Court File and Parties

Court File No.: Central East - Newmarket 4911-998-11-01164-00 Date: 2012-07-05 Ontario Court of Justice

Between: Her Majesty the Queen — and — Bruce Lachance

Before: Justice Peter N. Bourque

Heard on: June 21, 2012

Reasons for Judgment released on: July 5, 2012

Counsel:

• B. Jurianz, for the Crown
• J. Di Luca, for the accused B. Lachance

BOURQUE J.:

Overview

[1] The defendant, after failing an approved screening device at around midnight, was given his rights to counsel, and taken to a RIDE truck where he was to provide his breath samples. He eventually provided two suitable samples which were analyzed at 140 and 130 milligrams of alcohol in 100 millilitres of blood. The issue in this case is factually and legally succinct. Was his right to consult with his counsel of choice violated, and if so, should I exclude the results of the breathalyzer tests?

Evidence

Jennifer Cadieux

[2] Jennifer Cadieux is a York Regional Police officer of about three years experience at the time of this incident on January 27, 2011.

[3] After stopping the defendant driving and forming her reasonable suspicion of the defendant having alcohol in his body, she gave him a roadside test and, after the failure, she arrested him for driving with excess alcohol. She read to him his rights to counsel in the words noted on the back of her police memo book.

[4] She stated that the defendant provided the name of a lawyer he wished to consult with the name (as written down by the police officer) of JEFF SCHOMAN. He also provided a cell number, "416-553-2934" and a home number, "416-487-9889".

[5] After providing a caution and a breath demand, the officer transported the defendant to a RIDE truck which was operating nearby.

Timeline of Events

• 2356 - observed the defendant driving; activated lights and stopped
• 2358 - warmed up the approved screening device
• 0001 - read the approved screening device demand
• 0005 - placed the defendant under arrest
• 0017 - left the scene
• 0028 - arrived at RIDE truck; various calls to phone numbers (discussed in more detail below)
• 0033 - officer calls duty counsel
• 0043 - duty counsel returns call and defendant taken inside phone booth
• 0047 - call completed and defendant taken to breath tech
• 0053 - first reading: 140
• 0115 - second reading: 130

[6] At the RIDE truck the officer sat down at a table with the defendant and there was a digital telephone on the wall. The defendant was present during all of these actions by the officer. The officer had to dial "8" to get an outside line. The officer describes the RIDE truck (she said she was not very familiar with it) as having two rooms, one for the Officer in Charge to bring in the suspect, and another room separated by a door where the breath tests are taken. She describes using that phone to make the calls to the defendant's lawyer. She also describes another smaller "phone booth" sized chamber within that room where there is a phone where the defendant can take the call from a lawyer.

[7] The officer called the cell number "416-553-2934". The officer stated that "it went to voicemail" and it said that it was "full". There was no identification that the number called was in any way connected to the lawyer that she was seeking. She was not sure of any other words heard on the line and she made no notes of any other words.

[8] She then called the home number which was "416-487-9889" and stated that "it didn't connect". She could only elaborate with the further statement that "the number didn't work". In cross-examination she denied that she dialled the wrong number. She stated that she then called DUTY COUNSEL and left a message for a return call. She stated that she then tried the cell phone number again and stated that it was the "same result as the last time."

[9] She stated that DUTY COUNSEL called back at 0043 and that she took the defendant to a separate booth, where he took the call and was finished at 0047. Her notes indicated that "the defendant said he was satisfied with his lawyer since mine is not available". She admitted that was not a verbatim statement of the words spoken but it was her summary.

David Strome

[10] David Strome is a York Regional Police officer and was the breath tech on duty that evening. His evidence consisted solely of a description of the RIDE van and the facilities therein. He had been inside that van some 200 times by his estimation. He describes the van as having three rooms, the first for the accused, the second being the breath room and the third being a room for the officers, which has a computer. He describes that on the computer is a database of lawyers and their phone numbers, for the officers to consult. He describes that there is only one room for the accused which has a phone, which does not dial out on. In other words, Officer Cadieux could not have called out on this phone. The officer also stated that there is no separate booth for the accused to take the calls from the lawyer. There is just the one phone in that room.

