Court File and Parties

Ontario Court of Justice

Date: February 22, 2018

Court File No.: Regional Municipality of Waterloo Information #: 16-7188

Between:

Her Majesty the Queen

— and —

Colin Mitchell

Before: Justice C.A. Parry

Heard on: January 15, 2018

Reasons for Judgment released on: February 22, 2018

Counsel

Michael Dean — counsel for the Crown

Michael Webster — counsel for the defendant Colin Mitchell

Judgment

PARRY J.:

I. OVERVIEW

[1] Colin Mitchell stands charged on a single count Information which alleges that on the 9th of October, 2016, he operated his motor vehicle while his blood alcohol concentration exceeded the legal limit of 80 mg of alcohol in 100 ml of blood.

[2] The trial took place on January 15, 2018. Prior to the trial date, the defence served notice of allegations that the police involved in the investigation of Mr. Mitchell breached Mr. Mitchell's constitutionally protected rights; namely, (1) his right to be free from unreasonable searches and seizures; (2) to be free from arbitrary detentions; and (3) his right to counsel, contrary to sections 8, 9, and 10(b) of the Charter, respectively. Mr. Mitchell sought the exclusion of evidence obtained during the course of these alleged Charter breaches.

[3] On the day of trial, his counsel announced that Mr. Mitchell would no longer be alleging any breaches of his section 8 and 9 Charter rights. The Charter application was thus limited to a complaint that the police infringed Mr. Mitchell's right to counsel.

[4] On behalf of Mr. Mitchell, counsel alleges that the police violated the accused's right to counsel by (1) failing immediately, after arresting the accused, to inform the accused of his right to retain and instruct counsel without delay; and (2) having been advised of the desire to retain and instruct counsel without delay, failing to immediately take steps to implement that right.

[5] With the consent of all parties, the Crown led its trial evidence during the course of the voir dire, with the understanding that, subject to any Charter ruling, the evidence called by the Crown on the motion would be applied to the trial proper.

II. THE EVIDENCE

[6] At 1:54 a.m., Constable Karen Marquis received a dispatch concerning a possible impaired driver exiting the westbound 401 at the Highway 8 exit, which sits at the border between Kitchener and Cambridge. As it happens, Constable Marquis was travelling along King Street in the City of Kitchener, towards the intersection of King Street and the southernmost off-ramp of the Highway 8 exit. As she did so, she saw the accused pull up to that intersection in a car that matched the description of the vehicle just described in her dispatch. Timing, as we shall see more than once in this judgment, is everything.

[7] Mr. Mitchell could have taken a merge lane onto the northbound lane of King Street, but he instead drove to the stop sign and used the lane intended for those going southbound on King, before turning right at that stop sign. Having seen this driving irregularity and having heard the dispatch, Cst. Marquis pulled over the accused shortly after he turned northbound on King.

[8] Initially, the accused stopped in a live lane of traffic, and Cst. Marquis stopped behind him. After speaking with the accused, she formed the necessary grounds to make a demand that he provide a sample of his breath at the roadside into an Approved Screening Device. She asked the accused to pull his car over to the shoulder. He complied. Cst. Marquis noted that the accused was cooperative throughout her dealings with him. She then asked him to come to her cruiser with her. He complied. After seating him in the rear seat of her cruiser, she stood outside his open door and read to him the ASD demand. The accused then provided a breath sample in compliance with the demand. The accused failed the ASD test, so, at 2:05 a.m., Cst. Marquis arrested the accused for "Over 80".

[9] Cst. Marquis was unaware of her duty to immediately inform arrested persons of their right to counsel. She was unaware of the 2009 decision of the Supreme Court in R. v. Suberu. She had been a member of the OPP since 1995. She testified that the force does provide online training, but she did not recall any online training regarding the right to counsel. In her mind, the "without delay" requirement enshrined in s. 10(b) of the Charter meant "as soon as I can… without delay." In other words, she perceived herself to have the prerogative to attend to other non-emergency duties prior to advising the accused of his right to counsel.

[10] Immediately after announcing the arrest, Cst. Marquis put down her ASD and told the heretofore cooperative accused to exit the cruiser. She then handcuffed him and performed a pat-down search of him. She then placed the accused back into the rear seat of her cruiser. I accept that the cuffing and pat down search could not have taken more than a minute or two.

[11] Cst. Marquis then went to speak to a witness, who had followed the accused from the 401. That witness had parked her car behind Cst. Marquis' cruiser. According to Cst. Marquis, the conversation was brief. While the precise and complete content of the conversation is not clear, it is clear that Cst. Marquis informed the witness that another officer would be attending to take a statement from her.

