Court File and Parties

Court File No.: 13-033 Date: 2014-04-25 Ontario Court of Justice

Between: Her Majesty the Queen — and — Amendeep Soomal

Before: Justice James Stribopoulos

Heard on: January 7, 2014, February 3, 2014, and March 7, 2014

Reasons for Judgment released on: April 25, 2014

Counsel:

• V. Aujla, for the Crown / Respondent
• S. Verkerk, for the Defendant / Applicant

I. Overview

[1] The defendant, Amendeep Soomal, is charged with two offences, impaired operation of a motor vehicle and refusing to provide a breath sample, contrary, respectively, to sections 253(a) and 254(5) of the Criminal Code.

[2] The events giving rise to these charges took place in the early hours of December 23, 2012. That morning, Ms. Soomal was pulled over after a police officer observed her briefly driving the wrong way down a one-way street. This, along with other indicia of impairment, resulted in her arrest for impaired driving and a demand that she furnish breath samples. Once back at the police division, Ms. Soomal ultimately refused to provide a breath sample. She was charged accordingly.

[3] At her trial, Ms. Soomal brought an application alleging violations of a number of her legal rights guaranteed by the Charter of Rights and Freedoms. She sought a stay of proceedings. And, in the alternative, the exclusion of evidence.

[4] As the case unfolded, the defendant jettisoned various aspects of the Charter application. In the end, her argument reduced down to a claim that the police violated her right to counsel guaranteed by section 10(b) of the Charter, principally because she was denied the opportunity to speak with a lawyer of her choosing. As a remedy, she sought the exclusion of all evidence relating to her refusal to furnish a breath sample.

[5] The Crown responds by arguing that Ms. Soomal's right to counsel was not violated because she was afforded an opportunity to speak with duty counsel. If a section 10(b) violation is established, the Crown contends that because of the Court of Appeal's decision in R. v. Hanneson the defendant's refusal to furnish a breath sample cannot be excluded from evidence under section 24(2) of the Charter. In the words of Hanneson, this is because the refusal is "the whole or part of the actus reus of a crime."

[6] With respect to the charge of impaired driving, the Crown submits that, in light of the test from R. v. Stellato, the evidence is more than sufficient to justify a finding of guilt. In contrast, the defence argues that, considering all of the circumstances, the evidence falls short of proof beyond a reasonable doubt.

II. Evidence

[7] At approximately 3:28 a.m. on December 23, 2012, Constable Iekovic saw Ms. Soomal pull out of the driveway of a building located on Silver Maple Court in the City of Brampton.

[8] The street is a short cul-de-sac, with several different apartment buildings located around it. There is a raised median in the centre of the roadway. Traffic is supposed to travel one way along the roadway around the raised median.

[9] Upon entering the roadway Ms. Soomal made a left turn, travelling southbound in the northbound lanes. She therefore went the wrong way down a one-way street. (In order to travel southbound, she should have made a right and circled around the raised median.) There was an absence of evidence as to whether or not Silver Maple Court is clearly marked with one-way signs at the point where Ms. Soomal made her turn.

[10] Constable Iekovic briefly followed Ms. Soomal's vehicle. She stopped before making a left turn at the intersection of Silver Maple Court and Lisa Street. At that point the officer was trying to catch up with Ms. Soomal, he therefore did not see, and accordingly could not say, whether or not she signalled this turn. Then, as she approached the intersection of Lisa Street and Dixie Road, Ms. Soomal signalled before making a right turn onto Dixie Road. As the officer followed her, he did not notice anything unusual or improper about her driving. Nevertheless, he decided to pull Ms. Soomal over on Dixie Road in order to investigate her sobriety, given that he had seen her briefly travelling the wrong way back on Silver Maple Court.

[11] Once the vehicles were stopped, Constable Iekovic approached Ms. Soomal. He asked if she realized that she had travelled in the wrong lane of traffic. Ms. Soomal apologized, explaining that she was unfamiliar with the street because she was not from the area. Given the layout of the street and the lighting in the area, Constable Iekovic conceded that her explanation was plausible. Upon request, Ms. Soomal produced her driver's license without any apparent difficulty.

[12] As he leaned into the vehicle and spoke with Ms. Soomal, the officer noticed a strong odour of perfume emanating from inside the car. In addition, her eyes appeared red-rimmed and watery. According to the officer, Ms. Soomal's speech seemed peculiar; it was somewhat "slurred" in that she was not fully enunciating her words. In addition, the officer was struck by her nonchalant manner, which seemed odd in the circumstances. Because of all this, Constable Iekovic asked Ms. Soomal to exit her vehicle; which she did without any apparent difficulty. He then asked her to accompany him back to his police cruiser.

[13] Ms. Soomal walked to the police cruiser slightly behind and just off to the side of the officer. She was wearing high-heeled shoes at the time. Observing her over his shoulder as they walked, Constable Iekovic noted that Ms. Soomal appeared unsteady, veering to one side as she moved. During cross-examination, the officer conceded that, given the time of year, there would have likely been ice and salt on the road surface.

[14] Once Ms. Soomal was seated in the back of the police cruiser, Constable Iekovic leaned in to speak with her. At that point, he noted an odour of alcohol emanating from her breath. Combined with his earlier observations, Constable Iekovic formed the opinion that Ms. Soomal's ability to operate a motor vehicle was impaired by alcohol.

[15] The officer next asked Ms. Soomal to step out of the police cruiser, which she did. She was then placed under arrest. The time was 3:32 a.m. She was then handcuffed before being returned to the backseat of the police cruiser.

[16] After securing Ms. Soomal, Constable Iekovic returned to the front seat. Once there, he used his radio to advise his dispatcher that he had someone in custody. He also requested another unit to assist with the towing of Ms. Soomal's vehicle.

[17] Four minutes after her arrest, at 3:36 a.m., Constable Iekovic began informing Ms. Soomal of her rights to counsel. There is no issue as to the adequacy of what she was told. This included information about the toll-free number by which she could speak to duty counsel for immediate and free legal advice. Ultimately, when asked if she wanted to call a lawyer, Ms. Soomal responded by saying, "yes". When asked if she had a specific lawyer she wanted to call, Ms. Soomal replied "Billy" and said she had his phone number in her cell phone. By this point, it was 3:41 a.m.

