R. v. Skurski, 2019 ONSC 2943

COURT FILE NO.: SCA(P) 1054/18 DATE: 20190513

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Patrick Quilty, for the Appellant Appellant

• and -

LESZEK SKURSKI Stephen Price, for the Respondent Respondent

HEARD: April 29, 2019 at Brampton

REASONS FOR JUDGMENT [On appeal from the Judgment of Justice P. Band dated May 4, 2018] F. Dawson J.

1The Crown appeals from the verdict of Justice P. Band of the Ontario Court of Justice at Brampton, acquitting the respondent of the charge of “over 80” contrary to s. 235(1)(b) of the Criminal Code. No appeal is brought from the respondent’s acquittal on a charge of impaired driving arising from the same incident.

2While various issues were dealt with in the trial judge’s reasons, the appellant restricts its submissions to errors alleged in the trial judge’s s. 24(2) Charter analysis.

3The trial judge excluded the results of Intoxilyzer tests administered to the respondent and the evidence of a toxicologist that was based on those results. The evidence of the toxicologist was required in order to relate the Intoxilyzer test results back to the time of driving.

4The Charter violation giving rise to the s. 24(2) analysis was a violation of s. 10(b), which is conceded on the appeal.

Background Facts

5The Peel Regional Police received a call reporting an impaired driver. Officers located the vehicle and initiated a traffic stop. The respondent was the driver. Based on the officers’ observations, the respondent was arrested for impaired driving.

6The officers involved in the arrest immediately read the respondent his rights to counsel and a breath demand. They quickly concluded that the respondent, who is Polish speaking, did not understand what was being read to him. The arresting officers arranged for a Polish-speaking officer, Cst. Papis, to meet them at the police station. Cst. Papis translated the rights to counsel and breath demand from English to Polish for the respondent shortly after the respondent arrived at the police station. Cst. Papis then continued to act as a translator.

7Arrangements were also made for the respondent to speak to a Polish-speaking duty counsel. After speaking with duty counsel the respondent wrote down the name of a specific lawyer, Mr. Jagielski, and said he wished to speak to him. The police left a voicemail message for Mr. Jagielski and waited approximately 40 minutes for a call back. When no call came, Cst. Bryant, a qualified breath technician, decided he would proceed with the Intoxilyzer tests.

8Cst. Bryant utilized Cst. Papis as a translator to explain to the respondent that he was under arrest for impaired driving and that he was required to provide two samples of his breath into the approved instrument. Cst. Bryant confirmed that the respondent had spoken to duty counsel and told him that Mr. Jagielski had been called and a message left. The respondent was advised that if Mr. Jagielski called back the breath test procedure would be stopped and the respondent would be permitted to speak to him.

9It is at this point that the s. 10(b) violation occurred. It is accepted that the respondent told Cst. Papis in Polish that duty counsel had declined to provide him with any advice because he had his own lawyer. Cst. Papis became aware that the respondent, who still wanted to speak to Mr. Jagielski, had not yet had any legal advice.

10Cst. Papis began to tell Cst. Bryant what the respondent had told him. However, Cst. Bryant cut him off and said he did not want to be told about the conversation between the respondent and duty counsel. As Cst. Papis was a less experienced officer he deferred to Cst. Bryant, who was in charge of the breath testing procedure. It is common ground that the breath tests were then administered in circumstances where the respondent, who had been diligent in exercising his right to counsel, had not received the benefit of the legal advice he was entitled to and that this constituted a clear violation of s. 10(b) of the Charter.

The Trial Judge’s Reasons

11The trial judge was required to deal with a number of issues that are not of concern on this appeal. I will restrict my comments to matters related to the trial judge’s s. 24(2) analysis.

12The trial judge concluded that the respondent’s right to counsel “was breached by the officer’s failure to explain to him what alternatives he had, such as calling a different duty counsel with a Polish interpreter, and in their failure to implement that right.” (Transcript, May 4, 2018, at pp. 22-23). He held that Cst. Papis was aware that the respondent said that duty counsel had refused to give him advice and that, as the only police officer who understood that, he had a duty to act on it or to ensure that other officers did. He held that while Cst. Bryant could not be faulted for not understanding what the respondent was saying, he could be faulted for so hastily cutting off Cst. Papis on such an important issue. He observed that Cst. Bryant knew from the outset that there was an issue concerning rights to counsel and that the respondent wanted to speak to his own lawyer.

