Court File and Parties

Court File No.: 12-0368

County of Renfrew

Date: September 17, 2012

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Lester Spurrell

Before: Justice R.G. Selkirk

Heard on: August 20, 2012

Reasons for Judgment released on: September 17, 2012

Counsel:

Saad Syed, for the Crown

Michael G. March, for the accused Lester Spurrell

Judgment

SELKIRK, J.:

Facts

[1] Mr. Spurrell is charged with the offence of Over 80, contrary to section 253(1)(b) of the Criminal Code, arising out of an incident on March 30, 2012.

[2] The Crown, quite appropriately, has conceded a section 10(b) violation. The only issue is whether the evidence of the breath tests should be excluded pursuant to section 24(2) and the Grant test from the Supreme Court of Canada.

Factual Background

[3] Sergeant Paradis of the Upper Ottawa Valley Ontario Provincial Police stopped the accused in his vehicle to establish if he had been drinking. He had. An approved screening device demand was made which the accused failed. He was arrested for Over 80. He was read his right to counsel to which, when asked if he wanted a lawyer, he replied, "I don't have a lawyer." Sgt. Paradis asked, "Do you want me to call one", to which the accused responded, "Yes".

[4] Upon arrival at the detachment, Sgt. Paradis again read the accused his right to counsel. He did not note the accused's response to his questions, "Do you understand" and "Do you want a lawyer". The only note made was, "Waived his right to counsel". The accused was then turned over to the Breath Technician who obtained readings over 80 mgs. of alcohol in 100 ml of blood.

[5] In cross-examination he was asked why he re-read the right to counsel at the station, to which Sgt. Paradis responded, "In case he changed his mind". Sgt. Paradis said he was aware of the obligations imposed on the police when there is a change of mind as is required by R. v. Prosper. He agreed the accused had changed his mind from his position with respect to a lawyer at the scene. Sgt. Paradis admitted he did not explain the duty to hold off, or that he had a right to a reasonable opportunity to consult counsel, nor did he explain to the accused what he was giving up or ascertain that the accused had any appreciation of what he was giving up.

[6] Sgt. Paradis said he was of the opinion that the accused, "Was not playing any games".

[7] As I noted earlier, based on that evidence, the Crown conceded that it could not meet its onus to establish an unequivocal waiver by the accused of his right to counsel and therefore a violation was established.

[8] The Crown does argue however that the above facts do not require exclusion under section 24(2). It is submitted that Sgt. Paradis acted in good faith and that the violation was not deliberate. Also, that the subsequent breath tests were minimally intrusive.

Legal Analysis

[9] R. v. Grant, 2009 SCC 32 requires a consideration of the seriousness of the police conduct, the impact of the breach on the Charter protected interests, and society's interest in an adjudication on the merits.

[10] It was conceded by the defence that the evidence is reliable and necessary to a trial on the merits which points towards admission of the evidence under the third step in the Grant analysis.

[11] The court must assess whether the admission of the evidence would be damaging in the long term to the integrity of and public confidence in a justice system that is committed to observance of the rule of law and upholding Charter rights.

Seriousness of the Violation

[12] Turning to the seriousness of the violation, I cannot find that Sgt. Paradis acted in good faith. He said he was aware of his obligations under Prosper but did not comply with them. No explanation was provided as to why not. I do not think it was a deliberate or wilful violation, however, I find that while he was aware of Prosper that he forgot or did not turn his mind to the issue which is negligent at best.

[13] In R. v. Brown, 2012 ONCA 22, at paragraph 26, the Ontario Court of Appeal took into account in excluding evidence, "the cavalier attitude" of the officer with respect to his powers of arrest. It would be fair to say that Sgt. Paradis, in the case at bar, also demonstrated a cavalier attitude towards the accused's rights to counsel. This makes the violation more serious.

[14] I am mindful that cases decided prior to Grant remain as helpful guides although they must not be applied with the rigidity of Collins or Stillman. A more flexible approach must be used.

[15] The Supreme Court of Canada in Grant has specifically addressed the issue of conscriptive evidence in the form of bodily evidence at paragraphs 99 to 111. It is clear there is no automatic exclusion, if there ever was, of conscriptive evidence and that all of the circumstances must be considered. I must, however, be mindful that the court was dealing with section 8 in Grant and the necessary analysis will have to be adjusted.