[18] The officer next read a breath demand to Ms. Soomal, requiring her to accompany him for the purpose of furnishing samples of her breath to determine the concentration of alcohol in her blood. When asked if she understood Ms. Soomal responded, "yes, but I have asthma".

[19] Constable Iekovic and Ms. Soomal waited at the location for five minutes, until a second police officer arrived to deal with her car. They set off for 21 Division at 3:46 a.m., arriving there only three minutes later.

[20] Constable Iekovic decided to wait until he had transported Ms. Soomal back to 21 Division before taking steps to put her in touch with a lawyer, as it was only a short distance and a couple of minutes away.

[21] Once they were back at 21 Division, during processing, Ms. Soomal repeated that she wanted to talk to her lawyer, Billy. Initially, at least, it was Constable Iekovic who looked through Ms. Soomal's phone to find Billy's number. However, the officer was unable to locate the phone number.

[22] Constable Iekovic testified that Ms. Soomal was adamant that she wanted to speak to a lawyer and equally adamant that it be Billy. In case they could not get a hold of him, however, Constable Iekovic testified that he suggested to Ms. Soomal that, as a precaution, he place a call to duty counsel for her. At 3:57 a.m. Constable Iekovic left a message with duty counsel and requested a call back. To that point, however, Ms. Soomal had not expressed an interest in speaking with duty counsel.

[23] At 3:59 a.m. Constable Iekovic informed the qualified breath technician, Constable Smintich, of his grounds for arresting Ms. Soomal and demanding samples of her breath. The grounds provided essentially mirror the indicia of impairment detailed in the evidence summarized above. Based on the information provided, Constable Smintich also formed the opinion that Ms. Soomal's ability to operate a motor vehicle was impaired by alcohol.

[24] After his own efforts were unsuccessful, Constable Iekovic had Ms. Soomal search her phone for Billy's number. She was eventually able to find the number. At 4:11 a.m. Constable Iekovic called Billy who, despite the hour, answered the phone. Apparently, Billy reported that he was not a lawyer but explained that he worked at a law firm. He indicated that he would make efforts to have someone call back to assist Ms. Soomal; the officer took this to mean a lawyer from his firm. The officer provided Billy with the phone number at 21 Division.

[25] Constable Iekovic testified that he told Ms. Soomal that Billy was not a lawyer and explained that she could not speak to him because of this. Although he initially testified that he also told Ms. Soomal what Billy had said about making arrangements to have a lawyer call back, during cross-examination he conceded that he had no memory of actually sharing this information with Ms. Soomal.

[26] Then, at 4:12 a.m., just one minute after Constable Iekovic's phone conversation with Billy ended, duty counsel called back. Ms. Soomal was placed in a private room and afforded an opportunity to speak with duty counsel.

[27] The evidence as to how Ms. Soomal came to be on the phone with duty counsel was far from precise. Although Constable Iekovic testified that she wanted to speak to duty counsel, he did not give any evidence as to what he specifically said to her before she spoke with duty counsel. Constable Iekovic denied telling Ms. Soomal that if she wanted to speak with a lawyer duty counsel was her only option.

[28] It is also unclear as to how long Ms. Soomal's conversation with duty counsel lasted. After approximately twelve minutes, when Constable Iekovic no longer heard any sounds coming from inside the room in which Ms. Soomal was supposed to be on the phone with duty counsel, the officer became suspicious that the call had ended. As a result, he entered the room and took the phone from Ms. Soomal. When he put the phone to his ear, Constable Iekovic could not hear anyone on the line. As a result, he hung up the phone. The officer testified that, at that point, he concluded, "that's that".

[29] At 4:25 a.m., Constable Iekovic turned Ms. Soomal over to Constable Smintich, and then all three of them entered the breath room. The events inside the breath room were audio and video recorded in their entirety. The recording provides important evidence regarding both Ms. Soomal's state of impairment and her claim that her right to counsel of choice was violated.

[30] When the recording commences, even before the defendant enters the breath room, she can be heard asking Constable Smintich for some water. The officer testified that he could not accommodate this request because there were no glasses in the booking area due to safety concerns (nor apparently any paper cups). Further, he testified that the ingestion of water could interfere with the accuracy of the breath test results. Nevertheless, Constable Smintich ultimately told Ms. Soomal that she could take a drink from the tap in the breath room; an offer she begrudgingly accepted. This began a rather unfortunate dynamic inside the breath room, with Ms. Soomal's petulance evoking snarky responses from Constable Smintich. All of this culminates, as the excerpt reproduced below reveals, in Constable Smintich losing his patience and addressing Ms. Soomal forcefully, with a raised voice and a pointed finger. Ms. Soomal responds by reiterating her refusal, even though moments earlier she had expressed a willingness to furnish a breath sample.

[31] In terms of the defendant's right to counsel, once inside the breath room she was never re-apprised of her right to counsel. Within a minute of Ms. Soomal entering the breath room she says, "I am not going to say anything anymore, I want a lawyer". Constable Smintich responds to this request by noting that Ms. Soomal had just spoken to duty counsel; he does not offer her another opportunity to speak with counsel.

[32] A few minutes later, after Ms. Soomal's initial refusal to provide a breath sample, the following exchange took place:

Ms. Soomal: Did you call Billy? I want to talk to my lawyer, first, before I say anything. Where is my phone, where is my lawyer?

Cst. Smintich: You're twenty-five going on five.

Ms. Soomal: I want my lawyer.

Cst. Smintich: That's fine, you had a chance to speak with a lawyer. I am enacting a breath demand.

Ms. Soomal: I want a lawyer. You get a lawyer in here, I'll take a breath sample. I have asthma.

Cst. Smintich: That's fine.

Ms. Soomal: I am not just going to take one and die.

Cst. Smintich: I do too.

Ms. Soomal: You do, it doesn't look like it.

Cst. Smintich: Well, you don't look like it either, okay. It's not visual stuff that accounts who has asthma or not.

Ms. Soomal: I want a lawyer. I want my lawyer now.

Cst. Smintich: I want a cup of coffee, I want a cup of coffee now.

Ms. Soomal: Me too, wouldn't that be nice.