13His Honour also observed that interrupting Cst. Papis did nothing to protect solicitor-client privilege. In doing so he referred to the specifics of what Cst. Bryant said when he interrupted Cst. Papis, including: “I don’t want to know what happened in that conversation. I just want to know that you had an opportunity to speak to duty counsel.” The trial judge was aware that Cst. Bryant had directed that a further call be made to Mr. Jagielski, but held that that “missed the mark”.

14The trial judge then turned to his s. 24(2) analysis. He referred to the principles outlined in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 without referencing that case by name. He commenced by emphasizing that courts must consider the long-term impact of the admission or exclusion of evidence on the administration of justice.

15He then engaged in an analysis under each of the three Grant factors: the seriousness of the Charter infringing state conduct, the impact of that conduct on the Charter protected interests of the respondent, and society’s interest in adjudication on the merits. He devoted between one and three paragraphs to each of the Grant factors. He concluded that there was relatively serious state misconduct from which the court had to dissociate itself in order to maintain public confidence in the administration of justice. He explained why he concluded that the impact of the breach on the respondent’s Charter protected interests was significant. He acknowledged that the breath tests were reliable evidence of importance to the Crown’s case and that drinking and driving offences are serious. He held that the first two Grant factors favoured exclusion and that the third factor favoured admission, but not strongly.

16At the balancing stage, the trial judge concluded that the evidence had to be excluded to preserve the long-term repute of the administration of justice. In doing so he recognized that while the public had an interest in drunk driving prosecutions being resolved on their merits, the public also has an interest in ensuring that those prosecutions were fair and that the police met expectations under the Charter “in our multi-cultural society”.

17The trial judge concluded his s. 24(2) analysis by explaining why he rejected Crown counsel’s submission at trial, renewed on appeal, that R. v. Jennings, 2018 ONCA 260, mandated a different result.

18I will add more detail concerning what the trial judge said in relation to each of the three Grant factors in my analysis.

The Position of the Appellant

19The appellant contends that the trial judge erred in a meaningful way in relation to his analysis in respect of each of the Grant factors. While the appellant acknowledges that a trial judge’s s. 24(2) analysis is generally entitled to deference (Grant, at para. 86), the appellant contends that due largely to the trial judge’s failure to take certain relevant considerations into account, deference is not owed in this case. The appellant submits that I should conduct my own s. 24(2) analysis, conclude that the evidence should not have been excluded and set aside the acquittal and enter a conviction.

Analysis

20The appellant asserts that the trial judge made four errors in the course of his s. 24(2) analysis. I will deal with each in turn, although not in the same order they were advanced in oral argument. I will re-order them to correspond to the order of the lines of inquiry mandated by Grant.

21The appellant submits that the trial judge erred when considering the first Grant factor, the seriousness of the breach, because he did not say why he found the breach to be a serious one favouring exclusion. The appellant submits that the trial judge jumped directly from a finding of a breach to a finding of seriousness. I disagree.

22The trial judge first said that he could not say that there was bad faith on the part of the police. The trial judge had earlier in his reasons reviewed all of the steps the police had taken to try and ensure that the respondent understood his rights and the breath demand and that he had access to legal advice in the Polish language. Therefore, this finding is logical and well supported by the evidence.

23The trial judge next said that he could not make a positive finding of good faith on the facts either. He referenced that while Cst. Papis was a young officer, he was a sworn police officer who was duty bound “to stand up and act on what he had heard”. He reiterated that Cst. Bryant had “steamed ahead” with the testing and failed to listen to Cst. Papis. He observed that this was all happening in a situation where Cst. Bryant was aware of issues relating to the respondent’s constitutional rights to counsel. The trial judge’s conclusion that there was no good faith is also reasonable and well supported by the evidence in this case.

24It was after making those two findings that the trial judge characterized the breach as relatively serious. I am unable to see this as an unreasoned or unexplained jump to a conclusion, as the appellant submits. By considering the presence or absence of good faith and bad faith the trial judge was situating the state conduct along the continuum from minor to wilful and flagrant disregard of the Charter, just as he was required to do. Given the evidence he referenced and the factual findings he made, it is clear that he had a sound basis for concluding as he did that the conduct was towards the more serious end of the scale, while not at the most extreme end. This ground of appeal fails.

25The appellant also submits that the trial judge erred in his assessment of the seriousness of the breach by failing to take into account the Charter compliant conduct of the police that preceded the violation. Here the appellant is referring to the same efforts the police made to ensure that the respondent understood his rights and the demand and had access to legal advice in the Polish language.

