LINDSAY COURT FILE NO.: CR-17-1684-AP DATE: 20190212 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – REAAD FEROSE Appellant

Counsel: M. Tait, for the Crown P. Stiles, for the Appellant

HEARD: January 28, 2019

WOODLEY, J:

summary conviction appeal reasons for decision

I. Overview

[1] The Appellant, Reaad Ferose, appeals his conviction for operating a motor vehicle with over 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46.

[2] The Appellant’s trial proceeded before the Honourable Justice S.W. Konyer of the Ontario Court of Justice in Lindsay on May 8, 2018.

[3] At trial, the Appellant claimed that his rights guaranteed by ss. 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms were infringed and sought a remedy pursuant to s. 24(2), excluding evidence of the results of the analysis of his breath samples (Certificate of Qualified Breath Technician) for the breaches.

[4] His Honour Justice Konyer found as follows:

(a) The Crown failed to prove that Mr. Ferose’s breath samples were seized pursuant to a lawful demand, a requirement for a reasonable search. In the circumstances, there was a breach of Mr. Ferose’s s. 8 Charter right to be secure from unreasonable search and seizure.

(b) No lawful demand was made for the purpose of complying with s. 254(3) of the Criminal Code, and as such, the detention was arbitrary and not authorized by law thus violating s. 9 of the Charter.

(c) There was a ten minute delay before Mr. Ferose was advised of his right to counsel. Although the delay was understandable because the officer was comforting Mr. Ferose’s 12-year-old son who was present, the explanation did not justify the failure to immediately inform Mr. Ferose of his right to counsel. Konyer J. found that the delay was a breach of Mr. Ferose’s s. 10(b) Charter right.

(d) Finally, Konyer J. found that the police failed to properly implement Mr. Ferose’s expressed wish to speak to counsel. When asked which lawyer he wanted to call Mr. Ferose responded that he did not know as he had never previously needed a criminal lawyer. When the police officer suggested that Mr. Ferose place a call to duty counsel, Mr. Ferose agreed. The officer did not offer to provide Mr. Ferose with a phone book, lawyer’s list or any other tool that would allow him to access a lawyer other than duty counsel. Konyer J. held that the police have an obligation to ensure that Mr. Ferose was fully informed about his options regarding choice of counsel instead of simply providing the toll-free duty counsel number. Konyer J. found that this failure was a further breach of Mr. Ferose’s s. 10(b) Charter right.

[5] Having found the above-noted Charter breaches, Konyer J. undertook a s. 24(2) Charter analysis using the criteria articulated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, at para. 85: (i) the seriousness of the Charter infringements; (ii) the significance of the impact of the infringements; and (iii) societal interest in a trial on the merits.

[6] After analyzing, weighing and balancing the various interests, Konyer J. concluded that the evidence of the Certificate of Qualified Breath Technician should not be excluded from evidence.

[7] As a result, in the absence of any evidence to the contrary, Konyer J. found that the readings constitute proof that Mr. Ferose’s blood alcohol concentration exceeded 80 mg of alcohol per 100 ml of blood at the time of driving, and Mr. Ferose was found guilty.

[8] Mr. Ferose was convicted and sentenced to a fine of $1,200, a victim surcharge of $360 and a driving prohibition for 12 months: R. v. Ferose, 2018 ONCJ 305.

II. Issues

[9] The Appellant only appeals the trial judge’s s. 24(2) Charter ruling. Accordingly, the issue in this appeal is whether Konyer J. erred in declining to exclude the Certificate of Qualified Breath Technician under s. 24(2) of the Charter.

[10] More particularly, the Appellant submits that the trial judge erred in concluding that the impact of the breaches on Mr. Ferose’s Charter-protected interests was minimal and favoured inclusion of the evidence due to the following:

(a) The trial judge erred in law by failing to meaningfully analyze the impact of the s. 9 Charter breach on Mr. Ferose’s liberty interests.

(b) The trial judge made an unreasonable determination in concluding that there was minimal impact on Mr. Ferose’s s. 10(b) interests due to the breaches of his right to counsel.

