Her Majesty the Queen v. Manchulenko

[Indexed as: R. v. Manchulenko]

Ontario Reports

Court of Appeal for Ontario,

Rouleau, Watt and Epstein JJ.A.

September 5, 2013

116 O.R. (3d) 721 | 2013 ONCA 543

Case Summary

Charter of Rights and Freedoms — Exclusion of evidence — "Fresh start" when police complying with Charter following initial breach of Charter — Right to counsel — Police violating accused's right to counsel by failing to facilitate contact with counsel before accused provided first breath sample — Accused speaking to counsel before providing second breath sample — Trial judge erring in excluding second sample under s. 24(2) of Charter without conducting case-specific analysis of whether it was obtained in manner that infringed or denied accused's right to counsel — Summary conviction appeal court judge erring in concluding that need not conduct discrete s. 24(2) analysis of admissibility of second sample on basis that all evidence was tainted following initial Charter breach and had to be excluded — No automatic exclusion of evidence following breach of right to counsel — "Fresh start" principle stating that subsequent Charter compliance may break nexus between initial infringement and obtaining further evidence following Charter compliance not confined to cases involving successive statements to persons in authority — Summary conviction appeal court judge erring by failing to consider whether fresh start broke nexus between earlier breach and obtaining second sample — Even if nexus was established erring in failing to conduct a discrete s. 24(2) analysis in relation to second sample which would include significant factor of the accused's pre-sample consultation with counsel — New trial granted — Canadian Charter of Rights and Freedoms, s. 24(2).

A police officer arrested the accused for impaired driving, advised him of his right to counsel and made a breathalyzer demand. The accused initially declined to speak to counsel, but changed his mind in the breath room when the qualified technician reiterated his right to counsel. The officer took the accused to the telephone room, but did not help him to contact a local lawyer or duty counsel. The accused did not telephone a lawyer and was in the telephone room for only 40 seconds before returning to the breath room and telling the officer "let's get this over with". After he provided the first sample, the accused was taken back to the telephone room and spoke to a lawyer. He then provided a second breath sample. The trial judge found that the accused's right to counsel was violated when the qualified technician failed to re-advise him of his right to counsel after he changed his mind and to hold off until he had had a reasonable opportunity to exercise that right before taking the breath samples. She excluded both samples under s. 24(2) of the Canadian Charter of Rights and Freedoms. The accused was acquitted. The summary conviction appeal court affirmed that decision, holding that all of the evidence obtained following the Charter breach was tainted and that both samples had to be excluded. The Crown appealed.

Held, the appeal should be allowed.

The trial judge found that there was compliance with the accused's right to consult counsel and that he did speak with counsel before providing the second sample. She erred in failing to consider whether this provided a "fresh start" potentially breaking the nexus between the initial breach of the accused's rights [page722] and obtaining subsequent evidence. The "fresh start" principle is not confined to cases involving successive statements to persons in authority. The appeal judge and the trial judge erred in law in failing to undertake any case-specific analysis of whether the second sample was obtained in a manner that infringed or denied the accused's Charter rights when it was immediately preceded by consultation with counsel in compliance with s. 10(b) of the Charter. There is no per se or bright line rule that mandates exclusion of all evidence that follows a Charter infringement. Even if a case-specific analysis yielded a conclusion that the nexus requirement between the breach and obtaining the evidence was met in connection with the second sample, it was incumbent on the appeal judge and the trial judge to conduct a discrete, case-specific s. 24(2) analysis in relation to the results of the analysis of the second sample. A prominent component in that analysis would have been the impact of the pre-sample consultation with counsel. The appeal judge and the trial judge failed to consider the impact of the Charter-compliant conduct in the assessment of the seriousness of the earlier violation, and in particular whether the later Charter-compliant conduct reflected good faith on the part of the police, thus attenuating the seriousness of the earlier breach.

R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32, 82 M.V.R. (5th) 1, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1, EYB 2009-161617, J.E. 2009-1379, 66 C.R. (6th) 1, 193 C.R.R. (2d) 1, 391 N.R. 1, 253 O.A.C. 124, consd

