Court File and Parties
COURT FILE NO.: CR-19-30000034-00AP DATE: 20200302 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – ANDREW SINGH
Counsel: Laurie Gonet, for the Crown Chris Rudnicki, for Andrew Singh
HEARD: January 21, 2020
Reasons for Judgment on Summary Conviction Appeal
T. DUCHARME J.
Introduction
[1] The Appellant was convicted of impaired driving by Justice Downes of the Ontario Court of Justice. The trial proceeded as a blended voir dire and the Appellant argued that his blood alcohol readings should be excluded as a result of a violation of his rights under s. 10(b) of the Charter by the arresting officer, P.C. Russell, who failed to facilitate his getting to speak to his counsel of choice. The court found that there was no breach of s. 10(b) and that, even if there was, the breathalyzer readings could be saved pursuant to s. 24(2). As such, the Appellant was convicted of Impaired Driving and the court stayed the charge of Over 80.
Facts
[2] The Crown called two witnesses: Constable Russell and Constable Anderson, the officers who arrested the Appellant. In the early morning hours of April 8, 2017, the officers were in their patrol car when they received a radio call that a vehicle was stalled at Markham Road and Progress Avenue in Toronto. They arrived on scene around 1:20 a.m. A tow truck and parking enforcement had already arrived. They found a four-door Sonata stopped in the centre lane. The Appellant was asleep in the driver’s seat. The vehicle was in drive. The Appellant’s foot was on the brake. Officers and other personnel knocked on the window in an attempt to rouse the Appellant without success. Ultimately, firefighters had to break the passenger window to gain access to the vehicle. Fire department personnel woke the Appellant, unlocked the doors, and put the car in park.
[3] The Appellant was very confused. He could not tell what day it was. He smelled of marijuana. He was unsteady on his feet and unable to walk on his own. After the Appellant was cleared by EMS personnel, Constable Russell arrested him for impaired operation of a motor vehicle. Constable Russell was asked to list the indicia of impairment in his evidence-in-chief. He listed the odour of marijuana, an odour of alcohol on his breath that “wasn’t strong”, the fact that he was asleep at the wheel of his vehicle, which was stopped in the middle of the street and left in drive, and that he was oblivious to attempts to wake him, his disorientation on waking, having bloodshot and watery eyes, and being very unsteady on his feet. Both officers noted that Mr. Singh was very talkative and repeatedly asked the same questions.
[4] Constable Russell advised the Appellant of his right to counsel following his arrest, at 1:39 a.m. The Appellant indicated he wished to speak with Morrie Luft, who was his trial counsel. Constable Russell read the breath demand and then brought the Appellant to 41 Division. They arrived at the station at 1:59 a.m., though could not park and physically enter until 2:05 a.m.
[5] Constable Anderson placed a call to Mr. Luft at 2:22 a.m. He had received the number for Mr. Luft from Mr. Singh. There was no answer. Mr. Luft’s voicemail indicated that if he was unavailable, officers should call another specific line. Constable Anderson did not leave a message for Mr. Luft. He called the second line and reached the voicemail of another lawyer, Douglas Holt. He did not leave a message there, either.
[6] Constable Anderson then placed a call to duty counsel on behalf of the Appellant, at 2:25 a.m., only three minutes after his call to Mr. Luft. He did not ask Mr. Singh whether he wished to speak with duty counsel. He placed the Appellant in the private room to speak with duty counsel. He did not recall telling the Appellant that he was connecting him with duty counsel, and not with his counsel of choice, but testified that he “would have done that.” He made no note of such a conversation.
[7] In cross-examination, Constable Anderson agreed that he had a responsibility to contact a person’s counsel of choice. He testified that in the context of a time-sensitive impaired investigation, his goal was to ensure the accused gets qualified legal advice so that police can seek a breath sample. He had not been trained on how long he ought to wait for a call back from a lawyer before calling duty counsel. Constable Anderson agreed that he had defaulted to duty counsel.
[8] Constable Anderson could not remember whether, after the call to duty counsel, the Appellant asked to speak with Mr. Luft. The Appellant was brought to the breath room at 2:36 a.m., where he provided sufficient samples for analysis.