(c) The trial judge failed to meaningfully balance the three Grant factors and account for the cumulative effect of the breaches on Mr. Ferose in particular and on society more broadly.

[11] The Appellant seeks an order allowing the appeal, quashing Mr. Ferose’s conviction and entering an acquittal. Alternatively, the Appellant requests that a new trial be ordered.

III. Facts

[12] On December 9, 2017, P.C. Cappus and P.C. MacInnes of the O.P.P. were conducting a R.I.D.E. Program in the City of Kawartha Lakes, Ontario.

[13] At approximately 4:40 p.m., P.C. MacInnes pointed out a motor vehicle that had made a U-turn and was travelling away from the R.I.D.E. Program. P.C. Cappus gave pursuit and conducted a traffic stop of the vehicle.

[14] When speaking to the driver, later identified as Mr. Ferose, P.C. Cappus noted an odour of alcohol and red-rimmed eyes. P.C. Cappus enquired whether Mr. Ferose had consumed alcohol and he replied that he had earlier, consumed one drink.

[15] P.C. Cappus formed a reasonable suspicion that Mr. Ferose was operating a motor vehicle with alcohol in his body and read the Approved Screening Device (“A.S.D.”) demand from his standard police-issue card. At 4:42 p.m., P.C. Cappus conducted a self-test on the A.S.D. resulting in a test sample of zero. At 4:44 p.m., Mr. Ferose provided a suitable sample into the A.S.D. resulting in a “FAIL”.

[16] P.C. Cappus immediately arrested Mr. Ferose for having over 80 mg of alcohol in 100 ml of blood while operating a motor vehicle contrary to s. 253(1)(b) of the Criminal Code.

[17] Mr. Ferose was handcuffed, searched, and placed in P.C. Cappus’ police car. P.C. Cappus called P.C. MacInnes to the scene to assist. P.C. MacInnes arrived at 4:45 p.m.

[18] Upon P.C. MacInnes’ arrival, P.C. Cappus was speaking to Mr. Ferose’s passenger, the Appellant’s 12-year-old son. Both officers noted that the Appellant’s son was upset. P.C. Cappus attempted to calm and reassure the child and requested that P.C. MacInnes obtain contact information for the child’s mother (Mr. Ferose’s wife). This information was provided and P.C. MacInnes took the child with him to his cruiser while calls were placed to the child’s mother and awaited a tow truck.

[19] At 4:54 p.m., P.C. Cappus returned to his cruiser and read Mr. Ferose his rights to counsel. Mr. Ferose indicated that he understood and wished to speak to a lawyer. At 4:55 p.m., P.C. Cappus read Mr. Ferose the caution, which Mr. Ferose also acknowledged he understood.

[20] At 4:58 p.m., P.C. Cappus departed the scene. While driving to his detachment, P.C. Cappus remembered that he had forgotten to read Mr. Ferose the “breath demand”. Upon entering the sally-port of the police detachment at 5:18 p.m., P.C. Cappus read Mr. Ferose the s. 254(3) breath demand from a standard police-issue card. Mr. Ferose was then booked and lodged in a cell.

[21] When P.C. Cappus was asked at trial if he provided the Appellant with a reason for bringing him to the detachment, although he could not remember the exact words he used, P.C. Cappus testified that he would have told Mr. Ferose that he needed to go back to the office for some more testing.

[22] At 5:26 p.m., P.C. Cappus spoke with Mr. Ferose regarding implementing his right to counsel. P.C. Cappus asked Mr. Ferose which lawyer he wished to speak with and Mr. Ferose indicated that he did not know as he had never needed a criminal lawyer before. P.C. Cappus suggested duty counsel and Mr. Ferose agreed. At 5:27 p.m., P.C. Cappus contacted duty counsel and left a message. At 5:55 p.m., duty counsel returned the call and spoke with Mr. Ferose in private. At 6:01 p.m., Mr. Ferose ended his call with duty counsel.