26I do not accept this submission. While the trial judge did not expressly reference those efforts by the police when considering the first Grant factor, he was clearly aware of them as he mentioned them earlier in his judgment. His failure to mention them again does not necessarily mean he failed to take them into account: R. v. McGuffie (2016), 2016 ONCA 365, 131 O.R. (3d) 643 (C.A.), at para 71. His conclusion that there was no bad faith on the part of the police could only have been based on his having taken those factors into account.

27Of more significance, I do not see those efforts by the police as mitigating or attenuating the breach. They were relevant to whether the police were acting in good or bad faith, but I have difficulty understanding how the police doing what they were expected and required to do up until the point where they violated the respondent’s rights can be mitigating. The s. 10(b) violation in this case was not technical or borderline. The police completely failed in their obligation to facilitate access to counsel in circumstances where they learned that the respondent had not received legal advice from duty counsel. In support of this conclusion I rely on McGuffie, at para 67. There, Doherty J.A. held that the fact that other officers involved in an investigation acted properly could not mitigate the seriousness of the denial of Mr. McGuffie’s right to counsel. A similar conclusion was reached by my colleague D.E. Harris J. in R. v. John, 2018 ONSC 464, at para. 33. In that case three conversations with duty counsel had been facilitated before the appellant’s s. 10(b) rights were violated. Harris J. commented: “The observation that the police had acted properly before they acted improperly does not significantly mitigate the seriousness of the beach.” The appellant has failed to establish any error in this regard.

28Turning to the second Grant factor, the impact of the breach on the Charter protected interests of the respondent, the appellant submits that the trial judge erred by failing to recognize that breath tests should generally be admitted. In its factum the appellant went so far as to submit that breath tests are “presumptively admissible”. The appellant relied upon R v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460 in support of this submission. In its factum the appellant submits that the trial judge erred by distinguishing, rather than applying, Jennings.

29In my view the trial judge provided sound reasons for rejecting the Crown’s submission that Jennings virtually mandated the conclusion that the Charter breach had minimal impact on the Charter protected interests of the respondent.

30After explaining why he excluded the evidence the trial judge addressed Jennings specifically. He observed that in Jennings the Court of Appeal was responding to and rejected a line of cases which had created an almost automatic rule of exclusion of breath tests obtained in a manner which violated the Charter. He also said, correctly in my view, that in doing so the Court of Appeal did not create an automatic inclusionary rule. He also relied on the fact that the Court of Appeal in Jennings was not dealing with the sort of Charter breach he had found in the present case.

31I am unable to see these comments of the trial judge as reflective of error. When they are read together with everything he said earlier about the second Grant factor, I conclude he conducted a thorough and reasonable analysis while taking Jennings into account. There was a sound basis for concluding that Jennings did not dictate a particular result in this case. I agree with my colleague, Woollcombe J. in R. v. Merko, 2018 ONSC 7336, at para. 42, that Jennings does not create an automatic rule of inclusion irrespective of which section of the Charter is breached. As Woolcombe J. said, at para. 40 of Merko, the Court of Appeal would have been aware that in Grant, at para. 134, the Supreme Court of Canada specified that s.24(2) analysis must focus on the particular protected interests which are at stake. Different Charter rights protect different interests.

32In this case the trial judge was dealing with a s. 10(b) violation. He was required to consider the impact of the violation on the interests protected by s. 10(b). After pointing out that the right to counsel was an important fundamental right he appears to have quoted, without attribution, from R. v. Suberu, [2009] 2 S.C.R. 460, 2009 SCC 33, at para. 40. There the Supreme Court of Canada stressed that persons who are deprived of their liberty are vulnerable and in a position of legal jeopardy. Detainees require legal assistance to regain their liberty and to protect against self-incrimination. I also observe that in R. v. McGuffie Doherty J.A., after citing the same passage from Suberu earlier in his judgment, emphasized that detained persons are constitutionally entitled to a reasonable opportunity to access legal advice. At para. 80 he said, “Access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed by the rule of law”.

33Such comments tend to undermine the appellant’s submission that because an accused is statutorily mandated to provide breath samples in response to a lawful demand there is little scope for legal advice to lead to anything different than what happened in this case and that such reasoning should be controlling in this case. The appellant’s submission in this regard is akin to a discoverability argument and is based on the legal reality that breath samples are compelled by statute when sought by the police pursuant to a lawful demand. The submission is that because the Charter violation would be highly unlikely to have had any impact on the discoverability of the breath samples, which the Supreme Court of Canada has said in Grant are obtained in a minimally intrusive way, there has been little impact on the Charter protected interests of the respondent.