[16] In that view, I believe that Martin J.A.'s observation in R. v. McKane, (1988) 35 CCC (3d) 481 continues to be a valid consideration under the new approach to section 24(2). He wrote:

The right to counsel enshrined in section 10(b) of the Charter is of such superordinate importance that a violation of section 10(b) will usually result in the exclusion of evidence subsequently emanating from the accused. In Collins v. The Queen, Mr. Justice Lamer, delivering the majority judgment of the Supreme Court of Canada, said:

However, the situation is very different with respect to cases where, after a violation of the Charter, the accused is conscripted against himself through a confession or other evidence emanating from him. The use of such evidence would render the trial unfair, for it did not exist prior to the violation and it strikes at one of the fundamental tenets of a fair trial, the right against self-incrimination. Such evidence will generally arise in the context of an infringement of the right to counsel. Our decisions in R. v. Therens and Clarkson v. The Queen are illustrative of this. The use of self-incriminating evidence obtained following a denial of the right to counsel will, generally, go to the very fairness of the trial and should generally be excluded.

[17] R. v. Richfield contains a section 24(2) analysis in a section 10(b) context that foreshadows Grant. At paragraphs 17 and 18, the court writes:

[17] The summary conviction appeal judge specifically referred to the passage in Stillman in which Cory J. addressed the minimally intrusive nature of the provision of breath samples. It is apparent that the summary conviction appeal judge concluded that the breach of the appellant's Charter right was minor and that the intrusion upon the appellant's dignity and privacy was minimal.

[18] The general rule that conscripted evidence obtained in violation of an accused's section 10(b) Charter rights should automatically be excluded because it impacts on trial fairness has the advantage of predictability. This general rule may, however, provide a disproportionate remedy when the resulting Charter violation is minimal. In Stillman, Cory J. also commented, at p. 351, that although the admission of conscriptive evidence would generally render a trial unfair, "[t]hat general rule, like all rules, may be subject to rare exceptions." Other obiter comments by the Supreme Court, in R. v. Fliss and R. v. Law, suggest that the Supreme Court may be prepared to modify its approach to the automatic exclusion of conscriptive evidence obtained through a minor breach of Charter rights. That said, as we have indicated, it is unnecessary for us to decide whether the summary conviction appeal judge's conclusion that the trial judge erred in excluding the evidence under section 24(2) was correct and we do not do so.

I would emphasize the comment, "that although the admission of conscriptive evidence would generally render a trial unfair, that general rule, like all rules, may be subject to rare exceptions". (My emphasis added).

[18] In Kusnir, 2002 O.J. 10, S.C.O., Campbell J. wrote at p. 21, "Where there is any doubt at all about waiver it should be clear that there is a bright line duty on the police to ensure access to counsel." (My emphasis added). To be cavalier as to that duty clearly spelled out since 1994 and continuously since then makes the violation serious.

In Manchulenko (Supra), which is post-Grant, the trial Judge wrote at pages 17-20:

In this case, we have an accused person who has not been made aware that the police must hold off taking any statements or requiring him to participate in a potentially incriminating process until he has had a reasonable opportunity to contact counsel. Should he have been given that information, he would have been aware exactly what it was he was giving up when he indicated that he no longer wished to contact counsel.

A breach of a right to counsel is a breach of fundamental rights and is serious.

On the other hand, there is no indication that any of the officers involved were acting in bad faith. There was not a flagrant disregard of the Charter. Each of the officers involved asked Mr. Manchulenko if he wished to call a lawyer and Constable Martin actually provided Mr. Manchulenko two opportunities to do so.

Mr. Manchulenko provided samples of his breath pursuant to the demands made of him. The court in Grant spoke of a spectrum. At one end was the forcible taking of blood samples or dental impressions. At the other end the court spoke of "the relatively innocuous procedures such as fingerprinting or iris-recognition technology". In my view, the taking of the breath samples falls along this spectrum. It is an intrusion on the privacy and bodily integrity of the accused but to a lesser degree than would be that of blood samples.

As the court stated in paragraph 111 of Grant:

"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."

The public has an interest in a trial on the merits. The results of the breath tests conducted on Mr. Manchulenko are reliable evidence. They form an important part of the Crown's case. The exclusion of this evidence could have a significant impact on this case. As the court said in R. v. Grant at paragraph 81:

"Exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute."

The decision in this matter has been a difficult one. In R. v. Prosper, the breathalyzer evidence was excluded. The majority in Prosper held:

"The breach of the appellant's right to counsel goes directly to his privilege against self-incrimination, and receipt of the breathalyzer evidence resulting from this breach would undermine this privilege, thereby rendering the trial process unfair. Neither the undeniable good faith of the police, nor the relative seriousness of the drinking and driving offence with which the appellant was charged can compensate for the adjudicative unfairness which I find admission of the evidence would produce."

