Court File and Parties
COURT FILE NO.: CR-18-0000049-00AP DATE: 20190307
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Appellant – and – SIOBHAN O’SHEA Respondent
Counsel: K. Motyl, for the Appellant R. Lichtman, for the Respondent
HEARD: February 11, 2019.
REASONS FOR JUDGMENT
On appeal from the acquittals entered by the Honourable Justice S. Ray of the Ontario Court of Justice on July 1, 2018 with reasons reported at 2018 ONCJ 431, 27 M.V.R. (7th) 323.
SCHRECK J.:
[1] Siobhan O’Shea suffers from a number of mental illnesses and was living in her car with her dog. One night, she was stopped by two police officers who noticed that she was driving very slowly. Based on their observations of Ms. O’Shea and the presence of a partially empty bottle of wine in the car, the officers arrested her for impaired driving and placed her in the back of the police car. She became extremely upset at being separated from her dog, which she referred to as a “support dog”.
[2] When advised of her right to counsel, Ms. O’Shea identified a lawyer she wished to speak to. Upon arriving at the police station, the officers left messages for the lawyer. When he did not call back after 40 minutes, the officers offered to contact duty counsel but did not ask Ms. O’Shea if there was another lawyer she wished to speak to. Ms. O’Shea did not want to speak to duty counsel. The police then demanded that Ms. O’Shea accompany them to undergo breath tests. When she did not, they arrested her for refusing to provide a breath sample.
[3] Ms. O’Shea was tried in the Ontario Court of Justice on charges of impaired driving (Count 1) and refusing to comply with a breath demand (Count 2). The trial judge concluded that the police had violated her right to counsel guaranteed by s. 10(b) of the Charter in two ways: by failing to allow her to contact her lawyer from the roadside and by failing to advise her after her lawyer did not call back that she had the right to contact a second lawyer other than duty counsel. As a result of the breaches, the trial judge excluded the evidence of the police officers’ observations at the roadside and the evidence of Ms. O’Shea’s refusal to comply with the breath demand. She was accordingly acquitted on both counts.
[4] The Crown appeals the acquittals on the basis that the trial judge erred in finding that the police were required to allow Ms. O’Shea to contact counsel from the roadside to advise her of her right to contact another lawyer. In the alternative, Crown counsel submits that the trial judge erred in excluding the evidence because the evidence of the observations at the roadside were not obtained in a manner that infringed the Charter and the evidence of the refusal cannot be excluded because it constitutes the actus reus of the offence.
[5] For reasons that follow, I agree that the trial judge erred in finding that the failure to allow Ms. O’Shea to contact the police from the roadside resulted in a s. 10(b) violation. However, I agree with the trial judge that in the circumstances of this case, the failure to advise Ms. O’Shea of her right to contact another lawyer did result in a s. 10(b) breach. I agree with the appellant that the evidence of the roadside observations were not obtained in a manner that infringed the Charter and should not have been excluded. However, I am of the view that it was open to the trial judge to exclude the evidence of the refusal and that she was correct to do so. In the result, the appeal from the acquittal for impaired driving is set aside and a new trial is ordered on that count. The appeal from the acquittal for refusing to provide a breath sample is dismissed.
I. FACTS
A. The Arrest
[6] The respondent, Siobhan O’Shea, suffers from a number of mental health problems, including bipolar disorder, post-traumatic stress disorder, severe depression and anxiety. In November 2016, she was living in her car together with her dog, having recently left an abusive relationship. The dog was described at trial as a “support” or “therapy” dog.
[7] At around 11:30 p.m. on November 16, 2016, two police officers on patrol noticed the respondent driving very slowly and hesitantly. One of the officers, Cst. Fraracci, sounded the horn of the police cruiser, but this did not attract the respondent’s attention. He then activated the cruiser’s emergency equipment and the respondent eventually stopped her vehicle.
[8] Cst. Fraracci and the second officer, Cst. Sutton, approached the respondent’s vehicle. The respondent opened the door and the officers immediately noticed a strong odour of alcohol. They observed a bottle of wine about two-thirds full on the floor of the car. The respondent appeared to have a “blank stare” on her face and glossy eyes. She initially did not answer the officers’ questions.
