Court File and Parties

Court File No.: Newmarket Courthouse 4911 998 11-07264

Date: 2012-02-22

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Mohamed Mourad

Before: Justice Richard Blouin

Heard on: February 14 & 15, 2012

Reasons for Judgment released on: February 22, 2012

Counsel:

• M. Holme, for the Crown
• C. Ghobrial, for the accused Mohamed Mourad

Blouin J.:

Introduction

[1] Mr. Mourad stands charged that he committed the offence of Operating a Motor Vehicle with a blood alcohol level of Over 80 on August 5, 2011. The Crown called three witnesses: Detective Constable Reid, the arresting officer; Police Constable Choubey, responsible for providing access to counsel; and Police Constable Skanes, the qualified breath technician. On consent, the Crown tendered a Toxicologist report that gave an opinion as to the range of blood alcohol concentration at the time of driving, since the breath tests were taken outside a two hour period from driving. Mr. Mourad testified, but only on the Charter voir dire, and only with respect to the issue of counsel of choice.

[2] The defendant raised two Charter issues. The aforementioned s. 10(b) issue regarding counsel, and one of arbitrary detention pursuant to s. 9.

Evidence

Arresting Officer

[3] Mr. Mourad was driving his motor vehicle on Yonge Street in Richmond Hill around 4:00 a.m. when a police cruiser pulled up alongside. The police officer looked over at the defendant who did not make eye contact. The defendant drove his car slowly in the exit lane, which took him into a parking lot in front of a Pizza Pizza store. The officer became suspicious, did a u-turn and followed the defendant into the parking lot.

[4] Officer Reid approached the defendant's stopped vehicle to investigate. When Reid was asked why he investigated, he indicated he was suspicious because of break-ins that had occurred in the area. He was also investigating to determine if the defendant might be "impaired".

[5] After noting an odour of alcohol on the defendant and getting an admission of alcohol consumption, a roadside screening demand was made. The defendant failed the test and was arrested, given rights to counsel, and cautioned. An Intoxilyzer breath demand was made.

[6] The defendant made attempts to contact private counsel when taken to the police station. When not successful, he spoke with duty counsel. Afterwards, he provided two suitable samples of his breath into an Intoxilyzer 8000C. Readings of 208 and 183 respectively were obtained.

[7] P.C. Choubey assisted Officer Reid in providing counsel to the defendant. After a discussion with Reid at the police station, Choubey phoned duty counsel. He could not recall if the defendant requested duty counsel but felt it "needed to be done". At 5:23 a.m. the call to duty counsel was made, but when the defendant was moved to the interview room, from a cell, the call was disconnected. On the way back to the cell the defendant requested to speak to his girlfriend, whom he remembered might be able to get the name of a lawyer her friend had used to defend an impaired driving charge.

[8] Choubey did not think it was possible to retrieve the defendant's cell phone which contained his girlfriend's number because the phone was now in the property locker, but a supervisor he consulted approved the process. Choubey gave the defendant his cell phone and waited nearby with another officer while Mr. Mourad called. Choubey felt the defendant was satisfied with the call and wanted then to speak to duty counsel. The defendant did not say anything about the call to his girlfriend not connecting. Choubey did not have an "exact recollection" in this area. He did not know if the call to the girlfriend had been disconnected. The defendant, in Choubey's view, confirmed that nothing more needed to be done regarding the possibility of accessing counsel of choice because he felt the defendant "probably" obtained the required information from his girlfriend and he was satisfied the defendant was content with the process because of the look on his face.

The Defendant

[9] The defendant testified on the Charter voir dire only regarding the issue of counsel of choice. Because he did not have a lawyer, he agrees he initially sought the assistance of duty counsel. While he was in an interview room waiting to speak to duty counsel (which never materialized) the defendant remembered a friend of his girlfriend who had accessed a lawyer for similar charges. On the way back to the cell the defendant told Choubey that he no longer wished to speak to duty counsel, but wanted to access his cell phone to contact his girlfriend to get the lawyer's name and number. Choubey told him that was not an option, but that he would see what he could do.

[10] Choubey arrived at the defendant's cell with a female officer and the defendant's phone. Mr. Mourad dialled the number and handed the phone to Choubey to allow confirmation that he was contacting his girlfriend. The phone was handed back to Mr. Mourad. Almost immediately there was no reception. The phone call was attempted a second time. The defendant was able to connect with his girlfriend and asked her to get the lawyer's name. While waiting for her to return the phone call it disconnected. A third attempt was made but no connection was made.