Other cases referred to

R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, [1989] S.C.J. No. 81, 98 N.R. 281, J.E. 89-1189, 93 N.S.R. (2d) 35, 50 C.C.C. (3d) 1, 70 C.R. (3d) 97, 47 C.R.R. 171, 8 W.C.B. (2d) 196; R. v. Buhay, [2003] 1 S.C.R. 631, [2003] S.C.J. No. 30, 2003 SCC 30, 225 D.L.R. (4th) 624, 305 N.R. 158, [2004] 4 W.W.R. 1, J.E. 2003-1124, 177 Man. R. (2d) 72, 174 C.C.C. (3d) 97, 10 C.R. (6th) 205, 122 A.C.W.S. (3d) 863, 57 W.C.B. (2d) 206; R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, [1996] S.C.J. No. 76, 136 D.L.R. (4th) 502, 198 N.R. 321, J.E. 96-1406, 92 O.A.C. 161, 107 C.C.C. (3d) 481, 48 C.R. (4th) 297, 37 C.R.R. (2d) 1, 31 W.C.B. (2d) 212; R. v. Graveline, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, 2006 SCC 16, 266 D.L.R. (4th) 42, 347 N.R. 268, J.E. 2006-916, 207 C.C.C. (3d) 481, 38 C.R. (6th) 42, EYB 2006-104245, 69 W.C.B. (2d) 721; R. v. H. (J.M.) (2011), 113 O.R. (3d) 80, [2011] 3 S.C.R. 197, [2011] S.C.J. No. 45, 2011 SCC 45, 421 N.R. 76, 283 O.A.C. 379, EYB 2011-196549, 2011EXP-3033, J.E. 2011-1701, 87 C.R. (6th) 213, 276 C.C.C. (3d) 197, 342 D.L.R. (4th) 347, 96 W.C.B. (2d) 356; R. v. Harris (2007), 87 O.R. (3d) 214, [2007] O.J. No. 3185, 2007 ONCA 574, 228 O.A.C. 241, 225 C.C.C. (3d) 193, 49 C.R. (6th) 220, 51 M.V.R. (5th) 172, 163 C.R.R. (2d) 176, 75 W.C.B. (2d) 492; R. v. I. (L.R.) and T. (E.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504, [1993] S.C.J. No. 132, 109 D.L.R. (4th) 140, 159 N.R. 363, J.E. 94-61, 37 B.C.A.C. 48, 86 C.C.C. (3d) 289, 26 C.R. (4th) 119, 19 C.R.R. (2d) 156, 21 W.C.B. (2d) 494; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, [1987] S.C.J. No. 41, 41 D.L.R. (4th) 301, 76 N.R. 198, J.E. 87-811, 21 O.A.C. 192, 34 C.C.C. (3d) 385, 58 C.R. (3d) 97, 38 C.R.R. 37, 2 W.C.B. (2d) 307; R. v. Plaha, 2004 CanLII 21043 (ON CA), [2004] O.J. No. 3484, 189 O.A.C. 376, 188 C.C.C. (3d) 289, 24 C.R. (6th) 360, 123 C.R.R. (2d) 18 (C.A.); R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, [1994] S.C.J. No. 72, 118 D.L.R. (4th) 154, 172 N.R. 161, J.E. 94-1529, 133 N.S.R. (2d) 321, 92 C.C.C. (3d) 353, 33 C.R. (4th) 85, 23 C.R.R. (2d) 239, 6 M.V.R. (3d) 181; R. v. R. (R.) (2008), 90 O.R. (3d) 641, [2008] O.J. No. 2468, 2008 ONCA 497, 238 O.A.C. 242, 59 C.R. (6th) 258, 234 C.C.C. (3d) 463, 78 W.C.B. (2d) 606; R. v. Simon, [2008] O.J. No. 3072, 2008 ONCA 578, 269 O.A.C. 259, 176 C.R.R. (2d) 68, 78 W.C.B. (2d) 492; R. v. Sinclair, [2010] 2 S.C.R. 310, [2010] S.C.J. No. 35, 2010 SCC 35, 218 C.R.R. (2d) 1, 406 N.R. 1, 293 B.C.A.C. 36, 324 D.L.R. (4th) 385, 77 C.R. (6th) 203, 2010EXP-3245, J.E. 2010-1803, EYB 2010-180262, 259 C.C.C. (3d) 443, 90 W.C.B. (2d) 610; [page723] R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, [1988] S.C.J. No. 94, 56 D.L.R. (4th) 673, 90 N.R. 273, [1989] 1 W.W.R. 385, J.E. 89-119, 46 C.C.C. (3d) 479, 67 C.R. (3d) 87, 37 C.R.R. 335, 7 W.C.B. (2d) 44; R. v. T. (S.G.), [2010] 1 S.C.R. 688, [2010] S.C.J. No. 20, 2010 SCC 20, 402 N.R. 24, EYB 2010-174479, 2010EXP-1783, J.E. 2010-977, 255 C.C.C. (3d) 1, 74 C.R. (6th) 217, 211 C.R.R. (2d) 222, 319 D.L.R. (4th) 1, [2010] 6 W.W.R. 583, 350 Sask. R. 14; R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, [1987] S.C.J. No. 59, 45 D.L.R. (4th) 445, 79 N.R. 153, 25 O.A.C. 93, 37 C.C.C. (3d) 565, 60 C.R. (3d) 59, 32 C.R.R. 381, 2 M.V.R. (2d) 289; R. v. Willier, [2010] 2 S.C.R. 429, [2010] S.C.J. No. 37, 2010 SCC 37, 218 C.R.R. (2d) 64, 406 N.R. 218, 324 D.L.R. (4th) 479, 37 Alta. L.R. (5th) 1, 2010EXP-3243, 77 C.R. (6th) 283, [2010] 12 W.W.R. 385, 490 A.R. 1, J.E. 2010-1801, EYB 2010-180264, 259 C.C.C. (3d) 536, 90 W.C.B. (2d) 611; R. v. Wittwer, [2008] 2 S.C.R. 235, [2008] S.C.J. No. 33, 231 C.C.C. (3d) 97, 2008 SCC 33, EYB 2008-134204, J.E. 2008-1159, 375 N.R. 217, 294 D.L.R. (4th) 133, 255 B.C.A.C. 1, 57 C.R. (6th) 205, 173 C.R.R. (2d) 174; R. v. Youvarajah, [2013] S.C.J. No. 41, 2013 SCC 41, 447 N.R. 47, 308 O.A.C. 284, 2013EXP-2493, J.E. 2013-1340, EYB 2013-224843, 3 C.R. (7th) 40

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 10(b), 24(2)

Criminal Code, R.S.C. 1985, c. C-46, ss. 813, 822, 839(1)(a)

APPEAL by the Crown from the decision of Gareau J., [2012] O.J. No. 1920, 2012 ONSC 2558 dismissing an appeal from the acquittal entered by Bignell J., [2011] O.J. No. 6442 (C.J.).

Deborah Krick, for appellant.

Donald Orazietti, for respondent.

The judgment of the court was delivered by

WATT J.A.: —

[1] Early one November morning, a police officer pulled over a motor vehicle on a street in downtown Sault Ste. Marie. Mackenzie Manchulenko (the "respondent") was the driver and sole occupant of the vehicle.

[2] The officer approached the respondent's vehicle. From the manner in which the respondent was driving, and his appearance when the officer spoke to him, the officer believed that the respondent's ability to operate the vehicle was impaired by alcohol.

[3] The officer arrested the respondent on a charge of impaired operation of a motor vehicle, advised him of his right to counsel and made a formal demand for a breath sample. At the police station, the respondent provided two breath samples to a qualified technician.