Jeffrie Shulman

[11] Jeffrie Shulman is a solicitor and was the lawyer that the defendant stated that he wished to call that night. He states that his home phone is in good working order and has never known it to be somehow unable to be connected. He also states that he checked his cell phone that evening for calls and, to the best of his knowledge, his message box (which will hold 25 messages) was not full.

[12] The defendant did not testify.

Analysis

[13] The defendant argues that he was not allowed to consult with counsel of choice, and thus his rights under section 10(b) of the Charter have been infringed, and upon a considered application of 24(1) of the Charter, the breath results should be excluded from the evidence in his trial.

[14] In the normal course, I would assess the efforts made by the officer and, if I find a denial, then assess the defendant's actual consultation with duty counsel in the light of the requirements of R. v. Littleford, to see if there has been an infringement and, if so found, proceed with the analysis in section 24(1) as explained in R. v. Grant, 2009 SCC 32, to see if there should be an exclusion.

[15] This case presents some problems with that framework. The arresting officer's evidence of her efforts to put the defendant in contact with his counsel has, in my opinion, been put into doubt by the combined evidence of the Tech officer and Mr. Shulman.

[16] The physical circumstances of the RIDE truck make much of the officer's evidence of how she made these calls difficult to understand. The officer could not have used the phone in the room. The dialling of "8" to get an outside line is somewhat mystical as there is some doubt that the officer could have even used the phone in the RIDE van. It is certainly possible that the officer used a cell phone to make all of these calls, but she certainly did not testify to that. The existence (or non-existence) of the private "telephone booth" for the defendant to speak to counsel also becomes problematical for the officer's evidence of the conversation with the defendant after he spoke to duty counsel. She stated that to take the call she walked him to the booth and when he was finished and she got him from the booth he expressed his satisfaction with the call. If this conversation ever happened, where did it happen?

[17] The evidence of Mr. Shulman makes the recitation of the failed phone calls by the officer difficult to accept. If all of these calls were properly dialled as the officer relates, it is somewhat offensive to the law of probabilities that none could have connected the officer to the lawyer. To be charitable to the officer, it may be that she made errors in dialling the numbers, but she insisted that she made no error.

[18] At the end of the day, while I concede that the onus of proof on this application is upon the defence, I must however, assess the officer's evidence in light of all the concerns that have been raised.

[19] I accept that the defendant, upon his arrest and being given his rights to counsel, gave the officer the name of his lawyer and two different (non-office) phone numbers. I accept that the defendant very plainly indicated that he wished to exercise his right to speak to his counsel of choice.

[20] I cannot accept that the officer made the calls as she described. While I do not doubt that she may have made some effort, I cannot be in any real position to say what those efforts were. It may just be a symptom of very poor note taking coupled with a poor independent recollection, but I cannot give her the benefit of the doubt.

[21] I accept that the officer called duty counsel and the defendant spoke to a duty counsel lawyer for a period of up to four minutes. I do not accept the officer's evidence of the purported conversation at the conclusion of the call.

[22] I am left with a defendant who had every right to consult his own lawyer, who had made reasonable efforts to do so, and ultimately was denied the right. In the circumstances of my findings, I do not think that R. v. Littleford has much application.

[23] I cannot and do not make a finding that his position with regard to consulting a lawyer of his own choice had changed. I specifically cannot make the finding that speaking to duty counsel for four minutes "seemed to satisfy him at the time".

[24] Having made these findings, I proceed to the analysis in R. v. Grant. In assessing the seriousness of the Charter-infringing state conduct, the impact on the Charter protected interests of the accused and society's interest in an adjudication on the merits, I must take into account the inability of the officer to provide to me a reliable statement of what exactly her efforts were to satisfy the Charter-protected right of the defendant. In that sense it makes the seriousness of the conduct that much greater. I am cognizant of the comments in Grant of the level of intrusiveness of a breath test, and the need to adjudicate matters of drinking and driving on the merits, however, the right to counsel of choice is very important where the authorities (for valid public policy objectives) impose a scheme of drinking and driving investigation which is predicated upon the necessity of the citizen to provide evidence, implicating themselves in a criminal offence.

Conclusion

[25] I find that to admit the breathalyzer readings into evidence would bring the administration of justice into disrepute.

[26] I therefore find the defendant not guilty of the offence.

Released: July 5, 2012

Signed: Justice Peter N. Bourque