[11] It was at that point that Choubey, who was made aware of the disconnection, told the defendant that if he was not able to get the lawyer's number, he needed to make a choice quickly since much time had passed. He gave the defendant the choice of accessing duty counsel, or to proceed with no legal advice at all. Mr. Mourad told Officer Choubey he did not want to speak to duty counsel, but to his own lawyer. When faced with that option, the defendant elected to speak to duty counsel rather than no legal counsel. Choubey did not offer a land line, and the defendant did not request one because he did not think that would be permitted.

Findings

Arbitrary Detention and Therefore Unlawful Search

[12] The defendant argues a violation of his rights under s. 9 of the Charter which then lead to an unreasonable search. He argued that the police officer did not investigate him for impaired driving but for suspicion regarding a possible break-in. If so, the officer had no reasonable suspicion to connect the defendant to a particular offence under investigation as required in R. v. Mann.

[13] I conclude that the officer's primary goal was to investigate the defendant regarding a hunch that he might be involved in a break and enter. If that were all, I would have found this to be an arbitrary detention, since I conclude, on these facts, the defendant was detained. However, this detention was pursuant to s. 48(1) of the Highway Traffic Act, even, as I find here, the detention was primarily for other purposes. I accept the officer's evidence that one of his reasons for investigating the defendant was to see if he was impaired. Accordingly, the detention was authorized by law. When the "F" reading was obtained on the roadside screening device, Officer Reid was entitled to arrest the defendant.

Counsel of Choice

[14] I accept the defendant's evidence on this issue. His memory of the chronology of the relevant events was specific and logical. Most importantly, his evidence was confirmed by the cell videotape (without audio), and the time since driving was running close to two hours, which would support the position that the officer put him to an election to access duty counsel quickly. The officer, on the other hand, did not have a specific memory of the disconnection of the telephone calls, which the videotape clearly reveals, and generally did not act as if putting the defendant in touch with requested counsel, as opposed to duty counsel, was at all important.

[15] Once the informational component has been complied with, the implementation component must be met as well. That is, if the detainee expresses a desire to speak to counsel, the police are required to facilitate contact by giving the detainee a reasonable opportunity to contact counsel. However, the right to retain and instruct counsel must be exercised diligently by the detainee. If the detainee is not diligent, then the correlative duties on the police are suspended: R. v. Brydges (1990), 53 C.C.C. (3d) 330 (S.C.C.).

[16] I must keep in mind that the defendant is an inexperienced young man in dealing with police, especially while under arrest at 5:00 a.m. When, as in this case, the detainee requests to speak with a specific lawyer, the police have an obligation to facilitate contact with that lawyer, whether the detainee has counsel's number available or not, and includes permitting a phone call to a friend or relative to obtain the name of counsel: R. v. Kumarasamy, [2002] O.J. No. 303. In assessing if the police have met that obligation, Justice Ferguson reviews the law in R. v. Blackett [2006] O.J. No. 2999, and at paragraph 10 indicates:

It seems clear that where the police make reasonable efforts but cannot contact counsel of choice then, if the accused fails to make use of legal aid duty counsel, there will be no s. 10(b) breach: R. v. Gibson, [1998] O.J. No. 943 (C.A.)

[17] P.C. Choubey, the officer responsible for providing the defendant a reasonable opportunity to consult counsel, started off poorly in telling the defendant he could not access his seized cell phone to locate his girlfriend's telephone number to ask her about the contact number of a lawyer the girlfriend's friend had used in the past. After consulting with a superior, P.C. Choubey came back with the defendant's phone. This was a promising development. Although there is some conflict as to the events of the next four minutes, it is clear, viewing the cell videotape (without audio), the defendant was not able to access the lawyer he wanted. P.C. Choubey did nothing more because he was "satisfied the conversation ended positively".

[18] The defendant testified on the Charter voir dire that P.C. Choubey told him that because of the time he had to decide, at that point, whether he wanted to access defence counsel or no counsel at all. The officer recalled very little of the interaction between himself and the defendant. After viewing the videotape, I am not sure how he could have concluded the defendant was "satisfied". I accept the defendant's evidence on this point.

