Court File and Parties

Court File No.: 13-380 Date: 2014-03-12 Ontario Court of Justice

Between: Her Majesty the Queen — and — Christina Ganga

Before: Justice S. R. Clark

Charge: Over 80

Trial heard on: November 1, 2013 and January 9, 2014

Judgment released on: March 12, 2014

Counsel:

• Ms. R. Prihar for the Crown
• Mr. B. Brody for the defendant Christina Ganga

1:0 Introduction

[1] The defendant is charged with the offence of over 80, on December 28, 2012.

[2] This case addresses the issue of whether a detainee is entitled to a second opportunity to consult counsel even though there was no change in her jeopardy triggering her section 10(b) right to counsel as set out in the case of R. v. Sinclair, 2010 SCC 35, [2010] 2 SCR 310.

[3] Put another way, should the "confusion" claimed by the defendant about the initial legal advice she received give her the right to a second call?

[4] After being stopped in a R.I.D.E. program and failing the roadside test, when taken to the police station, the defendant spoke to duty counsel. She became distraught after providing her first breath sample and wished to speak to duty counsel again. She told the officer the advice she received was different from what the officer was telling her. He called duty counsel again and left a message, but did not wait for a call-back. Instead he carried on with the investigation and subsequently obtained the second sample. Accordingly, the defence alleges her section 10(b) right to counsel was violated, and the breath results (127 milligrams of alcohol in 100 millilitres of blood) should be excluded under section 24(2) of the Charter.

[5] The Crown, on the other hand, contends the defendant was not entitled to speak with duty counsel a second time. Alternatively, even if she was, she waived it unequivocally and was quite content to just finish the investigation and provide her second breath sample. Accordingly, the officer was not required to hold off his investigative duties. Furthermore, there were no circumstances that suggested the choice faced by the defendant had been significantly altered, thereby requiring further advice on any new situation in order to fulfil the purpose of section 10(b). In any event, even if the Court finds there was a Charter violation, the breath samples should not be excluded under section 24(2).

2:0 The Issue

[6] The narrow issue relates to whether or not the defendant's section 10(b) right to counsel was breached by not granting her a second opportunity to speak with duty counsel?

3:0 Summary of the Evidence

3:1 The Crown

3:1.1 Constable Ian Kosher

He has been a police officer for approximately 22 years. On December 28, 2012, he was performing his duties as part of the Regional Breath Unit, conducting R.I.D.E. spot checks. He was also the qualified breath technician (QBT) in this investigation. He was positioned in the northbound lanes on Hurontario Street at the intersection of Fairview Road in Mississauga. At 3:19 a.m. he stopped a vehicle operated by the defendant. When speaking to her, he detected the odour of an alcoholic beverage on her breath. He observed her eyes to be bloodshot and watery. He asked her when she last consumed alcohol. She responded, "11:30 last night at Sugar Daddy's." He also detected the odour of a burnt narcotic in the car. He formed the suspicion the defendant had alcohol in her system at 3:20 a.m. He read her the approved screening device (ASD) demand at 3:21. Her breath sample registered an "F", for fail. She was subsequently charged and transported to the police station. She was asked if she wanted to speak to duty counsel. She responded, "I guess so". A message was left at 3:47. A return call was made at 3:51. The defendant spoke privately to duty counsel from 3:51 to 4:09.

The Crown then played the video/DVD of the exchange between the QBT and the defendant.

The following is the Court's summary and observations of same:

The officer re-read the rights to counsel which included the six usual questions. He was endeavouring to be professional. The defendant confirmed that she had spoken to duty counsel. When asked if she had a lawyer of her own, she indicated no, as she had never been in trouble before. The exchange between them started off in a very civil manner. Unfortunately, this did not last. After the officer did his own demonstration as to how the breath sample should be provided, the defendant appeared to be pretending to blow. He told her this was only going to get her in more trouble and told her about a further offence of refuse breath sample. She made four attempts. However, she stopped blowing before the officer told her. She explained she was a smoker and ran out of breath. The fifth attempt was no different. The officer indicated to her that at some point he was going to give her a last warning. By now, the defendant was starting to talk over him. He asked her if it was because she was so drunk why she could not blow. She responded, "I am not drunk. I'm not purposely doing it. I swear". After this, she provided a suitable sample. The officer indicated they would have to wait 17 minutes before administering the second sample.