[12] It is not clear that anything else occurred between Cst. Marquis's arrest of the accused and her compliance with her duty to immediately inform the accused of his right to counsel. She may have called dispatch from the radio on her vest to request a tow, but she did not have the time of this request noted and had no independent recollection. She may also have spoken to Cst. Vince, but, again, she did not have noted his time of arrival, nor the time of her conversation with him. However, it is quite clear to me that the cuffing, pat-down search, and brief notification to the witness of the impending arrival of another officer could not have consumed an entire 11 minutes. Nevertheless, according to Cst. Marquis, she walked from the witness' car to her cruiser and informed the accused of his right to retain and instruct counsel at 2:16 a.m., 11 minutes after arresting him.

[13] She read the standard information component of the right to counsel from a pre-printed form. In doing so, she told him the following:

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 legal 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.

She asked the accused if he understood her, and he replied, "Yes." She then asked the accused if he wished to call a lawyer now, to which the accused replied, "Yes."

[14] At 2:18 a.m., Cst. Marquis then read the standard voluntariness caution to the accused.

[15] At 2:19 a.m., Cst. Marquis read the breath demand to the accused. The accused indicated he understood the breath demand. Cst. Marquis then immediately asked the accused if he needed anything from his property. The accused told her that he needed his cell phones, house keys, and wallet. Accordingly, Cst. Marquis retrieved the accused's 2 cell phones, house keys, and wallet from the glove box of his car. She retained custody of these items until the accused's release.

[16] Despite having retrieved the accused's cell phones for him at about 2:19-2:20 a.m., it did not occur to Cst. Marquis to allow the accused to use his cell phone and the privacy of the rear of her cruiser to make a call to counsel. In cross-examination, Cst. Marquis rationalized the failure to allow a call to counsel at this juncture. She indicated that there would not be much privacy in a cruiser – which might be true if she sat inside of the cruiser with the accused, but would not be true if she left the accused locked in the rear and gave him some space. I note as well that the officer gave some evidence about the limited privacy afforded to detainees when they speak to counsel from their cell at the OPP detachment. In that circumstance, the officers walk down the hall and turn on a fan to obscure the sound of any conversation that might be heard through the office door – hardly the epitome of privacy. The officer also rationalized that she would not know who this cooperative accused might be calling from his cell phone. Absent a safety concern, I am not sure it is her business. Her only concern should be whether or not the accused is satisfied with the legal advice he obtained. Assuming, without deciding the issue on the facts as they exist in this particular case, that she was entitled to confirm that a real lawyer was on the other end of the call, I note that it had not occurred to her to take some kind of step to satisfy herself of this fact – for example, by dialling the number herself or speaking briefly with the purported counsel prior to the legal consultation.

[17] So, instead of putting the accused in contact with a lawyer, in accordance with his expressed wish to speak to a lawyer without delay, Cst. Marquis let the accused sit at the scene while she attended to other duties. The complete specifics of these various and sundry duties were not made entirely clear.

[18] Cst. Marquis then departed the scene with the accused at 2:28 a.m. She arrived at the OPP detachment at approximately 2:36 a.m., at which point the accused was subjected to the standard booking procedure. First, he was asked various questions for the purpose of completing the Prisoner Detain Sheet. Some of these questions address whether or not the accused has medical issues, psychiatric issues, or other issues the police should be concerned about when the accused is lodged alone in a cell. Upon completion of the Prisoner Detain Sheet, Cst. Marquis brought the accused to the cell area at 2:40 a.m. Constable Wittig [the breath technician, and a man] then conducted a more thorough pat down search of the accused. Then Cst. Marquis lodged the accused into a cell at 2:45 a.m. Constable Marquis testified that the procedures employed between 2:36 and 2:45 a.m. were necessary for safety reasons, and provided these safety reasons as an explanation for the delay in the commencement of the implementation of the accused's contact with counsel.

[19] Then after three minutes of unexplained delay, Cst. Marquis asked the accused about his counsel of choice at 2:48 a.m. When asked about his lawyer of choice, the accused told the officer. The accused began to provide a number for his counsel, but then told the officer, "Actually, let me speak to legal aid." At 2:51 a.m., the officer then called legal aid and spoke to a lawyer named Murphy. The officer then transferred the call to the accused.

[20] In summary, Cst. Marquis began contacting a lawyer on behalf of the accused about 31-32 minutes after she had retrieved the accused's cell phones and was first aware that the accused had a cell phone with which he could have immediately contacted counsel at the roadside. A full 51 minutes transpired between the arrest and the placement of the call to duty counsel.

