COURT FILE No.: Regional Municipality of Durham 998 12 10282

DATE: 2013·02·22

Citation: R. v. Drolet, 2013 ONCJ 78

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Maxime Drolet

Before Justice J. De Filippis

Heard on December 5, 2012 & January 16, 2013

Reasons for Judgment released on February 22, 2013

Mr. M. Gillen ............................................................................................................ for the Crown

Mr. K. Mitchell-Gill .............................................................................................. for the defendant

De Filippis J.:

[1] The defendant was charged with having a blood alcohol level above the legal limit while in care and control of a motor vehicle on 18 December 2011 at the Town of Whitby. He moved to exclude the evidence of blood alcohol level, pursuant to section 24(2) of the Charter of Rights and Freedoms on the basis that this was obtained through a violation of his rights as set out in sections 7, 8, 9, and 10(b). Much of the evidence in this matter is not in dispute and in the narrative that follows should be considered as such, unless otherwise indicated.

[2] On the date in question, at 3:03 AM, the defendant was the operator and sole occupant of a motor vehicle. He was stopped by Cst. Flis for speeding. Five minutes later, the officer demanded that the defendant provide a sample of his breath into an approved screening device (a “roadside demand”). The defendant complied and registered a “fail”. He was arrested and taken to a “Mobile Command Centre” where samples of his breath were seized with the use of an approved instrument. This revealed a blood alcohol level of .13, above the legal limit of .08. Cst. Flis prepared filed notes at the time of this incident and about two weeks later also produced a typed report about it.

[3] The defendant was arrested at 3:12 AM and immediately informed of his right to counsel, caution, and the breath demand. In the field notes, in a section that provides for the name and number of a defendant’s lawyer, Cst. Flis wrote, “Allan Furlong. 905-448-4800 x 2”. In the typed report, the officer noted that, “Maxime [the defendant] advised that he did wish to speak with counsel; however, he did not have a lawyer of preference and advised that duty counsel would be fine”. The defendant arrived at the Mobile Command Centre at 3:40 AM. The field notes record that Cst. Flis placed four calls to counsel; at 3:48, 4:07, 4:15, and 4:47. Duty counsel called back at 4:48 and the defendant spoke to that person at 5 AM.

[4] The Mobile Command Centre is a motor home, “like a Winnebego” – that is retrofitted to become a moving police station for the purpose of taking breath samples during R.I.D.E. programs. Within this motor home is a room for detained persons to speak to counsel. This room is about a square metre in size with a door, the top half of which includes a narrow vertical window.

[5] The defendant is a 25 year old electrical apprentice with no criminal record. He testified that before being stopped he had been at a Christmas party at the Oshawa Golf Club. He said he had consumed “four beers and a glass of wine” and afterwards “went to pick up buddies in Whitby and go back home”. He also stated that, upon being arrested, he informed Cst. Flis of his desire to speak to Allan Furlong. This is the family lawyer. The defendant said that once he had arrived at the Mobile Command Centre, he saw Cst. Flis on the telephone and assumed she was calling Mr. Furlong. Later the officer told him that she had tried to call both Mr. Furlong and Duty Counsel but neither had called back and “time was running out”. The defendant testified that he is upset because the “disclosure does not say Furlong was called” and may suggest otherwise. In this regard, he conceded Cst. Flis had to “look up the number for Furlong” but “the report doesn’t show she called him”. The defendant is also upset that the room in which he spoke to Duty Counsel “seemed to lack privacy’ and that while in conversation he saw Cst. Flis at the window and had to “crouch down and whisper”. He could not comment on whether the room is soundproof.

[6] Having regard to the conclusion I have reached, I need not deal at length with the argument that the defendant did not have a private conversation with duty counsel or that he could not reasonably believe this to be the case. Suffice it to say that I am satisfied on the evidence of Cst. Fliss and Cst. Ouellette that the room made available in the Mobile Command Centre for use by detainees who wish to speak to counsel is sufficiently sound proofed. Moreover, I see no merit to the submission that the window on the door somehow compromises the private communication between solicitor and client. The window is a necessary safety measure. In addition, I reject the suggestion that there is no evidence that Cst. Flis provided her grounds for the breath demand to the qualified intoxilyzer technician. The only reasonable inference I can draw from the evidence is that the officer did so. The related motions to exclude evidence are dismissed. However, I do find a violation of the right to counsel.