34What this submission fails to recognize is that there is intrinsic value in a detainee being able to access the legal advice they are constitutionally entitled to. As Lamer C.J. said long ago in R. v. Bartle, [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, at para. 16:

The purpose of s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations. [Citation omitted, emphasis added.]

35The respondent was entitled to hear from his own lawyer or from duty counsel what his obligations as well as his rights were. It is in society’s interest that everyone who is detained for whatever reason be made aware of both their rights and obligations by a confidential legal advisor. In my respectful view, this undermines the appellant’s discoverability argument.

36These concerns appear to have been on the trial judge’s mind. At p. 23 of his reasons the trial judge pointed out that Cst. Bryant told the respondent it was in his interests to provide a breath sample because “he could blow under”. The trial judge also observed that the respondent said that that was why he wanted to talk to his own lawyer.

37The trial judge acknowledged that the Crown was right in submitting that the respondent’s “freedom of choice” was limited owing to his legal obligation to provide breath samples. It cannot be said that he did not appreciate that or that he failed to take that into account. However, he disagreed with the Crown’s submission that the respondent’s right to silence and right not to incriminate himself were, as Crown counsel put it in his written submissions to the trial judge, “not in play”.

38The appellant submits that because no statements made by the appellant were tendered in evidence the respondent’s right to silence was not significantly impacted. The submission is that the obtaining of the breath samples should be looked at separately or in isolation from any other impact the breach had on the Charter protected interests of the respondent. For the reasons I have already stated I do not agree. Like the trial judge, I am of the view that the respondent was in need of and entitled to legal advice. He received none at all before the evidence gathering process proceeded. As the authorities have long indicated, even in the context of a breath test case, we are not entitled to speculate about what advice counsel may have provided to the respondent or what the result might have been if legal advice had been received: Bartle, at paras. 61-64. The trial judge referenced these principles when dealing with this issue. I observe that in the paragraphs of Bartle just referred to Lamer C.J. spoke again in terms of both rights and legal obligations. I also observe that he cited cases in support of this proposition which had nothing to do with drinking and driving or statutorily mandated tests.

39I am not persuaded that when the trial judge’s reasons are read as a whole he made any error in his approach to the second Grant factor.

40Turning to the third Grant factor, society’s interest in an adjudication on the merits, in its factum the appellant submitted that the trial judge erred “by not concluding that the third Grant factor strongly favoured” admission of the evidence. In oral argument the appellant submitted that the trial judge erred by allowing the balancing exercise of s. 24(2) to “infiltrate its way into the third branch” of the Grant analysis.

41The trial judge held that the third Grant factor pulled in favour of admission, but not strongly so. In its factum the appellant submitted that because the breath test evidence was reliable and its exclusion gutted the Crown’s case on the over 80 prosecution, it was unreasonable for the trial judge to conclude that the third Grant factor did not pull strongly in favour of admission. The appellant further submitted that the trial judge wrongly held that the exclusion would not gut the Crown’s case overall and that when dealing with the third factor he failed to consider that the respondent had a prior conviction.

42I am not persuaded the trial judge erred in any of these ways in relation to his analysis of the third Grant factor.

43At the outset of this part of his reasons the trial judge correctly identified the relevant inquiry as “whether the truth-seeking function of the trial would be better served by admission or exclusion of the evidence”. He listed the seriousness of the case, the reliability of the evidence and the importance of the evidence to the prosecution’s case as important considerations. He then elaborated on each of these considerations with reference to the applicable legal principles. He acknowledged that the breath tests were reliable. He expressly said they were central to the Crown’s case on the over 80 charge. He said that while they and the toxicologist’s opinion evidence were relevant on the impaired charge, he concluded they were not essential. When he then said their absence would not gut the Crown’s case I am satisfied he was speaking only of the impaired driving charge. On that point he was correct as there was certainly other evidence to be considered on the issue of impairment. He was also clearly aware of the respondent’s prior conviction because he had just mentioned it when considering the second Grant factor.

44I also see no indication that the trial judge allowed the balancing process to infiltrate the third stage of his analysis. While the last two sentences of the concluding paragraph dealing with the third factor in Grant do speak of balancing, this was an oral judgment. It seems likely to me that the court reporter has put the paragraph break in the wrong spot. Those two sentences flow into the following paragraph, which was expressly about balancing.

45Having considered the relevant factors and not having considered irrelevant ones the trial judge’s conclusion that the third Grant factor favoured admission of the evidence, but not strongly so, was a reasonable one.

46This ground of appeal also fails.

Conclusion

47For the foregoing reasons the appeal is dismissed.

F. Dawson J.