[21] The accused finished his conversation with duty counsel at 2:57 a.m. Cst. Marquis then brought the accused to the breath technician. The accused then provided breath samples into the approved instrument at 3:12 a.m. and 3:34 a.m. According to the Intoxlyzer 8000c, the accused's blood alcohol concentrations [measured in milligrams of alcohol in 100 millilitres of blood] at the time of the samples were 203 and 188, respectively.

[22] At 4:35 a.m., Cst. Marquis served upon the accused the Certificate of a Qualified Breath Technician, a Notice of Intent to rely upon that certificate, and various other documents. The officer then released the accused from custody at 4:52 a.m.

III. THE RIGHT TO RETAIN AND INSTRUCT COUNSEL WITHOUT DELAY

[23] Section 10(b) of the Charter of Rights and Freedoms guarantees that everyone has the right, on arrest or detention, to retain and instruct counsel without delay and to be informed of that right.

[24] Upon arrest or detention, section 10(b) imposes both informational and implementational duties. The informational duty requires that the police inform the accused without delay of the right to retain and instruct counsel. The implementational duty requires that the police provide the detainee with a reasonable opportunity to retain and instruct counsel.

[25] About 7 years prior to the arrest of Mr. Mitchell, the Supreme Court released its decision in R. v. Suberu, [2009] SCC 33. In that decision, the court confirmed that the term "without delay" means immediately. Consequently, since July 17 of 2009, police forces across this country have been put on notice that when their officers arrest someone, those officers must immediately inform the arrestee of the right to retain and instruct counsel; and if the arrestee thereby asserts that right, those officers must immediately take steps to provide the detainee with a reasonable opportunity to retain and instruct counsel.

[26] About 2 years prior to Mr. Mitchell's arrest, the Supreme Court reiterated the obligations of the police in the case of R. v. Taylor, 2014 SCC 50. In Taylor, Justice Abella, speaking for the court stated, at paragraphs 24 and 25:

The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to counsel at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 71 A.R. 368 at para 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(b) rights and facilitate access to these rights where requested, both without delay. This includes "allowing [the detainee] upon his request to use the telephone for that purpose if one is available" (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen, [1972] S.C.R. 926, at pp. 952-53).

[27] Compliance with the informational and implementational duties may be suspended by the police in exceptional circumstances (R. v. Main, 2014 SCC 54 at para 74; R. v. Taylor, 2014 SCC 50 at paras 27 to 32); however, the Crown bears the burden of demonstrating that any given delay in compliance with these constitutional duties was reasonable in the circumstances.

IV. DID THE POLICE FAIL TO COMPLY WITH THEIR S. 10(b) OBLIGATIONS IN MR. MITCHELL'S CASE?

[28] Eleven minutes transpired between Cst. Marquis' arrest of Mr. Mitchell and the time at which she subsequently informed him of his right to counsel. The evidence does not disclose all of Cst. Marquis' activities during that time frame; however, it clearly establishes that none of her activities were so pressing that they could not wait:

• She may have called for a tow truck – that could wait;
• She may have spoken briefly with Cst. Vince – that could wait;
• She spoke to a civilian witness to let that civilian know that another officer would be completing that witness' statement – that could wait.

[29] The officer provided no evidence of any exceptional circumstances that justified a delay in her compliance with her informational duties. As noted above, the explanation for this lack of evidence flows from the officer's ignorance of the "immediacy" requirement. It is clear from her evidence that she treated the "without delay" requirement as being akin to an "as soon as I can get around to it" requirement. As a result, she breached her obligation to inform the accused of his right to counsel without delay.

[30] Cst. Marquis also breached her implementational duties. In answer to the question, "Do you wish to call a lawyer now?" the accused replied, "Yes." That answer was provided at about 2:16 a.m., or perhaps 2:17 a.m. By about 2:19 or 2:20 a.m., the officer knew that the accused had cell phones in his car and had, in fact, retrieved those cell phones for the accused, while the accused sat in the rear of her cruiser. I find as a fact that it did not occur to the officer to allow the accused to call his counsel of choice while in the privacy of the locked passenger compartment of her cruiser. She testified that the accused's answer, "Yes" to the question, "Do you wish to call a lawyer now?", meant "calling a lawyer as soon as they got back to the office." Calling a lawyer at the roadside never crossed her mind.

