ONTARIO COURT OF JUSTICE
DATE: 2021 03 11 COURT FILE No.: Newmarket 19 04716
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
NHAT NGUYEN
Before: Justice David S. Rose
Heard on: February 4, 24, 2021 Reasons for Judgment released on: March 11, 2021
Counsel: Mr. B. Jurianz, counsel for the Crown Mr. D. Locke, counsel for the defendant Nhat Nguyen
Rose J.:
[1] Mr. Nguyen is alleged to have operated his motor vehicle on June 4, 2019 with excess blood alcohol. At his trial before me on the charge of “80 plus” he fairly conceded all constituent elements of the offence, but argues that his Charter Rights were violated because, while he asked to speak to counsel of choice, he spoke instead with Duty Counsel. The Crown resists this Charter motion by arguing that Mr. Nguyen asked to speak to Duty Counsel after he asked to speak to his own lawyer, and so he changed his mind. This trial therefore falls to be determined on the basis of Mr. Nguyen’s Charter Rights under s. 10(b). My discussion of the facts is in that context.
[2] On June 4, 2019 Mr. Nguyen was seen by PC Roberts leaving a plaza on Weston Road at about 2:57 am. PC Roberts was conducting mobile RIDE surveillance at the time, and that plaza had a restaurant serving alcohol. PC Roberts saw Mr. Nguyen’s Acura accelerate quickly south-bound on Weston Road and turn onto Steeles. It did not stop completely at the red light at that intersection. At 3:00 am PC Roberts stopped the Acura using his roof lights. Mr. Nguyen was the driver and sole occupant.
[3] PC Roberts noted an odour of alcohol coming from Mr. Nguyen and so gave him an ASD Demand, and then an ASD test. Mr. Nguyen failed it, and at 3:06 am was arrested for the offence of 80 plus. At 3:10 am, with Mr. Nguyen in the back seat of the police car, he read Mr. Nguyen his rights to counsel. Mr. Nguyen said that his lawyer was Kim Schofield, and spelled her name for Roberts. He said that her phone number was in his cell phone, which had been seized by PC Roberts. PC Roberts then left the scene for 4 District police station to continue the investigation using the Breathalyzer. PC Roberts testified that during the ride back to the police station Mr. Nguyen said that “…he wasn’t sure entirely if his lawyer was going to answer the phone at this time as it was between 3:19 and 3:43 am during the transport”. PC Roberts said that they could do both, namely call his lawyer and also Duty Counsel. If the lawyer doesn’t pick up then he could speak with Duty Counsel. In his notes PC Roberts has the entry “accused unsure if lawyer will answer at this time”. While that may fit with his original evidence in chief, in cross-examination he said something different – that it was what he, namely PC Roberts was concerned about, not Mr. Nguyen.
[4] In his evidence PC Roberts said that Mr. Nguyen was booked into 4 District just after 3:43 am. During the booking “…he was told he would like to speak to duty counsel”. He was sure in his testimony that Mr. Nguyen had changed his mind about speaking with Kim Schofield and wanted duty counsel. By then Mr. Nguyen had been searched incidental to arrest. That search required Mr. Nguyen to be re-arrested for a CDSA offence and again re-cautioned. That was in the cell block in the station at 3:48. PC Roberts offered him his cell phone because it had the number for his lawyer, but this time Mr. Nguyen said that he didn’t want his phone and he wanted to speak to “legal”.
[5] With that PC Roberts went back to the cell block desk and called Duty Counsel at 3:52 am. Mr. Nguyen was put into a private phone booth and put in touch with Duty Counsel at 3:57. That phone call was cut off for some reason and PC Roberts called Duty Counsel back at 4:01 and put on the phone with Mr. Nguyen. PC Roberts made sure the connection was clear and put Mr. Nguyen back on the phone. His phone call with Duty Counsel lasted until 4:14 am.
[6] PC Roberts had no further discussion with Mr. Nguyen until after the breath tests were completed at 4:47. He asked him if he would like to speak to his lawyer, and Mr. Nguyen said that he would just talk to her tomorrow.
[7] In cross-examination PC Roberts was shown the in-car camera from his police car the night of the arrest. He first said that his memory told him that Mr. Nguyen said he was unsure if Ms. Schofield would answer the phone. He also re-iterated that at his booking he told the booking Sgt that he would speak with Duty Counsel. When confronted with the video tape recordings of both of those points in the investigation they showed no such conversation. In fact the in car camera has PC Roberts saying that if Ms. Schofield doesn’t pick up he can call Duty Counsel.