This is where things went "sideways", meaning where the officer lost control of the investigation. He had a series of questions he wanted to ask her, however, her told her it was voluntary as to whether or not she wanted to respond. The discussion then turned to the whereabouts of her car and the fact that some of her property was in it. She wanted to get it back. The officer was somewhat dismissive of this request and tried to return to the focus of the investigation. This is when the defendant, for lack of a better expression, "lost it". She told him, "I'm an educated person. Isn't this false information?" She was under the belief, having spoken to duty counsel, that she would be able to get her property. The officer was trying to explain that in due course this would be so, but not now. Because he seemed to be telling her something different, she told him, "Don't talk to me anymore." I believe you have some prejudice against me, so I really don't care anymore." She again told him she was an educated person, was 30 years old, and had only had a sip of beer. She also told him she was not easily intimidated. She said she was getting frustrated and just wanted to go home. She was becoming progressively more agitated. She told him she wanted a female "cop" present because she did not feel comfortable with him. She said she felt threatened by him and wanted to speak to his supervisor. She told him to stop talking to her. The matter reached an even higher level to the point of being a shouting match. The officer endeavoured to remind her she was under arrest. She told him she was a former rape victim and then cried out, "Can somebody please help me?" She then said, "I believe you are lying to me because everything the lawyer said to me you say the exact opposite". She continued, "I believe you are one of the crooked cops out there". The officer asked if she wanted him to place another call to duty counsel. He also asked her, "Why are you talking like this?" She responded, "Because you are racist". She told him yet again she was an educated person. He told her, "You are a drunk person". She responded, "No I'm not". She then continued her tirade with a barrage of statements including, "Based on my religion, I should not be alone with a man. I have two years of law". She continued to ask for a female officer to be present, explaining when she goes to the doctor to be examined there must be a female present. She then said, "I want you to make that call. I'm not a stupid person. I feel uncomfortable".

The officer got up and told her he would call duty counsel. He explained that sometimes it isn't the same duty counsel who would call back. She said it was "okay" as long as it was a lawyer and not one of his friends. While the officer was out making these arrangements, she continued to mutter to herself, "I have an education too. Screw that, just 'cause I don't have an education like you. Peel Police…" When the officer returned, she told him, "I watched a movie the other day about a cop like you. By falsifying information, you're telling me the opposite my lawyer told me". The officer continued to try to calm her down. He told her, "You're over-talking me". She then told him, "I'm not drunk. Just because you're small-minded, I can do a full cartwheel. I would love to walk a line but not in these heels. You have no friggin' proof. It's one thing my parents taught me. You have no right to accuse me of being drunk". The officer continued to attempt to redirect her. He asked, "So, would you like to do the tests to show you're not drunk before speaking to counsel, or what." She responded, "My feet hurt. I danced my ass off tonight. I split with my boyfriend on Christmas day." She was still asking him, "Regardless, do I still get to get my stuff out of the car?" She then told the officer she had to go to the bathroom. He allowed her to do so. When she returned she told him, "This is stereotype in Peel Region. How come nobody likes Peel? Even Toronto police don't like Peel. I was always curious about this".

The defendant's behaviour then improved. She told the officer, "Please forgive me. I've been burned before by Peel Police. I've never been in trouble before". The officer then explained he was ready to take the second breath test. He asked if she wanted to put this on pause until the lawyer called back. She responded she just wanted it to go as fast as possible and then told him, "I just want to cooperate and just sit here". He then indicated to her, "Don't think that as a problem with time. We'll wait, or you can go ahead". She responded, "Well, let's just do this". She continued, "I just don't want my parents to find out". He responded, "That's up to you". She then asked him if he had ever cheated on his wife, and told him her boyfriend had just broken her heart on Christmas day. She then stated she met the girl her boyfriend had been cheating with today. She explained this is why her friends took her out. She then asked the officer if that lawyer person was still going to call. He responded that they usually do, but did not know what happened.

After the second sample was taken, the officer told her her readings were 127 and 114, truncated to 120 and 110, respectively. She started to cry and said, "I'm sorry". She then asked, rhetorically, "I can't drive for 3 months?" She then settled right down.

The balance of the video/DVD demonstrates that they returned to having a civil exchange with one another. The defendant was no longer accusatory or argumentative. She explained she was drinking beer before she left the bar. Prior to that, she had consumed two rum and cokes between 10 and 11 p.m. She then stated she had two rum and cokes before 1 a.m. and one half of a Corona beer 5 minutes before closing. She then dropped her friend off at home. Another friend was still with her and she was taking her home as well. She told the officer she knew her tolerance and that her car was her "bread and butter". She then stated, "I'd never do anything to jeopardize it". She then told him, "I can walk a line. I'm perfectly fine".

Approximately 5 minutes later, duty counsel called back. The officer asked if she wanted to speak with him. She declined. He then engaged her in some non-investigative conversation.