[31] Any rationalizations provided by the officer at trial for her failure to allow this immediate private in-cruiser consultation were, in my view, ex post facto ones. While I can certainly conceive of situations in which such concerns may be validly harboured by a police officer at the roadside, the evidence in this case was not capable of supporting those concerns. In particular, I find that the accused would have received as much if not more privacy than he did at the station, where a noisy fan was required to prevent the officer from hearing the accused's consultation with counsel. I also reject any belated concern that the officer would not be able to know that the accused had in fact spoken to a real lawyer. The officer did not advance any plausible reason to be concerned that any phone call placed by the accused might jeopardize the integrity of the investigation or the safety of other officers or citizens. Without any such valid concerns, the officer could not point to any valid reason to confirm the identity of the person called by the accused. Indeed, she described the accused as being cooperative and compliant throughout the investigation. On the facts of this case, the officer advanced no legitimate reason to deprive the accused the ability to place the call to counsel himself. Alternatively, there was no reason why the officer could not briefly and unobtrusively confirm the identity of the lawyer called prior to the consultation occurring. As noted, these were generalized ex post facto rationalizations that were not subjectively contemplated by the officer at the roadside and that did not have any merit in the specific facts of this case. On the facts of this case, the first reasonable opportunity to facilitate contact with counsel arose at about 2:20 a.m., when the accused was in the officer's cruiser and could have been on his cell phone calling counsel.

[32] Rather than the consultation with counsel commencing at about 2:20 a.m., when it should have, the call to duty counsel did not commence until 2:51 a.m. – 31 minutes too late. I therefore find that the officer breached her implementational duty to facilitate access to counsel at the first reasonable opportunity.

[33] I do not intend to parse out all of the steps and procedures that occurred once the accused was at the detachment. Assuming without deciding that the booking procedures occasioned a reasonable delay in the facilitation of the access to counsel, I simply note that any such reasonable delay would have been avoided entirely if the accused had spoken to counsel at the roadside prior to being transported to the detachment. In other words, had the officer complied with her implementational duties at the roadside, there would be no need to assess whether the booking procedures ought to take priority over the immediate access to counsel. I would note, though, that even after the accused was safely lodged in his cell at 2:45 a.m., the officer waited another three minutes before contacting counsel at 2:48 a.m. She had no explanation for this additional short delay, which underscores my conclusion that the officer had no sense of urgency in her attempt to comply with her s. 10(b) duties. I conclude that she viewed section 10(b) as requiring her to fulfill her constitutional duties as soon as practicable, rather than immediately.

V. EXCLUSION OF THE EVIDENCE

A. The Law

[34] An applicant who establishes a breach of his or her Charter rights seeks redress under subsection 24(1) of the Charter. In a hearing conducted pursuant to subsection 24(1), the applicant may seek the exclusion of evidence obtained during the course of a Charter breach.

[35] Subsection 24(2) of the Charter articulates the test to be applied in the determination of the request to exclude evidence. Subsection 24(2) reads as follows:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[36] The subsection reveals that the party seeking exclusion must establish two things:

1. the evidence sought to be excluded was obtained in a manner that infringed a Charter right; and
2. the admission of the evidence would bring the administration of justice into disrepute.

The applicant must establish these two things on a balance of probabilities.

See R. v. Pino, 2016 ONCA 389

[37] In determining whether or not the evidence was "obtained in a manner that infringed or denied any rights or freedoms" of the applicant, the court should be guided by the following considerations:

1. the approach should be generous, consistent with the purpose of s. 24(2);
2. the court should consider the entire "chain of events" between the accused and the police;
3. the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
4. the connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;
5. but the connection cannot be either too tenuous or too remote.

See R. v. Pino, supra, at para 72.

[38] Judicial interpretation of subsection 24(2) has continuously evolved since the enactment of the Charter. R. v. Grant, [2009] S.C.R. 353, is now the leading authority on the interpretation and application of subsection 24(2), particularly the second branch of the test codified in that subsection.

[39] In Grant, McLachlin C.J.C. and Charron J.A. noted that the subsection is concerned with the maintenance of the rule of law and with the defence of Charter rights in the justice system as a whole. The court noted that a Charter breach in and of itself brings the administration of justice into disrepute. However, in their view, subsection 24(2) was concerned with the future impact of the admission/exclusion of the evidence on the repute of the administration of justice. In other words, the court was concerned with whether admission/exclusion would do further damage to the repute of the justice system. In doing so, the court noted that the analysis required a long-term view, one aimed at preserving the integrity of our justice system and our democracy.

[40] Interpreting subsection 24(2) from this perspective, the majority in Grant held that a trial court must assess and balance the effect of the admission of 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 that 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.