[23] There was no evidence at trial that Mr. Ferose was dissatisfied with the advice he received from duty counsel.

[24] Following his call with counsel, Mr. Ferose was turned over to Sgt. Tabor, the qualified breath technician. Sgt. Tabor read Mr. Ferose the breath demand of a qualified technician and cautions. Mr. Ferose advised that he understood.

[25] At 6:06 p.m., Mr. Ferose provided his first suitable breath sample, registering a reading of 138 mg of alcohol in 100 ml of blood. At 6:29 p.m., Mr. Ferose provided his second suitable breath sample, registering a reading of 134 mg of alcohol in 100 ml of blood.

[26] Mr. Ferose was then returned to P.C. Cappus, and at 7:17 p.m., he was released on a Promise to Appear.

III. The Law

1. The Standard of Appellate Review

[27] When an appellate court reviews a trial judge’s conclusion on the admissibility of evidence under s. 24(2) of the Charter, it is a question of law and should be reviewed on a standard of correctness: see R. v. Mann, 2018 ONSC 1703, at paras. 8-10; R. v. Buhay, 2003 SCC 30, at paras. 42-45; R. v. Manchulenko, 2013 ONCA 543, at para. 43.

[28] Where a trial judge excludes evidence under s. 24(2) on the basis of:

i. an error in principle;

ii. a misapprehension of material evidence; or

iii. an unreasonable assessment of the evidence,

the exclusion constitutes an error of law: R. v. Menard, 2018 ONSC 5293, at para 4.

[29] In determining whether a judgment is unreasonable or cannot be supported by the evidence, an appeal court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining whether the evidence is reasonably capable of supporting the trial judge’s decision: see R. v. B.(R.H.), [1994] 1 S.C.R. 656.

[30] An appeal court is not entitled to retry the case de novo on the transcript. Unless the record reveals an error of law or in principle, or a clear and manifest error in the appreciation of the evidence, there is no basis for appellate intervention. Thus, where a trial judge has considered the proper factors and has not made an unreasonable finding or a palpable and overriding factual error, his or her determination is owed considerable deference on appeal: see R. v. Côté, 2011 SCC 46, at para 44; Grant, at para 86; R. v. McGuffie, 2016 ONCA 365, at para 64. Despite this, however, where relevant factors have been overlooked or disregarded, “a fresh Grant analysis is both necessary and appropriate”: R. v. Cole, 2012 SCC 53, at para 82.

2. Section 24(2) of the Charter

[31] The onus of establishing that the exclusion of evidence is appropriate lies with the Appellant, as Applicant, on a balance of probabilities.

[32] To determine if evidence tainted by a Charter infringement should be excluded under s. 24(2) of the Charter, the three factors set out by the Supreme Court in Grant, must be applied, considered and balanced.

[33] The three factors as set out in Grant are as follows:

1. the seriousness of the Charter-infringing state conduct;

2. the impact of the breach on the Charter-protected interests of the accused; and

3. society's interest in the adjudication of the case on its merits.

[34] The court must also consider the cumulative effect of the breaches: R. v. Boutros, 2018 ONCA 375, at para. 32; R. v. Chaisson, 2006 SCC 11.

[35] 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.

[36] 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.

[37] Importantly, the objective of s. 24(2) is not to rectify police misconduct, but rather, to preserve public confidence in the law.

IV. Analysis

1. Did the Trial Judge Err in Finding the Impact on Mr. Ferose’s Liberty Interests was Minimal?

[38] The Appellant’s first ground of appeal is that the trial judge erred at the second stage of the Grant test by concluding that the intrusion on Mr. Ferose’s s. 9 interests was minimal.

[39] The Appellant submits that the trial judge failed to consider the actual impact on Mr. Ferose’s s. 9 interests as the Supreme Court in Grant requires courts to “look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests”: at para. 77.

[40] The s. 9 violation arose because P.C. Cappus did not read the breath demand as soon as practicable, thereby rendering the concomitant detention unlawful. In characterizing this breach as minimally intrusive of Mr. Ferose’s s. 9 right, Konyer J. held that the s. 254(3) arrest was “technically deficient” because the police otherwise had reasonable and probable grounds to arrest the Appellant.