[8] The exchange about Rights to Counsel in the back of the car commenced at 3:11 am:
PC Roberts: So first is your Rights to Counsel. I’m arresting you for 80 plus. You have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid plan for assistance. 1 800 265-0451 is the number that will put you in contact with a legal aid duty counsellor for free advice right now. Do you understand that?
Mr. Nguyen: Yes
PC Roberts: Do you have a lawyer?
Mr. Nguyen: Uh, so Kim Schofield.
PC Roberts: Kim?
Mr. Nugyen: Schofield.
PC Roberts: K – I – M?
Mr. Nguyen: Kim Schofield
PC Roberts: How do you spell the last name?
Mr. Nguyen: S- C – H – O – F – I – E – L – D
PC Roberts: D?
Mr. Nguyen: Yeh.
PC Roberts: Do you know if it’s a her Kim?
Mr. Nguyen: Yeh.
PC Roberts: Do you know her phone number?
Mr. Nguyen: Its in my phone.
PC Roberts: So when we get back to the station we will get it out of your phone. OK?
Mr. Nguyen: Yeh
PC Roberts: So, next is your caution…
Throughout this exchange it is clear from the in-car camera audio that PC Roberts is taking the appropriate time between answers to type into a keyboard. The sound of keyboard operation is unmistakable. At 3:16 PC Roberts confirms that he has Mr. Nguyen’s phone. At this time there is a discussion about who the owner of the car is, and Mr. Nguyen advises it is his mother’s. He was concerned about the release of the car.
[9] The issue of rights to counsel and counsel of choice comes up again at 3:21 while Mr. Nguyen was being transported in custody to 4 District:
PC Roberts: So, what’s going to happen is we are going to take you back to the station. We are going to book you in. So we are going to have to talk to my Staff Sergeant.
Mr. Nguyen: Yeh
PC Roberts: He is going to ask you if you understand what you are under arrest for.
Mr. Nguyen: Yeh
PC Roberts: Once you are in your cell I will get ahold of your lawyer. Once we get ahold of your lawyer you can speak to your lawyer. And then once you are done speaking with your lawyer we can have you provide a breath sample. Ok? And that will decide if your vehicle is impounded for 7 days.
Mr. Nguyen: Okay.
At 3:26, while still en route to the station the topic of calling a lawyer comes up again:
PC Roberts: Will your lawyer answer at this time, it’s 3:30?
Mr. Nguyen: I’m not sure.
PC Roberts: I’m going to give her a call. If she doesn’t answer I’ll leave a message obviously.
Mr. Nguyen: Mhmm.
PC Roberts: What we can also do is, if your lawyer calls back at any time you can speak to her, but you can also speak to the duty counsel lawyer as well.
Mr. Nguyen: Yeh.
PC Roberts: So, that’s really up to you. I’ll leave a message like I said its 3:30 on a Tuesday morning. If she doesn’t pick up I can leave a message on her message service and then I can call duty counsel for some legal advice.
Mr. Nguyen: If I spoke with Duty Counsel would I get out tonight?
PC Roberts: Well in terms of your lawyer or Duty Counsel you will get released tonight either way. Duty Counsel will pick up. They’re 24/7. Like I said I can call your lawyer and leave a message and if she doesn’t pick up then I can leave a message and have her call me back. But for the time being I can leave a message for duty counsel that will pick up 24/7 right? Uh, you can speak to Duty Counsel for the time being and then once your lawyer calls back if she calls back you speak with her.
At 3:29 PC Roberts continues to speak to Mr. Nguyen but the noise from the interior of the car makes him inaudible. Mr. Nguyen says that he can’t hear him. Then, at 3:29:21 there is this exchange:
PC Roberts: Like I was saying, its 3:30 on Tuesday morning right, if she doesn’t call back you can speak to duty counsel and then to her, right? It’s up to you, I’m just giving you your options.
Mr. Nguyen: Regardless I need to get the car released right?
There is more inaudible conversation as the police car approaches 4 District. What is discernible is:
PC Roberts: Like I said, 9 times out of 10 with driving over the legal limit or impaired driving, they get released.
Mr. Nguyen: But that’s not the car, its my mom’s car right?
At 3:30 the police car pulls into the sallyport at 4 District. At 3:31 the in car camera recording ends.