[4] At the respondent's trial, about four years later, the trial judge excluded both breath samples from evidence because a breach of the respondent's right to counsel had preceded the taking of the first sample. According to the trial judge, the balance of the evidence adduced by the Crown failed to prove the offence [page724] of impaired operation beyond a reasonable doubt. The trial judge found the respondent not guilty.[^1]

[5] On summary conviction appeal to the Superior Court of Justice, the Crown sought a new trial on the basis that the trial judge had erred in law in finding a breach of the respondent's rights under s. 10(b) of the Canadian Charter of Rights and Freedoms, and had further erred in law in excluding evidence of the results of both breath tests at trial. The appeal was dismissed.

[6] The Crown now seeks leave to appeal to this court under s. 839(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 on the same grounds as advanced on the appeal to the Superior Court of Justice. These reasons explain my conclusion that leave to appeal should be granted, the appeal allowed and a new trial ordered.

The Background Facts

[7] A brief overview of the circumstances that underpin the findings of the trial judge, together with an outline of the reasons of the trial judge and summary conviction appeal judge (the "appeal judge"), is sufficient preface to the issues raised in this appeal.

[8] Several matters of background are uncontroversial. No dispute arises about the lawfulness of the respondent's arrest, or about the demand made of him to provide samples of his breath. Further, the respondent does not complain that he was not properly advised about the reasons for his arrest or that the advice he received about the right to counsel was defective in substance.

[9] The Crown does not take issue with the trial judge's finding, affirmed by the appeal judge, that the respondent's rights under s. 10(b) of the Charter were infringed because the qualified technician failed to repeat the right to counsel advice after the respondent had invoked his right to counsel, then advised the qualified technician, "well, let's get this over with".

The arrest, Charter advice and demand

[10] The respondent was arrested for impaired operation of a motor vehicle shortly before 4:00 a.m. on November 9, 2006. The arresting officer advised the respondent of the reasons for the arrest, and of his right to retain and instruct counsel without [page725] delay. The officer also made a demand that the respondent provide samples of his breath for analysis.

[11] The respondent confirmed his understanding of what the officer had told him and declined to invoke his right to counsel. He accompanied the officer to the police station.

The booking procedure

[12] In the booking room at the police station, the officer in charge asked the respondent whether he wished to call a lawyer. The respondent declined.

The breath room

[13] When the qualified technician reiterated the respondent's right to counsel in the room where the breath samples were to be taken, the respondent said he wanted to call a lawyer. The officer took the respondent to the telephone room so that he could call a lawyer and obtain legal advice.

[14] The evidence concerning exactly what happened in the telephone room is unclear. The officer testified about his usual practice, but acknowledged that he had no specific recollection of what had occurred with the respondent. Posted in the telephone room was a list of local lawyers and printed advice, including a 1-800 number from which a person could obtain free advice from duty counsel. The officer testified that he usually points out the list of local lawyers, but if the detainee chooses not to call a local lawyer, the officer explains the availability of duty counsel at the 1-800 number displayed in the room.

[15] The respondent testified that he was taken to the telephone room but not given any assistance in contacting counsel, either a local lawyer or duty counsel. He simply sat, intimidated, in the police station. He did not know how to contact a lawyer. He did not telephone a lawyer or duty counsel. He was in the telephone room for only about 40 seconds. He returned to the breath room and told the officer, "well, let's get this over with".

The first breath sample

[16] The respondent provided his first breath sample at 4:29 a.m., about 35 minutes after his arrest. He asked the officer about the breathalyzer reading and what he should do next. The officer did not tell the respondent the breathalyzer reading, but took him back to the telephone room so that he could speak with a lawyer. [page726]

The telephone call

[17] The respondent telephoned a local lawyer whose name was on the list in the telephone room. After speaking to the lawyer, the respondent returned to the breath room.

The second breath sample

[18] The respondent provided a second breath sample at 4:50 a.m., about an hour after his arrest.

The Charter ruling

[19] The trial proceeded as a blended voir dire. After the evidence had been adduced on the voir dire, the trial judge made her ruling on the respondent's application to exclude the results of the analysis of both breath samples because of an infringement of s. 10(b) of the Charter.

[20] The trial judge found no breach of the informational component of s. 10(b) of the Charter, but found that a breach of the section had occurred when the qualified technician failed to re-advise the respondent of his right to counsel and to hold off until the respondent had a reasonable opportunity to exercise that right before taking the breath sample. The trial judge explained her conclusions in these terms:

The difficulty comes, however, when Mr. Manchulenko changed his mind. At this point, the police had an obligation to tell Mr. Manchulenko of his right to a reasonable opportunity to contact a lawyer and of the obligation on the part of police during that time not to take any statements or require him to participate in any potentially incriminating process until he had had that reasonable opportunity. That was not done in this case. Indeed, the conversation between Mr. Manchulenko and the office was quite telling in that at one point Mr. Manchulenko in response to a question asked, "Do I have to say it?"

The burden of establishing an unequivocal waiver is on the Crown. I find in this case that an unequivocal waiver on the part of Mr. Manchulenko has not been established. In the result, it must be found that the defence has established on a balance of probabilities a breach of Mr. Manchulenko's rights under Section 10(b) of the Charter.

[21] The trial judge described the lines of inquiry under s. 24(2) mandated by R. v. Grant, [2009] 2 S.C.R. 353, [2009] S.C.J. No. 32, 2009 SCC 32.

[22] On the first line of inquiry, the seriousness of the violation, the trial judge concluded that "a breach of the right to counsel is a breach of fundamental rights and is serious". She could find no indication, however, that the police were acting in bad faith, and was satisfied that the officers did not demonstrate "a flagrant disregard" of the Charter. [page727]

[23] On the second line of inquiry under Grant, the trial judge recognized that the taking of a breath sample was an intrusion on the respondent's privacy and bodily integrity, but it was an intrusion of a lesser degree than would be the case for blood samples.

[24] On the third line of inquiry, the trial judge characterized the evidence as reliable and recognized that its exclusion could have a significant effect on the case for the Crown.

