Court Information
Ontario Court of Justice
Date: July 10, 2019
Court File No.: Durham Region
Parties
Between:
Her Majesty the Queen
— And —
Deborah Nadesalingam
Before the Court
Before: Justice B. Green
Heard on: April 29th and June 7th
Reasons for Judgment released on: July 10th, 2019
Counsel
Mr. O. Fitzgerald – counsel for the Crown
Mr. J. Parkin – counsel for the defendant
Judgment
Green J.:
A. Introduction
[1] Ms. Nadelsalingam is charged with operating a motor vehicle while her blood alcohol exceeded 80 mg of alcohol in 100 ml of blood. There is no issue that she was operating a motor vehicle in a manner that attracted the attention of two nearby police officers who were involved in another traffic stop. After an investigation, she was arrested and eventually provided breath samples in excess of the legal limit.
[2] Counsel conceded that, unless the breath readings are excluded because of alleged Charter violations, the Crown established beyond a reasonable doubt all the essential elements of the offence. The only issues to be decided are whether Ms. Nadelsalingam's constitutionally protected rights were violated and, if so, whether the breath readings should be excluded. This type of focused advocacy is both very efficient and effective and should be commended.
[3] The trial proceeded by way of a blended hearing. The Crown called two witnesses: the arresting officer, PC Sheppard, and the Intoxilyzer technician, PC Gendron. Counsel called Ms. Nadelsalingam during the voir dire but did not call evidence on the trial proper. At the end of the case, Counsel submitted that he established on a balance of probabilities that his client's Charter protected rights to counsel were violated in two distinct ways by the arresting officer:
After Ms. Nadelsalingam was arrested, the officer delayed reading her rights to counsel for a total of 9 minutes because the officer wanted to wait until he could read the rights to counsel in the safety of the cruiser and he could not place her in the cruiser until she was patted down for his safety and her safety. Because she is a woman, he called for a female officer to attend the scene to perform the pat down which lead to the delay. As a result, Ms. Nadelsalingam was not informed of her rights to counsel without delay; and
After Ms. Nadelsalingam was read her rights to counsel, she asked the officer if she could speak with a friend to get his advice with respect to what lawyer to contact. She was very clear that she only wanted to speak with this person to facilitate contact with counsel. The investigating officer did not give her the opportunity to contact this third party herself. Instead, he called her friend and explained the situation. The friend instructed the officer to contact Duty Counsel, so he contacted Duty Counsel for Ms. Nadelsalingam. The officer's conduct interfered with Ms. Nadelsalingam's ability to contact counsel of choice thereby violating her rights to counsel.
[4] Counsel submitted that the cumulative significance of these two breaches and the impact on the Defendant's rights to counsel should result in the exclusion of the breath readings.
[5] The Crown conceded that Ms. Nadelsalingam's rights to counsel were breached because she was not read her rights without delay. The Crown disputed however, that the officer's conduct of calling the third party interfered in any way with Ms. Nadelsalingam's right to contact her counsel of choice. Although the Crown conceded that Ms. Nadelsalingam's rights to counsel were breached, he submitted that this was not a serious breach and the impact on Ms. Nadelsalingam's rights to counsel was minimal. He emphasized the societal interest in adjudicating these types of trials on their merits and urged the Court not to exclude the readings.
B. Facts and Legal Analysis
i. Delay with reading the rights to counsel:
[6] The Supreme Court of Canada in R. v. Suberu, 2009 SCC 33, at paras. 41 and 42, interpreted the words "without delay" in section 10(b) of the Charter with respect to the administration of the rights to counsel to mean "immediately" upon arrest or detention:
A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.
To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [emphasis mine]
[7] PC Sheppard formed reasonable grounds to believe that Ms. Nadelsalingam was operating a motor vehicle with more than 80 milligrams of alcohol in 100 ml of blood. He arrested her at the roadside at 2:16 a.m. He delayed reading her rights to counsel until 9 minutes later when she was seated in the back seat of the police cruiser at 2:25 a.m.