The Court had the impression he was merely trying to lend her a sympathetic ear. She told him again that her boyfriend broke her heart. They had been together for 4 years. She told him this is why she drank herself "stupid". She also told him that her boyfriend's whole family disrespected her.

The officer then served her with all the required documentation, including the Certificate of the Qualified Breath Technician setting out the breath sample readings. The video was made an exhibit, as was the certificate and Notice of Intention.

The officer confirmed the time of the second call placed to duty counsel as being just after the first test had been completed. In addition to the observations made of the defendant on the video/DVD, he noticed some slight stumbling when she walked out of the breath room. Her eyes were bloodshot and watery. Her speech was fair, although there was a slight effect due to the alcohol. She mispronounced some words and used some broken sentences. In his view, the alcohol contributed to her argumentative nature.

The cross-examination of the officer was, at times, difficult to follow. It was also, at times, highly conflictual in nature. Defence counsel fired questions at the officer at a pace which made it problematic for the Court to keep up in recording the evidence. Defence counsel characterized the exchanges as "cat and mouse". They were often sparring with one another. Counsel would often cut the officer off before he had completely responded to his questions. On the other hand, counsel accused the officer of giving long rambling answers that were not responsive to his questions. The officer, for the most part, maintained his composure, whereas counsel was not as successful in this regard. That said, although the cross-examination was aggressive, it was certainly not inappropriate.

The officer acknowledged he did not form the opinion at any time that the defendant's ability to operate her motor vehicle was impaired by alcohol, notwithstanding that there were obvious indicia of same. When asked if he had an obligation to be the more mature and level-headed person when investigating an individual under arrest, he responded, "It depends on the circumstances." When asked if he is supposed to engage in arguments or yelling matches back and forth, he responded, "If it's for the purpose of obtaining the truth of the matter, it's my job to investigate and gather the evidence and come to the truth of the matter." He explained in some cases, if gets to the truth of the matter, yelling in a legal way is appropriate. This was a discretion left to him as a police officer. He explained that in 99% of the cases he investigates, telling the detainee he or she is drunk often turns the individual into a more mature, civil, and responsive person. However, in this case it did not. When asked why he was accusing her of being drunk if she was not, he explained it was to stop her behaviour. He did not disagree that there was a significant power imbalance between them.

He went through the rights to counsel with the defendant again in the breath room in an effort to help clarify to her what was going on. He recognized that sometimes people change their mind. At one point the defendant told him everything he was telling her was different from what the lawyer had told her. She said the lawyer told her she was going to get her car back. He was trying to be honest with her and told her she was not based on her first breath sample reading. Counsel challenged him that his antagonistic technique was not working and in fact caused or contributed to the defendant becoming hysterical. He responded, "It worked. I got my two breath samples." He continued, "It's my job to gather the evidence for the offence and that is my primary focus in that room, getting those breath samples and preventing her from committing a criminal offence of refusing to provide them." He explained he did not care about her concerns or frustrations, although he did care about her rights to counsel. He believed she wanted to speak to a lawyer a second time because she was demanding that a female be in the breath room. This is why he asked her why she wanted to call the lawyer again. She told him it was none of his business. He said it was. There was a 17 minute gap between the completion of the first breath sample and the commencement of the second. He was quite content, therefore, to see if a lawyer would call back within this period of time as this would not affect the "as soon as practicable" requirement for him to receive a second breath sample. Counsel suggested he must have believed it was the defendant's right to call a lawyer the second time because she seemed genuinely confused about the information she had initially received and the information the officer had been providing to her. He disagreed. He explained he wasn't certain why she wanted to speak with a lawyer a second time since she told him it was none of his business. However, speaking to a lawyer a second time would not interfere with the taking of the second breath sample as long as it was within the 17 minute period.

After the requisite passage of time, the breathalyzer instrument was now ready to take the second sample. This is when he asked if she still wanted to speak to the lawyer. She chose to provide the second sample and waived the necessity. Up to this point, he acknowledged he was uncertain as to whether he was required by law to afford her the opportunity to speak to duty counsel a second time. It was his belief he only had the obligation to provide a second phone call when a detainee's jeopardy changed. He was not aware of any other reasons. It was his belief the defendant's jeopardy never changed. Counsel suggested he was "playing games" with the defendant in that he was only going to allow her to speak to the lawyer as long as it happened within 17 minutes. He acknowledged he was not quite sure what he was going to do. However, he explained it became academic when she said she would provide the second sample without waiting for a call-back. Counsel asked why he did not hold off taking the second test if he believed the defendant may have had the right to a second phone call. He restated it was because she agreed to do the test and did not wish to speak with a lawyer again.