[9] Based on what he had observed, Cst. Fraracci decided to arrest the respondent for impaired driving. She yelled “no” and expressed concern about her dog. The officers told her that the dog would be fine. They then pulled her out of her vehicle and took her to the police cruiser. She resisted entering the cruiser, repeatedly saying “no, my dog”. At one point, her pants fell down and she asked for help with them. The events were recorded on the police cruiser’s in-car camera. The trial judge described the police treatment of the respondent as “rough and impatient” (at paras. 5, 7).
B. The Respondent is Advised of Her Right to Counsel
[10] The officers read the respondent her right to counsel but had difficulty doing so because she was, as the trial judge described it, “lamenting about her pants and wailing about her dog” (at para. 11). However, she clearly and repeatedly told the officers that she wished to contact her lawyer, Geoff Laplante. One of the officers attempted to find Mr. Laplante’s phone number on the respondent’s phone, but it was not charged. The respondent was also told that Animal Services would take her dog and that the police would contact her daughter to pick up her dog. At one point, the dog got out of the respondent’s car and ran around, but the officers managed to get the dog back into the car.
[11] Throughout the interaction, the respondent was crying, repeatedly stating that she was upset about her dog and her pants and repeatedly asking to speak to Mr. Laplante. She was told that the police would try to contact Mr. Laplante at the police station. The respondent finally calmed down and the officers began to speak to her “more kindly and explain more patiently” (para. 12).
C. The Attempt to Contact the Respondent’s Counsel of Choice
[12] The officers and the respondent arrived at the police station at 12:13 a.m. Using the internet, Cst. Fraracci found two telephone numbers for Geoff Laplante, an office number and an after-hours number. At 12:50 a.m., he called both numbers and left messages.
D. The Offer of Duty Counsel
[13] At some point, Cst. Fraracci advised the respondent that he had left messages for Mr. Laplante and asked her if she wished to speak to duty counsel. She declined, but Cst. Fraracci could not recall what she said in doing so. Cst. Sutton initially testified that he asked the respondent whether she wished to speak to duty counsel or another lawyer and that she was unresponsive, but in cross-examination said only that he offered her duty counsel.
[14] The respondent testified that she remembered being told that messages had been left for Mr. Laplante, but did not recall being offered duty counsel or the opportunity to speak to another lawyer. She testified that she would have refused duty counsel as she had dealt with them in the past and did not believe that duty counsel would be of assistance to her. However, she would have wanted to speak to a private lawyer other than Mr. Laplante if she had been offered an opportunity to do so. The trial judge accepted her evidence on this point.
E. The Refusal to Provide a Breath Sample
[15] At 1:36 a.m., Cst. Fraracci, Cst. Sutton and a qualified breath technician entered the interview room where the respondent was and advised her that she would have to comply with the breath demand. According to Cst. Fraracci, she did not clearly answer but started talking about her dog and her lawyer. When he repeated the demand, she did not answer. Cst. Fraracci testified that he told the respondent “something to the effect that” she would be charged if she failed to comply with the demand, although he could not recall his exact words. According to Cst. Sutton, the respondent said “I’m not refusing, but where’s my dog?” However, she did not accompany the officers to the breath room. Neither officer had verbatim notes of the conversation. The breath technician did not testify.
[16] The respondent testified that when she was asked to provide a sample, she told the officers that she wanted to wait for her lawyer to call back. She was not warned that she would be charged for refusing to comply with the demand. Had she been warned of this, she would have complied.
[17] When the respondent did not accompany the officers to the breath room, she was arrested for refusing to provide a breath sample.
F. The Police Officers’ Awareness of the Respondent’s Mental State
[18] Both officers testified that they did not know that the respondent was mentally ill. When Cst. Sutton was asked in cross-examination whether it had “crossed his mind” that the respondent was experiencing a mental health crisis, he replied “Sure, to an extent,” but that he was nonetheless of the opinion that she was intoxicated.
