Court Information

Ontario Court of Justice

Date: 2018-04-20

Court File No.: Central East Region

Parties

Between:

Her Majesty the Queen

— AND —

Julio Granda

Before the Court

Before: Justice J. Bliss

Heard on: April 3, 2018 and April 17, 2018

Ruling on Charter Applications released on: April 20, 2018

Counsel

P. Brissette — counsel for the Crown

C. Shirtliff-Hinds — counsel for the defendant Julio Granda

Endorsement

Charges

[1] Julio Granda is charged that:

on or about the 8th day of July, 2017…while his ability to operate a motor vehicle was impaired by alcohol, did have the care or control of a motor vehicle contrary to s.253(1)(a) of the Criminal Code

And that:

on or about the 8th day of July, 2017…having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did have the care or control of a motor vehicle contrary to section 253(1)(b) of the Criminal Code.

Charter Applications

[2] Mr. Granda has brought an application seeking to exclude evidence of his breath readings and a stay of proceedings for violation of ss. 7, 8, 9, and 10(b) of the Charter. On consent, the trial was bifurcated with the evidence applying to all the Charter applications, although not to the trial proper, notwithstanding the shifting and differing onuses.

Facts

Initial Police Response

[3] At 1:37 a.m. on July 8, 2017, officers from the South Simcoe Police Service were dispatched to a radio call for a possible impaired driver in a silver Toyota Rav4 with licence plate ALNY 285. The call had originally come in at 1:33 a.m. The caller was following the vehicle at Highway 400 and County road 88 and described it as having trouble maintaining its lane and coming close to the guardrails and median. Cst Capeloa was at the South Simcoe Police station at 81 Melbourne Drive in Bradford when he received the call. The 911 caller, Mr. Kennedy, then advised that the vehicle was in the area of Melbourne Drive and Miller Park Avenue. The original address provided was at the corner of those two streets, but the registered owner of the vehicle resided at 1 Richardson Crescent and that was confirmed with dispatch.

[4] It took Cst. Capeloa about two minutes to get to that area. The caller reported that the driver had exited his vehicle at 1 Richardson Crescent and had entered the garage. He said the driver was wearing a light shirt, dark pants and possibly an emblem on his shoes. The civilian witness had parked and was maintaining visual observations on the driver from his location.

[5] At 1:38 a.m., Cst. Capeloa arrived on scene at 1 Richardson Crescent. The suspect vehicle was parked in the driveway, and the witness who had called 911 to report the driver was parked on the southwest corner on Miller Park Avenue.

Initial Contact with the Accused

[6] Cst. Capeloa walked up the driveway. A suspect matching the description of the driver was sitting in the garage with the door open, smoking a cigarette, and drinking from a tall can of Molson Canadian beer. The officer did not make his own note of the description of the driver; his evidence was that the description was from the police ICAD. There was no one else in the general area or in the vehicle. Cst. Capeloa approached the male, later identified as Julio Granda, but remained on the driveway. He advised him that he was there to investigate a driving complaint and asked him to come out of the garage to speak with him.

[7] At 1:40 a.m., Mr. Granda came out of the garage to speak with the officer. At the time the officer only had information of erratic driving. His purpose in going onto the driveway was to speak with Mr. Granda to investigate the driving complaint and possible impaired driving. The officer advised Mr. Granda that police had received a call from someone who was following him and reported that he was weaving and almost colliding with the median. When Mr. Granda stepped out of the garage, Cst. Capeloa smelled a strong odour of alcohol coming from his breath and saw that his eyes were bloodshot. Based on his observations and the information contained in the call to police, Cst. Capeloa formed the requisite reasonable suspicion that Mr. Granda had been operating a motor vehicle with alcohol in his system and made the demand that he provide a sample of his breath into an approved screening device. Mr. Granda said numerous times that "[the officer] didn't book [him] for driving" which he took to mean "you didn't catch me driving". At no time did Mr. Granda ask the officer to leave the property.

Approved Screening Device Test

[8] Having seen Mr. Granda drinking in the garage, the officer waited 15 minutes before administering the test and used the time to provide him with a caution at 1:41 a.m. and his rights to counsel at 1:43 a.m. No issue is taken with the wording of the caution or rights.