He disagreed with counsel's suggestion that one of the reasons why he placed the second call to duty counsel was because he thought the defendant was confused about what he told her versus what the original lawyer told her. He did not think she was confused. He thought if he was able to facilitate her speaking to counsel again her argumentative behaviour would stop.

Finally, counsel asked if he had done anything since this investigation to inform himself whether or not the defendant had the right to a second phone call. The officer still maintained she did not have the right, based on the Sinclair decision. He acknowledged, however, he had not yet had a chance to read this case.

3:2 The Defence

[7] The Defence called no evidence.

4:0 The Positions of the Parties

4:1 The Defence

[8] Defence counsel asks the Court to consider the following points:

1. This is a peculiar case, factually. Whereas many cases deal with the issue of a detainee having a right to a second consultation which was not facilitated, in this case, the officer did facilitate a further consultation and then did not fulfil his obligation to hold off, contrary to the principle set out in the case of R. v. Prosper, [1994] 3 S.C.R. 236. Too much of the officer's evidence defied common sense. His evidence was also troubling given his lack of knowledge regarding his obligation to allow the defendant a second call to counsel. He knew the defendant had this right which is why he placed it for her. Even if he was unsure what to do, as he acknowledged, he ought to have erred on the side of caution and allowed duty counsel the opportunity to call back. He should have held off all questioning and other investigative steps pending this.

2. The essence of section 10(b) is to provide a detainee with an opportunity to obtain legal advice which must be understood by her to be able to choose whether to cooperate with the police investigation or not. It is not to place the officer in a better position to obtain incriminating evidence, but is actually the opposite. It is to help the detainee be in a better position to make decisions that will not incriminate.

3. The defendant became excited and at times hysterical and aggressive after the first breath sample. She was frustrated due to the officer's antagonism. However, she was very clear that she believed everything the lawyer told her initially was now being contradicted by the officer in the breath room.

4. What is troubling is that the officer has been on the police force for 22 years and still believes that the right to a second opportunity to speak to counsel only takes place when there is a change in jeopardy. The Sinclair decision was decided in 2010, some 3 ½ years ago. The officer took an overly simplistic view of what Sinclair stands for. Although, as a general proposition, a single consultation with counsel is all that is required, any subsequent opportunities to consult counsel will depend on the circumstances. This is one such case.

5. The officer merely wanted to complete the investigation and receive the two breath samples. This, however, is not the purpose of section 10(b). He should not have been making legal decisions about the defendant's rights. If he believed there was a possibility she had a right to a second call, and actually facilitated same, he clearly had an obligation to hold off questioning from that point forward. However, what he effectively did was to only facilitate the defendant talking to a lawyer a second time if it helped him. However, if it helped her, he was still trying to decide whether he was going to allow it or not.

6. He undermined the legal advice the defendant had received. This may have had an effect, therefore, of distorting, nullifying, or at least undercutting the purpose of section 10(b).

7. Whether the defendant wanted to speak to a lawyer a second time about the towing of her car, getting her property back, or whether she was entitled to a female in the room with the officer is all possible. What is important is that she was telling the officer that everything he was saying to her was different. It was not for him to assess what this did or did not mean.

8. It is not for the officer to do whatever he wants in the time between the samples. He was making up his own rules in the breath room. He was essentially taking the position he was not going to comply with holding off because he was uncertain whether the defendant had the right to a second call.

9. The prudent step would have been to consult with his supervisor or another officer. Instead, he took no steps whatsoever to determine whether the defendant had the right to speak to a lawyer again or not. His blanket response was that he did not have to consider the issue any longer since the defendant waived her right.

10. The Sinclair case also stands for the proposition that the categories for allowing a second consultation are not closed, but depends on the circumstances. It is true that the circumstances must be objectively observable in order to trigger additional implementational duties for the police. Furthermore, it is not enough for a detainee to assert after-the-fact that she was confused or needed help. However, this is not the situation in the present case. The defendant did not merely sit in the breath room and say nothing about her confusion. She clearly told the officer she did not understand what was going on. The officer must have known she was confused. She repeated it over and over. The Sinclair case also stands for the proposition that a second consultation with counsel is required when the police undermine the legal advice, or when the detainee seems confused or frustrated because the advice received against the statements made by the officer to her is different.

11. The techniques used by the officer, by antagonizing the defendant, exacerbated the problem. He agreed that an individual should be confident when speaking to a lawyer. Yet, he told the defendant he did not want to hear what her lawyer said to her even though he probably had a good idea of what it was. This is hardly reassuring. This weakens the confidence of the defendant. He continued to antagonize her telling her she was drunk on 3 occasions. This is what caused her to become increasingly hostile, hysterical, irrational and agitated.