[25] The trial judge referred to the decision of the Supreme Court of Canada in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, [1994] S.C.J. No. 72 excluding similar evidence and reasoned:

The court concluded [in Prosper] that admission of the evidence would adversely affect the fairness of the trial and bring the administration of justice into disrepute.

Yet since that decision in 1994, the Supreme Court of Canada has revised the framework for analysis under Section 24(2) of the Charter. In my view, when one considers all of the circumstances of this case in light of the framework as set out in R. v. Grant, the decision is very close. Although there may well be cases in which a breach of an accused's Section 10(b) rights will not result in exclusion of evidence, after having considered carefully all of the facts in this case and balancing all of the circumstances, I find that admission of this evidence would bring the administration of justice into disrepute. In the result, the evidence of the breath tests will be excluded.

The trial decision

[26] After the ruling excluding the certificate evidence, the case for the Crown consisted of the evidence of the observations of the arresting officer, a videotape of the respondent in the booking room of the station and the observation report of the qualified technician. The trial Crown had indicated that if the trial judge had admitted the results of the second breath test, he would also have called a toxicologist to establish the respondent's blood-alcohol concentration at the time he was operating of the motor vehicle and the effect of such a concentration on his physical ability to operate the vehicle.

[27] The trial judge decided that the Crown had failed to prove the essential elements of either offence charged beyond a reasonable doubt. She dismissed both charges.

The Decision of the Appeal Judge

[28] The appeal judge described the grounds of appeal advanced by the Crown as alleged errors

(i) in finding a breach of s. 10(b) of the Charter; and

(ii) in excluding the results of both breath tests from evidence. [page728]

[29] In connection with the first ground of appeal, the appeal judge was of the view that the police had breached the respondent's s. 10(b) rights by failing to afford the respondent a reasonable opportunity to exercise his right to counsel prior to administration of the first test, and in failing to hold off until the right had been exercised.

[30] On the second ground of appeal and, in particular, in regard to the submission that the second breath test should have been admitted, the appeal judge reasoned [at paras. 19-20]:

I do not view the two breath samples as capable of being parcelled off or separated from each other. Once there is a Charter breach and the accused was not afforded his s. 10(b) Charter rights, all the evidence from that point onward should be excluded. If the fundamental right against self-incrimination is infringed, all the evidence gathered from that point onward is tainted and is subject to be excluded under a s. 24(2) Charter analysis. Once Bignell J. found the Charter breach, all the evidence obtained from that point onward, including Mr. Manchulenko's second breath sample, was excluded.

As indicated at paragraph 39 of the decision for the majority in R. v. Prosper:

Making the police hold off in situations where a detainee has been reasonably diligent in exercising his or her right to counsel, including where appropriate trying to reach a private lawyer, and where "Brydges duty counsel" is not available would accommodate a detainee's privilege against self-incrimination. The police investigation with respect to evidence in the construction of which a detainee must necessarily participate (e.g., confessions, identification evidence, and breath and blood samples) would have to be held in abeyance until such reasonable time as a detainee is able to make contact with a private lawyer or whatever duty counsel service is in existence in the jurisdiction.

The police had an obligation to "hold off" at the point of the indication by the accused of his wish to exercise his right to counsel and all evidence from that point onward offends the right against self-incrimination and should be excluded. In this regard, breath samples are no different than a confession.

[31] The appeal was dismissed.

The grounds of appeal

[32] The Crown seeks leave to appeal on the ground that the appeal judge erred in upholding the decision of the trial judge excluding evidence of the results of both breath tests under s. 24(2) of the Charter, in particular in excluding from evidence the results of the second test.

[33] In its notice of application for leave to appeal and notice of appeal, the Crown also alleged that the appeal judge erred in upholding the finding of the trial judge that the respondent's s. 10(b) rights had been breached before the first breath sample was taken. The Crown did not pursue this issue during oral argument, in this court. [page729]

Leave to Appeal

[34] The Crown has no appeal as of right from the appeal judge's decision. Leave to appeal is required. Any ground of the appeal advanced must involve a question of law alone. Section 839(1)(a) of the Criminal Code is the governing authority.

The positions of the parties

[35] For the Crown, Ms. Krick submits that the ground of appeal she proposes to advance raises a question of law alone, the admissibility of evidence obtained after constitutional infringement under s. 24(2) of the Charter. More specifically, she contends that in the s. 24(2) analysis, the appeal judge erred in law in failing

(i) to distinguish between the first and second samples, in light of the exercise of the right to counsel that preceded the second test; and

(ii) to consider the subsequent constitutionally compliant conduct of the police as a factor to be considered in assessing the seriousness of the prior Charter breach in the s. 24(2) analysis in connection with the admissibility of the results of the first test.

[36] Ms. Krick says that the issues raised extend beyond the particular circumstances of this case. Alcohol-driving prosecutions involving the proffer of certificate evidence are commonplace. No existing jurisprudence resolves the issue of the effect of subsequent constitutional compliance on the admissibility of evidence of analysis of individual or multiple breath samples. The argument has merit, thus warrants leave to appeal being granted.

[37] For the respondent, Mr. Orazietti views the matter differently. He says this case is thoroughly unremarkable. The issues raised are routine: the admission or exclusion of evidence under s. 24(2) of the Charter. The jurisprudence is well-established as are the principles about whether evidence has been "obtained in a manner that infringed or denied" a person's Charter rights. There are no conflicting decisions to be resolved. To the extent that the issue of waiver is raised on the evidence, the principles that govern its application are equally well-established and in no need of refreshment.

[38] Mr. Orazietti contends that the proposed appeal raises no issue of law that transcends the particular circumstances of this case. The standard to be applied to obtain leave to appeal is no [page730] different for the Crown than for an accused, except that the Crown cannot advance a claim based on a significant deprivation of liberty and an arguable ground of appeal. There was no clear error here.

The governing principles

[39] The principles that govern whether leave to appeal will be granted under s. 839(1)(a) of the Criminal Code have been settled for this province by our decision in R. v. R. (R.) (2008), 2008 ONCA 497, 90 O.R. (3d) 641, [2008] O.J. No. 2468 (C.A.). For these purposes, a reminder about some of those principles is instructive.