[9] When asked whether he wanted to speak to a lawyer, Mr. Granda replied that "my lawyer is unavailable". The officer told Mr. Granda that he could also call duty counsel or another lawyer of his choice, to which Mr. Granda said that "[he] would call him on Monday".

[10] At 1:44 a.m., Cst. Smith arrived on scene and went to where Cst. Capeloa and Mr. Granda were speaking with each other. Mr. Granda continued to question why the demand was being made when police did not catch him driving. After being made aware that the ASD demand had been made and there had been recent alcohol consumption and so the need to wait for any mouth alcohol to clear, Cst. Smith asked Mr. Granda for his identification. Mr. Granda pulled out his wallet and, with some difficulty, surrendered his driver's licence to Cst. Capeloa. Cst. Smith made no observations of Mr. Granda up to that point.

[11] After the 15 minutes had passed, Cst. Capeloa asked Mr. Granda to accompany him to his cruiser to provide a sample of his breath into an approved screening device. Initially, Mr. Granda refused but relented when told of the consequences for refusing.

[12] At 1:55 a.m., Cst. Capeloa performed a self-test into the ASD and demonstrated to Mr. Granda how to provide a breath sample. He was also satisfied that the device was operating properly. At 1:56 a.m., Mr. Granda was given the ASD. After three samples that were not sufficient to allow for analysis, he was warned of the consequences of failing to provide a sample. At 1:59 a.m., Mr. Granda provided a suitable sample and the ASD displayed a "fail". Mr. Granda was then arrested for the offence of "over 80", handcuffed, searched and placed in the back of Cst. Capeloa's police vehicle for transport to the station.

[13] When Mr. Granda was in the cruiser, Cst. Smith went to speak with Mr. Kennedy who was parked on Miller Park Avenue and had witnessed the driving.

Transport to Station and Rights to Counsel

[14] Before leaving for the police detachment, Mr. Granda was again read the caution and rights to counsel. He advised that he wanted to call his lawyer, Derek Sorenti, and was told that he would be called once they got to the station. At 2:07 a.m., Cst. Capeloa made the formal breath demand and then left for the South Division.

[15] After arriving at the station at 2:11 a.m., Mr. Granda was booked and lodged in a cell while Cst. Capeloa tried to contact his lawyer. From 2:28 a.m., the officer conducted an internet search for Derek Sorenti and located a real estate lawyer, Sorenti Law. The two telephone numbers provided did not accept calls from blocked numbers. Calls from the station appear as blocked calls so the officer retrieved a cell phone from his vehicle and unblocked the number and called again. This time he was able to reach Sorenti Law on both numbers but both mailboxes were full and no alternate contact number was provided. Cst. Capeloa went to the cell to advise Mr. Granda of his unsuccessful attempts to reach Derek Sorenti, told him that he appeared to be a real estate lawyer, and confirmed that this was the lawyer he wished to contact. He then resumed his attempts which continued to be unsuccessful. When Mr. Granda was advised of this, he said that he would speak with duty counsel. At 2:52 a.m., duty counsel was called and a return call was received at 2:59 a.m.

[16] During this time, Cst. Capeloa provided his grounds to the breath technician, Cst. Pinho. Those grounds were the information he had received of the driving complaints and his observations at the scene including the odour of alcohol, consumption, and the failed ASD.

Consultation with Duty Counsel

[17] Mr. Granda spoke with duty counsel for 4 minutes from 3:00 a.m. until 3:04 a.m.. Mr. Granda was in the cell alone to speak with counsel. Cst. Capeloa remained at the booking area some 10-12' away. The room is used for individuals to speak with counsel and conversations are not supposed to be overheard but, at times, the officer could make out sounds coming from the room which he felt was largely when conversations were louder than normal. The officer was not aware of any past issues with that room or conversations being overheard or recorded.