[9] The Appellant testified on the voir dire only. He was 27 on the date of the alleged offence. He had worked that day in his job in construction industrial supply, and afterward had gone to a friend’s house to help with moving. He testified that he had drank 3 beers over the course of the evening, and that he and his friend had shared a “spliff”, a marijuana cigarette rolled with cigar paper. He testified that he left his friend’s place around 12:30 or 12:45 a.m.
[10] Mr. Singh testified that as he was driving home, he fell asleep at a stoplight. This is where the emergency personnel and police officers found him. He was treated by emergency personnel and, after being medically cleared, arrested by the officers for impaired driving. They read him his rights to counsel, and he indicated that he wished to speak with Morrie Luft. The number was saved on the Appellant’s cell phone. He unlocked it so police officers could access it for him.
[11] The Appellant testified that he was brought to the station and seated on a chair. The officer told him his lawyer would be contacted. About five minutes later, the officer told the Appellant he had counsel on the phone. The Appellant was brought to a private room with a phone. He picked up the phone and realized for the first time that he was not speaking with his counsel of choice. They had a brief conversation. Mr. Singh testified that he was aware the person he did speak to was duty counsel but did not know what duty counsel was. In response to whether duty counsel had rendered legal advice, the Appellant stated, “I guess in his eyes, yes, maybe”. After speaking with duty counsel, Mr. Singh advised the officer that he hadn’t spoken with Mr. Luft. The officer told the Appellant that they couldn’t get a hold of him. Mr. Singh testified that he did not feel he was in a position to ask to make further phone calls because he was nervous. Mr. Singh admitted that there was nothing in what the police said or did that led him to believe he needed to provide a sample within a certain timeframe or that he would be charged with refuse if he failed to do so.
[12] Mr. Singh was then brought to the breath room. Mr. Singh acknowledged that the breathalyzer technician asked him if he had spoken to duty counsel and whether he was content to continue, and he agreed.
[13] The Appellant was not asked if he wanted to call another lawyer. He was not given an option of waiting to see if his counsel of choice called back. He didn’t believe he had the right to any further calls. If he had been given the option, he would have asked to call Mr. Posner, as he believed he was a good lawyer.
Section 10(b)
[14] Section 10(b) guarantees every detained person the right to retain and instruct counsel without delay. This right includes an informational component, the right to be advised of the right and of the existence and availability of legal aid and duty counsel. Section 10(b) also includes an implementational component, which imposes a duty on police to provide the accused with a reasonable opportunity to exercise that right. The implementational component of the right to counsel requires the police, in circumstances where a suspect is detained and unable to take the steps they normally would to speak with a lawyer, to take positive steps to assist the detainee in contacting counsel of choice. The police are also to refrain from eliciting evidence from the detainee until he has had a reasonable opportunity to exercise the right: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29.
[15] In Willier, at para. 35, the Supreme Court of Canada outlined the role counsel of choice plays in the 10(b) analysis:
Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. [Emphasis added.]
[16] The right is not unlimited. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise the right to counsel by calling another lawyer. Otherwise, the police duty to hold off will be suspended: Willier, at para. 35.
[17] Police are not entitled to “default to duty counsel” when a detainee wants to contact a specific lawyer. Police are not discharged of their obligation to connect a detainee with their counsel of choice simply because duty counsel is on the other line. As Durno J. noted in Kumarasamy, “[t]he availability of duty counsel 24 hours a day cannot be used to trump a detainee’s right to counsel of choice.” The police must hold off until reasonable efforts have been made to contact the accused’s lawyer of choice, including in most cases permitting the accused to contact family or friends to assist in obtaining their lawyer’s number: R. v. Kumarasamy, 22 M.V.R. (4th) 234 (Ont. S.C.), at paras. 21 and 25.
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: R. v. Traicheff, 2010 ONCA 851, at para. 2.
[19] Detainees are not required to express dissatisfaction with the advice of duty counsel in order to make out a breach of their right to counsel of choice. In Vernon, the accused asked to contact his own lawyer after being arrested for impaired driving. Police called that lawyer and left a message. A minute later, police also called duty counsel and left a message. Duty counsel called back 13 minutes later. Police advised the accused that duty counsel had called back but that they had not yet heard from his counsel of choice. They asked if he wished to speak with duty counsel. He said that he would. He expressed no concerns following this call.