[10] Mr. Nguyen never raises the issue of Ms. Schofield not answering the phone, nor does he request Duty Counsel.
[11] The booking tape taken from 4 District recorded PC Roberts arriving in the booking hall and speaking with Sgt. Draves, and telling him that Mr. Nguyen has a lawyer of choice, and the phone number is in his cell phone. When Mr. Nguyen is paraded before Sgt. Draves at 3:37 he is asked to read the Charter s. 10(b) caution on a sign in the booking hall. He does, after which Sgt. Draves asks him who he would like to speak to and he says Kim Schofield. Sgt. Draves has Mr. Nguyen spell her name. Mr. Nguyen makes no mention of Duty Counsel other than the standard s. 10(b) caution which he reads from the sign on the wall at Sgt. Draves’ request.
[12] PC Roberts agreed in cross-examination that his notes do not reflect what is seen on the video as regards rights to counsel, namely that Mr. Nguyen never asked for Duty Counsel in the police car or in the booking hall. Conversely, he asked for only Ms. Schofield both times, and the number was in his cell phone, which was in police custody.
[13] PC Roberts testified under cross-examination that his notes of the third conversation about Rights to Counsel happened in the cell block after Mr. Nguyen was re-arrested on CDSA charges. PC Roberts admitted that he did not take verbatim notes, but just a summary, and that some of his notes were out of chronological order. That summary was that he didn’t want his phone and he wanted legal. PC Roberts admitted that he never took Mr. Nguyen his phone while he was lodged in the cell block. He thought that the phone by then was in the booking hall in a locker with Mr. Nguyen’s belongings.
[14] PC Roberts was cross-examined on another portion of the station video tape, which was recorded after Mr. Nguyen was re-arrested. That portion was considerably less clear than the other two pieces of video. PC Roberts heard that last portion of the video said that he heard that “his lawyer’s not going to pick up”. It is unclear whether it was Roberts or Sgt. Draves who said that. He also agreed that in his mind a call was going to be made to Kim Schofield but he didn’t expect her to answer the phone. With that said, he agreed that he never called Ms. Schofield, just Duty Counsel.
[15] The Crown also called Sgt. Draves, who was the booking Sergeant when Mr. Nguyen was brought into 4 District the night of the arrest. The booking video shows Sgt. Draves asking PC Roberts about the prisoner he was going to bring in and if he had a lawyer. PC Roberts says that he does and the phone number is in the arrestee’s cell phone.
[16] Sgt. Draves adopted the video tape from the booking hall at 4 District the morning of Mr. Nguyen’s arrest regarding what happened and what was said. I did not find Sgt. Draves’ evidence particularly helpful beyond what the booking video recorded. He was asked about his procedure when an arrestee says that the phone number for counsel of choice is in a personal cell phone and replied that Mr. Nguyen needed to ask for the phone before the phone would be provided to him, even if he knew that Mr. Nguyen wanted to speak to a lawyer, whose number was in the phone.
[17] The defence admits that Mr. Nguyen provided two samples of breath that morning. One was at 0419 and the second at 4:41 am. They registered a BAC of 190 mg of alcohol in 100ml of blood on each of tests.
Issues
[18] It is axiomatic that an arrestee has the right to retain and instruct counsel without delay under s. 10(b) of the Charter. If the arrestee asks to speak to a lawyer the police must provide them with a reasonable opportunity to do so, see R. v. Suberu, 2009 SCC 33 at paras. 38, 42, R. v. Bartle, [1994] 3 S.C.R. 173 at pp. 191–192. Within s. 10(b) is the right to speak to counsel of choice, which is fundamental.
[19] The arrestee must be diligent when exercising their right to speak with counsel of choice. They have a reasonable opportunity to do so, and can wait a reasonable period of time waiting for counsel, see R. v. Prosper, [1994] 3 S.C.R. 236, R. v. Willier, [2010] 2 S.C.R. 29, R. v. Traicheff, 2010 ONCA 851.
[20] The right to counsel of choice is animated by the relationship of trust which is inherent in the very nature of legal advice. This was summarized by O’Connor JA in R. v. McCallen (1999), 43 O.R. (3d) 56 (C.A.),
32 It is well established that s. 10(b) includes not only the right to retain counsel but the right to retain the counsel of the accused's choice and the right to be represented by that counsel throughout the proceedings.