[18] The booking video was played for the time period when Mr. Granda was brought in and out of the room where he was speaking with duty counsel. While it had to be replayed a number of times, Mr. Granda can be heard telling duty counsel "I was not driving, I was not driving". The officer admitted hearing that on the video but did not recall hearing that at the time. On videos 76 and 77, he can be heard saying "I opened up the garage and opened up a beer". In video 78, Cst. Capeloa can be seen approaching the door to the room and getting Mr. Granda. He testified that from the booking desk, he could see through the window of the room that Mr. Granda was no longer on the phone and that is what alerted him to the fact the call was finished. When Mr. Granda came out of the room, he immediately told the officer "I came home and went into the garage and had a beer."

[19] Mr. Granda did not express any concern that he thought his call was being recorded or overheard. He did say, however, that duty counsel hung up on him. In response to the officer's question, he said he was not completely satisfied with the information he received. Mr. Granda was asked if he wished to have duty counsel or another lawyer contacted and he declined and said he would contact his lawyer on Monday and did not want another call made.

Breath Technician and Breath Samples

[20] Mr. Granda was then handed over to the breath technician, Cst. Pinho. In the breath room, Mr. Granda repeated that his lawyer hung up, meaning legal aid. He was asked if he wanted to have duty counsel called back or if he was satisfied with the phone call. His response was "do I have a choice?" He volunteered that duty counsel told him to "take the test blah blah blah". Mr. Granda did not express any wish to speak with duty counsel again nor did he provide the name of any other lawyer he wished to call. At 3:27 a.m. and 3:52 a.m., he provided two samples of his breath which resulted in readings of 172 mg/100 mL and 171 mg/100 mL.

Impaired Driving Charge

[21] After the results were provided to Cst. Capeloa, he prepared the release documents. He had spoken with Cst. Smith, who had spoken with Mr. Kennedy, and it was from that information received that Mr. Granda was also charged with impaired driving as well as "over 80".

Issues

[22] Mr. Granda submits that almost every aspect of the police interaction with him was tinged with violations of his Charter rights: Police unlawfully entered onto his driveway, lacked reasonable grounds to make an ASD demand, lacked reasonable and probable grounds to arrest him for over 80, recorded his privileged communications with duty counsel, failed to provide him with the opportunity to consult with another lawyer after he expressed dissatisfaction with the advice he received, was charged with impaired driving despite the officer lacking reasonable and probable grounds to do so, and was not provided with his rights to counsel in respect of that charge.

Legal Analysis

Section 8 Violation by Police Entering onto the Driveway

[23] Mr. Granda argues that police did not have any lawful statutory or common law authority to enter onto the driveway to investigate the impaired driving complaint. Relying on R. v. Evans, [1996] 1 S.C.R. 8, Mr. Granda submits that police did not witness him driving, relied on information from a civilian witness relayed through dispatch, lacked credible evidence of the identity of the driver, and, as a result, had no right to trespass onto his driveway to speak with him, procure evidence to use against him, and pursue their impaired driving investigation.

[24] There is an implied licence for all members of the public, including the police, to approach the door, or in this case, the garage, of a residence if on legitimate business. The occupier is deemed to grant the public, including the police, permission to approach the door to knock (Evans, supra, para 13 citing R. v. Tricker (1995), 21 O.R. (3d) 575 (C.A.) at p. 579).

[25] It is the purpose of the implied invitation that determines the lawfulness of the police conduct. "Where the conduct of the police goes beyond that which is permitted by the implied licence to knock, the implied conditions of that licence have effectively been breached, and the person carrying out the unauthorized activity approaches the dwelling as an intruder". (Evans, supra, para 15). The passage in Evans that the applicant rests his argument on is that:

…the police approached the Evans' home not merely out of a desire to communicate with the occupants, but also in the hope of securing evidence against them. Clearly, occupiers of a dwelling cannot be presumed to invite the police (or anyone else) to approach their home for the purpose of substantiating a criminal charge against them. Any "waiver" of privacy rights that can be implied through the "invitation to knock" simply fails to extend that far. As a result, where the agents of the state approach a dwelling with the intention of gathering evidence against the occupant, the police have exceeded any authority that is implied by the invitation to knock (para 16).