[21] Based on the foregoing authorities, I find that police violated Mr. Singh’s rights to counsel by failing to make adequate efforts to connect Mr. Singh with his counsel of choice and by connecting him to duty counsel thereafter, without asking whether he wished to speak with duty counsel.
Section 24(2)
[22] Having found a violation of Mr. Singh’s rights to counsel under s. 10(b) of the Charter, I must next consider whether Mr. Singh’s blood alcohol readings should be admitted or excluded under section 24(2) of the Charter. Following the analytical framework supplied by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I am required to assess and balance the effect of admitting or excluding the evidence on society’s confidence in the justice system, having regard to: 1) the seriousness of the Charter infringing state conduct; 2) the impact of the breach on Mr. Singh’s Charter-protected interests; and 3) society’s interest in the adjudication of the case on its merits.
[23] In terms of the seriousness of the Charter infringing state conduct, I note that the majority in Grant stated at para. 74:
State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
[24] I reject any suggestion that the police deliberately violated Mr. Singh’s right to counsel of choice. However, it seems clear that P.C. Anderson did not appreciate the full extent of his Charter obligations as they relate to his duty to facilitate the exercise, by detained persons, of the right to consult with counsel of their choosing. Moreover, P.C. Anderson in describing the situation as “time-sensitive” seemed to be unaware of the ruling of the Supreme Court of Canada in R. v. Prosper, [1994] 3 S.C.R. 236, at para. 45, where the court rejected the argument that “the existence of the two-hour evidentiary presumption available to the Crown under s. 258(1)(c)(ii) of the Code does not, by itself, constitute such a compelling or urgent circumstance” which would justify the police deciding not to hold off their investigative steps any further. Both of these failings are problematic. As the Supreme Court of Canada made clear in Grant, “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith” because the police “are rightly expected to know what the law is.”: at paras. 75 and 133.
[25] Thus, the violation of Mr. Singh’s Charter rights cannot be said to have been made in good faith. However, I also reject the suggestion that this constituted “a wilful or reckless disregard of Charter rights [that] will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.” Also, in terms of trial fairness, I note that the taking of breath samples is minimally intrusive and the breathalyzer results are entirely reliable. Rather, this strikes me as a moderately serious violation of Mr. Singh’s Charter rights.
[26] As for the impact of the breach on Mr. Singh’s Charter protected interests, the starting point is the majority’s observation in Grant, at paras. 76-77, that:
This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. … The more serious the incursion on these interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.
[27] I acknowledge that Mr. Singh was not granted access to his counsel as he had requested. However, Mr. Singh was also provided with legal advice. While there is no need for him to complain about the quality of the legal advice received, in terms of protecting the existence of his right to his counsel of choice, I can consider the following factors: (1) the fact that Mr. Singh did receive legal advice; (2) the fact that Mr. Singh after the call did not complain about having to speak to duty counsel; nor did he complain about the adequacy of the advice he received. Indeed, when subsequently asked by the qualified breathalyzer technician if he was content to go ahead, Mr. Singh stated, “of course”; (3) the fact that the intrusiveness of taking breath samples is at the lower end of the scale and the breathalyzer readings are entirely reliable. Thus, I would conclude that the effect on Mr. Singh’s Charter rights was minor and these factors support the inclusion of the breathalyzer results.
[28] As in most cases, the final Grant factor, society’s interest in adjudication on the merits, weighs in favour of admission. But as our Court of Appeal said in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, “if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence”.
[29] In conclusion, despite the violation of s. 10(b) of the Charter, the breathalyzer results should be admitted into evidence.
Sufficiency of Evidence of Impairment
[30] As I have ruled that the breathalyzer results should be admitted into evidence, there is abundant evidence that Mr. Singh was impaired by alcohol. The Appellant’s argument that impairment by a drug alone could not be ruled out must therefore fail.
Conclusion
[31] The appeal is dismissed.
T. DUCHARME J.
Released: March 2, 2020
COURT FILE NO.: CR-19-30000034-00AP DATE: 20200302 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – ANDREW SINGH REASONS FOR Judgment on summary COnviction Appeal T. DUCHARME J. Released: March 2, 2020