The court concluded 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.

This analysis was upheld on the subsequent Summary Conviction Appeal found at 2012 ONSC 2558.

[19] Given the description of section 10(b) as being of super-ordinate importance (McKane) and that violation of section 10(b) will only rarely not result in exclusion (Richfield) I find that those comments support the view that the violation of section 10(b) is a serious matter.

[20] Admission of evidence obtained subsequently to a violation of section 10(b), "....may lead the public to conclude that the court implicitly condones such conduct, undermining respect for the administration of justice. On the other hand, where the breach was committed on good faith, admission of the evidence may have little adverse effect on the repute of the court process". (Grant paragraph 108). As indicated above, Sgt. Paradis was not acting in good faith, rather he demonstrated a cavalier attitude towards the accused's rights to counsel even though he said he knew better. So while it is not a wilful violation, and I would not attribute bad faith to Sgt. Paradis, it remains, nonetheless, conduct that should not be condoned by the courts and would negatively impact the repute of the administration of justice (See Grant para. 73). This finding supports exclusion.

[21] This finding is also consistent with Lamer, C.J.'s comments in Prosper with respect to section 24(2) that:

In my view, among the five section 10(b) appeals heard together by this Court, the facts of this case present the most compelling basis for exclusion of evidence under section 24(2). The breath samples were conscripted evidence which might not have been obtained had the appellant's section 10(b) rights not been infringed. In other words, the breach of the appellant's right to counsel goes directly to his privilege against self-incrimination, and receipt of the breathalyser evidence resulting from this breach would undermine this privilege, thereby rendering the trial process unfair. Neither the undeniable good faith of the police, nor the relative seriousness of the drinking and driving offence with which the appellant was charged can compensate for the adjudicative unfairness which I find admission of the evidence would produce.

To conclude, I am fully satisfied that admission of the evidence in this case would adversely affect the fairness of the trial and bring the administration of justice into disrepute. The evidence was obtained by conscripting the appellant against himself and infringing his right against self-incrimination, a right which might have been protected had he been provided with a reasonable opportunity to consult a Legal Aid lawyer.

Obviously this analysis no longer provides the ultimate answer on exclusion, but it does address the seriousness of the violation under the first prong of Grant.

Impact on Charter Protected Interests

[22] The second prong from Grant is the impact of the violation on Charter protected interests. One such Charter protected interest is a fair trial. Again, while this factor no longer determines the ultimate outcome of a section 24(2) analysis it does impact on this second part of the analysis. Violations which impact trial fairness suggests exclusion so that the court is not condoning or accepting an unfair trial.

[23] I appreciate that in Grant, Charron J. described breath tests as being relatively non-intrusive (paragraph 111). I do not believe however that that is the end of the analysis. It must be kept in mind that Grant is a section 8 case dealing with the search of the accused's body where drugs and a gun were found. In other words the admissibility of breath tests subsequent to violation of section 10(b) was not before the courts.

[24] In those circumstances the reasoning in R. v. Henry, 2005 SCC 76 must be applied with respect to stare decisis. At para. 53 the court writes:

53. The traditional view expressed by the Earl of Halsbury L.C. was that "a case is only an authority for what it actually decides", and that

every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found.

(Quinn v. Leathem, [1901] A.C. 495 (H.L.), p. 506)

This concept is further described at para. 57 where it is stated:

57 The issue in each case, to return to the Halsbury question, is what did the case decide? Beyond the ratio decidendi which, as the Earl of Halsbury L.C. pointed out, is generally rooted in the facts, the legal point decided by this Court may be as narrow as the jury instruction at issue in Sellars or as broad as the Oakes test. All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not "binding" in the sense the Sellars principle in its most exaggerated form would have it. The objective of the exercise is to promote certainty in the law, not to stifle its growth and creativity. The notion that each phrase in a judgment of this Court should be treated as if enacted in a statute is not supported by the cases and is inconsistent with the basic fundamental principle that the common law develops by experience.

[25] I do not believe that the reference to breath test being minimally intrusive is authoritative and binding given that issue was not before the courts.

[26] Perhaps more importantly such a finding would be contrary to the Supreme Court of Canada's decision in Bernshaw where the majority rejected the minority position that breath testing is minimally intrusive. In my view, Bernshaw remains the binding precedent and the obiter in Stillman and Grant do not overturn it because they do not say that they are doing so.

