Court File and Parties

COURT FILE NO.: 17-0525 DATE: 20180830

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN, Appellant D. Turner, for the Appellant

• and -

JAMES BERNARD, Respondent J. Zegers, for the Respondent

HEARD: July 19, 2018 in Guelph

REASONS FOR JUDGMENT

[On appeal from the judgment of Lorelei M. Amlin J. dated August 2, 2017]

André J.

1The Crown appeals the August 2, 2017, decision of Justice Lorelei Amlin of the Ontario Court of Justice acquitting James Bernard of the charge of driving with a blood alcohol concentration exceeding the legal limit. The Crown submits that the learned justice misapprehended the evidence as it relates to Mr. Bernard’s 10(b) rights under the Canadian Charter of Rights and Freedoms and compounded the error by ruling, pursuant to s. 24(2) of the Charter, that the breathalizer results were inadmissible.

BACKGROUND FACTS

2Mr. Bernard was involved in a motorcycle accident at approximately 4:00 p.m. on April 24, 2016. Ontario Provincial Police Officers Griffin and Wright arrived at the scene at 4:13 p.m. and 4:15 p.m. respectively. Fire and ambulance attendants arrived at approximately 4:17 p.m. Officer Wright spoke to Mr. Bernard outside the ambulance. The officer detected a slight odour of alcohol on Mr. Bernard’s breath and observed that his eyes were bloodshot and watery. Mr. Bernard admitted to having had a drink of alcohol at approximately 10:00 a.m. that day. Mr. Bernard subsequently failed an approved screening device test. At 4:37 p.m., Officer Wright arrested him for Excess Blood Alcohol.

3After his arrest, Mr. Bernard began to complain about pain in his arms, legs and shoulders. Officer Wright left his cruiser to speak to the ambulance attendants about whether Mr. Bernard could safely be transported to a police division. The ambulance attendants replied that Mr. Bernard had earlier declined medical treatment and that they saw no reason why he could not be transported by the officer.

4The officer proceeded back to his cruiser. Before he arrived, Mr. Bernard’s girlfriend stopped him and asked questions about what had happened. Officer Wright advised her what was happening and collected her contact information. He then returned to his cruiser and at 4:45 p.m. gave Mr. Bernard his rights to counsel and cautioned him. The officer then made a breath demand under s. 254 of the Criminal Code at 4:50 p.m.

THE TRIAL JUDGE’S DECISION

5The trial judge ruled that Officer Wright, by seeking advice from the paramedics and by speaking to Mr. Bernard’s girlfriend had unjustifiably delayed advising Mr. Bernard of his s. 10(b) Charter rights after detaining him.

6The learned trial judge notes the following at pp. 10-11 of her judgment:

I note that although the officer checked with paramedics after Mr. Bernard expressed that he was in pain, no further checks were done on Mr. Bernard as a result of him advising that he was now in pain and checking with the paramedics seemed to be of no consequence. They simply reiterated that Mr. Bernard had declined treatment and there was no reason he could not be transported with the officer. I do not fault the officer for double-checking with the paramedics but there did not seem to be any urgency in relation to Mr. Bernard’s condition, just that he was experiencing more pain in his arms, legs, and shoulders. Further, the officer seemed to accept, once he was told again that Mr. Bernard had declined treatment, that it was safe to transport Mr. Bernard and did not take any further steps in this regard.

Based on this, although the officer seemed to have some concern initially, I would not qualify this as a safety concern as contemplated by Suberu. Mr. Bernard had been handcuffed and placed in the cruiser and should have been given his rights to counsel before the officer left the cruiser to check with paramedics. This would also have prevented the further delay, potentially, caused by the officer speaking with Mr. Bernard’s girlfriend, although I appreciate that Officer Wright could not have known that was going to happen. Even if I accept that this was a safety concern that needed to be addressed prior to reading his rights to counsel, I find it should not have taken eight minutes to do so. The discussion with the paramedics should have been very brief, especially since they simply seemed to only reiterate that he had declined medical treatment and was safe to transport.