[19] Even though he eventually accessed duty counsel, and received advice with which he had no complaint, I conclude that the defendant's s. 10(b) right to counsel was breached.

S. 24(2) Charter

[20] Section 24(2) requires a trial judge to assess and balance the effect of the admission of 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 the Charter-protected interests of the accused; and

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

Seriousness of State Conduct

[21] In R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C.) states at paragraphs 72-74 the following:

72 The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

73 This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.

74 State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inaent 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.

[22] Constable Choubey seemed to possess little understanding of the right to counsel choice. I do not accept his version that he was unaware of the defendant's position that he did not receive meaningful access to desired counsel. The videotape of the cell shows otherwise. He did the right thing by retrieving the defendant's phone to allow attempts to contact counsel, but was then prepared to have the defendant move on, based upon the defendant appearing satisfied. As indicated earlier, I do not accept that he could have concluded satisfaction, but by proceeding to the next step (duty counsel or nothing) without ensuring satisfaction, by at the very least asking, demonstrates an unacceptable ignorance of Officer Choubey's responsibility to provide a reasonable opportunity to contact counsel of choice.

[23] While perhaps not intentional, ignorance of a fundamental responsibility puts the state conduct tending toward the more serious end of the scale. Reasonable citizens would expect the police to assist them in contacting their counsel of choice. Contrary conduct inevitably has a negative effect on public confidence in the rule of law. Accordingly, the seriousness of the state conduct here, weighs against admission.

Impact of the Breach

[24] As stated in R. v. Grant, supra at paragraphs 76-77:

76 This inquiry focuses 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.

77 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. For example, the interests engaged in the case of a statement to the authorities obtained in breach of the Charter include the s. 7 right to silence, or to choose whether or not to speak to authorities (Hebert) - all stemming from the principle against self-incrimination: R. v. White, [1999] 2 S.C.R. 417, at para. 44. 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.

[25] As was decided in R. v. Puleio (unreported, released May 11, 2011) Justice West outlines the law in this area in a similar fact situation at paragraphs 107-108 as follows:

107 In R. v. McCrimmon, 2010 SCC 36, the court explained that the purpose of section 10(b) is to provide detainees with immediate legal advice on his or her obligations under the law, mainly regarding the right to remain silent, important in protecting one's right against self-incrimination, but as well to assist in regaining one's liberty. This right is designed to ensure persons who are arrested or detained are treated fairly in the criminal process: Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 394; see also R. v. McCallen, [1999] O.J. No. 202 (Ont. C.A.).

108 The right to choose counsel is one facet of the guarantee under section 10(b), although there is no absolute right to retain and instruct a particular counsel: R. v. Willier, 2010 SCC 37. In McCrimmon, the Chief Justice and Charron J. explained, at para. 17, as follows:

Where the detainee opts to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles him or her a reasonable opportunity to contact chosen counsel. If the chosen lawyer is not immediately available, the detainee has the right to refuse to contact another counsel and wait a reasonable amount of time for counsel of choice to become available. Provided the detainee exercises reasonable diligence in the exercise of these rights, the police have a duty to hold off questioning or otherwise attempting to elicit evidence from the detainee until he or she has had the opportunity to consult with counsel of choice. If the chosen lawyer cannot be available within a reasonable period of time, the detainee is expected to exercise his or her right to counsel by calling another lawyer, or the police duty to hold off will be suspended.

[26] Here, a reasonable opportunity to consult counsel of choice was not provided by police. Although breathalyzer testing has little impact on a detainee's bodily integrity, not allowing an opportunity to consult a lawyer with some experience in this area of the law undermines the detainee's ability to make choices regarding his right to silence, and his participation in the police investigation. In my view, this favours exclusion. Because the defendant was able to consult with duty counsel, I find the impact upon him to be somewhat ameliorated by that consultation. However, the impact on the defendant still slightly favours exclusion.

Society's Interest in Adjudication on Merits

[27] R. v. Grant, supra, states at paragraph 111 the following:

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.

[28] The breath sample evidence is reliable, and the Crown's case fails without it. This fact overwhelmingly favours admission.

Conclusion

[29] Although a very close call, when I balance the competing factors above, I find that the admission of the evidence would bring the administration of justice into disrepute if admitted. Therefore, the evidence of breath sample reading will be excluded. The defendant, as a result, must be found not guilty.

Released: February 22, 2012

Signed: "Justice Richard Blouin"