Court File and Parties

Ontario Court of Justice

Date: 2014-04-29

Court File No.: Toronto 4817 998 13 70017259-00

Between:

Her Majesty the Queen

— and —

Jonathan David Panigas

Before: Justice W. Horkins

Heard on: February 19 and March 12, 2014

Ruling on: A Section 24(2) Application to Exclude Evidence

Released on: April 29, 2014

Counsel

Sabrina Fiacco — Counsel for the Crown

Alan Gold — Counsel for the defendant Jonathan David Panigas

Decision

W. HORKINS, J.:

Introduction

[1] This is a continuation of my ruling on an application to exclude the breath testing evidence tendered by the Crown. My ruling on the first stage of the application finding violations of the accused's Charter rights is reported at 2014 ONCJ 797.

[2] This accused's right to counsel of choice was violated by the police following a standard institutional procedure which systemically channeled him to consult with an on-call, state-funded duty counsel, as opposed to pursuing access to private counsel of choice.

[3] Having persuaded me that this accused's counsel rights were, in fact, violated in the particular circumstances of this case the applicant now seeks exclusion of the breath test results as a remedy pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms.

The Section 24(2) Framework

[4] The framework of analysis under section 24(2) of the Canadian Charter of Rights and Freedoms requires a balancing of three identified heads of consideration set out by the Supreme Court of Canada in Grant:

71 … when faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. …

[5] The fundamental purpose of s. 24(2) of the Charter is to maintain the good reputation of the administration of justice. Confidence in the justice system is the key objective. This objective is achieved by the court, when necessary, disassociating itself from conduct that violates the Charter. Excluding evidence is not aimed at either punishing the police or at compensating the accused. The object is to preserve the reputation of the administration of justice itself.

[6] Charter violations do not trigger automatic exclusion of evidence. There is no bright line rule that mandates exclusion. Each instance of a breach requires a case specific analysis of all the circumstances. The Grant framework is therefore designed to assist courts in balancing the appropriate considerations on a case by case basis.

The Importance of the Right to Counsel

[7] There exists a long list of countries where the state police are permitted to detain and hold individuals incommunicado without cause or explanation. The Canadian Charter of Rights and Freedoms guarantees to all of us that Canada will not be on that list. In Canada, the Charter guarantees that when you are detained by the police they must explain both why you are being held and also, diligently assist you if you request access to advice from counsel. These rights, the "rights to counsel", are perhaps the most fundamental rights of an individual in a free and democratic society. Their objective is to level the balance of power when an individual is detained by the police.

[8] Implementation of these simple Charter rights can present many challenges for the police in the investigation of drinking and driving offences. These cases typically occur after the usual business hours of law offices and so private counsel are not often readily available. Both science and the legislative framework dictate that the evidentiary value of breath testing fades quickly with the passage of time and so time is of the essence in the investigation moving forward expeditiously.

The Duty Counsel System and Standard Police Practice

[9] Part of the answer to the anticipated difficulty in reaching private counsel in the middle of the night is the duty counsel system. State-funded lawyers are on call to advise the accused on request. The standard practice in this jurisdiction is to advise the accused of their rights at the roadside then transport the suspect directly to the station, book him and then put a "page" in for duty counsel. At the same time, if an accused asks for a particular private counsel, the police will try to put out a call for that person as well. What the police will not do is allow the accused to try to reach counsel on their own.

[10] Despite religiously reciting the duty counsel "1-800" number as part of the "rights to counsel" mantra, there is never any intention of letting the prisoner dial any calls by themself. Despite telling the accused that they are free to contact private counsel of their own choice, the accused must leave it to the police to actually pursue finding or contacting private counsel. Generally, cell phones are taken away. This not only deprives the accused of a phone but, in this day and age, the cell phone is where people store their contact information. Because, in this jurisdiction, the accused is not allowed to make any calls on their own, or to try to find their lawyer on their own, there is no thought of providing them with a phone book, a legal directory, a lawyers list, let alone a working landline or Internet access to the Law Society directory. In standard practice none of that is permitted. The police take on the entire obligation of finding the contact information and calling out to counsel. Invariably the standby duty counsel calls back fairly quickly and the opportunity is given to the accused to speak to him or her. Because the police have taken it on themselves to be the exclusive conduit to legal advice, it is essential in my mind that they explain very carefully that the accused has options at this point in the process. It must be carefully explained that speaking to the provided duty counsel is not their only choice. The accused has the right to wait a reasonable time for counsel of his or her own choosing to call back. The accused also has a right to try to contact any number of private lawyers, not just the one that has failed to call back promptly. This is where things fell off the rails in this case.