[19] Cst. Fraracci agreed that the respondent had told him that her dog was a “support dog”. At the time, he had no knowledge of support dogs. He explained that if he had had such knowledge, he would have contacted a sergeant to seek advice about how to deal with the situation.
[20] At some point after the respondent was charged with refusing to provide a breath sample, an ambulance was called and she was taken to the hospital. The arresting officers became aware of this later and were not involved in calling the ambulance. While the record is not entirely clear as to when and why the ambulance was called, it appears that there was a concern that the respondent was suicidal.
II. ANALYSIS
A. Failure to Facilitate Contact With Counsel at the Roadside
(i) The Trial Judge’s Reasons
[21] The trial judge appears to have found that the failure of the police to attempt to contact Mr. Laplante earlier by charging the respondent’s phone and obtaining his number from it constituted a violation of s. 10(b) of the Charter. In doing so, she relied on R. v. Panigas, 2014 ONCJ 797, 305 C.R.R. (2d) 18 (Ont. C.J.), R. v. Maciel, 2016 ONCJ 563, 32 C.R. (7th) 174 and other cases which state that where the police assume the responsibility of contacting counsel on behalf of a person in their custody, they must make the same efforts the accused would make. This was explained by Stribopoulos J. (then of the Ontario Court of Justice) in Maciel, at para. 43:
If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. In that regard, I completely agree with the comments of Justice Horkins [in Panigas, at para. 52], who noted:
When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.
I believe this standard is in keeping with the duty upon the police to facilitate contact with a detainee's counsel of choice. I therefore intend to apply it in assessing the adequacy of the police efforts in this case.
See also R. v. Ali, 2018 ONCJ 203, 29 M.V.R. (7th) 143, at paras. 58-60; R. v. Ector, 2018 SKCA 46, 362 C.C.C. (3d) 462, at paras. 50-53.
[22] Relying on Panigas and Maciel, the trial judge held (at para. 53):
Fraracci made honest attempts to reach O’Shea’s counsel of choice, but they were not as diligent as the efforts that the accused would have made. She wanted to make the calls from the car. She wanted to charge her phone. She had a charger. According to the police evidence, chargers were available at the police station, but there is no evidence they were used. Fraracci spent time at the police station searching for the phone number. As such he made the calls much later than they could have been made, later into the night when it was less likely that counsel could be reached. They arrived at the police station at 12:30. The first call to Mr. Laplante was not made until 12:50. All that time was wasted. If O’Shea’s phone were charged in the car, Mr. Laplante’s contact information could have been retrieved much sooner. Even if they started charging her phone as soon as she arrived at the station, the contact information would have been retrieved more quickly. If O’Shea were allowed to retrieve the contact information and make the call herself, she would have exercised the effort and diligence necessary to find the information and make the call much sooner.
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.
(ii) The Circumstances at the Roadside
[23] In this case, it was reasonable for the police not to allow the respondent to charge her phone and use it to contact counsel at the roadside. The reasons for this are apparent from the trial judge’s rejection of the respondent’s argument at trial that the breath demand was not made as soon as practicable (at para. 34):
It is my view that [Cst. Fraracci] could not make the breath demand immediately, because O’Shea did not comply with what she was told to do. She resisted their attempts to move her to the police cruiser. I could not reasonably expect them to know what she would do next, and she was clearly not fully under their control. She did not cooperate with their attempts to get her into the police vehicle. Once in the police cruiser, she tried to get out. O’Shea’s car door was open and the dog got out of her car. By all accounts, the dog was running around. The dog was O’Shea’s property and the officers were responsible for securing it. There was pandemonium. She was talking and complaining a lot. She would not stop talking long enough for them to get a word in edgewise. She would not identify herself. Her identity had to be investigated.
[24] In circumstances where the police did not have a reasonable opportunity to read a breath demand, they can hardly be faulted for not having allowed the respondent to make telephone calls in private from the back of the police cruiser. While I appreciate that the respondent calmed down at some point, as the trial judge noted, “it would be reasonable for [the police] to be concerned that she was unpredictable” (at para. 37).