Cst. Smintich: Unfortunately, it is not going to happen for you and it's not going to happen for me right now cause I have to … [inaudible]

A short time later, after Constable Smintich poses a few questions to Ms. Soomal about any health conditions she has or medications she is taking, the following exchange takes place:

Ms. Soomal: I am not doing it. I want a lawyer first.

Cst. Smintich: That's fine, you had a chance to speak with a lawyer.

Ms. Soomal: No.

Cst. Smintich: It's 4:35.

Ms. Soomal: I want a real lawyer.

Cst. Smintich: Who's a real lawyer?

Ms. Soomal: Ah, somebody physically, like, right in front of me, to talk to tell me what to do.

Cst. Smintich: Amandeep, that doesn't happen.

Ms. Soomal: So it is not going to happen.

Cst. Smintich: 4:35, that's a refuse.

Ms. Soomal: It's not a refuse.

Ms. Soomal: I want a lawyer to tell me that this was the right thing to do. That's what duty counsel told me to do.

Cst. Smintich: To do what? I don't want to know what duty counsel told you. You spoke with duty counsel, that's a private conversation, okay.

Mr. Soomal: So…

Cst. Iekovic: Just stand up for me…

Ms. Soomal: No, I want to take the breathalyzer.

Cst. Smintich: What do you mean?

Ms. Soomal: I want to take it because, what's going to happen, right now my car is gone for 90 days?

Cst. Smintich: No, your driver's license is gone for ninety-days, okay. You listen to me, okay. We're being more than patient …

Ms. Soomal: I don't…

Cst. Smintich: Listen. We're being more than patient and polite…

Ms. Soomal: But this is like…

Cst. Smintich: Listen, shut your mouth and listen [with his voice raised, standing over and pointing his finger at Ms. Soomal]. I will give you the benefit of the doubt. I have reasonable and probable grounds to believe that you have refused a breath sample. Because you're under the influence of alcohol, naïve, and perhaps ignorant about this, I am going to give you a second chance, however that second chance doesn't extend to four or five or three. You're going to listen to my instructions and blow into the instrument, and I am going to get breath samples from you. Or, you are going to refuse, and be charged and go to the court. Do you understand. All I want to do is find out what your blood alcohol readings are. Will you provide samples of your breath now?

Ms. Soomal: No.

Cst. Smintich: Okay, 4:37, that's your last chance.

[33] Despite Ms. Soomal indicating that she wanted a lawyer, Constable Smintich did not offer her a further opportunity to call counsel. The officer testified that he doubted the sincerity of these requests and saw them as an evasive manoeuvre on her part. He also testified that he understood Ms. Soomal's comments about a lawyer to be an indication that she actually wanted a lawyer to be physically present with her in the breath room; something that, in his experience, is not feasible. He disagreed with the suggestion that her initial comments could be understood simply as a request to talk with a lawyer. Finally, he maintained (incorrectly) that his comment to Ms. Soomal, about wanting a coffee, was in response to her asking for water, not a lawyer.

[34] Constable Smintich also testified that during his dealings with Ms. Soomal inside the breath room, he noted an odour of alcohol emanating from her breath and that her face appeared to be flush.

[35] The recording from the breath room provides compelling evidence that Ms. Soomal was suffering the affects of alcohol. In my view, her speech, manner and emotional state all betray that she had a fair amount to drink on the evening in question.

III. Law and Analysis

[36] I will begin my analysis with the defendant's section 10(b) Charter application. I will next consider what, if any, remedy is available where a Charter right is violated in a case involving the refusal to furnish a breath sample in response to a demand under subsection 254(3)(a) (i.e. an approved instrument demand). In particular, whether or not Hanneson precludes the exclusion of evidence in such a situation. Finally, I will address whether the Crown has proven the charges against the defendant beyond a reasonable doubt.

A. Was section 10(b) of the Charter violated?

[37] I have concluded that the police violated Ms. Soomal's right to counsel, as guaranteed by section 10(b) of the Charter. More specifically, I am satisfied that there were two distinct breaches of that right in this case.

[38] The first breach was occasioned by the delay between the arrest and Constable Iekovic informing Ms. Soomal of her right to counsel. The language in section 10(b) of the Charter is clear; "on arrest or detention" an individual has the right to retain and instruct counsel and to be informed of that right "without delay". The Supreme Court of Canada has strictly interpreted this language. The Court has instructed that the police must apprise a person of their right to retain and instruct counsel immediately upon detention or arrest. The only permissible delay, the Supreme Court has explained, is where the police need time to obtain control over a potentially dangerous or volatile situation out of concern for police or public safety.

[39] In this case, Constable Iekovic failed to inform Ms. Soomal of her right to retain and instruct counsel immediately upon her arrest. Rather, after arresting and handcuffing Ms. Soomal, he placed her in the backseat of the police cruiser. Constable Iekovic then returned to the front of his vehicle, where he used his radio to contact his dispatcher and attended to various administrative tasks, like making arrangements for the towing of her vehicle. Four minutes elapsed before Constable Iekovic finally turned his attention to discharging his informational duties under section 10(b) of the Charter. Nothing about the circumstances justified the delay in apprising Ms. Soomal of her rights to counsel. Hence, the delay occasioned a violation of her rights pursuant to section 10(b) of the Charter.

[40] That said, I do not believe that this Charter breach had any practical impact in this case. Thankfully, during the delay, Constable Iekovic did not attempt to elicit potentially incriminating evidence from Ms. Soomal. The officer made a mistake in attending to his administrative responsibilities before discharging his constitutional obligations under section 10(b). This error in prioritization resulted in a constitutional violation. In the circumstances, however, one would be hard pressed to describe this as anything more than a minor breach. In my view, the same cannot be said about the second Charter violation, which was of a different magnitude.

[41] In this case, the defendant clearly and repeatedly invoked her right to counsel. Further, although she was specifically told about the toll free number by which she could obtain free and immediate legal advice from Legal Aid duty counsel, on a number of occasions she expressed her very strong preference for her own privately retained lawyer.