[11] I have already found as a fact that in this case the police, by virtue of following the standard practices of the local police service, effectively channeled this accused into accepting a consultation with the on-call duty counsel that had been provided by the police, as opposed to diligently facilitating access to counsel of the accused's own choice as he had requested early in the investigation.

The Applicant's Submissions

[12] The accused applicant urges me to conclude that the failure to facilitate access to counsel of choice in the circumstances before me amounts to a very serious violation of fundamental rights and so the evidence must be excluded, both in fairness to this accused and to protect the long-term reputation of the administration of justice. The court is urged to disassociate itself from the systemic practices that precipitated the violation of this accused's rights.

[13] It is submitted that the seriousness of the state conduct is amplified by the fact that it is as a result of a standing system of conduct that is consciously designed to channel accused to standby duty counsel, as opposed to pursuing diligently the more challenging task of facilitating access to an identified counsel of choice.

[14] It is submitted that this "protocol" evidences a corporate disrespect for the Charter rights of all other similarly situated individuals.

[15] The applicant submits that the impact of the violation is dramatic in that it precipitated not just an infringement but rather a complete denial of the right to access to counsel of choice, a right that has been historically acknowledged as a particularly important right.

[16] It is further submitted that the generally cited reliability of breath testing evidence ought not to be taken for granted or overstated. That these mobile RIDE units have a documented issue with alcohol tainted ambient air, an issue that may be developed in evidence if these test are not excluded.

[17] That although the enforcement of drinking and driving laws is a particular societal concern this particular allegation resides at the lower end of the spectrum of seriousness. This case arises from a random stop; there is no allegation of actual impairment or bad driving and the readings here were not extreme.

[18] The applicant urges the court, in balancing all of the appropriate factors, to consider the impact on the long-term reputation of the administration of justice of turning a blind eye to a calculated systemic violation of perhaps the most important of the enumerated rights in the Canadian Charter of Rights and Freedoms. That to condone such conduct will encourage the continuation of such practices.

The Crown's Submissions

[19] The Crown's position accepts for the sake of argument the court's findings made with respect to the conclusion that the accused's right to access counsel of choice was violated. The Crown submits however that any such violation in this case was minor in nature, committed in good faith not calculated or intentional; that the impact of the violation on the accused was minimal especially when one considers that he did in fact have a consultation with duty counsel and although he was dissatisfied with the consultation he received, he never communicated that dissatisfaction to the officers in order to trigger any further or more satisfying consultation.

[20] The Crown emphasizes the significant societal interest in the adjudication of drinking and driving cases on their merits.

[21] The Crown also notes, correctly, that alcohol breath testing has been repeatedly acknowledged by the appellate courts, including the Supreme Court, as being highly reliable and minimally intrusive.

[22] The Crown therefore submits that the evidence in this case should survive the 24(2) analysis and should not be excluded.

Preliminary Observations

[23] I am grateful to counsel for their very focused and persuasive material and submissions. The quality of the advocacy in this matter has presented a difficult choice. Strong arguments have been presented on both sides of the issue.

[24] One might rightly infer from my earlier reasons given in finding a violation of the accused's rights that I am very sympathetic to the argument put forward on behalf of the accused. However, the Crown has provided me with very persuasive appellate authority that may well constrain me in following my own inclination too far in determining this matter. Those authorities require careful consideration.

[25] I should say at the outset that this application essentially concerns the 10(b) violation, not the s. 10(a) violation. The 10(a) breach here is completely secondary to my main concern. The failure to initially advise the accused of the reason for detention is not, in and of itself, of sufficient gravity to precipitate the exclusion of the breath test results. The failure to advise the accused why he was being detained at a secondary location for an ASD test was per se of minimal seriousness. The impact was fleeting and the prejudice to the accused minimal. A balance of all the relevant "Grant" factors would not lead to an exclusion of the subsequently obtained evidence on the basis of that breach alone. However, the fact that the accused suffered two successive and related violations of his rights under s. 10 of the Charter is relevant as an aggravating factor in considering the Grant analysis of the subsequent 10(b) breach.