[27] With respect to lower courts reliance on the minimally intrusive comments, I would refer to R. v. Craig, 2012 SCC 43, where the court writes in the context of the Federal Court of Appeal not applying a Supreme Court of Canada decision which was on all fours on the facts was that the lower court should have written reasons as to why the binding decision was problematic but should not purport to overturn it. (See paras. 20-21).

[28] All of the above is simply to make the point that the minimally intrusive comment should not be treated as if enacted in a statute, and, in particular where the context is not section 8 but rather section 10(b).

[29] Another comment one sees from the lower courts is that the violation of section 10(b) was of minimal prejudice to the accused. I choose not to go down that avenue as I believe it is contrary to what continues to be the law as set out in R. v. Bartle, [1994] 3 S.C.R. 490, para. 54 where C.J. Lamer writes:

54 Second, in light of the many warnings by this Court about the dangers of speculating about what advice might have been given to a detainee by a lawyer had the right to counsel not been infringed, it is only consistent that uncertainty about what an accused would have done had his or her section 10(b) rights not been violated be resolved in the accused's favour and that, for the purposes of considering the effect of admission of evidence on trial fairness, courts assume that the incriminating evidence would not have been obtained but for the violation. The state bears the responsibility for the breach of the accused's constitutional rights. If the state subsequently claims that there was no causal link between this breach and the obtaining of the evidence at issue, it is the state that should bear the burden of proving this assertion.

[30] The Crown led no evidence to suggest that the evidence obtained would have been obtained in any event. Applying Bartle there is a causal link between the breach and the obtaining of the evidence at issue.

[31] In my view this makes the impact of the violation on Charter interests significant which supports a conclusion of exclusion.

[32] There is also significant impact in that the accused was being held incommunicado at the detachment. When else would a citizen require the assistance of counsel more than in those circumstances? The detainee is at the mercy of the State. The Charter provides them a lifeline out, first to counsel but then if necessary, through counsel to the courts by way of habeas corpus. It is crucial that this right to contact counsel be vigorously preserved and the impact of a violation cannot be overestimated in this regard. In R. v. Bartle, the SCC wrote at para. 16:

16 The purpose of the right to counsel guaranteed by section 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is "detained" within the meaning of section 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty. Under section 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request. As this Court suggested in Clarkson v. The Queen, the right to counsel protected by section 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.

[33] Thus there is more to the analysis under section 10(b) than simply how intrusive the breath test is or is not, there are liberty issues involved as well. This impact on Charter protected issues would also favour exclusion.

Society's Interest in Adjudication on the Merits

[34] I have already commented on the third prong which in this case favours admission.

[35] I apply the reasoning in R. v. Au-Yeung, 2010 ONSC 2292, a Summary Conviction Appeal, where at paras. 67-68 the court writes:

[67] Given the comments about breath sample evidence in para. 111 of Grant, one might conclude that the breath sample evidence in this case should be admitted. But this conclusion would be incorrect, because it would ignore the first two lines of inquiry described in Grant and give the third factor an unjustified analytical pre-eminence. Moreover, these comments in Grant were directed solely at the section 8 issues involved in the taking of breath samples and did not consider the broader issues mentioned above. While the courts have long recognized the need to effectively address the serious problem posed by drinking and driving, it is important to remember that persons accused of drinking and driving offences are entitled the full protection of the Charter. The protections of the Charter apply to all persons accused of criminal offences, no matter how minor or serious.

[68] In considering this question Grant requires that I bear in mind the long-term and prospective effect upon the fair administration of justice, focusing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused. In doing so, I note the comments of Fish J. for the majority at paras. 110 to 113 of R. v. Morelli, 2010 SCC 8:

Justice is blind in the sense that it pays no heed to the social status or personal characteristics of the litigants. But justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices.

The public must have confidence that invasions of privacy are justified, in advance, by a genuine showing of probable cause. To admit the evidence in this case and similar cases in the future would undermine that confidence in the long term.

I am persuaded for all of these reasons that admitting the illegally obtained evidence in this case would bring the administration of justice into disrepute.

I would therefore exclude that evidence ... [Emphasis added.]

Conclusion

[36] Attempting to balance these factors is rarely easy. In my view, ultimately the importance of section 10(b) and the cavalier violation of it requires that the court step away from such conduct and exclude the evidence to preserve the integrity of the courts, to ensure the accused is allowed a fair trial and to prevent the administration of justice being brought into disrepute.

[37] The breath test evidence will be excluded.

[38] The accused will be found not guilty.

Released: September 17, 2012

The Honourable Mr. Justice R.G. Selkirk