I understand that Officer Wright did not approach Mr. Bernard’s girlfriend, but was stopped by her on the way back to the cruiser. Again, in addition to what I have said above, the officer likely would not have been stopped by the girlfriend had he not checked with paramedics. Although I appreciate he was probably trying to be polite and accommodating, the officer had more pressing concerns and should have returned directly to the motor vehicle to provide Mr. Bernard with his rights to counsel.

7The learned trial judge also concluded that Officer Wright had violated the implementational component of Mr. Bernard’s right to counsel. She noted at p. 12 that:

I also find there was a breach of Mr. Bernard’s rights to counsel based on the fact that he was not given an opportunity to contact counsel at the roadside when he had his cellphone with him. This is the implementational component of the right to counsel. The Crown argued that there was no reasonable way to facilitate a private conversation because it was a busy street on a Sunday afternoon. However, even though there was no evidence on this issue, this could have been accommodated by leaving Mr. Bernard in the backseat of the cruiser, on his own, for a few minutes that it would have taken to contact counsel. Not only was there an opportunity to do this between 4:37 p.m. and 4:45 p.m., before Mr. Bernard was even read his rights to counsel, there was also an opportunity just after 4:45 p.m. when Mr. Bernard was read his rights to counsel, cautioned, and given the breath demand. All of which was completed at approximately 4:50 p.m.

8The court relied on the following paragraph in the Supreme Court of Canada’s decision in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42, to justify its decision:

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.

9The court also relied on para. 13 of the decision of R. v. Ellacott, 2009 ONCJ 660 which states that:

It is not incumbent upon an arrested … to ask the officer about contacting counsel at the roadside. Such persons are under the control of the police. Rather, it is the officer who is required in these circumstances, having first satisfied himself that there was no risk to officer or public safety, to ask the arrested party if they have a cell phone and if they wish to consult counsel at that time.

Section 24(2) of the Charter

10The learned trial judge concluded that the officer’s conduct constituted “a serious violation from a lack of understanding of the Charter of Rights.” She also concluded at p. 21 of her judgment that Mr. Bernard’s “inability to contact counsel in the circumstances is of significant impact.” The trial judge excluded the breath test results based on the seriousness of the breach of Mr. Bernard’s section 10(b) Charter rights and the significant impact on Mr. Bernard’s Charter protected rights.

ANALYSIS

11This appeal raises the following issues:

1. What is the standard of appellate review in this case?
2. Did the learned trial judge misapprehend the evidence and the law as it relates to a detainee exercising his or her s. 10(b) Charter rights during a roadside investigation?
3. Did the learned trial judge err in law in her analysis of s. 10(b) of the Charter and the Supreme Court of Canada’s decision in Suberu?
4. Did the learned trial judge err in law in excluding the breath test results pursuant to s. 24(2) of the Charter?

WHAT IS THE STANDARD OF APPELLATE REVIEW

12An appellate court should only grant an appeal of a trial judge’s decision if:

(1) it cannot be supported by the evidence; (2) it is clearly wrong in law; (3) it is clearly unreasonable; or (4) there was a miscarriage of justice.

See R. v. Rivera, 2011 ONSC 225, 2011 ONCS 225, 104 O.R. (3d) 561, at para. 32.

13For questions of fact, the standard of review is palpable and overriding error, while for questions of law the standard of review is one of correctness: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8 and 10.

14In R. v. Mann, 2018 ONSC 1703, [2018] O.J. No. 1628 (SCJ), the court noted the following at paras. 8 and 9:

The ultimate question of the admissibility of evidence under s. 24(2) of the Charter is a question of law and hence decided on a correctness standard. However, deciding whether each of the preconditions to exclusion or inclusion is met and what weight to be given to them requires an evaluation of the evidence and the exercise of a substantial amount of judgment. The findings of fact and the ultimate decision must be reasonable and founded on the evidence. The standard of review for questions of mixed fact and law, because it involves the application of a legal standard to a set of facts, is palpable and overriding error, unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law

Furthermore"a reviewing court ought not to interfere with a trial judge's conclusion on s. 24(2) absent an 'apparent error as to the applicable principles or rules of law' or an 'unreasonable finding'" (see R. v. Buhay 2003 SCC 30, [2003] S.C.J. No. 30 paras. 42 to 45).