[26] The applicant argues that in going onto the driveway, the officer's intention was to gather evidence and substantiate the impaired driving complaint. Before he stepped onto that driveway the officer did not even have the requisite grounds to make a roadside screening demand and so had to leave Mr. Granda alone just like the Supreme Court of Canada said in R. v. Kokesch, [1990] 3 S.C.R. 3 at para 46, that "where the police have nothing but suspicion and no legal way to obtain other evidence, it follows that they must leave the suspect alone, not charge ahead and obtain evidence illegally and unconstitutionally".

[27] The applicant submits that Cst. Capeloa's testimony was not credible when he claimed to have remembered significant events and yet failed to make a note of those events. The applicant highlighted Cst. Capeloa's failure to note the description of the driver provided by dispatch, some of Mr. Granda's utterances, and the conversation with Cst. Smith in which he was provided with the grounds for the impaired driving charge. The applicant says that the officer's evidence suffers from the same frailties that led Duncan J. in R. v. Zack, [1999] O.J. No. 5747 (C.J.) at para 6 to write:

The failure to note these observations is a serious omission and, as I have noted to counsel, it cannot be accepted. If it was ever an acceptable explanation, in this day of full disclosure it cannot be an acceptable explanation for a police officer to say 'I did not note it because I would remember it'. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, put the significant observations that he made. In my view, the absence of the questioned observations in his notebook lead to the conclusion that those observations were not, in fact, made at the time but are perhaps something that over the course of time the officer has come to believe that he saw. I cannot accept, on the balance of probabilities, that those observations were made.

[28] It is also what led Duncan J. to write in R. v. Golubentsev, [2007] O.J. No. 4608 (C.J.) at para 30:

My own decision in R. v. Zack [1999] O.J. No. 5747 is often relied in support of an argument to the effect "If it's not in the notes, it didn't happen". That is not what Zack stands for. Rather, in that case I intended to convey the idea that police officers could not withhold disclosure of crucial evidence on important points by saying "I didn't note it because I would remember it". Zack is a case about disclosure, not note taking, and it speaks to important matters -- in that case the foundational observation of unsteadiness on the feet that was the basis for the opinion of impairment and demand -- effectively holding that the police can't keep aces up their sleeve. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, disclose the significant observations that he made. Zack should not be interpreted as holding that police notes must be a comprehensive script of everything that occurred.

[29] To that end, Cst. Capeloa explained that he did not make a note of the description of the driver because it was broadcast by dispatch and noted on ICAD. The ICAD report was never put to the officer nor was there a suggestion that the officer's evidence about the description or it having been recorded on ICAD was false; instead, the challenge was about him not making a note of it.

[30] The applicant analogizes Mr. Granda's case to that in R. v. Curic, [1999] O.J. No. 5786 (C.J.) where "at the time of [the officer's] arrival and until he reached the stairs of the accused's residence, he had no grounds to arrest him or make a demand for a breath test. He had no communication with [the civilian witness who called police] other than being directed to the accused's location. All he knew was that the civilian witness had been following a person suspected of impaired driving." (Curic, supra, para 11). Wake J. found, at para 22, that the officer's conduct in going to the accused's porch to confront Mr. Curic was for an investigative purpose and was precisely the conduct prohibited in Evans. Curic was, however, pre-Lotozky.

[31] In my view, the Court of Appeal's decision in R. v. Lotozky, [2006] O.J. No. 2516 provides a complete answer to the applicant's claim. Rosenberg J.A. wrote at para 18:

…merely walking on to a driveway, even with an intent to conduct an investigation involving the owner, does not, in my view, constitute a sufficient intrusion to be considered a search. There must be something more, as in the perimeter search cases, peering in windows of the home and trying to detect odours from within. Put another way, not every trespass on to private property by police can constitute a search. I would not place a possible trespass on to a driveway open to public view in the category of a search or seizure.

[32] Referring to Tricker, supra, the Court wrote, at para 23:

Speaking for the court, Galligan J.A. held at p. 203 that "the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling [house]". He further held at p. 204 that a police officer carrying out the statutory mandate under the Highway Traffic Act to obtain reasonable identification of a motorist has lawful reason to speak to the person. Therefore, when the officer entered on to the driveway to obtain the deceased's identification he was "within the ambit of the implied licence recognized by the common law". Galligan J.A. noted that the property owner was entitled to withdraw the licence and if he did so before grounds for lawful arrest came into existence, the officer would have been required to leave.