[25] As was observed in R. v. Devries, 2009 ONCA 477, 95 O.R. (3d) 721 (C.A.), at para. 32:
Should a detainee choose to speak with counsel “without delay”, the police must afford him or her the opportunity to do so. Depending on the circumstances, consultation with counsel “without delay” may require a telephone call at the roadside, at the police station where the breathalyzer test will be administered or, perhaps in very unusual cases, somewhere else. It will all depend on the facts of the particular case.
In my view, on the facts of this case, consultation with counsel at the roadside was not a reasonable option.
(iii) The Circumstances at the Police Station
[26] With respect to the steps taken by the police after arriving at the station, it is not at all clear on this record that charging the respondent’s phone to look up counsel’s number would have taken less time than the internet search conducted by Cst. Fraracci. Even if it would have, the difference would have been marginal. Indeed, counsel for the respondent concedes that the trial judge’s finding that “all that time was wasted” is not supported by the evidence, nor is the suggestion that counsel would have been reached if the calls had been made earlier.
[27] For these reasons, I am persuaded that the trial judge erred in finding a s. 10(b) Charter breach on the basis that the police failed to call the respondent’s counsel of choice earlier.
B. The Failure to Advise the Respondent of the Right to Contact Another Lawyer
(i) The Trial Judge’s Reasons
[28] The trial judge found that after Cst. Fraracci left a message for Mr. Laplante, the respondent was told that she could contact duty counsel but was not provided with the option of contacting another lawyer. The trial judge accepted the respondent’s evidence that she would have pursued such an option had it been presented to her, but that she did not trust duty counsel. At this point, the police knew that Mr. Laplante had not called back and that the respondent did not wish to speak to duty counsel instead of Mr. Laplante. The issue the trial judge had to determine was whether there was any further obligation on the police in these circumstances to advise the respondent that she had the option of speaking to another lawyer. The trial judge concluded that it did.
[29] Counsel for the appellant takes the position that the trial judge erred. In her submission, once the respondent was told that she could “telephone any lawyer you wish”, the police had fulfilled their constitutional obligations and if the respondent wanted to contact another lawyer, it was her responsibility to make this known to the police.
(ii) Caselaw
[30] Counsel for the appellant relies on R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.). In that case, the police left a message for a detainee’s counsel of choice. When that counsel did not call back after an hour, the police offered to call duty counsel. The accused declined. The Court concluded that there was no s. 10(b) breach (at para. 12):
The appellant, upon being informed that the lawyer that he had asked the police to call had not called back, did not ask to make a further call to his counsel of choice or to another counsel. When asked if he wished the assistance of duty counsel, the appellant indicated that he did not. The appellant was not reasonably diligent in exercising his right to counsel in the circumstances. The fact that the police could have made greater efforts earlier does not detract from the appellant’s own lack of diligence at a later stage in exercising his right to counsel. [Emphasis added].
Based on this, counsel for the appellant submits that Richfield stands for the proposition that if an accused wishes to contact a second counsel of choice, it is his or her obligation to say so.
[31] Counsel for the respondent relies on R. v. Traicheff, 2010 ONCA 851, aff’g [2008] O.J. No. 4361 (S.C.J.), aff’g 2007 ONCJ 564. In that case the accused was arrested for a drinking and driving offence and upon being advised of his right to counsel, identified a lawyer he wished to speak to. The police left a message for that lawyer. After not hearing back from the lawyer for 23 minutes, without asking the accused, the police placed a call to duty counsel. Duty counsel spoke to the accused, who did not express any dissatisfaction with the advice he received. He went on to provide breath samples. The Ontario Court of Appeal stated the following, at para. 2:
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 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. [Emphasis added].
Counsel for the respondent submits that Traicheff stands for the proposition that where an attempt to contact a detainee’s counsel of choice is unsuccessful, there is an obligation on the police to “ask him if he would like to consult another lawyer”.