[40] First, appeals under s. 839(1)(a) are appeals from the decision of the appeal judge, not a second appeal from the decision of the trial judge: R. (R.), at para. 24.

[41] Second, a second appeal in summary conviction proceedings is the exception, not the rule: R. (R.), at para. 24.

[42] Third, appeals under s. 839(1)(a) are restricted to questions of law alone: R. (R.), at para. 24. Neither questions of mixed fact and law nor of fact alone are cognizable on appeals under s. 839(1)(a): R. (R.), at para. 24.

[43] Fourth, the ultimate question of the admissibility of evidence under s. 24(2) of the Charter is a question of law. Where a trial judge excludes evidence under s. 24(2) on the basis of

(i) an error in principle;

(ii) a misapprehension of material evidence; or

(iii) an unreasonable assessment of the evidence,

the exclusion constitutes an error of law: R. v. Harris (2007), 87 O.R. (3d) 214, [2007] O.J. No. 3185, 2007 ONCA 574, at para. 51; R. v. Buhay, [2003] 1 S.C.R. 631, [2003] S.C.J. No. 30, 2003 SCC 30, at para. 42; and R. v. H. (J.M.) (2011), 113 O.R. (3d) 80, [2011] 3 S.C.R. 197, [2011] S.C.J. No. 45, 2011 SCC 45, at para. 29.

[44] Fifth, the principal factors that influence the decision under s. 839(1)(a) about whether leave to appeal should be granted are

(i) the significance of the proposed question of law beyond the circumstances of the case to the administration of justice in the province; and

(ii) the strength of the appeal.

R. (R.), at para. 30. [page731]

[45] Leave to appeal may be granted where the merits of the proposed ground of appeal are arguable, even if not strong, provided the proposed question of law has significance to the administration of justice beyond the idiosyncratic facts of the case under appeal. Leave to appeal may also be granted where the decision of the appeal judge reflects a "clear error", even if the error lacks general significance to the administration of justice: R. (R.), at paras. 32 and 37.

[46] Finally, no principled reason can justify the imposition of a different threshold for granting leave to appeal where the applicant, unsuccessful at trial and on summary conviction appeal, is the Crown rather than the defendant in the summary conviction proceedings.[^2] That said, different considerations may influence the leave decision where the basis on which leave to appeal is sought is "a clear error": a defendant's claim of strong social stigma and a significant period of incarceration if the conviction is upheld would seem to be of no avail to the Crown.

The principles applied

[47] I would grant leave to appeal. The issues raised are of importance to the administration of justice beyond the circumstances of this case. Further, there appears to be a clear error in the failure of the appeal judge to consider the effect of the Charter compliance that preceded the second breath test on the admissibility of the results of that test and on the seriousness of the prior breach.

[48] The proposed ground of appeal involves the admissibility of evidence, the results of two breath tests, under s. 24(2) of the Charter. To be more specific, the ground of appeal advanced says that the appeal judge erred in principle in failing to distinguish between the admissibility of the results of the analysis of the first and second samples in light of the respondent's exercise of his right to counsel prior to the second test. The proposed ground of appeal raises a question of law alone: Harris, at para. 51; Buhay, at para. 42; H. (J.M.), at para. 29.

[49] Alcohol-driving offences occupy a place of prominence on trial lists in the Ontario Court of Justice. It is routine that the Crown will attempt to prove the blood-alcohol concentration of the defendant at the time of driving by introducing certificates of [page732] analysis of breath samples supplied, as here, pursuant to a lawful demand. Two samples are provided and analyzed. With the assistance of various statutory presumptions, the Crown attempts to establish the essential elements of the offences charged.

[50] The admissibility issues raised in this case require an assessment, in the context of breath tests administered pursuant to a lawful demand, of what is sometimes described as the "fresh start" principle in cases involving successive statements made by detainees to persons in authority. Successful invocation of the principle would then require consideration of whether liability for alcohol-driving offences could be established, as proposed by the Crown, on the basis of an analysis of a single breath sample coupled with toxicological and other evidence.

[51] The failure of the appeal judge to consider the "fresh start" principle in connection with the second sample and, more generally, the application of the principle to evidence of the results of analysis of breath samples, satisfies me that leave to appeal should be granted.

The Appeal

Ground #1: The second breath sample

[52] The first ground of appeal challenges the decision of the appeal judge, affirming the decision of the trial judge, that the second sample could not be separated from the first despite the Charter-compliant conduct that immediately preceded the administration of the second breath test.

[53] Some further background will provide the context essential to a determination of this ground of appeal.

The acknowledged breach

[54] The appeal judge affirmed the trial judge's finding that the qualified technician breached the respondent's s. 10(b) Charter rights before the first breath test was administered. The breach occurred when the respondent indicated that he wanted to call a lawyer. The qualified technician did not facilitate contact with counsel, but simply took the respondent to the telephone room and left him there for less than a minute. When the respondent returned, without having contacted a lawyer, and expressed a desire to "get it over with", the officer failed to advise the respondent of his s. 10(b) rights and of the officer's obligations to hold off pending their exercise.

[55] The Crown does not challenge the correctness of the ruling nor the nexus between the infringing conduct and the first sample. [page733]

The second sample

[56] Prior to the administration of the second test, conversely, the respondent spoke to counsel by telephone. He provided a second breath sample 21 minutes after he had provided the first. The same technician administered the test, on the same machine, and in the same room of the police station.

[57] The respondent did not challenge the adequacy of the advice he received by telephone from the lawyer he called from the police station.

The decision of the appeal judge

[58] The appeal judge did not view the two breath samples as severable for the purposes of the s. 24(2) analysis. He concluded as had the trial judge that, once a breach of s. 10(b) had occurred, all the evidence "from that point forward" should be excluded.

[59] The appeal judge continued [at para. 20]:

The police had an obligation to "hold off" at the point of the indication by the accused of his wish to exercise his right to counsel and all evidence from that point onward offends the right against self-incrimination and should be excluded. In this regard, breath samples are not different than a confession.