12. The officer's credibility and reliably is suspect. Counsel asked him several times if he should have erred on the side of caution and allowed the second phone call. He never did answer this question directly. Furthermore, when he tried to explain his rationale and position, it was based on the analysis in Sinclair, even though he had never read the case.

13. If the officer, and indeed the Crown, are claiming the defendant waived her right to counsel, this is, in fact, implicitly acknowledging the defendant had the right to speak to a lawyer a second time. The defendant merely saying words to the effect, "Okay, I'll take the test," is not a valid waiver.

14. It seems it was all about Constable Kosher that evening and how the investigation could make his job easier. What was so troubling about his evidence in cross-examination is that it was not just naiveté, or simple confusion in good faith. Rather, it was bad faith in providing answers to pointed questions that did not make sense. Though he formed no opinion about impairment, he continued to call her drunk, believing that somehow this was going to help him in his investigation. For example, he asked if she wanted to prove she was not drunk or to prove him wrong by taking coordination tests. This was done in the face of her just telling him she wanted to speak to a lawyer again.

15. In conclusion, the taking of the second breath sample was pursuant to a Charter violation. The Court should exclude that reading, thereby making the presumption unavailable to the Crown. In the result, the court should exclude the evidence and dismiss the charge.

16. Regarding the section 24(2) analysis, the Grant case requires the Court to consider the long-term integrity and public confidence in the justice system. Admitting the evidence in this case would send the wrong message to the public, and to this particular officer, that if he is not sure whether someone has a Charter right, it does not matter as long as it works for the police. It also sends a message that the police cannot use the Charter to help incriminate an accused. The first point to consider in the analysis is the seriousness of the Charter breach. The behaviour and actions of the officer is closer to bad faith here since he ought to have known there was an obligation to hold off any further investigation knowing the defendant was confused about her rights. His failure to do so is inexcusable. Alternatively, it is open to the Court to conclude he did know, but forged ahead anyway, in an attempt to obtain breath samples at any cost, including violating the defendant's rights. Furthermore, the fact he does not even know the state of the law today is a significant consideration. Moreover, he used investigative techniques which clearly antagonized the defendant. He did nothing to try to de-escalate the situation other than to call her drunk and to suggest she take a coordination test. Regardless of how irrational or obnoxious the defendant may have been, it did not take away her right to be properly informed and to have a meaningful conversation with counsel. In fact, she wanted to speak to the same lawyer she spoke to the first time. She wasn't even trying to find a different lawyer to give her different information. It is clear the officer was not aware of the Sinclair case at the time of the investigation. To this point, he had no idea what to do in a situation such as this. This is most troubling. He had the responsibility of knowing what the defendant's rights were. If he did not know he ought to have asked someone. He was asked several times on cross-examination why he merely went ahead when there was a possibility the defendant did have a right to a second consultation. He never did answer the question. He did not care about her rights nor did he care that she was confused. The only reason why he called a lawyer was to help him stop her from yelling at him. He wanted to control her through counsel. This is not what section 10(b) is meant to do. It is not a tool for the officer to control an accused. His behaviour during the investigation was egregious. His behaviour in Court was the same.

Regarding the second factor dealing with the impact of the Charter breach on the defendant, there was an increased level of bad behaviour, antagonism, and manipulation by the officer. Had he actually read Sinclair, he would have realized the defendant had the right to speak to a lawyer a second time. He seemed to acknowledge if she had the right, although he was not certain, he would not have asked her to participate in providing the second sample.

Although the third factor suggests cases of this nature must be heard on their merits, when balancing the three factors, the Court should exclude the evidence.

The Charter violation in this case was so severe that the Court should dissociate itself from the conduct of the officer, not only on the day in question, but from his conduct in Court. A determination of a Charter breach is not meant to be punitive or to punish a police officer. However, a message should be sent to the police force in general, and this officer in particular, that he is not to play "lawyer" in the breath room. It is not his job to balance whether or not the defendant had a right to counsel or not, and it is not for him to utilize Charter values to benefit his investigation. The securing of two breath samples within 22 minutes is not the most important aspect of any drinking/driving investigation. He was more concerned about not going past this time so he would not be exposed to the "as soon as practicable" legal argument often made at trial. With his experience, he would know only too well that no court would ever criticize him for administering a second breath sample beyond this timeframe, if his actions and explanations were reasonable.