[33] Addressing Evans directly, Rosenberg J.A. went on:

In my view, there is a fundamental difference between the police conduct of knocking on the door of a dwelling house to investigate the occupants discussed in Evans and merely entering on to a driveway. The latter does not involve an investigation of persons in their own home. A driveway is not a dwelling house; it is a place where people drive and park their vehicles. It is an open area that is visible to the public. The scope of the implied invitation must be analyzed in that context. (para 32)

The officers in this case had a legitimate basis for entering on the driveway. They had received a report that the driver of the car associated with the address was apparently impaired. The driver drove the vehicle in an unusual fashion as he approached the driveway. The officers would have been entitled to stop the vehicle on the street under s. 48(1) of the Highway Traffic Act. For reasons of safety, they waited until the motorist had brought the vehicle safely to a stop. This was a reasonable decision to make. It makes no sense that because the officers exercised a reasonable degree of caution their actions should be characterized as illegitimate. (para 36)

There are other reasons for viewing the officers' actions as legitimately within the scope of the implied licence. It would not be good policy to interpret the law as encouraging motorists to avoid the reach of legitimate traffic investigations by heading for home and thus encouraging a high-speed police chase. Further, until the impaired driving complaint was investigated there was a risk that an impaired driver would re-enter the vehicle and drive while impaired. It is not reasonable to expect the police to devote resources to waiting outside the motorist's house until he or she returns to the street. (para 37)

[34] He concluded: "To summarize, the police officers were lawfully on the driveway in accordance with an implied invitation. They were not asked to leave the property before they formed reasons for arresting the respondent and making a breathalyser demand. For these reasons, I am of the view that the respondent's rights under s. 8 were not violated." (Lotozky, supra, para 42).

[35] The applicant's argument is that Lotozky was dealing with a situation where the police observed the offending driving. Lotozky is not so restrictive. As the applicant noted, the issue in Lotozky was whether police officers who have reasonable grounds to suspect a motorist is impaired are entitled to walk a short distance up a driveway to further their investigation. The principles that emerge from Lotozky governs police conduct to allow exactly the kind of investigation that officers were confronted with that morning. The applicant would have it that having reached the driveway, he had obtained sanctuary. That is both wrong in law and policy. The police had a legitimate basis to enter onto the driveway to investigate the complaint. The police intrusion onto a driveway open to public view was not a "search" or "seizure" and there was no breach of Mr. Granda's s.8 rights. He voluntarily exited the garage, engaged in conversation with the officer, and at no time did he withdraw that implied invitation to have the police leave.

Breach of s.9 by Lacking the Grounds to Make the ASD Demand

[36] Mr. Granda tries to analogize his situation to that before the Summary Conviction Appeal Court in R. v. Dupuis, [1983] N.B.J. No. 59 (C.A.) to argue that police lacked the grounds to make the roadside screening demand.

[37] The sole issue in Dupuis was "why did the police officer believe that the appellant had been driving the hearse. There was no evidence of any information given to the constable concerning the identification of the appellant as the driver of the hearse. [The civilian witness who called police] did not describe or otherwise identify to the officer any characteristic of the person whom he saw driving the hearse which the trial judge could weigh as constituting reasonable and probable grounds to support the belief of the police officer that the appellant had in fact driven the hearse and since he was impaired, was guilty of an offence under s. 234 or 236." (para 13)

[38] Mr. Granda argues there was no basis for the officer to believe that he had been operating the motor vehicle that was the subject of the complaint. Even though Cst. Capeloa did not witness Mr. Granda driving, he heard the police radio dispatches of Mr. Kennedy's observations of the suspect vehicle's erratic driving that originated at 1:33 a.m., a description of the vehicle, its licence plate, its location in the driveway at 1 Richardson Crescent, a description of the driver from when he exited the vehicle and entered the garage, and the witness remained at the scene maintaining visual observations on the driver until police arrived. Cst. Capeloa arrived on scene at 1:38 a.m. He began walking up the driveway at 1:39 a.m. and saw only Julio Granda in the area.

