Her Majesty the Queen v. Wilding [Indexed as: R. v. Wilding]
88 O.R. (3d) 680
Court of Appeal for Ontario,
Laskin, Moldaver and Rouleau JJ.A.
December 7, 2007
Charter of Rights and Freedoms -- Right to counsel -- Exclusion of evidence -- Trial judge finding no violation of accused's s. 10(b) rights as police making efforts to reach counsel of choice and arranging for duty counsel to speak with accused when unable to reach accused's counsel -- Summary conviction appeal court judge erring in holding that was a serious breach of s. 10(b) rights resulting from systemic failure to respect the right to counsel of choice in similar circumstances and excluding breathalyser results under s. 24(2) of Charter -- Assuming there was s. 10(b) breach, it was minor -- Police making sincere efforts to reach accused's counsel of choice before putting accused in touch with duty counsel -- No evidence that further efforts would have reached counsel being 3:00 a.m. -- Being unable to reach counsel of choice in circumstances far less significant than if at trial -- No evidence of any systemic failure to respect rights -- Breathalyser results being reliable evidence in relation to serious offence -- Breathalyser minimally intrusive -- Accused suffering no prejudice from breach -- Summary conviction appeal court judge failing to consider adverse consequences on administration of justice if evidence excluded -- More harm than good would have resulted from exclusion -- Accused's breathalyser readings not being excluded under s. 24(2) of Charter -- Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2).
The trial judge found that the arresting officer made adequate efforts to contact the accused's counsel of choice before putting the accused in touch with duty counsel, and that the accused's right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms was not violated. The accused was convicted of driving over 80. The summary conviction appeal judge found that the arresting officer did not make adequate efforts to contact counsel of choice, that there was a systemic failure to respect right to counsel of choice, that the breach of the accused's s. 10(b) rights was serious, and he excluded the accused's breathalyser readings under s. 24(2) of the Charter and overturned the conviction. The Crown appealed.
Held, the appeal should be allowed.
It was unnecessary to decide whether the summary conviction appeal judge erred in overruling the trial judge on the s. 10(b) issue, although it should not be [page681] inferred that the ruling was correct. Assuming that the arresting officer did not make reasonable efforts to contact the accused's counsel of choice, he missed the mark by very little, and the summary conviction appeal judge erred in characterizing the Charter violation as serious. The arresting officer acted in good faith and made sincere efforts to locate counsel of choice and there was no evidence that further efforts would have been successful given that it was 3:00 a.m. There was no evidence to support the summary conviction appeal court judge's finding that there was a systemic indifference to the right of accused persons to obtain counsel of choice. Moreover, in assessing the seriousness of the violation, the summary conviction appeal judge failed to take into account the lack of prejudice to the accused, who was satisfied with the advice he received from duty counsel. The accused properly conceded that the breathalyser results were reliable evidence and the excluded evidence was crucial to the proof of a serious offence. Finally, the summary conviction appeal judge failed to properly assess whether excluding the breathalyser results would have a more serious impact on the repute of justice than admitting them. In all the circumstances, the repute of the justice system would suffer if the evidence were excluded.
Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2)
APPEAL by the Crown from the judgment of Trafford J., sitting as a summary conviction appeal judge, 2006 CanLII 40497 (ON SC), [2006] O.J. No. 4784, 149 C.R.R. (2d) 90 (S.C.J.), allowing the accused's appeal from conviction for driving over 80 registered by Khawly J., [2005] O.J. No. 6224 (C.J.).
Cases referred to R. v. Grant (2006), 2006 CanLII 18347 (ON CA), 81 O.R. (3d) 1, [2006] O.J. No. 2179, 213 O.A.C. 127, 209 C.C.C. (3d) 250, 38 C.R. (6th) 58 (C.A.) [Leave to appeal to S.C.C. granted [2007] S.C.C.A. No. 99]; R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56, [1999] O.J. No. 202, 59 C.R.R. (2d) 189, 131 C.C.C. (3d) 518, 22 C.R. (5th) 103 (C.A.); R. v. Richfield, 2003 CanLII 52164 (ON CA), [2003] O.J. No. 3230, 109 C.R.R. (2d) 295, 178 C.C.C. (3d) 23, 43 M.V.R. (4th) 231, 14 C.R. (6th) 77 (C.A.) Statutes referred to
Roger A. Pinnock, for appellant. Joseph Di Luca and Louie R. Genova, for respondent.
[1] BY THE COURT: -- At issue in this appeal is whether the police breached the respondent's right to retain counsel of his choice under s. 10(b) of the Canadian Charter of Rights and Freedoms and, if so, whether the ensuing breathalyser results should have been excluded under s. 24(2) of the Charter.
[2] In assessing the s. 10(b) issue, the trial judge recognized, correctly in our view, that there are no hard and fast rules that govern the analysis; rather, each case must be determined on its own facts and circumstances. The trial judge found that the arresting officer made reasonable efforts to contact the respondent's counsel of choice and he found no s. 10(b) violation. Hence, he did not engage in a s. 24(2) analysis. [page682]
[3] On appeal, the summary conviction appeal judge found that the trial judge erred in his s. 10(b) analysis and that he came to the wrong conclusion. Applying what he considered to be the correct legal principles, the summary conviction appeal judge concluded that the arresting officer did not make adequate efforts to contact the respondent's counsel of choice and he accordingly breached the respondent's rights under s. 10(b).