Did the learned trial judge misapprehend the evidence and the law as it relates to a detainee exercising his or her s. 10(b) Charter rights during a roadside investigation?

THE INFORMATIONAL COMPONENT OF SECTION 10(B) OF THE CHARTER

15Section 10 of the Charter provides that:

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

16In Suberu, the Supreme Court of Canada noted at para. 2 that s. 10(b) is triggered at the outset of an investigative detention. The court held that:

The concerns regarding compelled self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, s. 10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel "without delay". The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.

17The court further stated at para. 42 that:

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.

18Section 10(b) contains two components, namely the informational and implementational components. The first relates to the obligation of a police officer to advise a detainee of his or her rights to retain and instruct counsel without delay while the second relates to the obligation to afford a detainee a reasonable opportunity to consult with counsel of his or her choice in private: see R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192.

19The learned trial judge found that Officer Wright had violated the informational component of s. 10(b) because the officer needlessly checked with the paramedics about Mr. Bernard’s condition and was then further delayed when he decided to speak to Mr. Bernard’s girlfriend. Of the former, the learned trial judge concluded at para. 10 that:

I do not fault the officer for double-checking with the paramedics but there did not seem to be any urgency in relation to Mr. Bernard’s condition, just that he was experiencing more pain in his arms, legs, and shoulders.

20The perspicacity of hindsight, in my view, should not be the yardstick with which to measure the reasonableness of Officer Wright’s actions. While in the officer’s custody, Mr. Bernard complained of pain in his arms, legs and shoulders. The officer was obliged to take Mr. Bernard at his word. It was reasonable for the officer to satisfy himself that transporting Mr. Bernard would not place Mr. Bernard in any medical jeopardy. The officer acted reasonably in seeking the assurance of the paramedics that there would be no harm to Mr. Bernard if he was taken to a police detachment. The fact that no further checks were done does not alter the fact that Officer Wright acted prudently.

21In my view, the officer’s concern for Mr. Bernard’s wellbeing falls within the exception set out in Suberu. Mr. Bernard is a member of the public and given his complaints about pain in his limbs and shoulders, the officer cannot be faulted for seeking assurances from qualified medical personnel that he could be moved safely.

22The trial judge noted at p. 11 of her judgment that even if she accepted that checking with the paramedics was a safety concern, she found that it should not have taken eight minutes to do so. In my view, the officer was not required to account for every minute of delay between 8:37 p.m. and 8:45 p.m. He explained what he did during this period. He spoke to the paramedics; on his way back to his cruiser he spoke to Mr. Bernard’s fiancé, whom Mr. Bernard had contacted following the accident. Significantly, she approached Officer Wright, who then gave her information concerning his investigation of Mr. Bernard.

23In my view, the officer acted appropriately in giving Mr. Bernard’s girlfriend information before formally placing Mr. Bernard under arrest.

THE IMPLEMENTATIONAL COMPONENT OF SECTION 10(B) OF THE CHARTER

24The trial judge concluded that given the delay in arresting Mr. Bernard, Officer Wright should have afforded Mr. Bernard an opportunity to call a lawyer on the roadside when he had his cellphone with him. She concluded that this could have been accommodated by having Mr. Bernard in the backseat of the cruiser, on his own, for the few minutes that it would have taken to contact counsel.

25Mr. Bernard testified that he was not offered the use of any cellphone or any communication device on the roadside:

Transcript of the Evidence, June 7, 2017, p. 68.

26He further testified that Officer Wright took his cellphone and placed it in the trunk of his vehicle:

Transcript of the Evidence, June 7, 2017, p. 76.

27Mr. Bernard also testified that there was nowhere he could have spoken to counsel in private at the scene of the accident:

Transcript of the Evidence, June 7, 2017, p. 77.

28Officer Wright testified that his usual practice was to have the accused call a lawyer at the station:

Transcript of Evidence, June 7, 2017, p. 42.