[39] Cst. Capeloa was entitled to rely on the dispatch information to assist in the formulation of his reasonable grounds to make the roadside screening demand including his belief that Mr. Granda had been operating a motor vehicle. (R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) at para 57-58). The important question is not whether the officer's belief was accurate or not, but whether it was reasonable. What were the facts as understood by the police officer when his belief was formed? (See R. v. Musurichan, [1990] A.J. No. 418 (C.A.)). The officer's reasonable suspicion needed to be no more than a reasonable possibility that Mr. Granda had alcohol in his system when he operated a motor vehicle. Confronted with a person who clearly had alcohol in his system, the question for the officer was whether it was reasonably possible that the person who emerged from the garage was the person who was operating the motor vehicle. Based on the facts before him, including the information provided by Mr. Kennedy to police dispatch, that Mr. Kennedy had followed the vehicle to the residence, told police that the driver exited and went into the garage and provided a description of the driver that matched what Mr. Granda was wearing, subjectively and objectively, Cst. Capeloa's belief that Julio Granda was the individual who had been operating the motor vehicle just minutes earlier, was reasonable and he had the grounds to make the roadside screening demand; accordingly, there was no s.9 violation.

Right to Counsel

[40] Next, the defence argues that Mr. Granda's right to counsel was violated. After his arrest for "over 80", he was provided with his rights to counsel and advised Cst. Capeloa that he wanted to call his lawyer, Derek Sorenti. At the station, while Mr. Granda was being booked, Cst. Capeloa made efforts to contact Mr. Sorenti. From 2:28 a.m., the officer searched the internet for Derek Sorenti and found a number for a real estate lawyer, Sorenti Law. At 2:34 a.m., Cst. Capeloa tried to call the two numbers provided but they did not accept calls from blocked numbers, which calls from the station were. The officer then went to his police vehicle, retrieved a cell phone, unblocked it, and called again. The mailboxes for both numbers for Sorenti Law were full and no alternate numbers were provided. Cst. Capeloa went to the cell to advise Mr. Granda of his unsuccessful attempts to reach Derek Sorenti, told him that it appeared to be a real estate lawyer, and confirmed that this was the lawyer he wished to contact. At 2:46 a.m., he resumed his attempts. On being told that Derek Sorenti could not be reached, Mr. Granda did not provide the name of any other lawyer to contact and said he would speak with duty counsel. At 2:52 a.m., duty counsel were called and a return call was received at 2:59 a.m. Mr. Granda spoke with duty counsel from 3:00 a.m. until 3:04 a.m. when he was handed over to the breath technician, Cst. Pinho.

[41] In the breath room Mr. Granda told Cst. Pinho that duty counsel hung up on him. He was then asked by Cst. Pinho if he wanted to have duty counsel called back. He did not. He was asked if he was satisfied with the phone call but instead asked "do I have a choice?" and volunteered that duty counsel told him to "take the test blah blah blah". Mr. Granda was not provided with other options nor did he provide any himself.

[42] Charter rights are not absolute. As the Supreme Court wrote in R. v. Tremblay (1987), 37 C.C.C. (3d) 565 (S.C.C.) "the right to retain and instruct counsel must be exercised diligently by the detainee. If the detainee is not diligent, then the correlative duties on the police are suspended."

[43] Police made considerable efforts to facilitate contact with counsel of choice. Even though Mr. Granda was not happy with duty counsel hanging up on him, he had been provided with advice which he volunteered to the breath technician. He did not want to speak with duty counsel again. The officer's considerable, albeit unsuccessful, efforts to contact counsel of choice for Mr. Granda, in combination with Mr. Granda's consultation with duty counsel and failing to request to speak with either duty counsel again or a different counsel, was facilitating, not denying, the exercise of his s.10(b) rights.

[44] In R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37 at para. 42, the Court wrote that "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."

[45] In the circumstances before me, Mr. Granda was able to consult with counsel. He may have been dissatisfied with the manner of the advice, but that does not make the advice he received inadequate. Unlike the case in R. v. Czorny, [1996] O.J. No. 3410 (O.C.G.D.) that the defence urges me to follow, there was no evidence that whatever advice Mr. Granda received was deficient. As a result, I do not find that Mr. Granda has established on a balance of probabilities that he suffered any breach of his s.10(b) right to counsel of choice or find any basis to conclude that whatever advice he did receive was inadequate.