[8] PC Sheppard provided three explanations for this period of delay. First, for safety reasons, it is his practice not to read a person their rights to counsel until they are seated in the back seat of the cruiser. Secondly, for his own safety and the safety of a detainee, he does not permit anyone to be in the back seat of the police cruiser until the detainee has had a pat down search incident to arrest. He explained that:
I have a common practice. I read the rights in my cruiser, I don't like to have someone who is not searched in the back of my cruiser and I try to avoid searching female accused parties where practical. I know that area, there is a lot of foot traffic and vehicle traffic. It's right beside the McDonald's. I personally have had a few violent calls at the Motel 6 which is just to the east of that location. And I'd like to be somewhere where I can control, safe in my vehicle, reading my rights to counsel before I leave, with my face down in my book.
My face down in my book. It's hard for me to be aware of what's going on. The previous people I had pulled over were – had some violent offences and they were still in the area for a brief time anyway, so I try to be at least vigilant in my safety and the safety of Ms. Nadelsalingam and what's going on at that time.
And later on in his evidence:
Quite honestly, I am unfortunately in a position where I always have to be cognizant of my safety, the safety of others, the public, anyone who is in my custody. I am – it leaks into my personal life, but I am hyper-vigilant everywhere. If I was on a roadside, I'd have to be wary of myself being struck by a driver not paying attention or whatnot. If I was in a very high-traffic area, I'd have to pay attention to that too.
[9] The third reason for the delay was that PC Sheppard did not want to pat down a female unless there was no other readily available option. After he arrested Ms. Nadelsalingam, he radioed the station and advised that he had a person in custody. He asked for a tow and an intoxilyzer technician to attend the station and he also requested that a female officer be dispatched to the scene. He could not recall where the female officer was located or specifically how long it took for her to arrive. PC Sheppard related that "I believed she was nearby" and "it didn't take long for her to get there". The search lasted "under a minute", closer to 30 seconds, once the female officer arrived on scene.
[10] Throughout all of PC Sheppard's interactions with Ms. Nadelsalingam, he described her as consistently polite, cooperative and responsive. She had not presented in any manner that would have caused him concern for his safety. In addition, he was not alone at the roadside. PC Sheppard testified that Sergeant MacKinnon was present when he first began interacting with Ms. Nadelsalingam and the Sergeant provided him with the roadside screening device.
[11] PC Sheppard was "hyper-vigilant" about his personal safety and he wanted to be well positioned to read the rights to counsel to a detainee in a controlled environment for his safety and for her safety. Ordinarily, there would be no issue with an Officer waiting to read the rights to counsel until after a brief pat down search and then being seated in the cruiser. However, there shouldn't be a "one size fits all" approach to police practices during an investigation or after an arrest. Officers may have ordinary practices, but their conduct must be responsive to the circumstances in which they find themselves.
[12] PC Sheppard's personal safety would not have been in any jeopardy if he had taken a minute to read the rights to counsel from a card or even summarize them while they were standing outside of the cruiser. He could not facilitate contact with counsel at that time considering the need for privacy but there was no reason to delay providing her with the necessary and constitutionally required information.
[13] I recognize that PC Sheppard was trying to be sensitive to Ms. Nadelsalingam's right to security of the person by ensuring that a female officer searched her incident to arrest. While I appreciate that this officer was trying his best to respect Ms. Nadelsalingam's personality dignity, he had a competing obligation to provide her with her rights to counsel immediately. Since he failed to do so, the Crown made an appropriate decision to concede that the delay in reading Ms. Nadelsalingam's rights breached her section 10(b) Charter protected rights.
ii. Contacting a third party to facilitate contact with counsel of choice:
[14] Counsel submitted that the initial breach of Ms. Nadelsalingam's rights to counsel was compounded by a subsequent breach of her rights by the same officer.
[15] While they were in the cruiser, PC Sheppard read Ms. Nadelsalingam her rights to counsel from the standard police issued card which included advising her that she had the right to contact any lawyer that she wished or to seek free legal advice from Duty Counsel. Ms. Nadelsalingam advised that she wanted to contact a lawyer. She gave the officer the name and phone number of a friend who she wanted to contact to provide her with the name of a lawyer. PC Sheppard asked Ms. Nadelsalingam, if her friend could not be reached, whether she wanted another private lawyer or free Duty Counsel for legal advice. She advised that would like to speak with Duty Counsel, but she wanted her friend's input first.