The arguments on appeal

[60] For the appellant, Ms. Krick submits that the appeal judge (as well as the trial judge) erred in failing to consider the second breath sample as separate or independent from the first. What occurred here, prior to the second test, she submits, was a permissible "fresh start" by the qualified technician. The respondent exercised his s. 10(b) rights. He received legal advice. This severed the second sample from the first, such that the second was not "obtained in a manner that infringed or denied" the respondent's Charter rights. The judges below should have conducted a separate analysis in connection with the second sample and determined its admissibility without regard to the earlier infringement.

[61] For the respondent, Mr. Orazietti acknowledges that the trial judge erred in failing to rule separately on the admissibility of the second breath sample. But, he says, the appeal judge did the necessary analysis and reached the correct conclusion. His finding that there was a temporal and contextual connection between the samples, which made them part of the same transaction or course of conduct, meant that the same conclusion, exclusion, was proper for both samples. In any event, Mr. Orazietti adds, the admissibility of the second sample is academic since [page734] the respondent cannot be found guilty of either offence charged on the basis of one breath sample only.[^3]

The governing principles

[62] The principles that require consideration in connection with this first ground of appeal are those that address the scope of the right to counsel, especially those that consider the rehabilitative effect of a Charter-compliant "fresh start" after an earlier constitutional misstep. A second stream of precedent explains the scope of what might be termed the "nexus" requirement in s. 24(2) that borders the evidence that may be excluded by the terms "obtained in a manner".

[63] The purpose of the right to counsel is to allow a detainee not only to be informed of his rights and obligations under the law but, equally, if not more importantly, to obtain advice about how to exercise those rights: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, [1987] S.C.J. No. 41, at pp. 1242-43 S.C.R.; R. v. Sinclair, [2010] 2 S.C.R. 310, [2010] S.C.J. No. 35, 2010 SCC 35, at para. 26.

[64] Section 10(b) of the Charter has two components. The first, the informational component, requires and ensures that the detainee is advised of his or her rights to counsel. The second, the implementational component, requires that the detainee be given a reasonable opportunity to exercise his or her right to counsel, should she or he decide to do so. Implicit in the implementational component is a duty on the police to hold off questioning or requiring the detainee to participate in investigative procedures, or eliciting evidence until the detainee has a reasonable opportunity to consult counsel: Sinclair, at para. 27.

[65] The duties of the police under the implementational component of s. 10(b), however, are not absolute. Unless the detainee invokes the right to counsel and is reasonably diligent in exercising it, the correlative duties of the police to provide a reasonable opportunity for the detainee to exercise the right, and to refrain from eliciting evidence, will either not arise in the first place or will be suspended: Sinclair, at para. 27; R. v. Willier, [2010] 2 S.C.R. 429, [2010] S.C.J. No. 37, 2010 SCC 37, at para. 33; R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, [1987] S.C.J. No. 59, at p. 439 S.C.R.; and R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, [1989] S.C.J. No. 81, at pp. 154-55 S.C.R.

[66] When a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue [page735] contact with a lawyer, s. 10(b) requires the police to explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning or otherwise eliciting evidence until then: Willier, at para. 32; Prosper, at p. 274 S.C.R. What amounts to reasonable diligence in the exercise of the right to contact counsel depends on the context, and requires a fact-specific inquiry into all the circumstances: Willier, at para. 33.

[67] Sometimes, something of evidentiary value, considered alone, does not appear to fall foul of any admissibility rule. Nevertheless, the evidence, for example a confession of crime, may be sufficiently connected to an earlier involuntary (hence inadmissible) confession that it is considered involuntary by this association: R. v. T. (S.G.), [2010] 1 S.C.R. 688, [2010] S.C.J. No. 20, 2010 SCC 20, at para. 28. The derived confessions rule excludes statements which, despite not being involuntary when considered alone, are sufficiently connected to an earlier involuntary confession to be rendered involuntary and hence inadmissible: T. (S.G.), at para. 28. Each subsequent confession may be involuntary if the tainting features that disqualified the first continued to be present, or if the fact the first statement was made, was a substantial factor contributing to the making of the second or subsequent statement: T. (S.G.), at para. 29; R. v. I. (L.R.) and T. (E.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504, [1993] S.C.J. No. 132, at p. 526 S.C.R. Where the earlier contaminant is a Charter breach, s. 24(2) provides its own formula for exclusion: I. (L.R.) and T. (E.), at p. 532 S.C.R.

[68] In some circumstances, conduct by investigators prior to a second statement may sever the link between the original taint and the subsequent statement. In other words, investigators may attempt a "fresh start" in order to insulate the second statement from the taint that rendered the earlier statement inadmissible: R. v. Wittwer, [2008] 2 S.C.R. 235, [2008] S.C.J. No. 33, 2008 SCC 33, at paras. 2-3. Where the antecedent taint is a Charter infringement, a fresh start may clearly sever the subsequent statement from the earlier Charter breach: R. v. Simon, [2008] O.J. No. 3072, 2008 ONCA 578, 269 O.A.C 259, at para. 69; Wittwer, at para. 3. Ultimately, the sufficiency of the connection between the Charter breach and the subsequent collection of the evidence requires a case-specific factual inquiry to determine whether the post-breach acquired evidence was "obtained in a manner that infringed or denied" any enumerated Charter right of the person charged: Simon, at para. 69.

[69] Where the evidence tendered for admission is a subsequent statement to persons in authority, a consultation with [page736] counsel may have the effect of severing the subsequent statement from an earlier breach of the right to counsel. But no bright line rule automatically immunizes the subsequent statement from the prior Charter breach. The effect of the later consultation on a determination of whether the subsequent statement was "obtained in a manner" that infringed an accused's right to counsel requires and falls to be decided on the basis of a fact-specific inquiry: R. v. Plaha, 2004 CanLII 21043 (ON CA), [2004] O.J. No. 3484, 188 C.C.C. (3d) 289 (C.A.), at para. 47; I. (L.R.) and T. (E.), at p. 532 S.C.R.