29The trial judge’s conclusion that Officer Wright ought to have allowed Mr. Bernard time to contact counsel at the roadside is at odds with the trial evidence. The uncontradicted evidence about the scene of the accident was that there was some traffic in multiple lanes, and in both directions. Mr. Bernard agreed there was nowhere he could have spoken to counsel in private at the scene of the accident.

30The trial judge’s conclusion that Officer Wright could have allowed Mr. Bernard to contact counsel in his cruiser constitutes an error in law for two reasons. First, neither the Crown nor defence counsel put to Officer Wright that he could have had Mr. Bernard speak to counsel in private at the back of his cruiser. As a result, the trial judge’s conclusion that Mr. Bernard could have spoken to his counsel in private at the back of Officer Wright’s cruiser amounts to impermissible speculation.

31Second, having Mr. Bernard speak to counsel either with his cellphone or with the telephone in the police cruiser, would have posed unreasonable safety concerns. As Abella J. noted in a unanimous Supreme Court of Canada decision of R. v. Taylor, 2014 SCC 50; [2014] 2 S.C.R. 495, at para. 27, in confirming the decision of the trial judge:

I agree that in light of privacy and safety issues, the police are under no legal duty to provide their own cell phone to a detained individual.

Section 24(2) of the Charter

32Given my conclusion that Officer Wright did not violate Mr. Bernard’s s. 10(b) Charter rights, it is not necessary to consider whether the learned trial judge erred in law in excluding the breath test results. However, I will do so given my view that the learned trial judge erred in her decision to exclude the evidence.

33The learned trial judge correctly held that the appropriate test for exclusion is found in R. v. Grant, 2009 SCC 32, [2002] 2 S.C.R. 353, at para. 71.

34While recognizing that the more severe or deliberate the Charter infringing state conduct, the greater the need for the court to disassociate itself from that conduct, the trial judge concluded that this factor favoured exclusion because Officer Wright’s delay in advising Mr. Bernard “of his right to contact a lawyer immediately upon arrest” reflected his “usual practice to take arrested persons to the station to exercise their rights to counsel.” That policy, the trial judge concluded, “reflects a lack of understanding on the part of the officer of this particular right under the Charter of Rights, this makes the breach more serious.”

35In my view, the trial judge erred in her assessment of the first Grant factor. The delay in advising Mr. Bernard of his s. 10(b) rights was not because of the officer’s “usual practice” but because of his desire to obtain assurances that he could safely transport Mr. Bernard to the division after Mr. Bernard had complained that he was in pain. There was no privacy at the roadside and no evidence that the officer could have safely implemented Mr. Bernard’s s. 10(b) rights. In these circumstances, it cannot be concluded that this “breach” was a serious one which justified exclusion of the breath test results.

36Regarding the second Grant factor, the trial judge concluded at p.21 that it favoured exclusion because Mr. Bernard’s “inability to contact counsel in the circumstances is of significant impact”, while recognizing that the breath testing itself was minimally intrusive.

37In my view, the minimal intrusiveness of the collection of the breath samples favoured inclusion rather than exclusion. This has been recognized by the Ontario Court of Appeal in R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 100; R. v. Guenter, 2016 ONCA 572, 350 O.A.C. 318, at para. 98, and more recently, in R. v. Jennings, 2018 ONCA 260, at para. 32.

38Finally, the trial judge erred in concluding the third Grant factor favours exclusion given that the officer’s conduct falls towards the lower end of the seriousness spectrum, and that the impact on Mr. Bernard’s Charter rights was minimal. Finally, the breath test results constitute reliable evidence, thereby favouring admission.

CONCLUSION

39The appeal is granted and the acquittal is set aside. It is appropriate to order a new trial given that there is a live issue to be decided about whether the breathalizer tests were taken as soon as is practicable.

40The respondent, James Bernard, is to attend on Tuesday, September 11, 2018 at 9:30 a.m. Courtroom 2; Ontario Court of Justice; Criminal Division; 36 Wyndham Street South, Guelph, to set a new trial date.

André J.