[16] Ms. Nadelsalingam was taken to the station and paraded in front of the Acting Staff-Sergeant at 2:46 a.m. Ms. Nadelsalingam confirmed with the Sergeant that she had been read her rights to counsel and that she wished to call a lawyer and then they had the following exchange:
Sgt: Do you have a lawyer in mind? Do you know the name of a lawyer? You're aware of legal aid? The Officer spoke to you about the availability of legal aid?
DN: Yes
Sgt: Yes? Okay, thank you? That's an option. Would you like to speak to legal aid?
DN: Yes
Sgt: Yes. Would you like to make a telephone call to anyone else?
DN: Yes (she went on to provide the name of the friend)
[17] Ms. Nadelsalingam indicated that she wanted to contact a Duty Counsel lawyer a second time to the Sergeant, but she also said that she wanted to make a telephone call to her friend. I accept that PC Sheppard was not listening carefully to the way the question was posed to Ms. Nadelsalingam by the Sergeant and he understood that she asked that her friend be contacted for her. PC Sheppard was aware that he was obligated to facilitate contact with a third party when a person asked to speak to that person to obtain assistance with selecting or getting in touch with counsel. He related however, that it is his practice to contact the third party himself so that he can control the content of the conversation. Ms. Nadelsalingam confirmed during her evidence that Officer Sheppard never told her that he would allow her to speak to her friend directly.
[18] Ms. Nadelsalingam testified that she could not recall whether she requested to speak to Duty Counsel despite the video recorded exchange with the Sergeant at the station. She related that she wanted to speak with her friend who is a police officer so that she could get a "hold of some sort of lawyer". I accept PC Sheppard's recollection that Ms. Nadelsalingam asked to speak to Duty Counsel at the roadside and at the station.
[19] PC Sheppard called Ms. Nadelsalingam's friend at 2:56 a.m. and explained what had happened to her. He related that she was seeking his advice about whether he knew a lawyer who she should contact or whether she should consult with Duty Counsel. The friend said that she should call Duty Counsel.
[20] Since Ms. Nadelsalingam had already told the officer that she wanted to speak with Duty Counsel if her friend could not be reached and she told the Sergeant she wanted to call Duty Counsel and her friend recommended that she consult with Duty Counsel, PC Sheppard placed a call to Duty Counsel at 2:58 a.m. Ms. Nadelsalingam was able to consult with Duty Counsel in private between 3:22 a.m. and 3:26 a.m. Ms. Nadelsalingam did not express any dissatisfaction or concern about the lawyer she consulted with or the period of time that she had to speak with counsel.
[21] Ms. Nadelsalingam explained that she did not express dissatisfaction with the advice she received from Duty Counsel "because I was …given Duty Counsel, I thought that was my only option and I didn't know that if I expressed dissatisfaction I could have another option beyond that." I found this response to be quite disingenuous. She confirmed with the Sergeant on the recording that she had been read her rights to counsel which informed her of all her options. During cross-examination, she also confirmed that she was read her rights to counsel and that she was aware of her options. I find that Ms. Nadelsalingam made an informed choice to consult with Duty Counsel.
[22] It is indisputable that when a detainee asks to speak to a third party to seek information about finding counsel or facilitating access to counsel of choice, the police are obliged to facilitate that contact. There are several decisions that have addressed this issue. For example, in R. v. Tremblay, the police contacted the accused's wife, but they did not subsequently give him sufficient opportunity to exercise his rights. In R. v. Kumarasamy, [2002] O.J. No. 303 (Ont.S.C.J.), the Defendant sought the opportunity to contact his own lawyer and the officers did nothing to assist him. In R. v. Mourad, [2012] O.J. No. 1471 (Ont.C.J.), the accused asked for his cell phone to call his girlfriend to get in touch with a lawyer. The officer initially refused but then relented when instructed by another officer to give the phone to the accused. When he finally gave him the phone, he did not afford him any real opportunity to contact the lawyer of his choice. In each of these cases, the Courts found that the police had breached the accused's rights to counsel.