[41] The Appellant concedes that P.C. Cappus had the requisite grounds for arrest. However, the Appellant submits that while the initial arrest may have been lawful, the continued detention for the purpose of breath tests was not. The Appellant submits that it was incumbent upon the judge to consider the actual impact of the continued detention on Mr. Ferose.

[42] The Appellant submits that the judge failed to carry out a meaningful s. 9 analysis under the second stage of Grant and thereby erred in law. The Appellant relies on the decision in Mann where it was held that the trial judge failed to carry out a Grant second factor analysis, and failed to consider the combined impact of both the ss. 8 and 9 Charter breaches.

[43] The Crown submits that Mann is entirely distinguishable on the facts of the case.

[44] I agree with the Crown’s submission in this regard.

[45] In Mann, Mr. Mann’s stop, detention and arrest were unlawful because the officer did not have the requisite subjective and objective reasonable suspicion that Mr. Mann had alcohol in his body. Therefore, the officer’s “mistake” was to conduct an illegal stop and then make an A.S.D. demand without lawful authority. The Summary Conviction Appeal Judge (“SCAJ”) concluded that the impact of both the initial s. 9 breach and the subsequent s. 8 breach resulting from the two separate events – the unlawful stop/detention and the illegal search – were significant and favoured exclusion.

[46] In the present case, similar to the facts in R. v. Jennings, 2018 ONCA 260, the officer formed a reasonable suspicion that the Appellant was operating a motor vehicle with alcohol in his body based on his observations and question posed to the Appellant. The officer read the A.S.D. demand from his standard police-issue card, conducted a self-test on the A.S.D. resulting in a test sample of zero, and he administered the A.S.D. test to Mr. Ferose resulting in a “FAIL”. The officer subjectively believed the A.S.D. reading was accurate and acted in good faith. The lack of a prompt breath demand, however, rendered the detention arbitrary and therefore both breaches arose from the exact same facts.

[47] The Court of Appeal in Jennings provides instructional guidance for lower courts on how to approach the s. 24(2) analysis in breath sample cases, and in particular, the impact of the breach as it relates to the second Grant factor.

[48] The Court in Jennings held that the Supreme Court’s reference in Grant to the breath sample procedure as an example of a minimally intrusive search was “no mere throwaway line”: at para. 29. Contrary to the R. v. Au-Yeung, 2010 ONSC 2292, line of authority (which includes Mann), the Court noted that when Grant referenced the example of a breath sample procedure as an “apt and economical means of illustrating the concept of a minimally intrusive search” the Supreme Court did so with the knowledge that most formal demands for breath samples “would be accompanied by an arrest and by all of the accompanying incidents”: at paras. 24-32.

[49] The Court further held that this reading of Grant – finding breath sample procedures minimally intrusive – is consistent with other judgments of the Court of Appeal: see Manchulenko; R. v. Guenter, 2016 ONCA 572, leave to appeal to S.C.C. refused, [2016] S.C.C.A. No. 433. In Manchulenko, Watt J.A. referring to Grant held that “as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted”: at para. 93. Further adding that the “general rule with respect to the admissibility of breath samples [is] due to their non-obtrusiveness”: at para. 100. Similarly, in Guenter, Brown J.A. held that “[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant’s privacy, bodily integrity and human dignity”: at para. 98.

[50] The Court in Jennings concluded:

To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission: at para. 32.

[51] As noted by Woolcombe J. in R. v. Merko, 2018 ONSC 7336, at paras. 41–42:

In Jennings, the Court of Appeal dealt with a case involving only one Charter violation, a s. 8 claim. Nevertheless, at para. 29, the Court appears to have considered that when the Supreme Court of Canada found that breath sample procedures were minimally intrusive, that Court must have known that breath demands are accompanied by arrest, detention, taking an accused to the police cruiser and then detention at the police station for the taking of the sample. In other words, while not saying so directly, the Court of Appeal seems 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. On my reading, I understand the Court of Appeal to essentially be saying that in many cases the consequential s. 9 violation will not necessarily create a significant added impact on an accused’s Charter-protected interests.