(iii) Reconciling Richfield and Traicheff
[32] Counsel spent considerable time in their submissions on the issue of whether Richfield is inconsistent with Traicheff and, if so, which prevails. I do not view the two decisions as inconsistent as they deal with different aspects of the implementational component of s. 10(b).
[33] The issue in Richfield was whether the accused had been reasonably diligent in exercising his right to counsel. As the Court noted at para. 7, “[w]hether legal advice has been sought diligently by the detained person depends on the context of the situation.” In Richfield, when the accused was told that his lawyer had not called back, he made no further request to speak to that lawyer or another lawyer. The Court concluded that this amounted to a lack of reasonable diligence on the part of the accused. Section 10(b) only imposes implementational duties on the police if the accused is reasonably diligent: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 33. In Richfield, the accused was not diligent, so there were no further implementational duties imposed on the police and the issue of whether they should have advised the accused of his right to call another lawyer did not arise. That was why the Court found no s. 10(b) violation despite having concluded that the police “could have made greater efforts earlier” (at para. 12).
[34] The issue in Traicheff was whether the police had taken sufficient steps to implement the accused’s request to speak to his counsel of choice. The Court of Appeal agreed with the trial judge that they had not even though as in Richfield, the police had given the accused an opportunity to speak to duty counsel. However, unlike in Richfield, the accused’s diligence was not an issue in Traicheff, so s. 10(b) continued to impose implementational duties on the police.
[35] It follows that in this case, if the respondent was not reasonably diligent, the issue of whether the police fulfilled their implementational duties does not arise, as in Richfield. However, if she was reasonably diligent, then the adequacy of the implementational steps taken by the police must be determined, as in Traicheff.
(iv) Was the Respondent Reasonably Diligent?
[36] As was noted in Richfield, and more recently in Willier, at para. 33, what amounts to reasonable diligence in the exercise of the right to contact counsel depends on the context. In this case, that context includes the fact that the respondent suffers from a mental illness. There was no issue at trial that the respondent suffers from bi-polar disorder, post-traumatic stress disorder, severe depression and anxiety. The trial judge accepted her evidence that her mental state had deteriorated in the period leading up to her arrest. She also found that this should have been apparent to the police officers (at paras. 24-25):
They were so convinced that intoxication was the complete explanation for her behaviour that they developed tunnel vision and a confirmation bias, and missed rather obvious red flags that O’Shea’s behaviour was more than just “whiny” and engaging in an “emotionally charged alcohol type conversation” using “emotionally disoriented” speech, which is how Sutton described it in his evidence detailed in paragraph 10 and footnote 15, above.
Fraracci admitted on the witness stand that O’Shea said the dog was a therapy dog. Her overall fixation over the dog and its welfare and her reaction to being separated from the dog coupled with her statement that the dog was a therapy dog should have raised a huge red flag in the minds of the officers. … . I had the opportunity of viewing the police car videos for myself, and I do not find that O’Shea’s distress can reasonably be attributed to an “emotionally charged alcohol type conversation” and the use of “emotionally disoriented” speech.
I have also reviewed the video. In my view, the trial judge’s findings are supported by the evidence.
[37] The respondent had made it clear to the officers that she had a strong desire to speak to counsel. Unlike in Richfield, where the accused “did not ask to make a further call to his counsel of choice or to another counsel”, when the respondent was told that Mr. Laplante had not called back, she reiterated her wish to speak to him. Given that conduct and the fact that she was suffering from mental health issues that the officers ought to have at least made inquiries about, it cannot be said that the respondent was not reasonably diligent in her exercise of her right to counsel. As a result, s. 10(b) continued to impose an implementational duty on the police.
(v) Scope of the Implementational Duty
[38] Having concluded that the implementational duty on the police was not suspended, the issue that must be determined is what that duty entailed in the circumstances of this case. The respondent submits that the police had a duty to advise her that she had the right to contact a lawyer other than duty counsel and relies on Traicheff in support of her position. There are cases that have interpreted Traicheff that way. For example, in R. v. Piacampo, 2017 ONCJ 423, at para. 18, after quoting from the portion of Traicheff reproduced above, Rose J. stated:
There is, therefore, an intermediate step incumbent on the police when the arrestee asks for a specific lawyer, and that results in a message being left for the lawyer. I understand the intermediate step to include waiting a reasonable time and then asking the person if they want to speak with another lawyer or if there is an alternative method of contacting the stipulated counsel of choice.