[42] It is well established that section 10(b) of the Charter includes the right to consult counsel of one's choice. The Supreme Court made this clear long ago in R. v. Ross. In that case, two detainees were unable to contact lawyers of their choosing at 2:00 a.m. Before they were able to call their lawyers' offices in the morning, police placed them in an identification line-up. This violated section 10(b), the Court held, because detainees have a "right to choose their counsel". They are only expected to call another lawyer if their chosen lawyer "cannot be available within a reasonable time." The duration of this period, it suggested, might be shortened by circumstances of "urgency" or some other "compelling reason", but in this case the line-up could have easily been held "a few hours later".

[43] The Supreme Court of Canada recently reaffirmed its holding in Ross regarding the right to counsel of choice and its limits. In Willier, the Court made clear that what will qualify as a reasonable period of time will depend, "on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation".

[44] The Supreme Court has also explained that urgency does not arise in drinking and driving cases simply because the passage of time may jeopardize the Crown's reliance on the two-hour statutory presumption found in subsection 258(1)(c)(ii) of the Code. This is because even where delay in contacting counsel forecloses reliance on the presumption, the Crown will still be able to adduce expert evidence to relate lower test results back to the blood-alcohol level at the time of the offence.

[45] Finally, in assessing how long the police can be expected to wait for a detainee to contact counsel of their choosing, the Supreme Court has suggested that the availability of free and immediate advice from duty counsel is a relevant consideration. At a certain point, after efforts to contact counsel of choice have proven unsuccessful, the detainee will be expected to contact duty counsel or risk a finding that they were not reasonably diligent in the circumstances.

[46] In this case, from the moment she was apprised of her right to retain and instruct counsel, Ms. Soomal was adamant that she wanted to speak with her own lawyer; Billy. She said this repeatedly. Further, she was not at all interested in speaking with duty counsel; even though this option was made clear to her at the roadside, and again when she arrived at 21 Division.

[47] Constable Iekovic testified that after he spoke with Billy and determined that he was not a lawyer, he told Ms. Soomal that because of this she would not be permitted to speak with him. Initially, Constable Iekovic also testified that he told Ms. Soomal what Billy had said about making efforts to have a lawyer call back to assist her. Ultimately, the officer resiled from this, conceding that he had no memory of sharing this information with Ms. Soomal.

[48] Based on the combination of Constable Iekovic's evidence and the recording from the breath room – in which Ms. Soomal asks, within a couple minutes of entering the room, "[d]id you call Billy?" and receives no direct response from either police officer – I conclude that she was never actually told what Billy had said about arranging for a lawyer to call back to provide her with assistance.

[49] The Crown argues that Ms. Soomal's section 10(b) Charter right was not violated, given that she spoke with duty counsel. According to the Crown, any deficiency in the information police provided to Ms. Soomal was cured by her decision to forego private counsel in favour of duty counsel. In that regard, Mr. Aujla argues that the situation here is analogous to Willier.

[50] In Willier, following his arrest for murder, the accused was informed of his right to retain and instruct counsel. Soon afterward, he had a brief conversation with duty counsel. The next day he was offered a further opportunity to contact counsel, and he made an unsuccessful attempt to contact a specific lawyer. He left a message for that lawyer. The police then asked if he wanted to call another lawyer; Mr. Willier declined, indicating he would prefer to wait for the lawyer to call back. At that point, the officer informed Mr. Willier that the lawyer's office was closed (it was the weekend) and cautioned him that unless the lawyer checks his messages he might not call back until the next day. The officer then reminded Mr. Willier of the availability of duty counsel. Mr. Willier responded by deciding to call duty counsel again. Following a very brief conversation with duty counsel, the police commenced an investigative interview with Mr. Willier. At the outset of that interview, Mr. Willier confirmed that he was satisfied with the advice he had received from duty counsel. Before commencing questioning, the police reminded Mr. Willier of his right to counsel and invited him to stop the interrogation at any time if he wanted to speak with a lawyer again. On these facts, the Supreme Court of Canada rejected Mr. Willier's claim that the police violated his section 10(b) Charter right to counsel of choice.

[51] In my view, there are important differences between what transpired in Willier and the circumstances in this case. First, the police did not fail to disclose material information to Mr. Willier that could have affected his decision to forego counsel of choice in favour of duty counsel. In contrast, that is precisely what I find happened in this case.

[52] In my view, the only logical explanation for how events unfolded is that when duty counsel called back at 4:12 a.m., just one minute after Constable Iekovic got off the phone with Billy, the officer impressed upon Ms. Soomal that this was her opportunity to speak with a lawyer. I conclude that the reason that Ms. Soomal ultimately spoke with duty counsel was because she was left with the erroneous impression that this was her only option. The course of action chosen by the police, in telling Ms. Soomal that Billy was not a lawyer and that she therefore could not speak with him, while omitting to tell her that he worked at a law firm and that he was trying to arrange for a lawyer to assist her, would have unavoidably given rise to this impression on her part. Remembering, especially, that she was not presented with any other options; for example, she was never offered the use of a phone book or a lawyer's directory. Given Ms. Soomal's insistence on speaking to Billy both before and after her call with duty counsel, it seems rather improbable to me that she would have chosen to forego private counsel in favour of duty counsel. I therefore conclude that she was not presented with any other option.

[53] In the circumstances, Ms. Soomal did not waive her right to counsel of choice by speaking with duty counsel. To be valid, the waiver of a constitutional right must be informed. This requires that a person be possessed of the requisite informational foundation to ensure that their decision is meaningful. Here, absent knowledge that an employee of a law firm was making efforts to arrange for a lawyer to assist her, in my view, it cannot be said that Ms. Soomal's decision to speak with duty counsel represented a valid waiver of her right to counsel of choice.

[54] It also deserves mentioning that this was not a situation in which counsel of choice was not available within a reasonable time. Only a minute had passed since Constable Iekovic finished speaking with Billy before police arranged for Ms. Soomal to speak with duty counsel. Putting to one side that "urgency" cannot be said to arise in drinking and driving cases simply because delay will render the two-hour statutory presumption unavailable, this was not even a situation where reliance on the presumption was in jeopardy. Constable Iekovic's conversation with Billy ended at 4:11 a.m., only 41 minutes after Ms. Soomal's was pulled over at the roadside. Here, Ms. Soomal's right to counsel of choice could have been respected without any consequences whatsoever for the Crown's case.

[55] In short, there was simply no compelling reason for the police to rush Ms. Soomal onto the phone with duty counsel.