[7] Section 10(b) of the Charter imposes three obligations on the police with respect to a person under arrest or detention; (1) inform the person of the right to counsel, (2) provide a reasonable opportunity to exercise this right if counsel is desired, and (3) curtail questioning and compulsion to make a decision or participate in a process that could ultimately have an adverse effect at an eventual trial, until that reasonable opportunity has been exercised. The person detained or arrested must be reasonably diligent in exercising his/her right to counsel: R v Richfield 2003 CanLII 52164 (ON CA), [2003] O.J. No. 3230 (Ont. C.A.).

[8] Cst. Flis testified that after stopping the defendant she noticed a strong odour of alcohol on his breath. The latter admitted consuming two drinks at the Oshawa Golf and Curling Club earlier in the evening. On this basis, the officer made the roadside demand at 3:14 AM. After arranging for the defendant’s car to be towed, she took him to the nearby Mobile Command Centre. There is no doubt that Cst. Flis properly informed the defendant of his right to counsel and that the latter expressed a desire to speak to counsel of choice. However, the officer has no memory of facilitating that right; indeed, the officer has little independent recollection of what happened at the Mobile Command Centre. Her field notes include the name of a lawyer the defendant admits he provided to her. There is also a record of a telephone number which can only mean the officer searched for it. The same notes show that four attempts were made to contact counsel. Cst. Flis testified that it is her practice to always call counsel of choice first, before resorting to Duty Counsel. Since the notation beside the telephone number of the lawyer in question includes “x 2”, Cst. Flis assumes she called Mr. Furlong twice. I accept all this and would otherwise conclude that as Mr. Furlong did not respond, the defendant was put in touch with Duty Counsel. Such a conclusion would be fatal to the defendant’s s. 10(b) motion. However, I cannot reach this conclusion because of the subsequent typed report prepared by Cst. Flis.

[9] The typed report records three attempts to contact counsel, not four. Of greater significance is the notation that, “Maxime advised that he did wish to speak with counsel; however, he did not have a lawyer of preference and advised that duty counsel would be fine”. This is contrary to the officer’s field notes and the testimony of the defendant. As already stated, there is no doubt the defendant asked to speak to Mr. Furlong. Cst. Flis readily admitted she cannot explain the discrepancy between her field notes and typed report and appeared genuinely puzzled by it.

[10] The typed report prepared by Cst. Flis following the events in question is so materially inconsistent with her field notes that I cannot act upon the officer’s traditional habits with respect to calling counsel of choice first or her assumption that she did so twice in this case. Indeed, since the officer does not have any memory of what she did apart from these contradictory notes, I cannot conclude she called counsel of choice at all. In these circumstances, I find that the defendant’s right to counsel has been violated.

[11] Section 24(2) of the Charter provides that where, “a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” The application of this section involves three inquires: R v Grant 2009 SCC 32, [2009] 2 S.C.R. 353.

[12] The first matter to consider is the seriousness of the Charter infringing state conduct. This is a fact specific inquiry. It recognizes that respect for the Charter may be undermined if courts, by admitting evidence, appear to condone deliberate and egregious police conduct. On the other hand, the case of admission of evidence gathered through a violation committed in good faith may not adversely affect the administration of justice. The second inquiry is focussed on the impact of the breach on the protected interests of the defendant. The greater the intrusion into privacy, bodily integrity and human dignity, the more pressing is the need to exclude the evidence in question. This may not be the case where the impact on the defendant is fleeting, transient or technical. The third question concerns the public interest in a trial on the merits. In this regard, the reliability of the evidence is the key factor to consider.

[13] The seizure of breath samples is not profoundly intrusive and, in my opinion, the seizure of such evidence will generally not significantly impact on the protected interests of a defendant. Moreover, breath tests conducted with the Intoxylizer 5000c or 8000c are highly reliable. These considerations favour admission of the evidence. However, this is an unusual case; Cst. Flis recalls informing the defendant of his right to counsel but has no memory of facilitating it and her conflicting notes about the matter cannot be reconciled. Although the actions of the officer do not appear to be deliberate and egregious, there is no basis to conclude the defendant was permitted to exercise his right to counsel of choice. In R v Bartle 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 (S.C.C.), the was noted that, “Section 24(2) must work together with s. 10(b) to ensure that the privilege against self-incrimination and the principle of adjudicative fairness are respected and protected in our criminal justice system”.

[14] In this case, the administration of justice is best served by the exclusion of the evidence of the defendant’s blood alcohol level as revealed by the breath tests.

Released: February 22, 2013

Signed: “Justice J. De Filippis”