[23] None of these decisions addressed circumstances wherein an Officer respected the detainee's expressed desire to contact a third party by calling that person for the detainee and followed through with that third party's advice. The complaint in this case is that Ms. Nadelsalingam did not get to personally speak to the third party even though she consulted with the lawyer that the third party recommended.
[24] In R. v. Ellies, [2015] O.J. No. 4231 (Ont.C.J.), after initially waiving his rights to counsel, the accused requested to speak with his dad who was a judge. The police phoned the accused's father and they spoke with him, but they did not allow him to speak directly with his dad. The Court reviewed a number of cases and concluded that:
53 The second point, at para. 25, is that the duty to facilitate contact with counsel of choice includes permitting a phone call to a friend or relative to obtain the name of counsel of choice. I infer that the Court means a phone call by the detainee. Not a phone call by the police on behalf of the detainee. This is especially true where there are no security risks or risk to the investigation like the case at bar. This is also a violation of the implementational duties and thus a violation of s. 10(b).
[25] This paragraph cannot be read in isolation without reference to the facts. Mr. Ellies wanted to speak with his dad directly for legal advice not for the purpose of obtaining the name of a lawyer. When the officer took control of that third-party contact, the Court found that he deprived Mr. Ellies of his ability to consult with his counsel of choice. In contrast, Ms. Nadelsalingam wanted to speak with her friend so that she could get advice about who to call and she benefitted from that information which was obtained by the officer.
[26] In R. v. Mumtaz, [2019] O.J. No. 229 (Ont.S.C.J.) at para. 37, the Court succinctly stated that "the law is clear that when a detainee makes a request to contact a third party in order to facilitate contact with counsel, the police must facilitate this". This right however, is not absolute. In R. v. Kumarasamy, [2002] O.J. No 303 (Ont.S.C.J.), Justice Durno found that:
25 In the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee's efforts to do so: R. v. Brydges (1990), 53 C.C.C. (3d) 330 S.C.C. This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel's number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.
26 This is not to say that a detainee is always entitled to make one or a series of calls to friends or relatives. The determination must be made on a case by case basis. No doubt there will be rare cases where a call to a friend or relative in private could jeopardize an ongoing investigation. For example, if the detainee has accomplices who had not been arrested, or if persons or property could be placed in jeopardy by permitting a call to someone other than a lawyer, a delay might be justified. That is not the case here.
[27] I have also reviewed and adopt Justice Band's comments in R. v. Mcfadden, [2016] O.J. No. 6932 (Ont.C.J.) at para 126:
In my view, if police policy is to forbid all detainees from contacting a third party directly, it ought to be revisited. It appears to be the OPP's position, as well as that of the Peel Regional Police Service.
[28] There is no evidence that this is the practice of Durham Regional Police services. On the contrary, the Sergeant offered to allow Ms. Nadelsalingam to contact the third party during the parade process. This choice to call the third party on behalf of the detainee was the individual practice of PC Sheppard. This officer's personal practice of calling the third parties could result in an interference with an individual's access to counsel of choice. A third party may be more comfortable talking directly to the detainee or the detainee may have had a previous experience with a lawyer and is looking for assistance with recalling a specific name. Absent articulable reasons why a detainee consulting the third party directly could jeopardize an ongoing investigation or other related concerns, a detainee should be permitted to contact the third party directly for the purpose of accessing counsel of choice.
[29] While I agree that PC Sheppard should have allowed Ms. Nadelsalingam to contact her friend directly, Counsel must establish on a balance of probabilities that the officer's conduct in this case resulted in a violation of her rights to counsel. She was not presented with a choice of calling her friend or calling Duty Counsel. She was fully informed of all her options and chose to call a friend and to call Duty Counsel. Her friend was contacted by PC Sheppard and her friend also recommended contacting Duty Counsel. I am not relying on the hearsay evidence about what the friend said to the officer for the truth of its contents. I am relying on it as a fact that this is what the friend said and the officer relied on what was said by the third party when contacting Duty Counsel.
[30] Even though the friend told the officer to call Duty Counsel, Counsel submitted that the officer interfered with Ms. Nadelsalingam's access to counsel of choice by assuming control of the means of access to counsel. For example, in R. v. O'Shea, [2019] O.J. 1178 (Ont.S.C.J.) at para 42, the Court found that:
Once the police decided to take control of the respondent's means of accessing counsel, they assumed the obligation to pursue her constitutional right to do so as diligently as she would have.