[56] Finally, there is one further difference between Willier and this case that warrants mention. Even assuming that the call with duty counsel could somehow cure the violation of the right to counsel of choice in this case, problems remain. In Willier, the Supreme Court made clear that it is not the role of the police to monitor the quality of the legal advice received by a detainee. In that case, it will be remembered, Mr. Willier expressed satisfaction with the advice he received from duty counsel. In my view, the situation here was quite different. Firstly, it would appear that Ms. Soomal's call with duty counsel ended prematurely. I recognize that both Constable Iekovic and Constable Smintich believed that Ms. Soomal was responsible for ending the call and was feigning talking as a stalling tactic. No doubt, that was a real possibility. However, unlike the situation in Willier, here, the dead phone line combined with Ms. Soomal's continuing comments that she still wanted to speak with a lawyer should have alerted the police to the possibility that there may have been a problem in her consultation with duty counsel. In the circumstances, it was unsafe for the police to proceed on the assumption that Ms. Soomal was simply being insincere. By doing so, in my view, the officers revealed an unacceptable indifference toward safeguarding Ms. Soomal's constitutional rights.

[57] For all of these reasons, I am satisfied that Ms. Soomal has established a violation of her section 10(b) Charter rights.

B. Should evidence of the refusal be excluded under s. 24(2) of the Charter?

[58] In order to decide whether or not the events inside the breath room should be admitted or excluded from evidence under section 24(2) of the Charter, I am required to resolve a number of subordinate questions. I will do so in turn.

i) Was the evidence "obtained in a manner" that violated the Charter?

[59] Ordinarily, where the acquisition of evidence is both causally and temporarily connected to the violation of a constitutional right, such that the evidence has been "obtained in a manner" that violated the Charter, a court will proceed under section 24(2) to assess whether the admission of that evidence could bring the administration of justice into disrepute.

[60] In the present case, I am satisfied that the evidence from inside the breath room (i.e. the testimony of the two police officers, along with the actual recording) was "obtained in a manner" that violated Ms. Soomal's right to counsel as guaranteed by the section 10(b) of the Charter. First, there is a very strong temporal connection between the breaches and the acquisition of the evidence, with the second breach taking place only minutes before.

[61] There also appears to be a causal connection between the violation and the evidence. Based on my review of the recording from inside the breath room, it is apparent to me that Ms. Soomal was struggling in deciding whether or not to provide a breath sample. She seemed unsure whom to trust. For example, near the end of her time in the breath room, she expressed a desire to furnish breath samples, but ultimately refused to do so when Constable Smintich lost his cool and spoke to her harshly. As a result, I think it quite likely that Ms. Soomal would have complied with the demand if she had been afforded an opportunity to consult a lawyer of her choosing, someone whom she trusted.

[62] Given all of this, I have concluded that the evidence from inside the breath room was obtained in a manner that violated Ms. Soomal's right to counsel. Despite this, the Crown contends that the evidence regarding Ms. Soomal's refusal to provide a breath sample cannot be considered for exclusion under section 24(2) of the Charter. In so arguing, the Crown relies on the Court of Appeal for Ontario's decision in Hanneson. I turn next to consider the implications of that decision, if any, for this case.

ii) Does Hanneson foreclose exclusion of the evidence regarding the refusal to provide a breath sample?

[63] In Hanneson four police officers were convicted of attempting to obstruct justice, and one of the four was also convicted of assault causing bodily harm. The charges resulted from one of the officers assaulting a prisoner, and then all four officers attempting to cover it up. Police superiors were conducting an investigation into the assault allegation and also inquiring into alleged false entries in the officers' notebooks. In the course of that investigation, each of the four officers was summoned for an interview in the office of a superior. Each was required to participate in these interviews or face a charge of insubordination under the Police Act. The statements given during these interviews were later admitted at trial and formed the basis for the convictions for attempting to obstruct justice.

[64] At the Court of Appeal, the appellants challenged the correctness of the trial judge's ruling admitting their statements into evidence. They raised two distinct grounds of appeal: first, that the statements were not the subject of a voir dire and were not proved to be voluntary; and second, that they were detained during the investigative interviews and that their section 10(b) Charter rights were therefore violated because they were not informed of their right to counsel or afforded the opportunity to retain and instruct counsel. The Court of Appeal addressed both issues.

[65] First, with respect to the failure to hold a voir dire to determine the voluntariness of the false statements the appellants had given to their superiors, relying upon its earlier decision in R. v. Stapleton, the Court concluded there was no error. It held that the voluntariness rule only applies when the Crown proffers a statement made to the authorities that serves to incriminate an accused for a crime previously committed. In circumstances where the statement being introduced is alleged to constitute the actus reus of the offence charged, the confessions rule is inapplicable.

[66] In this case the Crown does not rely on the first part of the holding from Hanneson. Here, there is no objection to the admissibility of the refusal based on the voluntariness rule. Rather, it is what the Court says in Hanneson about the second issue raised by that case that the Crown argues forecloses this court from even considering whether the evidence regarding Ms. Soomal's refusal should be excluded under section 24(2).

[67] Turning to the second issue raised, the Court of Appeal in Hanneson accepted that the appellants were "detained" when they were required to attend at their superior's office for investigative interviews. Given this, the Court agreed that there was a breach of their section 10(b) Charter rights because, upon their detention, they were not informed of the right to counsel nor afforded an opportunity to retain or instruct counsel. The Court then framed the second issue raised as follows:

The question then becomes – what is the effect of such a Charter breach? Does such a breach insulate the person detained against liability for subsequent criminal acts? The answer must be in the negative. It cannot be sensibly argued that following a breach of s. 10(b) of the Charter the person detained is free to assault his custodian or commit theft without any attendant criminal responsibility. Similarly, despite a breach of s. 10(b) a detained person will attract criminal responsibility for crimes committed by words, e.g. threatening death or offering a bribe. Section 10(b) has as its object the provision of counsel to those under investigation for crimes already committed in order that they might be advised with respect to making disclosure, the provision of evidence, etc. regarding those crimes. Section 10(b) cannot possibly relate to crimes yet to come.

The Court concluded by noting that that a, "[b]reach of s. 10(b) does not insulate the person detained from subsequent criminal responsibility by rendering inadmissible statements which are the whole or part of the actus reus of a crime."

