S. C., Durno J.); R. v. Vernon, 2015 ONSC 3943, [2015] O.J. No. 4157 (Ont. S.C.) upheld [2016] O.J. No. 1383 (Ont. C.A.); R. v. Traicheff, 2010 ONCA 851 and R. v. Ellies, [2015] O.J. No. 4231 (Ont. S.C., Selkirk J.). Here, the police did not even default to duty counsel and Mr. Mand, despite requesting to speak to his own lawyer, spoke to no lawyer.

[75] In my view, the impact on Mr. Mand's Charter protected interests was serious and favours exclusion.

[76] In my view the second factor, in this case, favours exclusion.

C. Society's Interest in an Adjudication on the Merits

[77] Here, the evidence in question, the breath samples, is real and reliable evidence. Their exclusion would result in the collapse of the Crown's case. Although I am of the opinion the public would expect the police to implement and facilitate a detainee's access to counsel when a clear and unequivocal request to speak to a lawyer of choice or duty counsel is made, the third factor usually favours admission of the breath samples.

D. Overall Balancing

[78] After balancing the three factors in Grant I have concluded the admission of the breath samples would bring the administration of justice into disrepute. It is my understanding from the Crown's submissions at the conclusion of the evidence, if the breath samples are excluded there is no case. Consequently, the charge of over 80 is dismissed.

Released: August 3, 2016

Signed: "Justice Peter C. West"