Rose J. came to the same conclusion in other cases: R. v. Calderon, 2018 ONCJ 817, at paras. 17-18; R. v. Bukin, 2018 ONCJ 137, 23 M.V.R. (7th) 85, at para. 35; R. v. Blackwood, 2017 ONCJ 69, at para. 13. See also R. v. Vlasic, 2016 ONCJ 6892, at para. 30.
[39] The opposite conclusion was reached by Duncan J. in a number of cases, including R. v. Wilson, 2016 ONCJ 25, 95 M.V.R. (6th) 165, at para. 34:
Is the above passage from the Court of Appeal [in Traicheff] a direction or a suggestion? I think it is the latter. No mandatory language such as “must” is used. Moreover mandating any particular step would be inconsistent with the Court’s flexible approach that turns on the circumstances of the particular case. If it is merely a suggestion, failure to adhere to it does not constitute a Charter violation, provided that the other steps taken by the police to facilitate contact with counsel were reasonable -- and I have concluded above that they were.
See also R. v. Shariq, 2018 ONCJ 340, at paras. 16-17; R. v. Solomon, 2018 ONCJ 891, at paras. 20-23.
(vi) The Case at Bar
[40] I am not prepared to say that s. 10(b) always imposes an obligation on the police to advise an individual of his or her right to contact an alternative counsel of choice. Nor am I prepared to say that it never does so. Whether it does or not will depend on the circumstances of the case.
[41] In this case, as the trial judge found, it ought to have been apparent to the officers that the respondent was mentally ill. She was clearly extremely agitated, wanted to speak to counsel, but did not want to speak to duty counsel. Less than 45 minutes had passed since a message had been left for Mr. Laplante. As the officers did not make verbatim notes, it is unclear what the respondent said. However, it was clear that she wished to exercise her right to counsel. In these circumstances, it should have been apparent to the officers that the respondent may not have understood that she had the right to speak to another lawyer besides duty counsel. In this regard, I note that Cst. Sutton testified that he in fact did tell the respondent that she had the right to call another lawyer. The trial judge viewed this evidence with scepticism and found that even if Cst. Sutton had said this to the respondent, it should have been obvious to him that she either did not hear or did not understand what he said (at para. 54). However, the fact that Cst. Sutton testified to this effect suggests that he was aware of the need in the circumstances of this case to advise the respondent of her right to call another lawyer.
[42] Panigas, Maciel and the other cases cited earlier are instructive on this issue. 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. The trial judge accepted the respondent’s evidence that she would have spoken to another lawyer if she had had an opportunity to do so. A person in the respondent’s position who wants legal advice, cannot reach her counsel of choice but does not wish to speak to duty counsel would have likely made inquiries about the availability of other lawyers. The respondent was not given an opportunity to do so because the police had chosen to take control of the process of finding and contacting counsel.
[43] In these circumstances, I am of the view that the trial judge did not err in finding that the failure to advise the respondent of the right to call another lawyer amounted to a violation of s. 10(b) of the Charter. As a result, the correctness of her decision respecting s. 24(2) of the Charter must be considered.
C. Section 24(2) of the Charter
(i) The Threshold Issue – “Obtained in a Manner”
(a) Applicable Principles
[44] The trial judge excluded both the observations made by the police prior to the respondent’s arrest as well as the evidence of her refusal to provide a breath sample. The trial judge concluded that all of this evidence was “obtained in a manner” that infringed the respondent’s Charter rights, but provided no reasons for this conclusion (at para. 55). Counsel for the respondent acknowledges that in the circumstances, I must undertake the s. 24(2) inquiry afresh, including the issue of whether the evidence was “obtained in a manner” that infringed the respondent’s Charter rights.