To be clear, I do not see Jennings as creating an automatic rule of inclusion of breath samples irrespective of whether or not s. 9 was also breached. Rather, as Grant directs, a case by case analysis is always necessary to assess the impact of the particular breaches on the particular accused. But, Jennings contemplates and clarifies that there will be a minimal intrusion on an accused’s Charter-protected interests in many cases in which there is a breach respecting the arrest and breath demand, which necessarily leads to a detention and transportation to the police station for the taking of a breath sample (and thus a s. 9 violation). Of course, in cases in which the deprivation of an accused’s liberty is more significant, it might well be that the impact of this breach would be greater. This is a fact specific determination for the trial judge based on all of the circumstances of the particular case. [Citations omitted.]

[52] I agree with the reasoning of Woolcombe J. as reproduced above and adopt same for the purposes of this appeal. In doing so I reject the Appellant’s submission that the ruling in Jennings ought to be limited to cases involving a s. 8 breach alone.

[53] Furthermore, I find the Appellant’s argument that providing a breath sample when no proper demand has been made constitutes a breach of the Appellant’s right against self-incrimination and required the trial judge to consider the discoverability of the breath evidence, unconvincing.

[54] The protection afforded by the principle against self-incrimination does not vary with the relative importance of the self-incriminating information that the Crown seeks to use. If s. 7 is engaged by the circumstances surrounding the admission of compelled evidence, the concern with self-incrimination applies to all the information obtained by the compelled evidence: R. v. White, [1999] 2 S.C.R. 417. Therefore, discoverability may remain a factor in assessing the impact of breaches on one’s Charter rights.

[55] Nevertheless, as Grant opined that breath sample procedures are “minimally intrusive” and Jennings noted that s. 8 breaches invariably lead to s. 9 breaches, without a proper evidentiary and factual foundation to warrant the elevation, the fact that a breath sample may provide self-incriminating evidence cannot elevate breath sample procedures from being “minimally intrusive” to being a “profound breach”. In the present case, the s. 8 and s. 9 breaches were premised on the same factual basis. As per Grant and Jennings, the breach remains “minimally intrusive.” The trial judge did not commit a reviewable error in principle nor did he err in law.

2. Did the Trial Judge Disregard the Impact on Mr. Ferose’s s. 10(b) Interests?

[56] The Appellant’s second ground of appeal is that the trial judge made an unreasonable determination in concluding that there was minimal impact on Mr. Ferose’s s. 10(b) interests due to the breaches of his right to counsel.

[57] The trial judge found that there were two s. 10(b) breaches: the right to contact counsel without delay and the right to choose one’s counsel.

[58] With respect to the s. 10(b) breach relating to the right to be informed of the right to counsel immediately, the trial judge found that a ten minute delay brought about because of a natural concern on the part of the arresting officer for the emotional well-being of the Appellant’s child, a concern shared by the Appellant, to be at the less serious end of the spectrum. In considering the significance of the infringement, the trial judge found that Mr. Ferose’s s. 10(b) interests were not affected in any meaningful way by the ten minute delay because the police did not seek to elicit incriminating information from him during this time and because he still had sufficient time to decide whether to exercise that right.

[59] I agree with this finding and find no error.

[60] As for the second s. 10(b) breach, when considering the seriousness of the Charter infringement, the trial judge found it to be “more serious in nature”: at para. 40. The trial judge found that the officer honestly believed that he was doing all the law required of him however, the trial judge was of the opinion that the officer was negligent in failing to inform Mr. Ferose of his right to access a telephone and other tools to search for a lawyer. Konyer J. stated that he “should not have been erroneously told that duty counsel was his only option if he did not already have his own lawyer”: at para. 40.