[70] No principled reason exists to confine the "fresh start" jurisprudence to cases involving successive statements made to persons in authority. The rationale that underpins the "fresh start" principle is the same irrespective of the specific form the evidence proposed for admission takes.

[71] Section 24(2) of the Charter only excludes evidence where an accused has demonstrated, on a balance of probabilities, an infringement or denial of his or her enumerated Charter rights or freedoms, and that the evidence proposed for admission was "obtained in a manner" that infringed or denied the accused's Charter right or freedom. This latter requirement insists that there be a nexus, expressed in the language "obtained in a manner" in s. 24(2), between the infringement and the evidence proposed for admission. In the absence of a nexus, or of an infringement, s. 24(2) has no application and the admissibility issue must be resolved otherwise.

[72] To determine whether the nexus requirement has been met, the trial judge must undertake a contextual and case-specific analysis: Simon, at para. 69. Courts have adopted a purposive and generous approach to the nexus requirement: Wittwer, at para. 21. An accused need not establish a strict causal relationship between the breach and the subsequent evidence. The subsequent evidence will be tainted if the breach and the evidence can be said to be part of the same transaction or course of conduct: Wittwer, at para. 21; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, [1988] S.C.J. No. 94, at p. 1005 S.C.R. The essential nexus between the breach and the evidence acquired later may be temporal, contextual, causal or the three in combination: Plaha, at para. 45; Wittwer, at para. 21; and R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, [1996] S.C.J. No. 76, at para. 40. Remote or tenuous connections fall short of establishing the necessary nexus: Goldhart, at para. 40; Plaha, at para. 45; and Wittwer, at para. 21.

[73] As a general rule, a temporal connection between the Charter breach and the acquisition of the evidence will suffice to [page737] make out the nexus requirement under s. 24(2). But the temporal connection involves more than simply counting up the time that has elapsed between the two events. What happened between the breach and the evidence collection can colour the significance of the passage of time: Plaha, at para. 49.

The principles applied

[74] I would give effect to this ground of appeal. In my view, the appeal judge erred in law in failing to undertake any case-specific analysis of whether the second sample was "obtained in a manner that infringed or denied" the respondent's Charter rights when it was immediately preceded by consultation with counsel in compliance with s. 10(b) of the Charter.

[75] The appeal judge adopted a bright line rule that all evidence obtained after the s. 10(b) infringement preceding the sample should be excluded. He equated breath samples with confessions for these purposes. This reasoning, in my respectful view, is flawed for three reasons.

[76] First, there is no per se or bright line rule that mandates exclusion of all evidence that follows a Charter infringement. Each case requires a case-specific analysis of all the circumstances to determine whether the exclusionary mechanism put in place by s. 24(2) of the Charter should be engaged: Grant, at paras. 71 and 86.

[77] Second, the appeal judge's analysis failed to take into account the effect of the Charter-compliant consultation that immediately preceded provision of the second sample. This intervention had implications for the nexus requirement and required the appeal judge (and the trial judge before him) to consider whether the consultation had the effect of severing the second breath test (and the results of an analysis of it) from the earlier s. 10(b) breach: Plaha, at para. 47. A finding that the "fresh start" negated the nexus requirement would have the effect of removing s. 24(2) as a potential source of exclusion of the results of analysis of the second sample.

[78] Third, even if a case-specific analysis yielded a conclusion that the nexus requirement had been met in connection with the second sample, it was incumbent on the appeal judge, and the trial judge before him, to conduct a discrete, case-specific s. 24(2) analysis in relation to the results of the analysis of the second sample. A prominent component in that analysis would have been the impact of the pre-sample consultation with counsel. [page738]

Ground #2: The exclusion of the analysis of both breath samples

[79] The second ground of appeal, related to but discrete from the first, alleges error in the decision under s. 24(2) of the Charter to exclude the analysis of both samples of breath as evidence at trial. Consideration of this ground of appeal requires no further reference to the evidence adduced at trial, and only a brief recapture of the reasons of the trial and appeal judges.

The decision of the trial judge

[80] The trial judge considered the admissibility of the results of the analysis of both breath samples in accordance with the three lines of inquiry mandated by Grant.

[81] The trial judge concluded that breach of the right to counsel was "a breach of fundamental rights and is serious". She found no indication that any of the police were acting in bad faith, or in "flagrant disregard of the Charter". The trial judge considered that the taking of breath samples involved an intrusion on the respondent's privacy and bodily integrity, but that the intrusion was to a lesser degree than in the case of blood samples. The trial judge acknowledged that evidence of the results of analysis of breath samples was reliable and important to the Crown's case on the alcohol-driving offences with which the respondent was charged.

[82] After noting that the evidence of the analysis of breath samples had been excluded under similar circumstances in Prosper, the trial judge concluded:

In my view, when one considers all of the circumstances of this case in light of the framework as set out in R. v. Grant, the decision is very close. Although there may well be cases in which a breach of an accused's Section 10(b) rights will not result in exclusion of evidence, after having considered carefully all of the facts in this case and balancing all of the circumstances, I find that admission of this evidence would bring the administration of justice into disrepute. In the result, the evidence of the breath tests will be excluded.

The decision of the appeal judge

[83] The nucleus of the reasons of the appeal judge affirming the trial judge's decision to exclude the results of the breath analysis is this passage, at para. 19 of his reasons:

I do not view the two breath samples as capable of being parcelled off or separated from each other. Once there is a Charter breach and the accused was not afforded his s. 10(b) Charter rights, all the evidence from that point onward should be excluded. [page739]

The arguments on appeal

[84] For the appellant, Ms. Krick acknowledges that an appellate court is required to take a deferential approach to rulings made under s. 24(2) of the Charter, whether excluding or admitting evidence obtained by Charter infringement. She says that, absent error in principle, a material misapprehension of evidence, or an unreasonable conclusion, appellate courts should defer to trial or intermediate appellate decisions.