33 In R. v. Speid (1983), 8 C.C.C. (3d) 18 (Ont. C.A.), Dubin J.A. described this as a fundamental right. At p. 20, he said:
The right of an accused to retain counsel of his choice has long been recognized at common law as a fundamental right. It has been carried forth as a singular feature of the Legal Aid Plan in this province and has been inferentially entrenched in the Charter of Rights which guarantees everyone upon arrest or detention the right to retain and instruct counsel without delay. However, although it is a fundamental right and one to be zealously protected by the court, it is not an absolute right and is subject to reasonable limitations.
34 There are sound reasons why this right was considered to be a fundamental component of the criminal justice system well before the enactment of the Charter and why it was recognized as a right deserving of constitutional protection in the Charter. The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests. Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence and will be used or not used, within the boundaries of counsels' ethical constraints, in the clients' best interests. The law recognizes the uniqueness of this confidential relationship by providing special protection from compelled disclosure of information that is exchanged between clients and their counsel.
[21] McCallen, like Speid (supra), was a case about right to counsel of choice at trial. In McCallen the trial judge fixed a trial date which was not available to the Appellant’s counsel of choice. Denial of counsel of choice at trial was found to be a reversible error. Clearly those two appellate decisions refer to s. 10(b) as it sounds at trial.
[22] In R. v. Kumarasamy, 22 M.V.R. (4th) 234 (Ont. S.C.) Durno RSJ found that right to contact counsel of choice by an arrestee is based on the same principles animating counsel of choice at trial, see Kumarasamy at par. 21. With that said, it is also clear in law that the right to counsel of choice is not absolute. An arrestee cannot insist on speaking with counsel of choice and expect that the police will indefinitely hold off breath testing, while counsel of choice calls back. At some point in the narrative the arrestee must be diligent in speaking with a lawyer that is available, such as duty counsel, see R. v. Richfield (2003), 175 O.A.C. 54 (C.A.). It cannot be a defence to an investigation involving breath samples that counsel of choice is unavailable so as to require the police to hold off taking breath samples indefinitely.
[23] In submissions I asked Mr. Jurianz whether this case falls to be decided on the question of whether there was a waiver of rights to counsel. The test for waiver of a constitutional right is stringent. A waiver must clear and unequivocal, see Prosper (supra) at par. 45. In this case the Crown argues that this is not a waiver situation. In other words Mr. Nguyen never waived his rights to counsel. I agree with Mr. Jurianz in that regard. The issue is whether Mr. Nguyen changed his mind about calling Ms. Schofield and asked to speak to duty counsel, not whether he waived his rights to counsel.
[24] With that established I am mindful of the language from the Court of Appeal from McCallen and Kumarasamy, which reminds that counsel of choice is an important one, premised on the element of trust between a lawyer and arrestee. Some, such as Mr. Nguyen ask for a lawyer for a specific reason. The Court of Appeal in McCallen explains why – namely trust and confidence. For that reason, while I would not apply the high bar of waiver to an assertion by the Crown that the arrestee has changed his or her mind about contacting counsel of choice, at the same time I would be careful to scrutinize the evidence suggesting such a change of position.
[25] Many of the cases provided in argument tend to skirt the issue raised in this case. Thus, when the arrestee asks for counsel of choice, but needs assistance getting that contact information, some summary conviction appeal decisions stand for the proposition that there is an expanded level of obligation by the police, see for eg R. v. O’Shea, 2019 ONSC 1514. Others do not, see R. v. Persaud, 2020 ONSC 3413. Recall that here Mr Nguyen told the police where to get the phone number for Ms. Schofield. It was in his phone in their custody. Whether the police had an expanded obligation to find counsel of choice, and whether they fulfilled such an obligation does not therefore arise on the facts before me.
[26] Similarly, when the arrestee asks for counsel of choice and the officer makes that call but does not leave a message there is authority for the proposition that this is a violation of rights to counsel because the police are not entitled to default to duty counsel. Fulfillment of Charter rights requires the police to at least leave a message and then ask the arrestee if they want to speak to another lawyer or alternatively duty counsel, see R. v. Singh, 2020 ONSC 1342. Failure to provide a reasonable opportunity to speak with counsel of choice is a Charter violation, see R. v. Vernon, 2015 ONSC 3943. That also never arises on the facts before me because here counsel of choice was never called.
[27] With these principles established I am prepared to make the following findings. PC Roberts’ evidence gives me pause. In his direct examination he testified that Mr. Nguyen wasn’t sure if his lawyer would call back. He also testified that during the trip from the roadside to the police station Mr. Nguyen said that he wanted to speak with duty counsel. He also testified that during the booking procedure Mr. Nguyen said he wanted to speak with duty counsel.