[61] The trial judge distinguished the present case from the decision of Burstein J. in R. v. Ali, 2018 ONCJ 203. In Ali, the accused requested a specific lawyer and the police were negligent in facilitating contact; the accused accepted duty counsel as a last resort and complained to the police about the advice he received. On the contrary, in the present case, the police did not interfere with Mr. Ferose’s ability to receive legal advice from his preferred counsel, but “failed to inform him of tools that he could have used to search for a lawyer other than duty counsel”: Ferose, at para. 42. While the trial judge was “troubled by PC Cappus’ apparent tendency to simply default to duty counsel, the negligence here does not rise to the same level of gross negligence displayed in cases like Ali”: Ferose, at para. 42.

[62] The trial judge found that the s. 10(b) implementation breach was moderately serious. The trial judge further found that the cumulative effect of the multiple Charter breaches in this case favoured exclusion of the evidence to a moderate degree: Ferose, at paras. 39-42.

[63] When considering the significance of the impact of the infringements under the second branch of Grant, the trial judge stated that it was difficult to assess the extent to which Mr. Ferose’s interests were affected by the manner in which the officer “effectively steered him to duty counsel”: Ferose, at para. 49. The trial judge found that there was no evidence that Mr. Ferose received inadequate legal advice or that he had any concern about his consultation with duty counsel. Mr. Ferose made no complaint after speaking to duty counsel, nor did he elicit any evidence that he was subjectively dissatisfied with duty counsel or that the advice he received was objectively deficient. The trial judge concluded that in the absence of such evidence it would be speculative to conclude that there was any impact on his interest in having access to meaningful legal advice. The case at bar is entirely distinguishable from Ali where the judge concluded that Mr. Ali felt deprived of the ability to consult with a lawyer he trusted.

[64] The trial judge concluded on the second branch of the Grant analysis that the impact on Mr. Ferose’s s. 10(b) interest was minimal despite the multiple Charter infringements that occurred. This factor favoured inclusion of the evidence.

[65] The Appellant argues that the trial judge erred in concluding that Mr. Ferose’s “funneling” to duty counsel had a minimal impact on his s. 10(b) interest. The Appellant submits that the trial judge erred in limiting the analysis to the accused’s perceived satisfaction with the advice received and overlooked the Charter-protected interest of the right to contact a lawyer of one’s own choosing. As a result, the Appellant submits that the quality of the legal advice received was irrelevant to his right to choose. In support of this proposition, the Appellant relies on the decisions of Burstein J. in Ali and R. v. Manuel, 2018 ONCJ 381.

[66] The Appellant concedes that this is not a case where the detainee requested to speak to a specific lawyer and the trial judge rightly distinguished this case on that basis. Yet, the Appellant submits that there was sufficient evidence to conclude that Mr. Ferose was deprived of his ability to choose because he did not have a lawyer in mind and was unaware of any options besides duty counsel. The Appellant argues that he was not provided with the tools to facilitate choice, nor was he told such tools were available and as such, the impact on his right to choose was significant. In the circumstances, the Appellant argues that the trial judge unreasonably concluded that the impact was minimal.

[67] The Crown argues that if any breach of the implementational aspect of s. 10(b) occurred – it was minimal. The Crown submits that the court should apply Jennings to assess the trial judge’s approach to the second branch of the Grant analysis as it relates to the second breach. The Crown submits that Jennings is determinative of this issue as well.

[68] 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.

[69] 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.

[70] Nonetheless, I do accept the Crown’s argument that the trial judge’s conclusion that the s. 10(b) breach in this case had a minimal impact on the Appellant’s Charter-protected interests was absolutely correct based on the overall facts as found by the trial judge.

[71] The right to retain counsel of choice is not an absolute right: see R. v. McCallen.

[72] Mr. Ferose was provided with the opportunity to choose a lawyer, but he had no specific lawyer in mind. He was offered the choice to speak to duty counsel and he accepted this choice. Mr. Ferose spoke to duty counsel, who owes “the same duty of fidelity to their clients as any other counsel”: R. v. Reyes, 2018 ONCJ 561, at para. 44.