See Grant, supra.

[41] The seriousness of Charter-infringing state conduct may require a court to disassociate itself from the police conduct. However, the presence of good faith during the course of the breach may lessen this need. Trial courts must keep in mind, though, that ignorance of Charter standards, negligence, and wilful blindness cannot be equated with "good faith", and should not be encouraged or rewarded through the admission of evidence.

See Grant, supra, at para 75.

[42] Needless to say, deliberate state misconduct will tend to support the exclusion of evidence.

See Grant, supra.

[43] The third branch of the Grant analysis places emphasis on the truth seeking function of the trial process. This portion of the analysis requires the court to balance concerns about the integrity of the justice system with the interests of seeking the truth. Admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the Crown's case. Conversely, the exclusion of highly reliable evidence may have a more negative impact upon the repute of the justice system, if exclusion proves fatal to the prosecution's ability to prove its case.

B. Application of the Law to the Facts of this Case

[44] Having considered the evidence, I conclude that the evidence gathered in this case [the breath samples] is evidence that was gathered in a manner that infringed the accused's right to counsel. I come to this conclusion because the breaches in question are inextricably linked with the narrative of the police investigation. I appreciate that before any samples were obtained from the accused, he did have the opportunity to speak to counsel. Nevertheless, the breaches occurred during the course of the necessary investigative steps that culminated in the taking of the breath samples. In other words, there is an extremely strong contextual and temporal link between the breaches in question and the evidence gathered.

[45] In my view, the seriousness of the Charter-infringing conduct is significant. Cst. Marquis has been an officer since 1995, about 23 years. About 8-½ years have transpired since the release of R. v. Suberu, in which the Supreme Court confirmed the police obligation to comply with their s. 10(b) duties immediately. Cst. Marquis can be forgiven if she does not know the name of the case that confirmed her legal obligations, but the court nevertheless expects her to know her constitutional obligations. The right to counsel is of paramount importance to an arrestee. Counsel can assist arrestees with understanding the legitimacy of their detention, with understanding their rights and obligations, and with safeguarding their right against self-incrimination. Arrests are a fundamental component of a police officer's duties. An officer can reasonably expect, on any given shift, to perform one. The Charter requires that officer to know that each arrestee has the right to be informed immediately of the right to counsel and that each arrestee has the right to contact that counsel at the first reasonable opportunity. If the officer does not know these rights, then the officer does not have the wherewithal to know and comply with the police obligations that flow from these rights. For a little over 8 years, Cst. Marquis has remained in ignorance of these fundamental components of her obligations as an officer. I therefore infer that any past compliance with the immediacy requirements of s. 10(b) occurred by chance rather than by conscious effort. Cst. Marquis also testified that although she has received online training over the last 8-½ years, she did not recall any training on developments in the law on the right to counsel. Her evidence suggests that either she is an inattentive student or that the training provided to her is inadequate – neither explanation is satisfactory. I therefore come to the conclusion that this branch of the Grant analysis heavily favours the exclusion of the evidence.

[46] With respect to the impact of the state conduct on the Charter protected rights of the accused, I find that the breaches had a minimal impact. Ultimately, the police put the accused in contact with his counsel of choice. He then consulted with counsel before any officer attempted to elicit any evidence from him. I therefore conclude that this branch of the analysis favours inclusion of the evidence.

[47] I am satisfied that the evidence in this case, the results of the breath tests performed using a statutorily approved instrument, is reliable evidence. This evidence is crucial to the Crown's case and to the truth seeking function of a criminal trial. I am therefore satisfied that this branch of the Grant analysis favours the inclusion of the evidence.

[48] Analysis under section 24(2) does not simply involve a numeric tallying of which branches of the Grant analysis favour inclusion and which favour exclusion. It is a qualitative, not quantitative analysis – not a "best out of three" competition. In this case, I am so concerned about Cst. Marquis' ongoing ignorance of one of her most fundamental constitutional obligations in performing one of the most basic parts of her duties that I am compelled to conclude that the ongoing repute of the administration of justice will suffer more harm by the admission of the evidence than by its exclusion. Exclusion of the evidence is the only remedy that can, in these circumstances, prevent bringing the administration of justice into further disrepute. To do otherwise would be to condone a perpetual indifference to the knowledge of the basic obligations created by one of the most important Charter rights.

[49] Consequently, the evidence of the analysis of the breath samples provided by the accused into the Intoxilyzer 8000c shall be excluded from consideration in his trial.

Released: February 22, 2018

Signed: Justice C.A. Parry