[68] The refusal to furnish a breath sample is one of three elements of the actus reus of the offence charged in this case. As a result, despite any Charter violation, the Crown submits that the principle established by Hanneson forecloses the exclusion of evidence regarding Ms. Soomal's refusal to provide a breath sample. At first glance, this argument seems relatively straightforward. However, a review of the relevant case law reveals that the question raised is much thornier than it initially appears.

[69] There is a fair amount of uncertainty surrounding the effect of Hanneson in cases where a Charter breach precedes the refusal to provide a breath sample. For example, there are obiter comments in two decisions of the Court of Appeal after Hanneson that seem inconsistent with the position urged by the Crown in this case. In addition, some courts have excluded evidence of a refusal to provide a breath sample under section 24(2) of the Charter without making any reference to Hanneson. There are still other decisions in which courts have excluded evidence of a refusal but only after concluding that Hanneson has been overtaken by subsequent developments. Finally, there are two more recent decisions that adopt the position advanced by the Crown in this case and conclude that because of Hanneson even where a constitutional violation is established the refusal to provide a breath sample cannot be considered for exclusion under section 24(2). As a result, a careful analysis is necessary in order to determine what, if any, impact the decision in Hanneson should have for Ms. Soomal's case.

[70] Given that some courts have suggested that Hanneson no longer represents the law, this seems a sensible place to begin my analysis. It is understandable why some might doubt the continued validity of Hanneson. Since it was decided nearly twenty-five years ago, the Supreme Court of Canada has twice revisited and clarified the "obtained in a manner" threshold requirement for engaging the discretion to exclude unconstitutionally obtained evidence under section 24(2). Similarly, the Court has twice revisited and refined the governing approach for assessing whether or not the admission of unconstitutionally obtained evidence would bring the administration of justice into disrepute. Despite having numerous opportunities to do so, the Supreme Court of Canada has never signalled its approval for the sort of categorical Charter exemption that Hanneson recognized. Arguably, in Grant, the Supreme Court's last significant consideration of the governing approach to the exclusion of evidence under section 24(2), the Court eschewed the use of categorical rules in favour of a balancing approach that requires trial judges to consider "all the circumstances" of the case when deciding whether or not to admit or exclude unconstitutionally obtained evidence. Despite all of this, it would appear that more recent developments confirm that Hanneson still represents the law in this province.

[71] In the last few years the Court of Appeal has twice reaffirmed both prongs of its holding in Hanneson. For the purpose of this matter the more important of these two decisions is Ha, which dealt with that aspect of the ratio in Hanneson that the Crown submits is decisive in Ms. Soomal's case.

[72] In Ha, the accused was charged with production of marihuana and bribery. As a result of a number of Charter violations, the trial judge excluded evidence regarding the production charge and statements made by the accused to the police officers involved in her arrest in which she offered them money in an effort to avoid arrest. The accused was acquitted and the Crown appealed. In a brief endorsement allowing the Crown's appeal with respect to the bribery charge, the Court reaffirmed its earlier decision, noting that, "the rationale in Hanneson applies equally here where there was a s. 9 breach as well as breaches of s. 10 of the Charter. The statements made by the respondent constituted the actus reus of the new offence. They did not flow causally from the Charter breaches." In the result, the Court ordered a new trial with respect to the bribery charge. Consequently, any doubts as to the continued validity of Hanneson have now been put to rest.

[73] This brings me to the heart of the Crown's submission, that Hanneson is determinative with respect to the admissibility of evidence regarding Ms. Soomal's refusal to provide a breath sample. After carefully considering Hanneson and its treatment in subsequent cases, I have concluded that the decision is not controlling in the specific circumstances of this case. That is, where a defendant is charged with refusing to furnish a breath sample, contrary to section 254(5) of the Criminal Code, in circumstances where the breath demand was made pursuant to subsection 254(3)(a) (i.e. an approved instrument demand) and the defendant has established that evidence of the refusal was obtained in a manner that violated her section 10(b) Charter rights. I will briefly explain why I have come to this conclusion.

[74] I recognize that, at least on an initial reading, the principle endorsed in Hanneson seems to be decisive as against the defendant's Charter claim in this case. The breach of Ms. Soomal's right to counsel preceded her refusal to furnish a breath sample. That refusal forms an element of the actus reus of the offence charged. Hence, it appears to follow logically from the general principle recognized in Hanneson that evidence of that refusal cannot be excluded because of a breach of Ms. Soomal's Charter rights. Although unfailingly logical, I think the Crown's argument does not adequately account for context.

[75] In Hanneson the accused were charged with obstructing justice for making false statements to their superiors who were conducting what was essentially a criminal investigation. In coming to the conclusion that it did, the Court of Appeal would have in mind the circumstances of that case. That is, a situation in which an accused whose Charter rights are violated then makes a false statement to investigators. Similarly, the Court clearly contemplated the analogous circumstances it specifically referenced in its judgment. For example, cases in which, following a Charter violation, an accused assaults, steals, threatens or offers a bribe. With each of these examples, it is difficult to conceive of circumstances in which an accused in custody, following a violation of their Charter rights, would have a good excuse for committing any of the crimes listed by the Court.

[76] In stark contrast, it is not at all difficult to imagine circumstances in which one might rather legitimately refuse to provide a breath sample. The very definition of the offence found in section 254(5) contemplates that possibility. One is only guilty of this offence if they fail to provide a breath sample "without reasonable excuse". Not surprisingly, a whole body of case law has developed that elucidates the sorts of circumstances that will and will not provide a reasonable excuse for refusing or failing to provide a breath sample.

[77] As a result, I do not believe the Court of Appeal in Hanneson intended for its decision to be determinative in a case like this one, where the violation of a Charter right precedes the refusal to provide a breath sample in response to a demand under subsection 254(3)(a) (i.e. an approved instrument demand). I come to this conclusion for two reasons: first, the Court did not include the refusal to provide a breath sample in the list of offences it enumerated to illustrate the principle it recognized; and second, the circumstances contemplated by the Court of Appeal are distinguishable from a case like this one, where a defendant could potentially have a reasonable excuse for not providing a breath sample. As a result, I have concluded that the holding in Hanneson does not reach the circumstances of this particular case.