[73] In accordance with the reasoning of the Court of Appeal for Ontario in R. v. Richfield, R. v. Littleford, and the decisions of Charney J. in R. v. Hudson, 2016 ONSC 5582, Fragomeni J. in R. v. Zoghaib, 69 W.C.B. (2d) 166, affirmed 2006 ONCA 203 and Durno J. in R. v. Antoninas, 2014 ONSC 4220, where a detainee:

(a) does not request specific counsel and/or such specific counsel is unavailable;

(b) is afforded an opportunity to speak to specific counsel and/or duty counsel (if specific counsel not requested and/or not available) in a private setting;

(c) does not express any complaint or raise any issue as to the advice provided either after speaking to counsel or at any later date including the voir dire; and

(d) does not claim any harm/prejudice as a result of the advice provided

it is unlikely that any breach of the detainee’s s. 10(b) interests will be found, and if any such breach is found, the impact of such breach will be minimal.

[74] In the present case, the trial judge found a breach of the s. 10(b) rights and further found an obligation on the police officer to provide implementational tools to assist the Appellant in the exercise of his s. 10(b) rights.

[75] Although I may have reached a different conclusion as to whether a breach of the s. 10(b) right occurred; no appeal of the finding that a s. 10(b) breach occurred was filed by the Crown nor properly sought on the materials before me. As no appeal was filed, the trial judge’s finding that a s. 10(b) breach occurred stands. Given the circumstances surrounding the breach, the fact that the Appellant received “meaningful legal advice”, the fact that there was no evidence that the Appellant was dissatisfied with the legal advice received, and there was no evidence that the “breach” caused any impact, the breach cannot be anything other than minimal.

[76] I find that the trial judge properly considered the factors when assessing the impact of the breach as per the second branch of the Grant test. No error was committed in this regard.

3. Did the Trial Judge Fail to Meaningfully Balance the Three Grant Factors and Consider the Cumulative Effect of the Breaches?

[77] The Appellant’s final ground of appeal is that the trial judge failed to meaningfully balance the three Grant factors and account for the cumulative effect of the breaches on Mr. Ferose in particular and on society more broadly.

[78] I reject this argument outright and accept the Crown’s argument that the trial judge did exactly what was required of him by law.

[79] The trial judge weighed at each stage of the Grant analysis whether the admission of evidence would bring the administration of justice into disrepute. The trial judge provided detailed reasons in relation to each breach found and how it affected the relevant branch of the Grant test. Under the first and second branches of the Grant analysis, the trial judge provided detailed reasons in relation to each breach found and noted how it affected the relevant branch of the Grant test. The impact of the third branch in favouring inclusion was not in dispute.

[80] More specifically, the trial judge determined:

(a) Under the first branch that the “cumulative effect of the multiple Charter breaches in this case favours exclusion of the evidence to a moderate degree: at para. 43;

(b) Under the second branch the trial judge concluded that “the impact on the Appellant’s Charter-protected interests was minimal despite the multiple Charter infringements that occurred”: at para. 50; and

(c) Under the third branch the trial judge concluded that this branch favours inclusion of the evidence.

[81] The trial judge was acutely aware that he was deciding a Charter case involving multiple Charter breaches. Further, similar to Merko, the ss. 8 and 9 breaches were inevitably linked and were minimal in nature, as per Jennings and Grant. As for the additional breaches, being the two breaches found relating to s. 10(b), these breaches had minimal impact.

[82] The weighing process and balancing of the concerns is one for the trial judge in each case. Provided the judge has considered the correct factors, considerable deference should be accorded to his or her decision. As a general rule, however, it can be ventured that where reliable evidence is discovered as a result of a good faith infringement that did not greatly undermine the accused’s Charter-protected interests, the trial judge may conclude that it should be admitted under s. 24(2).

[83] This is the conclusion that the trial judge reached in the present case. The trial judge’s decision is to be afforded considerable deference, and I see no reason to interfere with the trial judge’s decision.

Conclusion

[84] For the reasons given, the appeal is dismissed.

Justice S. J. Woodley Released: February 12, 2019