[45] The wording of s. 24(2) of the Charter makes it clear that evidence can only be excluded as a remedy for a Charter breach if that evidence was “obtained in a manner” that infringed the Charter. How that issue is to be determined was explained in R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21:
In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: Strachan, [1988] 2 S.C.R. 980 at p. 1005. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”: R. v. Plaha (2004), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.
See also R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 50-70.
(b) The Observations Prior to the Respondent’s Arrest
[46] The observations made prior to the respondent’s arrest occurred before the Charter breach. It is now clear that this is not dispositive: Pino, at paras. 50-70. However, it means that there was no causal link between the breach and the evidence. The temporal link is tenuous, as the observations were made about two hours prior to the breach. Was there a “contextual link”? “Contextual” means “pertaining to the surroundings or situation in which something happens”: Pino, at para. 74. In my view, there was no contextual link between the observations and the breach. Most of the observations were made before the respondent’s arrest when there were no s. 10(b) obligations on the police. Immediately after the arrest, the police complied with their s. 10(b) informational obligations.
[47] In my view the connection between the observations and the breach is remote and tenuous. This evidence was not “obtained in a manner” that infringed the Charter and the trial judge erred by excluding it.
(c) Evidence of the Refusal to Provide a Sample
[48] I take a different view with respect to the evidence of the refusal. The refusal occurred immediately following the breach, so there is a close temporal connection. The trial judge accepted the respondent’s evidence that she would not have refused had she understood the consequences of doing so, which she would have had she spoken to counsel. There is, therefore, a causal connection. As well, there is a contextual connection as the refusal arose out of the same chain of events as the breach. In my view, this was evidence that was “obtained in a manner” that infringed the Charter.
(ii) The Applicability of Section 24(2) to the Actus Reus of the Offence
[49] The appellant submits that it was not open to the trial judge to exclude the evidence of the respondent’s refusal to provide a breath sample as the refusal was the actus reus of the offence and as such could not be excluded pursuant to s. 24(2) of the Charter as a matter of law. The appellant relies on a number of authorities: R. v. Hanneson (1989), 49 C.C.C. (3d) 467 (Ont. C.A.), at pp. 472-473; R. v. Ha, 2010 ONCA 433, at paras. 6-8; R. v. Rivera, 2011 ONCA 225, 104 O.R. (3d) 561, at paras. 50, 101-103; R. v. Bleta, 2012 ONSC 1235, 285 C.C.C. (3d) 261, at paras. 6, 37-42, 48-51; R. v. Sidhu, 2013 ONCJ 131, at paras. 22-23.
[50] Counsel for the appellant quite properly drew my attention to the fact that Hanneson and the cases that follow it were held not to apply to an alleged refusal to comply with a breath demand made pursuant to s. 254(3)(a) of the Criminal Code[^1] (i.e., a demand with respect to an approved instrument rather than a roadside screening device) in R. v. Soomal, 2014 ONCJ 220, 10 C.R. (7th) 279. Several courts have followed Soomal: R. v. Kraus, 2015 ONSC 2769, 87 M.V.R. (6th) 222, at paras. 59-61; R. v. Minhas, 2015 ONCJ 551, at paras. 58-59; R. v. Medeiros, 2015 ONCJ 707, at para. 27. Others have not: R. v. Gill, 2015 ONSC 7872, 347 C.R.R. (2d) 249, at para. 35; R. v. Chi, 2014 ONCJ 6537, at paras. 93-98.
[51] In my view, Soomal was correctly decided. I recognize that in Gill, the court concluded that Soomal, a summary conviction trial judgment, was inconsistent with Bleta, a binding summary conviction appeal court decision. With respect, I do not view Soomal and Bleta as inconsistent. Bleta is not a s. 24(2) case. Rather, the issue in Bleta was the applicability of R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, where it was held that s. 10(b) of the Charter is suspended in the context of roadside detentions but that the Crown may not make use of any evidence which the accused was compelled to produce during the period of the suspension. Based on Hanneson and other cases, Code J. concluded that there is an actus reus exception to the bar against relying on such evidence obtained at the roadside. Section 24(2) of the Charter was not mentioned. Bleta was referred to in Soomal and led the court to conclude that different considerations may apply to roadside refusals. I agree with that conclusion.