[78] Finally, in the event that I have construed Hanneson incorrectly and it should be read as foreclosing Ms. Soomal from seeking a remedy under section 24(2) of the Charter, I believe that, at least to the extent that the decision would have this effect, it has been overtaken by subsequent developments.

[79] The Supreme Court of Canada released its decision in R. v. Cobham five years after Hanneson was decided. Cobham was a companion case to a number of more prominent right to counsel decisions interpreting section 10(b) of the Charter that the Court released on the same day.

[80] Just like in this case, Mr. Cobham was arrested at the roadside for impaired driving and transported back to a police station where he was the subject of a breath demand. Like Ms. Soomal, his section 10(b) Charter rights were violated. (In his case, because the police provided him with deficient information regarding the availability of free and immediate preliminary legal advice from duty counsel.) Following that violation, just like Ms. Soomal, Mr. Cobham refused to provide a breath sample and was charged accordingly.

[81] Most importantly, after concluding that there had been a violation of Mr. Cobham's section 10(b) Charter right to counsel, the Supreme Court did not express any reservations at all before proceeding to consider whether the evidence regarding the refusal of a breath sample should be excluded under section 24(2) of the Charter. To the contrary, the Court was unanimous in concluding that the repute of the administration of justice required exclusion of the evidence. In so concluding, the Court placed much emphasis on the impact of the evidence on the fairness of the trial, which was an important consideration under the law governing section 24(2) at that time. As Lamer C.J. explained:

The appellant's refusal is self-incriminating evidence of a particularly serious nature in that it is evidence which itself constitutes the crime. That is, unlike a confession which may only be some evidence upon which a conviction is based, a refusal to blow is itself commission of the offence of refusing to "blow" under s. 254(3)(a) of the Code. The direct connection between the incriminating refusal evidence and the offence creates a strong presumption that its admission would render the trial unfair. This is because the appellant may not have refused to take the breathalyser test if he had been properly advised under s. 10(b) of his right to duty counsel. What would have happened thereafter is not a matter upon which I am prepared to speculate.

[82] I appreciate that the criteria governing the application of section 24(2) have evolved since Cobham was decided. The significance of the decision for the purpose of Ms. Soomal's case is primarily that the Court does not suggest that evidence of the refusal to provide a breath sample is incapable of being excluded because it constitutes the actus reus of a crime. To the contrary, in Cobham the Court emphasized that because evidence of the refusal was conclusive of guilt trial fairness strongly favoured exclusion. In my view, this unquestionably establishes that, in light of the Charter violations, I am obliged to consider whether or not the admission of evidence regarding Ms. Soomal's refusal to provide a breath sample would bring the administration of justice into disrepute. To the extent that Hanneson might be read to suggest otherwise, I believe the Supreme Court's decision in Cobham takes precedence and binds me.

[83] Finally, I note that I have only been considering whether Hanneson forecloses the exclusion of evidence regarding the refusal of a breath sample in a case like this one. That is, in circumstances where the breath demand was made pursuant to subsection 254(3)(a) (i.e. an approved instrument demand). I mention this because it would appear that an approved screening device demand under subsection 254(2)(a), which is ordinarily made at the roadside where the right to counsel is subject to an override under section 1 of the Charter, appears to raise different considerations.

iii) Would admission of evidence regarding the refusal to provide a breath sample bring the administration of justice into disrepute?

[84] I will next consider the admissibility of the evidence regarding the refusal to provide a breath sample and in making this determination apply the criteria identified by the Supreme Court of Canada in Grant.

[85] I begin with an assessment of the seriousness of the Charter-infringing state conduct in this case. It will be remembered that there were two discrete violations of Ms. Soomal's section 10(b) Charter rights.

[86] The first violation resulted from the four-minute delay in informing Ms. Soomal of her right to counsel following her arrest. To his credit, Constable Iekovic did not attempt to elicit any incriminating evidence from Ms. Soomal during this period. As I noted above, this was at most a minor breach occasioned by the officer attending to his administrative responsibilities before discharging his constitutional obligations.

[87] In my view, the violation of Ms. Soomal's right to counsel of choice was far more serious. Although I do not believe the police deliberately set out to undermine her right to counsel, their conduct revealed an unacceptable indifference toward respecting her right to speak to a lawyer of her choosing. There was simply no excuse for failing to tell her that an acquaintance that worked at a law firm was making efforts to arrange for counsel and then rushing her onto the phone with duty counsel. The police faced neither a situation of any urgency nor a detainee who had failed to be reasonably diligent in contacting counsel of her choosing.

[88] I also found the way in which the police responded to Ms. Soomal's repeated requests to speak with a lawyer, once she was inside the breath room, to be most troubling. Although I recognize that Ms. Soomal's demeanour contributed to the unfortunate dynamic within the breath room, the police fell short of their obligation to keep the tone professional and in the process ensure compliance with minimum Charter standards.

[89] As a result, I would characterize the second violation in this case as being closer to the more serious end of the spectrum.

[90] I will next consider the impact of the Charter breaches on the constitutionally protected interests of the defendant. Although the initial violation of section 10(b) had no real impact on Ms. Soomal, the second violation was both temporally and causally connected to her refusal to provide a breath sample, a criminal offence. Had Ms. Soomal's right to speak to a lawyer of her choosing been respected, she may very well have complied with the breath demand and thereby avoided incriminating herself in the way that she did. Given all of this, I think the impact of the breach on Ms. Soomal's constitutionally protected interests was rather significant.

[91] Finally, I consider society's interest in having this case adjudicated on the merits. Here, the evidence from inside the breath room is crucial to the Crown's case with respect to both of the charges. The breath room recording provides reliable evidence regarding Ms. Soomal's state of impairment, which is highly relevant to the charge of impaired driving. In addition, the exclusion of evidence regarding her refusal to provide a breath sample will prove fatal to the Crown's case with respect to that charge. That said, it is again worth noting here that the evidence of the refusal might not have come into existence had Ms. Soomal's right to counsel of her choosing been respected. Finally, I am quite mindful of the fact that impaired driving exacts a considerable toll every year in Canada in terms of senseless property damage, injuries and death.