[31] However, Justice Schreck also found in O'Shea at para. 22 that:
With respect, I do not read Panigas, Maciel and the cases that follow them as suggesting that the police are obliged to take every step an accused would take at the exact times that she would take them. The standard, as I understand it, is whether the police took all steps that were reasonable in the circumstances: Maciel, at para. 43; Ali, at para. 59; R. v. Kuviarzin, 2018 ONCJ 419, 30 M.V.R. (7th) 144, at para. 35.
[32] Counsel submitted that the police did not take all "reasonable steps in the circumstances" because the officer did not facilitate direct contact with the third party. The onus is on the Applicant to establish that her rights were breached, and the third party was not called as a witness. I do not know if that third party's advice would have been any different had he spoken directly to Ms. Nadelsalingam or if he sincerely felt Duty Counsel was the best option. The only evidence with respect to this issue was that Ms. Nadelsalingam testified that she would have preferred to speak with private counsel.
[33] As many Courts have noted, the police are not expected to be clairvoyant. Ms. Nadelsalingam did not express this thought to the police. Instead, she expressed the informed choice to the police that she wished to speak to a friend and Duty Counsel. She also stated during her evidence that she wanted to be put in touch with "some sort of lawyer". Duty Counsel are lawyers. Ms. Nadelsalingam was not funnelled or channelled to Duty Counsel, this lawyer was her counsel of choice. She was afforded the opportunity to consult with a professional. She received meaningful advice because she expressed no dissatisfaction with that advice to the police or to this Court. Justice West observed in R. v. Sillars, [2019] O.J. No. 603 (Ont.C.J.) that:
224 It is difficult to reconcile the attitude that has developed in recent years where duty counsel are treated as second class incompetent lawyers with the comments made in Brydges, Bartle and Devries concerning the importance of the immediate free legal advice through the toll-free number, which conveys the necessary immediacy and universal availability of legal assistance.
And further:
226 Where a detainee, like Mr. Sillars, has been put in touch with duty counsel and received legal advice and made no complaint about the advice provided, it is my view the Supreme Court of Canada's decision in R. v. Willier, governs. In that case the Supreme Court held where there was no complaint by a detainee as to the legal advice provided, the police were entitled to assume the accused was satisfied and to continue with their investigation, in this case, the obtaining of breath samples.
[34] Ms. Nadelsalingam was afforded the opportunity to consult with a presumptively capable and competent counsel who she chose to speak to and made no complaint. Nevertheless, she did ask the arresting officer and the Sergeant at the station if she could call her friend to assist with choosing a lawyer. There were no special concerns that justified the officer's interference with Ms. Nadelsalingam's right to consult with her friend directly. PC Sheppard should have afforded her the opportunity to speak to her friend directly. In the unique circumstances of this case, this was a technical and inconsequential breach of her rights.
C. Section 24(2) Analysis
[35] Ms. Nadelsalingam's rights to counsel were breached in two distinct ways: a delay in the informational component and an interference with the implementational component of accessing a third party directly to assist with accessing counsel of choice. Counsel must establish on a balance of probabilities that, having regard to all the circumstances, the admission of the breath readings would bring the administration of justice into disrepute as a result of the breaches of his client's rights to counsel.
[36] Over the past 18 months, there has been a dizzying series of conflicting trial court and appellate court decisions in drinking and driving cases about how to apply the 24(2) analysis in the Ontario Court of Appeal's decisions in R. v. Jennings, 2018 ONCA 260, in the context of breaches of other Charter protected interests or more than one Charter protected right. In R. v. Moniz, [2018] O.J. No. 4527 (Ont.C.J.), Justice MacLean engaged in an extensive review of the myriad of decisions and ultimately concluded at para. 112 that:
Having reviewed all of these cases, I conclude that it will fall to the Ontario Court of Appeal to give us further direction as to how the decision in Jennings applies, if at all, to the s. 24(2) analysis in a case where there is a s. 10(b) breach or where there are multiple breaches. I will therefore go back to first principles and approach the issues in this case by applying the law as set out in Grant. I turn now to the application of the balancing of the three branches of the Grant s. 24(2) analysis to the facts of this case.