(iii) The Seriousness of the Violation
[52] Whether evidence should be excluded will depend on a balancing of the three factors described in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, beginning with the seriousness of the Charter violation. The trial judge found that the police did not act in bad faith, but that they were unaware of the extent of their duty to facilitate contact with counsel. As she put it at para. 56, “[t]he police went into the automatic pilot bred by a systemic approach of steering suspects in a direction that is easy for them.” I agree that there appears to be a tendency on the part of the police in some cases, including this one, to resort too readily to duty counsel without giving full effect to a detainee’s right to counsel of choice: Panigas, at para. 47; Ali, at para. 65; Kuviarzin, at para. 70; R. v. Lima, 2018 ONCJ 6580, at paras. 21-30; R. v. Della-Vedova, 2018 ONCJ 1596, at paras. 52-55; R. v. Middleton, 2018 ONCJ 387, 411 C.R.R. (2d) 223, at para. 64; R. v. Sakharevych, 2017 ONCJ 669, 403 C.R.R. (2d) 1, at para. 74; R. v. Pita, 2013 ONCJ 716, at para. 38; R. v. Panjwani (2017), 392 C.R.R. (2d) 365 (Ont. C.J.), at para. 16; R. v. Gordon, 2015 ONCJ 3270, at para.79; R. v. Lim, 2016 ONCJ 6869, at para. 18.
[53] In all the circumstances, I agree with the trial judge that the Charter breach in this case was serious, although in my view it was only moderately so.
(iv) The Impact of the Breach
[54] With respect to the impact of the breach, it is clear on the record that the respondent was in significant distress after being arrested. So much so that she was later taken to the hospital.
[55] Recently, in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45, 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.
The respondent needed such a lifeline. She needed to speak to somebody she trusted. By failing to advise her of her right to find and contact a lawyer other duty counsel, the police deprived her of an opportunity to do so. The impact of the breach was significant.
(v) Society’s Interest in an Adjudication on the Merits
[56] As in most drinking and driving prosecutions, a consideration of society’s interest in an adjudication on the merits favours inclusion. The evidence at issue was reliable and indispensable to the Crown’s case.
[57] I must respectfully disagree with the trial judge that society’s interest in an adjudication on the merits was attenuated by the manner in which the respondent drove. The trial judge was of the view that the respondent “was in practically no danger of causing a traffic fatality” because she “drove very slowly and hesitantly at a time when there was almost no traffic” (para. 59). There is an inherent danger that arises from the mere combination of alcohol and an automobile, which is why simply having the care and control of an automobile while one’s ability to drive is impaired gives rise to a presumption that there is a realistic risk of danger to persons or property: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157. It follows that there is a societal interest in having a trial on the merits to determine whether the respondent’s ability to drive was impaired.
(vi) Balancing
[58] In my view, the first Grant factor moderately favours exclusion and the second does so strongly. The third factor favours inclusion. However, in my view the first two factors must prevail in the circumstances of this case: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62-63. Unfortunately, the police are required to interact with mentally ill people all too frequently. It is of the utmost importance when dealing with vulnerable populations, including the mentally ill, that the police scrupulously apply the Charter. The evidence must be excluded.
III. DISPOSITION
[59] For the foregoing reasons, with respect to Count 1 on the Information (impaired driving), the appeal is allowed, the acquittal is set aside and a new trial is ordered. If the Crown wishes to proceed with a re-trial, the respondent is to appear in Courtroom 111, Old City Hall, 60 Queen Street West, Toronto on Thursday, April 4, 2019 at 9:00 a.m. to set a date for trial.
[60] With respect to Count 2 on the Information (refuse to provide a breath sample), the appeal is dismissed.
Justice P.A. Schreck
Released: March 7, 2019.
[^1]: This section, which was in force at the time of the respondent’s arrest, has since been repealed and replaced by s. 320.28(1): An Act to Amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, S.C. 2018, c. 21, s. 15.