[92] Taking into account all of the circumstances, after balancing the competing considerations, I am of the view that the long-term repute of the administration of justice is better served by the exclusion of the evidence in this case. In short, the serious nature of the violation and the significant impact on Ms. Soomal's Charter protected interests, tips the balance in favour of exclusion.

[93] As a result, the evidence from inside the breath room, including the testimony of the two police officers regarding the refusal and the actual recording, are ordered excluded.

C. Has the Crown proven the charges against the Defendant?

[94] Without the recording or the viva voce evidence of either police officer with respect to the events inside the breath room, there is no evidence in support of count two, the charge of refusing to provide a breath sample. Accordingly, the Crown has not proven that charge and it must be dismissed.

[95] That leaves count one, the charge of impaired operation of a motor vehicle. I must decide whether the admissible evidence establishes beyond a reasonable doubt that Ms. Soomal's ability to operate her vehicle was impaired by alcohol. As the Court of Appeal explained in Stellato: "If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out." However, the "question is whether the person's ability to drive is impaired to any degree by alcohol" which means that judges "must be careful not to assume" that where a motorist's "functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired."

[96] Based on the admissible evidence adduced by the Crown, I do not think the charge of impaired operation of a motor vehicle is made out. To be sure, there is some evidence of alcohol consumption and evidence that gives rise to a well founded suspicion and, arguably, even reasonable and probable grounds, that the defendant was operating a motor vehicle while impaired. But, in its entirety, the collection of incriminating circumstances is sufficiently equivocal, that, when considered along with the exculpatory evidence, the charge is simply not proven beyond a reasonable doubt. I must briefly review the relevant evidence in order to explain this conclusion.

[97] During his testimony Constable Iekovic described how Ms. Soomal first came to his attention. He observed her make a left turn and travel southbound in the northbound lanes on Silver Maple Court. Understandably, this traffic infraction caught the officer's attention and led him to initiate a stop. Quite obviously, this evidence supports the claim that the defendant's ability to drive was impaired by alcohol. However, from the evidence, it appears that this particular roadway is a bit peculiar in terms of its lay out. Essentially, it is a cul-de-sac with a median in the middle. Based on the street maps filed as exhibits at trial, it is easy to imagine that someone like the defendant, unfamiliar with the area, might make a left turn when entering the roadway at the point that she did, rather than turning right to go around. I note that there was no evidence that the roadway is clearly marked with a one-way sign at the point where the defendant entered it. Looking at the map and the layout, it is somewhat understandable to me how the defendant might have thought that the roadway was two-way at the point where she made her left. Of course, this was not the only evidence in support of the charge.

[98] Constable Iekovic also testified that when he dealt with the defendant her eyes were red rimmed and watery. Again, this is somewhat equivocal. This could be evidence of impairment but it also could be evidence that the defendant was tired. After all, it was 3:30 in the morning.

[99] Further, the officer testified that when he spoke with the defendant at the roadside her manner seemed a bit off and her speech was somewhat "slurred" as she was not fully enunciating her words. However, during cross-examination, the officer conceded that he had never dealt with the defendant before and had no prior frame of reference in terms of what her voice ordinarily sounds like. For example, he could not rule out the possibility that her voice sounded as it did because of an accent.

[100] In addition, Constable Iekovic testified that, at the roadside, the defendant appeared to be a bit unsteady on her feet as she walked from her car back to his. He indicated that she appeared to veer to one side as she walked. He acknowledged making these observations over his shoulder, as she walked slightly behind him and struggled to keep up as the two of them walked back to his car. However, the evidence also established that the defendant was wearing high-heeled shoes at the time. Further, the officer conceded that, given the time of year, it was also possible that the road had some ice and/or salt on it, which might also have contributed to what he observed in terms of how the defendant was walking.

[101] I note as well that Constable Iekovic did not suggest that the defendant's apparent difficulty walking persisted once she was back at the police division, where she would have walked from the sallyport area to the booking desk, then into the breath room before being lodged in police cells. In other words, it is quite possible that what the officer observed in terms of the defendant's gait was simply the result of walking in high heels on an icy and salt covered roadway.

[102] Finally, Constable Iekovic testified that once the defendant was in his police cruiser he was able to detect the odour of an alcoholic beverage emanating from her.

[103] I am mindful that in assessing the Crown's offering of proof I should not view each item of evidence in isolation. What I must decide is whether the entire collection of circumstances just outlined makes out the charge. Of course, it is not simply the incriminating evidence to which I must have regard, I must obviously consider all of the evidence. Here, there was also other, arguably exculpatory, evidence.

[104] For example, Constable Iekovic testified that he followed the defendant's vehicle a short distance before signalling her to stop. He followed her and watched her make a left turn onto Lisa Street before she made a right turn on to Dixie Road, which is when he pulled her over. Constable Iekovic testified that the defendant signalled her right turn on to Dixie Road. He did not have an opportunity to see whether she signalled her turn at Lisa Street.

[105] The officer also testified that beyond what he observed initially – the defendant travelling southbound in the northbound lane on Silver Maple Court – there was nothing else untoward about her driving that morning. For example, there was no evidence that she was weaving within or straddling lanes, or that she was either speeding or driving too slowly. In addition, Ms. Soomal brought her vehicle to a stop without incident when she was directed to do so.

[106] Further, Ms. Soomal did not fumble with her documentation when the officer asked her to produce her license. When asked, she produced her license without any apparent difficulty.

[107] Finally, I note that the defendant had no apparent difficulty remembering the password to her phone, which she provided to the officer when he requested it. In addition, although the officer was unable to find "Billy's" phone number when he searched the defendant's phone, the defendant was, ultimately, able to do so.

[108] In short, based on all of the evidence, I am rather suspicious, as was Constable Iekovic, that the defendant's ability to operate a motor vehicle was impaired by alcohol on the morning in question. However, given the equivocal nature of much of the admissible incriminating evidence presented by the Crown, combined with the exculpatory evidence that I heard, I am not sure that that is the case. Accordingly, I am obliged to dismiss the impaired driving charge.

IV. Conclusion

[109] In conclusion, both charges against Ms. Soomal are dismissed.

[110] I thank both Ms. Verkerk and Mr. Aujla for their very helpful written and oral submissions in this matter.

Justice James Stribopoulos