Breach of s.10(b) Right to Privacy

[46] Mr. Granda's communications with counsel, purportedly in a private room that is not audio or video recorded, was picked up by a recording microphone in the station. While the officer testified to only hearing sounds and not words when a conversation is louder than normal, there was no evidence that Mr. Granda was shouting. There was also no evidence that Mr. Granda was aware his communications were being recorded and so no evidence that his ability to consult with counsel was impaired. The fact remains, however, that some of Mr. Granda's words and sentences could be heard by the police audio recording.

[47] The audio recording from when Mr. Granda was in the interview room speaking with counsel had to be replayed a number of times to hear exactly what was being said. Mr. Granda can be heard telling duty counsel "I was not driving, I was not driving". Later on, a microphone picks up him telling duty counsel "I opened up the garage and opened up a beer". The violation, as the Crown properly concedes, is not saved by Mr. Granda telling the officer after he has finished his conversation with counsel, that "I came home and went into the garage and had a beer".

[48] Mr. Granda, like all accused persons, has a reasonable expectation of privacy in his solicitor-client communications. As Hearn J. noted in R. v. Ogbaldet, [2010] O.J. No. 4487 (C.J.) at para 61:

The nature of the right to counsel and privacy is well established. Privacy is inherent in the right to retain and instruct counsel and an accused…must feel free and have no restrictions on his ability to discuss the circumstances of the case with counsel. Indeed, where an individual believes his conversation will be overheard, he may be substantially prejudiced. In Regina v. Playford the court indicated at page 159:

"Where the circumstances are such that an accused would reasonably believe that his conversation ... could be overheard by police, it cannot be said that his right to privacy has not been infringed unless it can be shown that he was in fact able to retain and instruct counsel privately."

[49] In that case, Hearn J. accepted the accused's evidence that his ability to freely consult with counsel was impacted even though he did not complain at the time and found a breach of his Charter rights. The right to privacy, as Martin J.A. stated in R. v. McKane (1987), 35 C.C.C. (3d) 481, is inherent in the right to retain and instruct counsel.

[50] In R. v. MacKinnon, [2013] N.S.J. No. 596 at para 22 (N.S.S.C.), Wood J. wrote that the test to be applied when assessing an alleged breach of s.10(b) of the Charter is whether the accused believes that their privacy has been infringed and whether this belief is "reasonable" in the situation:

"The use of the term 'reasonable' carries with it an element of objectiveness. Subjective belief alone is not sufficient. Whether the accused has made an objection or expressed concerns about the privacy of their consultation with legal counsel is simply one of the circumstances to consider. Without other objective evidence to substantiate the claim, one can see where the absence of a complaint would be significant in assessing the reasonableness of the belief. Where there is other objective evidence to support the belief that there is no privacy, the absence of a complaint is less significant. (para 23)

[51] In R. v. Champion, [2007] O.J. No. 4180 (C.J.), police had inadvertently left the audio recording device on when Mr. Champion spoke with counsel. Mr. Champion spoke with his lawyer for approximately ten minutes believing his conversation was in private. Even so, Campbell J. found a s.10(b) violation since "clearly the police should not be privy or have access to any part of that communication." (para 43)

[52] In this case, while Mr. Granda believed that his communication with counsel was private, it was not. A microphone somewhere in the police detachment picked up and recorded portions of Mr. Granda's privileged communications. That breached his right to privacy in his communications with counsel and violated his s.10(b) rights as the prosecution concedes.

Remedy for the Charter Breach, s.24(2)

[53] The question of how to address the Charter breach under s.24(2) involves a consideration of whether evidence is "connected" to the violation of an accused's Charter rights and should be excluded. In this case, the breach preceded Mr. Granda's giving of evidence in the form of his breath samples to the breath technician. In R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460, the Court of Appeal provided trial courts with guidance in applying the three part test in R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32.

[54] In Grant, the Supreme Court of Canada set out the three-pronged test that must be applied when considering the admissibility of evidence under s. 24(2) of the Charter. It involves an assessment and balancing of the effect of admitting the evidence on society's long-term confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits. The court, of course, must consider all of the circumstances of the case in conducting this balancing assessment.