[37] It is inconceivable that the Court of Appeal intended the decision in Jennings to mean that any breach of any Charter protected interest at any point during a drinking and driving investigation should automatically be minimally intrusive because the result of obtaining a breath sample is a minimally intrusive interference with a detainee's privacy and liberty interests. To interpret Jennings so broadly would be an invitation to ignore other Appellate decisions, including decisions from the Supreme Court of Canada, which have focused the 24(2) analysis on the nature of the privacy or liberty interest impacted, the specific Charter rights violated and the seriousness of the violation.
[38] As Justice Woodley pointedly stated in R. v. Ferose, 2019 ONSC 1052, at paras 68 to 69 (Ont.S.C.J.):
With respect to this submission by the Crown, I disagree. Jennings, as outlined above, deals with a s. 8 breach. As noted by Woolcombe J., the Court of Appeal appears to have considered that while an arrest without reasonable and probable grounds would result in a s. 8 violation through the subsequent seizure of breath samples, it would also, necessarily, result in a s. 9 violation due to the resulting unlawful arrest and detention. As such, in many cases the consequential s. 9 violation will not necessarily create a significant added impact on an accused's Charter-protected interests.
This reasoning however does not apply to all Charter breaches. Clearly, a s. 10(b) breach does not necessarily flow from a s. 8 breach. It is a separate and distinct breach altogether and must be assessed separately. To hold otherwise, would allow open season for Charter breaches in every breath sample procedure case.
[39] Similarly, in R. v Skurski, [2019] OJ No 2494 (Ont.S.C.J.) at paras 31 and 32, Justice Dawson considered the application of the 24(2) analysis in Jennings to cases involving section 10(b) breaches:
There was a sound basis for concluding that Jennings did not dictate a particular result in this case. I agree with my colleague, Woollcombe J. in R. v. Merko, 2018 ONSC 7336, at para. 42, that Jennings does not create an automatic rule of inclusion irrespective of which section of the Charter is breached. As Woolcombe J. said, at para. 40 of Merko, the Court of Appeal would have been aware that in Grant, at para. 134, the Supreme Court of Canada specified that s.24(2) analysis must focus on the particular protected interests which are at stake. Different Charter rights protect different interests.
In this case the trial judge was dealing with a s. 10(b) violation. He was required to consider the impact of the violation on the interests protected by s. 10(b). After pointing out that the right to counsel was an important fundamental right he appears to have quoted, without attribution, from R. v. Suberu, [2009] 2 S.C.R. 460, 2009 SCC 33, at para. 40. There the Supreme Court of Canada stressed that persons who are deprived of their liberty are vulnerable and in a position of legal jeopardy. Detainees require legal assistance to regain their liberty and to protect against self-incrimination. I also observe that in R. v. McGuffie Doherty J.A., after citing the same passage from Suberu earlier in his judgment, emphasized that detained persons are constitutionally entitled to a reasonable opportunity to access legal advice. At para. 80 he said, "Access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed by the rule of law".
[40] I agree that the decision in Jennings does not dictate a bright line that mandates the inclusion of breath readings irrespective of the nature of the breach particularly with cases involving breaches of the rights to counsel. The decision as to whether the admission of this evidence would bring the administration of justice into disrepute engages a balancing of the three considerations set out by the Supreme Court of Canada in R. v. Grant.
i. The seriousness of the Charter-infringing state conduct:
[41] In R. v. Skurski, supra at para 24, the Court explained that breaches fall on continuum of serious at one end and minor at the other end:
It was after making those two findings that the trial judge characterized the breach as relatively serious. I am unable to see this as an unreasoned or unexplained jump to a conclusion, as the appellant submits. By considering the presence or absence of good faith and bad faith the trial judge was situating the state conduct along the continuum from minor to willful and flagrant disregard of the Charter, just as he was required to do. Given the evidence he referenced and the factual findings he made, it is clear that he had a sound basis for concluding as he did that the conduct was towards the more serious end of the scale, while not at the most extreme end. This ground of appeal fails.