[85] In this case, Ms. Krick contends, the s. 24(2) analysis is cumbered by legal error. The appeal judge failed to subject the results of the analysis of the second sample to a discrete s. 24(2) analysis, and failed to consider the impact of the later Charter compliance in the s. 24(2) analysis of the results of the first sample. These errors disentitle the findings below to deference and require a fresh s. 24(2) examination. A proper s. 24(2) analysis would result in the admission of at least the results of the analysis of the second sample, if not of both samples. These errors might reasonably have affected the result at trial and warrant a new trial.

[86] For the respondent, Mr. Orazietti takes a contrary position. Both judges below followed the mandate of Grant and properly applied it. Even if the judges below erred in failing to conduct a discrete s. 24(2) analysis in connection with the second sample, the result would have been no different because the respondent's liability could not be proven on the basis of the analysis of a single breath sample, even with the expert opinion evidence of the toxicologist.

The governing principles

[87] The principles governing our decision on this ground of appeal are uncontroversial and of recent authoritative statement. A few brief references are sufficient for our purposes.

[88] First, when faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to

(i) the seriousness of the Charter-infringing state conduct;

(ii) the impact of the breach on the Charter-protected interests of the person charged; and

(iii) society's interest in the adjudication of the case on its merits.

Grant, at para. 71. The court's role is to balance the assessments under each of these lines of inquiry to determine whether, [page740] considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute: Grant, at para. 71. Section 24(2) eschews bright line or per se rules in favour of a contextual, fact-specific assessment.

[89] Second, among the lines of inquiry, there are no axioms or fixed relations.

[90] State conduct resulting in Charter violations varies in seriousness from the inadvertent and minor to the wilful and reckless, and to all points in between. Extenuating circumstances, such as the need to preserve evidence and good faith, may attenuate the seriousness of the underlying conduct that results in the breach: Grant, at paras. 74-75.

[91] Likewise, the seriousness of the impact of the Charter breach on an accused's Charter-protected interest may vary from the fleeting and technical to the profoundly intrusive, passing several other stops along the way. Courts look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests: Grant, at paras. 76-77.

[92] The third line of inquiry reflects society's expectation that criminal allegations will be adjudicated according to their merits. The public interest in truth-seeking is relevant under s. 24(2). The reliability of the evidence obtained by Charter infringement is an important factor. So, too, is the significance of the evidence to the case for the Crown: Grant, at paras. 79-81 and 83.

[93] Section 24(2) eschews presumptive rules. No overarching rule governs how the balance is to be struck. Each case requires a fact-specific evaluation of all the circumstances to determine whether the balance settles in favour of exclusion or of admission. Despite the requirement that each case requires consideration according to its own factual matrix, as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted: Grant, at para. 111.

[94] Finally, appellate courts owe deference to s. 24(2) determinations absent an error in principle, a material misapprehension of evidence or an unreasonable finding: Harris, at paras. 50-51; Buhay, at para. 44. No deference is due, however, where an appellate court reaches a different conclusion on the breach itself: Grant, para. 129.

The principles applied

[95] I would accede to this ground of appeal. Despite the deference the appeal judge was required to afford to the trial judge's decision under s. 24(2) as a matter of general principle, I am satisfied that the trial judge's determination and the [page741] appeal judge's affirmation of it are infected by several errors that require a new trial.

[96] First, both the appeal and trial judge failed to consider the effect of the "fresh start" compliance with the requirements of s. 10(b) of the Charter that preceded the taking of the second breath sample. This conduct was relevant in determining whether the results of analysis were "obtained in a manner" that infringed or denied the respondent's s. 10(b) rights, and thus whether s. 24(2) could be summoned as a basis to exclude the evidence.

[97] Second, both the appeal and trial judge failed to conduct a discrete s. 24(2) assessment upon the admissibility of the results of the analysis of the second breath sample, thus failing to consider the impact of the intervening Charter-compliant conduct on the admissibility issue.

[98] Third, the appeal judge failed to consider the impact of the later Charter-compliant conduct in the assessment of the seriousness of the earlier violation, in particular, whether the later Charter-compliant conduct reflected good faith on the part of the police, thus attenuating the seriousness of the earlier breach.

[99] Fourth, the appeal judge erred in adopting a per se or bright line rule to the effect that, once an infringement had been demonstrated, all the evidence obtained thereafter should be excluded. Not only do governing authorities provide no warrant for such a rule, but such a rule would be at odds with the very terms of s. 24(2) that require a nuanced, case-specific examination of all the circumstances under the lines of inquiry mandated by Grant to determine admissibility.

[100] Finally, the appeal judge appears to have treated the decision in Prosper as nearly dispositive of the admissibility issue. It may be open to question whether, under the Grant lines of inquiry, and given the general rule with respect to the admissibility of breath samples due to their relative non-intrusiveness, a case decided when trial fairness considerations were predominant retains such controlling influence.

[101] In the result, I am satisfied that the errors made at trial and affirmed on appeal might reasonably be thought to have had a material bearing on the respondent's acquittal. A new trial is required: R. v. Graveline, [2006] 1 S.C.R. 609, [2006] S.C.J. No. 16, 2006 SCC 16, at para. 14; and R. v. Youvarajah, [2013] S.C.J. No. 41, 2013 SCC 41, at para. 32.

Conclusion

[102] For these reasons, I would grant leave to appeal, allow the appeal, set aside the acquittals and order a new trial.

Appeal allowed.

[^1]: The respondent was also found not guilty of operating a motor vehicle with a prohibited blood-alcohol concentration. [^2]: Section 839(1)(a) applies to appeals taken under s. 813 and determined in accordance with s. 822. The right of appeal is given to "the defendant" and to the "informant, the Attorney General (including the Attorney General of Canada) and his agent". (Here, "the Crown".) [^3]: Since the admissibility of evidence of the results of analysis of both breath samples will be at issue at the new trial, we need not decide this issue.