[55] In this case, the conduct of the police in having in place audio equipment that recorded private and privileged communications between an accused person and his lawyer is serious. I have not been provided with other instances where this has been an issue; something the prosecution submits suggests the incident is an isolated one and not systemic or institutional. The flaw in that claim is that clearly a microphone is continuously recording the booking area and is able to record private communications unbeknownst to detainees. That suggests the issue is more widespread than not.

[56] There was no evidence of exactly how supposedly private communications were recorded, no evidence where this microphone was, how long it had been in place, or whether any steps had been taken to ensure that private communications remained private. The prosecution argues that the recording was unintended in that it was an inadvertent byproduct of the strength of the microphone unknown to police. In essence, that this breach was not the product of bad faith on the part of the police. The fact that the interception of private communications was by design and not plan does not excuse it.

[57] This was not a case where the officer had to engage or disengage the recording equipment to protect an accused person's privacy when speaking with counsel; instead, a microphone placed sometime and somewhere within the police detachment recorded Mr. Granda's confidential communications with his lawyer such that, at times, words and phrases could be heard. That a microphone in a police detachment is placed in a location where its sensitivity enabled police to record private communications was, at minimum, the result of police negligence, recklessness, or wilful blindness and indifference to the sanctity of solicitor-client confidentiality. While a particular officer or officers cannot be singled out for blame, the South Simcoe Police Service as an institution must bear responsibility. The serious nature of the violation favours the exclusion of the evidence of the breath readings that followed.

[58] The issue of the impact of the breach on the Charter protected interests of the accused raises issues that attenuate the seriousness of the breach. First, there is no evidence that the accused was aware that parts of his conversation with counsel could be heard and was recorded, and so his ability to consult with counsel was not impaired by the police conduct. As well, almost immediately after leaving the interview room he told the officer almost the same thing that was audible from his discussion with duty counsel. There is also no evidence that the police used the impugned information in any way. While those might militate against the serious of the violation, it cannot be that just because an accused does not know that he is being recorded or speaks to police, that he somehow neutralizes the significant violation of his rights. Those facts might lessen the seriousness, but the fact that Mr. Granda's communications were recorded still offends, in my view, the administration of justice and supports, on balance, the exclusion of the evidence.

[59] The breath readings were reliable evidence that existed independently of the Charter breach and supports the admission of the evidence. But while society has an interest in the adjudication of drinking and driving cases on their merit, the question is at what cost to the administration of justice? The manner in which Mr. Granda's fundamental right was violated was such that the admission of the breath readings would bring the administration of justice into disrepute. There is no remedy short of the exclusion of the evidence that appropriately sanctions the police conduct and sends a message to fix this problem that is of their making; accordingly, it is my view that the results of the breath readings Mr. Granda provided must be excluded.

Charter Violations Impacting the Impaired Driving Charge

[60] The applicant's final argument is that Cst. Capeloa did not have the grounds to charge Mr. Granda with impaired driving and, presumably, the charge should be stayed or the evidence of his driving excluded. The applicant argues that Cst. Capeloa should not be believed when he says that prior to releasing Mr. Granda he spoke with Cst. White and obtained the grounds for the impaired driving charge because he did not make a note of this conversation and also did not provide Mr. Granda with his rights to counsel when he advised him of this additional charge. I accept that Cst. White advised Cst. Capeloa of the results of his conversation with Mr. Kennedy. Cst. Capeloa was going through the release process with Mr. Granda when he told him of the additional charge. This "change in circumstances" did not significantly or even marginally change the jeopardy Mr. Granda was facing so as to trigger an obligation to provide a further opportunity to consult with counsel (R. v. Sinclair, 2010 SCC 35, [2010] S.C.J. No. 35). There is no merit to any of the applicant's claims of a Charter breach in relation to the impaired driving charge.

Conclusion

[61] I have concluded that the s.10(b) breach results in the exclusion of the breath readings pursuant to s.24(2) of the Charter. All other claims for relief for purported Charter violations fail.

Released: April 20, 2018

Signed: Justice J. Bliss