[28] Thankfully there is an in-car camera for the Court to review, because the recording shows neither of those portions of his evidence to be correct. My view of the in car video leads me to find that Mr. Nguyen never suggested that Ms. Schofield might not pick up the phone. To the contrary, it was PC Roberts who raised the topic of calling duty counsel and it was PC Roberts who floated the idea that Ms. Schofield might not pick up the phone at 3:30 am on a Tuesday morning. At no time did Mr. Nguyen even agree with that suggestion. It was all an invention of PC Roberts during the trip to the station. His notes had the entry “Accused unsure if lawyer will answer at this time”, which fits with his original evidence that Mr. Nguyen first raised the concern about reaching his lawyer, but is inconsistent with his cross-examination evidence that PC Roberts was the one that was unsure, not Mr. Nguyen.
[29] PC Roberts’ evidence is further weakened by his clear testimony that Mr. Nguyen had changed his mind about speaking with Kim Schofield during the booking process. That never happened. The booking video clearly shows Mr. Nguyen asking for Kim Schofield, and then tell the booking Sergeant that her phone number is in the cell phone which is in police custody.
[30] These frailties go to the heart of this trial, which is whether Mr. Nugyen’s Charter rights about speaking with counsel of choice were fulfilled or not. They are frailties about the pivotal issue before me.
[31] To the extent that PC Roberts purports to remember what happened independent of the video camera his memory is at odds with what actually happened. I would place little weight, if any, to PC Roberts’ memory of his interaction with Mr. Nguyen on the issue of rights to counsel, unless it is confirmed by another source which is itself reliable.
[32] The first reason I do not accept PC Roberts’ evidence that Mr. Nguyen changed his mind about speaking with Ms. Schofield, is that his memory on the issue of rights to counsel is at odds with the video recording. The second reason I do not accept that Mr. Nguyen changed his mind about speaking with Ms. Schofield is that all PC Roberts can say about the conversation in the cell block after booking is that Mr. Nguyen said that he didn’t want his phone, he wanted to speak to ‘legal’. That is suggestive of legal aid, which doesn’t require his cell phone, but it is far from clear. Did that mean legal advice or legal aid? Did that mean he doesn’t need the phone because PC Roberts said that he would get the phone number from the phone – as the video recording shows? Even if I were to accept the reliability of that evidence, at no time does Mr. Nguyen ever say that he has changed his mind about calling Ms. Schofield and wants to speak with duty counsel. Aside from reliability concerns, on the face of PC Roberts’ testimony it is not clear that Mr. Nguyen changed his mind. I therefore do not accept PC Roberts’ evidence that Mr. Nguyen changed his mind about speaking with Kim Schofield.
[33] For these reasons I have no difficulty in finding on a balance of probabilities: 1). that Mr. Nguyen was clear that he wanted to speak to his own lawyer Kim Schofield; 2). that he told PC Roberts where to get her phone number; 3). that at no time did he change his mind, and: 4). he spoke with duty counsel, but not counsel of choice.
[34] This is sufficient to find a violation of Mr. Nguyen’s rights under s. 10(b) of the Charter.
Should the evidence be excluded?
[35] The test for exclusion of evidence under s. 24(2) of the Charter comes from R. v. Grant, 2009 SCC 32, and involves three questions: Is the Charter violation serious? What was the impact of the Charter violation on the accused’s Charter protected interests?; and lastly what is society‘s interest in the adjudication of the case on its merits.
[36] Under the first prong the Court:
… considers the seriousness of the police conduct that infringed the Charter and led to the discovery of the evidence. It asks whether the police engaged in misconduct from which the court should dissociate itself, such as where the departure from Charter standards was significant or where the police knew or should have known that their conduct breached the Charter; or rather whether the breach was merely of a technical nature or reflected an understandable mistake, in which case dissociation is much less of a concern…
see R. v. Thompson, 2020 ONCA 264
[37] A number of concerns arise on the facts before me. The first is that PC Roberts’ viva voce evidence seemed distant from the video taped evidence which recorded the same events. Mr. Nguyen never raised the issue of his lawyer not calling back as he testified, rather it was PC Roberts himself. It was an invention of PC Roberts.