4:2 The Crown

[9] The Crown asks the Court to consider the following points:

1. The defendant was provided with a reasonable opportunity to consult counsel. Accordingly, there has been no section 10(b) breach in the circumstances.

2. In the alternative, if the Court finds the defendant did have the right to speak to counsel again, she made a clear and unequivocal waiver.

3. In the further alternative, if the Court finds there was a section 10 breach, no evidence should be excluded under section 24(2).

4. The officer clearly afforded her the opportunity to speak with duty counsel. She took advantage of this. After finally providing the first breath sample, given the difficult exchange between them, he placed a second call and left a message with duty counsel. After the appropriate passage of time, he told the defendant the instrument was now ready to accept a second sample. He asked if she wanted to wait for counsel and that it made no difference to him either way. The defendant essentially said the faster she did this the faster she could get out. The officer even asked her to not think of it in terms of time. If she wanted to move forward and do the test this was fine, however, if she wished to wait for counsel this was also acceptable. She responded with words to the effect, "No, let's just do this." He tried to understand her position by asking, "You want to provide the second sample?" She responded, "Yeah." By this time, she had used the washroom facilities and had an opportunity to compose herself. There was a definite change in her temperament.

5. The Prosper situation, where the police have an obligation to hold off any further investigation until counsel calls only applies in situations where the detainee has not yet spoken to counsel at all. It does not apply where the detainee has already spoken to counsel.

6. The Sinclair case sets out 3 defined reasons when a second opportunity to speak to counsel should be given. The most common one is when there has been a change in legal jeopardy. However, this is not the situation in the present case. The facts of this case relate to the third branch of Sinclair which is whether the defendant understood her rights. There is an acknowledgment that the police are at liberty to facilitate any number of further consultations with counsel if the circumstances require it. Although Constable Kosher called duty counsel a second time, it does not mean, necessarily, that it was a right to which the defendant was entitled.

7. Sinclair also provides that the list is not closed as to when a detainee may speak to counsel a second time. Additions should only be developed where necessary to ensure that section 10(b) has achieved its purpose.

8. The case of R. v. Burlingham, [1995] S.C.J. No. 39 can be distinguished. In that case, the defendant was charged with murder. The police offered a plea to second degree murder, but stated it was only available for one night, knowing that his counsel was unavailable to be reached. The Court held that the police cannot rely on the mechanical recitation of the right to counsel in order to discharge their responsibilities under section 10(b). Not only did the police fail to take affirmative steps to clear up the defendant's confusion, but they also created the confusion in the first place.

9. Sinclair also stands for the proposition that any change of circumstances must be objectively observable in order to trigger additional implementational duties by the police. It is not enough for the defendant to assert, after-the-fact, that she was confused and needed help, absent objective indicators that a renewed legal consultation was required to permit her to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so. There is no evidence from the defendant directly about any confusion. No affidavit has been provided. She did not give any viva voce evidence. Not only are objectively observable circumstances missing, but this is not even a situation where the defendant asserted she was confused. Defence counsel repeatedly challenged the officer that the defendant appeared confused. The officer never acknowledged this, however. In fact, the video/DVD shows the defendant continued to assert that she understood her rights because of her legal knowledge. Surely she was intelligent enough to understand her situation after speaking to duty counsel for 18 minutes to be able to make her own choices.

10. Furthermore, at no time did the officer attempt to denigrate either counsel or the advice the defendant had received.

11. Accordingly, there is nothing that occurred in the breath room which triggered one of the Sinclair factors regarding a second opportunity to consult counsel. Even if the defendant did have such a right, the officer asked the defendant twice in the face of this whether or not she wanted to provide a second sample. She clearly did. It is difficult, therefore, to imagine a more clear and unequivocal waiver.

12. In the alternative, if the Court finds there was a section 10 breach, the evidence should not be excluded. This was not egregious state conduct by a police officer. He was merely trying to obtain a breath sample he was legally required to obtain faced with a belligerent detainee. Furthermore, he attempted to facilitate a second call to counsel and did nothing to dissuade her from this. She voluntarily chose not to have the second conversation with counsel. The officer's rationale included his concern about fulfilling the "as soon as practicable" requirement. He asked the defendant, in good faith, why she wanted to speak to counsel again. She told him it was none of his business. Faced with this response, and the lack of clarity as to the reason for the second phone call, followed by the defendant's decision not to speak to counsel again, should demonstrate that there was no breach of her right. If the Court finds otherwise, it was not particularly serious. Furthermore, the impact of any Charter breach on the defendant's interest was minimal. She already had the opportunity to speak to counsel. Furthermore, breath samples are highly reliable. Obtaining them is minimally intrusive. Indeed, society has an interest in these types of charges proceeding on their merits.