[42] Counsel submitted that the cumulative effect of the breaches should situate this case at the more serious end of the continuum and result in the exclusion of the readings.
[43] Undoubtedly, police officers must provide the informational component of the rights to counsel immediately and without delay. Counsel argued that this breach was particularly serious since this delay occurred because Ms. Nadelsalingam is a woman. Effectively, Counsel submitted that this officer's conduct resulted in a gender dependent approach to when a detainee is provided with the rights to counsel. A male would be subjected to a pat down, seated in the cruiser and read his rights immediately. A woman in PC Sheppard's custody does not have the same benefit to the immediacy of her rights being read to her.
[44] PC Sheppard was not asked whether this is a police policy or his individual practice. He did not say that he treats every female this way. He related that he only seeks the assistance of a female officer when it is "practical" to do so. This officer was engaged with a polite, cooperative woman. He seemed genuinely moved that she even thanked him for his time. He responded in kind by respecting her personal dignity and trying to make the arrest process as comfortable as possible. He checked to make sure that a female office was "nearby" so that the delay to make this minor accommodation would not be inordinate.
[45] A male officer who recognized that a female may be more comfortable with being patted down by a woman in these circumstances was not being sexist or patronizing or engaging in a gender-based breach of a woman's rights to counsel. Treating every arrested person equally or the same is not synonymous with achieving equality or fairness. For example, if Cst. Sheppard treated Ms. Nadelsalingam like a man and had not waited for a readily available female officer to conduct the search incident to arrest, Counsel could argue that the manner of the pat down search was unreasonable.
[46] I accept that this officer was trying to be sensitive and professional. PC Sheppard's conduct and intentions were laudable, but he went about it the wrong way. Another female detainee may very well have found it more degrading to be detained in a public parking lot by a uniformed police officer for 9 minutes than to go through a brief frisk search by a male officer. I do not know what Ms. Nadelsalingam thought or felt about this process because she was not asked about this issue. She certainly didn't complain about the arrangements the officer made for her.
[47] When an officer chooses to make this type of accommodation for a detainee of the opposite sex, the officer should advise the detainee how long it will take for the same sex officer to arrive on scene and ask the person if s/he wants to wait. If s/he wants to wait and the period of time is sufficiently brief that it will not interfere with obtaining the breath readings as soon as practicable or other time sensitive investigations, the rights to counsel should be read or at least summarized to avoid any informational delay. I am not finding that the police must wait for same sex officers to attend the scene to conduct pat downs. If the police make an informed choice to make this accommodation, they must prioritize reading the rights to counsel immediately.
[48] PC Sheppard unintentionally breached one set of rights while attempting to respect another. This was a very minor, good faith breach of the obligation to read the rights to counsel without delay.
[49] The second implementational breach of Ms. Nadelsalingam's rights to counsel is a bit more problematic. PC Sheppard's personal practice of contacting a third party to facilitate contact with counsel without regard to the circumstances is a more serious breach of the rights to counsel. As noted, there was no evidence that the practices followed by this individual police officer are endemic to Durham Regional Police services. This conduct was reflective of a well-intended Constable who followed his own general practices informed by his own experiences. Good intentions do not amount to good faith. PC Sheppard should have allowed Ms. Nadelsalingam to contact the third party directly. This officer's conduct should have been responsive to the situation and he should adjust his practices to reflect constitutional requirements.
[50] Absent exceptional or exigent circumstances or concerns for the integrity of an ongoing investigation, the police should facilitate direct access to a third party when requested to do so by a detainee for facilitating contact with counsel of choice. This breach falls at the moderate end of the continuum and, coupled with the other minimal breach, the cumulative effect of this consideration favours exclusion of the breath readings.
ii. The impact of the breach on the Charter protected interests of the accused:
[51] This inquiry focuses on the impact of the breach on the Charter protected interest. The Crown suggested that, since the result would have been the same regardless of the lawyer who was contacted, there was little impact on Ms. Nadelsalingam's Charter protected interests. This position ignores that access to counsel of choice is a fundamental Charter protected interest. In R. v. Rover (2018), 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45 (Ont.C.A.), Doherty J.A. explained that the right to counsel for detained person protects more than access to legal advice:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.