[38] I have concerns that the Court of Appeal’s endorsement in R. v. Traicheff, 2010 ONCA 851 appears not to have been followed. Traicheff was a Newmarket trial decision. The following passage is worth repeating:
In finding a breach of s. 10(b) of the Charter, the trial judge said at para. 27 of his reasons:
Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer's name and another telephone number where he could be reached.
We agree with these observations. Indeed, they reflect the Supreme Court of Canada's decision in R. v. Willier, 2010 SCC 37 (S.C.C.) where at para. 41 McLachlin C.J.C. and Charron J. wrote that s. 10(b) requires the police to afford detainees not only a reasonable opportunity to contact counsel of their choice but as well to facilitate that contact.
[39] The in-car camera from this case shows PC Roberts very strongly suggesting what will happen in the event that counsel of choice does not call back. My review of that video leads me to find that PC Roberts had already come to his conclusion that counsel of choice was unlikely to call back given the hour. His intuition in that regards may well have been correct, but it was not for him to start suggesting what would happen, particularly where Mr. Nguyen never agreed with him about the possible unavailability of Ms. Schofield. It was for PC Roberts to call counsel of choice, leave a message if she didn’t pick up and then give Mr. Nguyen his options. This is not the first time this has happened in a trial before me over the last few years. See R. v. Porchetta, 2019 ONCJ 244 at par. 56, R. v. Bukin, 2018 ONCJ 137 at par. 35, R. v. Blackwood, 2017 ONCJ 69 at paras 11 & 12, R. v. Umana Calderon, 2018 ONCJ 817 at par. 17 and 18. This furnishes a basis for me to find that the police training on this issue is inadequate to equip individual front line officers with an ability to deal with arrestees in a Charter compliant manner, at least in regards to counsel of choice.
[40] Another concern is that Sgt. Draves testified that if an arrestee asked to speak to a lawyer, whose number was in their personal cell phone in police custody, then it would fall to the arrestee to take that additional step to ask for return of the phone to get the phone number. I do not understand why, if an arrestee is diligent in asking for a specific lawyer, and provides the place in the police station where that phone number can be found the police would not do the obvious, which is to get the phone and the phone number therein.
[41] Both officers apparent confusion over s. 10(b) leads me to conclude that there is a systemic breach of s. 10(b) in York Region, one which is “…a clear breach of settled rules governing state conduct…” see Thompson (supra) at par. 95.
[42] For these reasons the first prong of Grant strongly pulls in favour of exclusion of evidence.
[43] Turning to the second prong of Grant, the evidence establishes that Mr. Nguyen did not speak with counsel of choice but rather spoke with Duty Counsel and made no complaint about the adequacy or inadequacy of that call. I also take into consideration that Mr. Nguyen was steadfast from the beginning of the arrest that he wanted to speak to Ms. Schofield. He was unwavering on this from the time he was first read rights to counsel to the time when he read the s. 10(b) caution in the booking hall. PC Roberts floated the idea of duty counsel as a standby, but Mr. Nguyen only ever said he wanted Ms. Schofield. I also take into consideration that Ms. Schofield is an able criminal lawyer who regularly appears in the Ontario Court of Justice.
[44] In R. v. Rover, 2018 ONCA 745 the Court found that a delay in implementation of right to counsel for the arrestee is serious. The Court found that the exercise of right to counsel after arrest is a “…lifeline for detained persons”, see Rover (supra) at par.45. Rover stands for the proposition that a delay in providing that lifeline is a serious Charter violation unless the Crown adequately explains the reason. In the case before me Mr. Nguyen got that lifeline, but it wasn’t the one he asked for. As McCallen (supra) and Kumarasamy (supra) find, the importance of counsel of choice after arrest is important to the Charter protected rights of the arrestee. It is of some impact on the Charter protected interests of the arrestee if access to counsel of choice is denied. I therefore would find that the second prong of Grant modestly pulls in favour of exclusion of evidence.
[45] When turning to the third prong of the Grant test I am mindful that society always has an interest in adjudication of a trial on its merits. The question is really one of, by how much? In this case Mr. Nguyen’s BAC was quite high. The Crown has reliable evidence. He was driving with that BAC in a region which has had too many cases of impaired driving fatalities. Society has a great interest in an adjudication of this trial on its merits. The third prong of Grant strongly favours admission of the BAC readings into evidence.
[46] Balancing all three factors, the evidence is excluded. Mr. Nguyen is acquitted of the charge.
Released: March 11, 2021 Signed: Justice Rose