5:0 Analysis

5:1 Right to a Second Consultation with Counsel – General Principles

[10] The Sinclair case requires the Court to give consideration to the following factors:

1. The police must only give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying section 10(b).

2. It does not demand the continued presence or availability of counsel throughout the interview or investigation process.

3. A request to consult counsel again, without more, is not sufficient to re-trigger the section 10(b) right.

4. What is required is a change in circumstances that suggests the choice faced by the detainee has been significantly altered, requiring further advice on the new situation.

5. Changed circumstances may result from the following three identified categories:

   • new procedures involving the detainee.
   • a change in the jeopardy facing the detainee.
   • reason to believe that the detainee may not have understood the initial advice of the right to counsel.

6. The categories are not closed, however.

7. The change of circumstances must be objectively observable in order to trigger additional implementational duties for the police.

8. It is not enough for a detainee to assert, after-the-fact, she needed help, absent objective indicators that renewed legal consultation was required to permit her to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.

9. The question is, therefore, whether the circumstances, viewed as a whole, indicate the defendant required further legal advice in order to fulfil the purpose of section 10(b).

5:2 The Principles Applied

[11] In all of the circumstances, the Court finds there was no section 10(b) violation. The defendant's actions and words do not fit within any of the three identified categories set out in Sinclair, generally, and in particular, there is no reason to believe the defendant may not have understood the initial advice of the right to counsel. Moreover, any change of circumstances were not objectively observable sufficient to trigger any additional implementational duty by Constable Kosher.

[12] The Court makes this determination for the following reasons:

1. At no time did she ever claim she was at all dissatisfied with the advice she received.

2. On the video/DVD she said nothing about being confused as to what her continued legal obligation was to provide a second breath sample.

3. She was only concerned about getting her car and property back that same evening and not having her parents find out about her circumstances of having been arrested and charged.

4. Any confusion about the legal advice she had already received and the officer candidly telling her she wasn't going to get her car back based on the results of the first breath reading, was of no moment. Neither was her unreasonable demand that a female officer be present. There were no gender-sensitive intrusive investigative steps that required same. This demand was not central to the core implementational duties of the officer. She was not entitled to a second call to counsel to clarify this.

5. At best, it might have been a courtesy that could have been extended by the officer in an effort to calm her down, but it was not a legal obligation on him to facilitate this.

6. It did not advance her position that she told the officer it was none of his business when he asked her why she wanted to speak to duty counsel again. She had an obligation at this point to exercise due diligence and to articulate what she was so confused about. Her statement that everything the officer was saying to her was different from what the lawyer told her was cryptic and non-specific. The officer already probed and got nowhere. He should not be expected to be a mind-reader from this point on.

7. Regardless, she unequivocally waived any further right she may have had to counsel. Her inflated sense of self, and her self-proclaimed intelligence and legal knowledge cloaked her with having the capacity to be able to waive her right in an informed and voluntary way. She obviously had no difficulty standing up for herself and telling the officer how much she knew about her rights. Furthermore, she was not deemed to be impaired. The Court finds she otherwise had her wits about her. She clearly changed her mind. The Court asks, rhetorically, what was the officer to do, now force her to speak to duty counsel again? It should also be noted that she had effectively calmed down and was demonstrating a more rational thought process by this time, and was no longer spewing her vitriolic invective at the officer.

8. The officer placed a second message to duty counsel wittingly or unwittingly. He was uncertain whether or not he was required to afford this opportunity. He took the prudent step and did. The issue became moot or academic when the defendant no longer wished to wait. The officer did nothing to dissuade her or to force her to make this decision.

9. There was nothing particularly intemperate or insulting by the officer telling the defendant she was drunk. His explanation for using this investigative technique was reasonable. Unfortunately, it did not work in this case. Although the officer expressed due diligence in not forming reasonable and probable grounds that the defendant was impaired (which was charitable on his part) a case could have been made to have done so. This demonstrates how carefully he was attending to his duties and obligations. Her outrageous behaviour alone ought to have been indicative of her being in some form of an altered state, in addition to the constellation of other more classic observations made. It was, therefore, not a "stretch" to have tried this technique. The defendant's self-righteous response, as if she was being completely misjudged by him, was disingenuous.

10. The Court respectfully disagrees with defence counsel's characterization that the officer antagonized the defendant and denigrated her and the legal advice she must have received. Rather, he was dealing with a situation that became chaotic very quickly. The officer tried to maintain his composure. Quite frankly, the defendant's behaviours and unreasonable demands to have a female officer present because her religion would not allow her to be alone with a male demonstrates how desperate and over-reaching she was prepared to go to thwart or otherwise try to de-rail the investigation.