[52] Whether the advice of counsel would have been the same regardless of who is consulted or that Ms. Nadelsalingam would have still provided a breath sample even if she had not consulted with a lawyer are not relevant considerations. The opportunity to contact and consult with counsel of choice without delay has intrinsic value. It is an essential right that is deserving of Charter protection because it alleviates the power imbalance between the state and a detainee. The focus of this consideration in the Grant analysis is the extent to which the breaches undermined the interests protected by the rights infringed. In this case, neither of these breaches had any significant impact on Ms. Nadelsalingam's rights to counsel.
[53] With respect to the initial delay, as Justice Felix observed in R. v. Campbell, [2017] O.J. No 4361 (Ont.C.J.), "the informational component of the rights to counsel was delayed but not denied". The delay was relatively brief, and the officer did not seek to elicit any evidence in the interim. Ms. Nadelsalingam was afforded sufficient time to make a decision about exercising her rights and she made an informed choice once she was given her full rights to counsel.
[54] In terms of the implementational component, Ms. Nadelsalingam wanted her friend's advice on who to call and she indirectly received that advice through the officer. She also made an independent choice to speak to Duty Counsel and she was given the opportunity to speak with her counsel of choice. The Officer's conduct of contacting the third party, in these unique circumstances, had no impact on the implementation of her rights to access counsel of choice.
[55] Both breaches, considered cumulatively, were fleeting and technical. As a result, in the absence of any actual impact on Ms. Nadelsalingam's rights to counsel, this factor favours admission of the breath readings.
iii. Society's interest in an adjudication on the merits:
[56] The fact that the evidence sought to be excluded is both reliable and conclusive of the person's guilt and the ongoing public interest in preventing the death and destruction caused by drivers operating under the influence of more than 80 mg of alcohol in 100 ml of blood weighs heavily in favour of the admission of the evidence. This third prong of the Grant analysis also encompasses broader public concerns. For example, in R. v. Taylor, 2014 SCC 50, at paragraph 38, the Supreme Court of Canada recognized that:
It goes without saying that the public has an interest in an adjudication of the merits of a case where, as here, the evidence sought to be excluded is reliable and key to the case. But as this Court has consistently said, most recently in R. v. Spencer, 2014 SCC 43, at para. 80, the public also has an interest in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences.
[57] The public clearly has an interest in ensuring that the exercise of the rights to counsel of citizens who are arrested are respected. Nonetheless, this factor weighs in favour of the admission of the evidence.
iv. Balancing all three Grant considerations:
[58] In R. v. Ferose, 2019 ONSC 1052, at paras 35 to 37 (Ont.S.C.), Justice Woodley recently observed that:
In applying Grant's three factors, there is no requirement that all three factors or a majority of them be satisfied. Rather, it is a balancing exercise where the key question is whether a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would do harm to the long-term repute of the administration of justice: Grant, at para. 68.
It is to be noted, however, that in McGuffie, at para. 62, Doherty J.A. held that it will be a rare instance where consideration of the third branch of the Grant analysis will result in admission of evidence where the first two branches are tipped towards exclusion.
Importantly, the objective of s. 24(2) is not to rectify police misconduct, but rather, to preserve public confidence in the law.
[59] Balancing the three Grant factors, I find that the Applicant has not established on a balance of probabilities that the admission of the breath readings would bring the administration of justice into disrepute. As a result, the breath readings are admitted as evidence.
D. Conclusion
[60] Ms. Nadelsalingam provided two samples of her breath, that were more than 17 minutes apart, into an approved instrument that was operated by a qualified technician within two hours of driving a motor vehicle. The first sample was obtained at 3:33 a.m. and registered a reading of 110 milligrams of alcohol in 100 millilitres of blood. The second sample was obtained at 3:56 a.m. and registered a reading of 107 milligrams of alcohol in 100 millilitres of blood. The second reading was rounded down to 100 milligrams of alcohol in 100 millilitres of blood.
[61] The Crown has established beyond a reasonable doubt that Ms. Nadelsalingam was operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood. As a result, she is found guilty of the one count on the information.
Released: July 10th, 2019
Signed: Justice B. Green