[4] The summary conviction appeal judge then considered s. 24(2) of the Charter and, in brief reasons, reproduced in full below, he concluded that the breathalyser readings should be excluded from evidence [at para. 31]:
Because the breach of the right to counsel of choice was a serious one, the evidence of the breathalyser readings is inadmissible under s. 24(2) of the Charter. The denial of access to counsel of choice because of an inadequate effort of an arresting officer to contact the lawyer is a significant error in cases like this one. The seriousness of the breach is aggravated by the lack of resources made available to Constable Marxer by the Toronto Police Services. This case shows an institutionalized failure to respect the right to counsel of choice in cases like this one. The values embraced by the right to counsel of choice are an important part of the legal landscape in a case like this, and they were given a casual emphasis by the police. Arranging to speak with duty counsel, while helpful to the Crown, is not a sufficient answer under s. 24(2) of the Charter. See R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.) and R. v. Clayton, 2005 CanLII 16569 (ON CA), [2005] O.J. No. 1078 (C.A.).
[5] For reasons that follow, we are of the view that the summary conviction appeal judge erred in excluding the breathalyser results under s. 24(2). That being so, we need not finally decide whether he correctly overruled the trial judge on the s. 10(b) issue. These reasons should not be taken as an indication that he was correct in doing so. Indeed, that issue, in our view, remains very much an open question.
[6] Assuming, for purposes of s. 24(2), that the arresting officer did not make reasonable efforts to contact the respondent's counsel of choice, in our view, he missed the mark by very little. By no means can it be said that the breach here, if one occurred, was clear-cut. On the contrary, this was at best a close call and the summary conviction appeal court judge erred in characterizing the breach as "serious". If anything, we are satisfied that the breach was a minor one and in the end, it occasioned no prejudice whatsoever to the respondent.
[7] As noted, the summary conviction appeal judge's s. 24(2) analysis was brief. It essentially focused on the nature and gravity of the breach and failed to consider other relevant factors. A more complete analysis follows.
[8] First, dealing with trial fairness, assuming that the breath samples constituted "conscriptive" evidence, they were minimally [page683] intrusive and essential to control the societal problem of drinking and driving. They were also entirely reliable, a fact conceded by the respondent at trial. Those features militate in favour of inclusion. See R. v. Richfield, 2003 CanLII 52164 (ON CA), [2003] O.J. No. 3230, 178 C.C.C. (3d) 23 (C.A.) and R. v. Grant (2006), 2006 CanLII 18347 (ON CA), 81 O.R. (3d) 1, [2006] O.J. No. 2179, 209 C.C.C. (3d) 250, leave to appeal to the Supreme Court of Canada granted [2007] S.C.C.A. No. 99.
[9] Turning next to the seriousness of the breach, as indicated, we are of the view that the summary conviction appeal judge erred in characterizing it as serious. The arresting officer acted in good faith throughout. He made sincere efforts to locate the respondent's counsel of choice. His efforts included:
-- Obtaining the phone number of a friend who, according to the respondent, would know counsel's phone number.
-- Placing two calls to the respondent's friend, only to receive a voice mail response on each occasion.
-- Asking the respondent if he wished to leave a voice mail message for his friend, to which the respondent replied "no".
-- Checking a lawyer's directory (albeit one that was somewhat dated) and obtaining a number for counsel.
-- Calling that number, only to find that the listing was no longer in service.
-- Checking the Toronto White Pages for counsel's phone number, albeit to no avail.
[10] Accepting, for purposes of s. 24(2), that the officer could and should have done more, such as calling directory assistance or checking the Canada 411 service through the internet, in the face of the efforts he did make (which the trial judge found to be sufficient in the circumstances) the summary conviction appeal judge overstated the nature of the breach when he found that it showed "an institutionalized failure to respect the right to counsel of choice in cases like this one". The evidence in this case fell considerably short of warranting a serious finding of that nature.
[11] Finally, in assessing the seriousness of the breach, the summary conviction appeal judge failed to take into account that the breach did not prejudice the respondent.
[12] The record shows either that the respondent accepted the officer's invitation to speak to duty counsel or that he initiated his own request to do so after the officer informed him he could [page684] not locate his counsel of choice. Regardless of the precise manner in which he came to speak to duty counsel, the respondent did speak to duty counsel for a period of 12 minutes. At no time during or after the call did he complain about having to speak to duty counsel; nor did he complain about the adequacy of the advice he received. Indeed, in his testimony on the voir dire, the respondent acknowledged that he "did not have any problem with what he had been told" by duty counsel.
[13] That the respondent spoke to duty counsel and was content with the advice he received is especially significant in this case. It attenuates to a large extent the seriousness of the breach for two reasons. First, the record is silent on whether there was any reasonable likelihood of contacting respondent's counsel of choice at 3:00 a.m., even if the arresting officer had been able to locate his phone number. Second, the inability to retain counsel of choice in these circumstances, while not insignificant, is far less significant than the inability to retain counsel of choice for trial, as was the situation in R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 43 O.R. (3d) 56, [1999] O.J. No. 202, 131 C.C.C. (3d) 518 (C.A.).
[14] In sum, if there was a s. 10(b) breach here, it was minor and inconsequential. The summary conviction appeal judge erred in concluding otherwise.
[15] Lastly, the summary conviction appeal judge failed to properly assess whether excluding the breathalyser results would have a more serious impact on the repute of the administration of justice than admitting them.
[16] In this case, we are satisfied that the exclusion of reliable evidence needed to establish the serious offence with which the respondent was charged would do more harm than good to the administration of justice. The breach here was neither flagrant nor wilful and as we have already observed, the evidence did not substantiate a finding of institutional indifference to individual rights. Accordingly, the repute of the justice system would suffer if the evidence were excluded.
[17] For these reasons, we are satisfied that the breathalyser result should have been admitted under s. 24(2).
[18] In the result, leave to appeal is granted, the appeal is allowed, the acquittal is set aside and the conviction registered at trial is restored.
Appeal allowed. [page685]