11. Quite frankly, although in hindsight, the officer should probably have left well enough alone when the defendant first lit into him rather than trying to show her who was "boss", so to speak, quite frankly, the despicable actions displayed by the defendant would have tested the patience of even Mother Theresa!

[13] Accordingly, the Court finds there was no section 10(b) violation.

[14] In the alternative, if the Court is in error in its analysis, it is important to a principled set of reasons to show why the evidence should not be excluded under section 24(2).

5:3 The Section 24(2) Grant Analysis

5:3.1 The Governing Principles

[15] The Court must conduct a discreet analysis of the admissibility of the second breath sample. It is not sufficient to merely conclude that all evidence was tainted following any Charter breach and must be excluded.

[16] It is important to note that there is no automatic exclusion of evidence following any breach of one's right to counsel, or any breach.

[17] There is no per se or bright line rule that mandates exclusion of all evidence that follows a Charter infringement.

[18] A prominent component in the analysis includes the impact of the pre-sample consultation the defendant already had with counsel. This, in turn, would include a consideration of the Charter-compliant conduct by the officer in the assessment of the seriousness of any violation.

[19] In other words, if the Charter-compliant conduct reflected good faith by the officer, this would attenuate the seriousness of any breach.

[20] Ultimately, the sufficiency of the connection between any 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 defendant.

[21] To determine whether there is a nexus between the infringement and the evidence proposed for admission, the Court must undertake a contextual, purposive and a generous case-specific analysis. The essential nexus between the breach and the subsequent evidence may be temporal, contextual, causal, or the three in combination. The temporal connection involves more than the time between the two events. What takes place between the two can colour the significance of the passage of time.

[22] The role of the Court is to balance the assessments under each of the three lines of inquiry in Grant to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

[23] Regarding the first factor, state conduct resulting in Charter violations varies in seriousness from the inadvertent and minor, to 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.

[24] Likewise, the seriousness of the impact on the defendant may vary from the fleeting and technical to the profoundly intrusive, passing several other signposts along the way.

[25] The third line of inquiry reflects society's expectation that criminal allegations will be adjudicated on their merits. The public interest in truth-seeking is relevant. So is the reliability of the evidence obtained as well as the significance of the evidence to the Crown's case.

[26] Section 24(2) eschews presumptive rules.

[27] No overarching rule governs how the balance is to be struck.

[28] Each case requires a nuanced fact-specific evaluation of its own factual matrix of all the circumstances to determine whether the balance settles in favour of exclusion or admission.

5:3.2 The Principles Applied

[29] The Court finds that the evidence should not be excluded for the following reasons:

1. The officer did not act in bad faith. He did not demonstrate a flagrant disregard for the defendant's rights in the circumstances. The Charter-infringing conduct is not widespread. There is not a shocking number of these types of scenarios. Furthermore, his actions were not symptomatic of a systemic problem. This is an isolated situation, and one that Constable Kosher won't soon forget. Notwithstanding he had not yet read the Sinclair case, his was not a fundamental misunderstanding of what it stood for. The Court ventures to say that the Sinclair analysis may not be entirely clear to many criminal lawyers. While it may be true that the police are expected to know the laws they enforce and employ, they are not required to reconcile conflicting precedents. The officer's approach and investigative techniques in this case did not rise to the level of wilful or reckless disregard for the law and Charter rights, nor was it negligent or careless.

2. The impact on the defendant was minimally intrusive.

3. The evidence obtained is reliable and its exclusion would put an end to the Crown's case.

4. Although the Supreme Court of Canada ruled in Prosper in 1994 that if the police did not hold off it would affect the fairness of the trial and bring the administration of justice into disrepute, the Supreme Court has now revised the framework for analysis under section 24(2) in Grant. The decision in Prosper is no longer dispositive of the admissibility issue. It is now open to question under the Grant lines of inquiry. Given the general rule regarding the admissibility of breath samples due to their relative non-intrusiveness, a case decided when only trial fairness considerations were predominant may now be trumped by other considerations.

5. This is not a case where the Court must dissociate itself from the police conduct in order to maintain the public's confidence in the administration of justice.

6. In all the circumstances the Court finds that the long-term repute of the administration of justice would be better served by the inclusion of the breath samples.

6:0 Conclusion

[30] The Crown has otherwise proven the essential elements of the offence of over 80 beyond a reasonable doubt. There will be a finding of guilt and a conviction registered.

Released: March 12, 2014

Justice S. R. Clark