The Grant Analysis

The Seriousness of the Breach

[26] The conduct of the particular officers in this case was not undertaken in deliberate bad faith to frustrate the rights of this particular accused. The conduct itself was not an extreme departure from Charter compliant conduct. The seriousness of the conduct resides primarily in the institutional disrespect of the Charter rights of this accused and every other similarly detained suspect. The procedures followed in this investigation were clearly calculated to expedite the process of getting the breath test evidence expeditiously and at the expense of facilitating the accused's rights to counsel.

[27] In every drinking and driving investigation access to counsel will be an important aspect of the process. In my mind it speaks volumes that the special purpose mobile RIDE unit featured in this case has, as part of its design, absolutely nothing dedicated to facilitating access to private counsel of choice when requested.

[28] In Wilding, the Court of Appeal viewed somewhat similar conduct as acceptable. The court reviewed a decision in a drinking and driving case and reversed the Summary Convictions Appeal Court's exclusion of breath readings. The conviction registered at trial was restored. The decision pre-dates the Grant 24(2) framework of analysis and was focused narrowly on an assessment of the relative seriousness of the breach. The court relied significantly on the lack of real prejudice to the accused. The full Grant framework of analysis is a newer and broader test and the binding authority of earlier decisions applying a narrower and less comprehensive approach is somewhat diminished. The Wilding case is therefore persuasive, but not binding on this court.

[29] The trial judge in Wilding had found that the police efforts to facilitate access to counsel of choice were "reasonable". Reversing that conclusion, the Superior Court judge found them to be "inadequate" and expressed the same concern that I have voiced in the case before me, namely that:

… The seriousness of the breach is aggravated by the lack of resources made available to Constable Marxer by the Toronto Police Services. This case shows an institutionalized failure to respect the right to counsel of choice in cases like this one. The values embraced by the right to counsel of choice are an important part of the legal landscape in a case like this, and the police gave them a casual emphasis. Arranging to speak with duty counsel, while helpful to the Crown, is not a sufficient answer under s. 24(2) of the Charter. See R. v. Kitaitchik and R. v. Clayton.

[30] With respect to the seriousness of the police conduct, the court of Appeal found that the investigating officers made "good faith" efforts to locate counsel of choice. Those efforts included:

• Obtaining the phone number of a friend who, according to the respondent, would know counsel's phone number.
• Placing two calls to the respondent's friend, only to receive a voice mail response on each occasion.
• Asking the respondent if he wished to leave a voice mail message for his friend, to which the respondent replied "no".
• Checking a lawyer's directory (albeit one that was somewhat dated) and obtaining a number for counsel.
• Calling that number, only to find that the listing was no longer in service.
• Checking the Toronto White Pages for counsel's phone number, albeit to no avail.

[31] In my opinion, those efforts describe a case considerably less serious and therefore distinguishable from what I have before me:

• The arresting officer's initial efforts to find counsel of choice yielded "negative results," despite the contact information being readily available on the Law Society's public webpage.
• The arresting officer was clearly indifferent as to the availability of any legal directories or lawyers' lists in the RIDE truck. In fact, there were none.
• Because it was contrary to the officer's standard operating procedures the accused was denied access to his own cell phone, which contained the desired contact information.
• This was a RIDE stop involving a dedicated mobile testing facility. The need to contact counsel of choice for any given test subject was entirely foreseeable and yet by default, or design, this special purpose unit is equipped with next to nothing dedicated to facilitating access to private counsel. No directories, no lawyer lists, no Internet and no phone for the accused; merely a unit to accept call backs from duty counsel. It would therefore appear that channeling a subject to duty counsel is, to an extent, literally by design.
• When duty counsel called back, this accused was not advised that he could still wait for his counsel of choice or put out calls for other counsel. There was still ample time left before the evidentiary two-hour time frame would expire, yet the accused was given the impression that his only alternative at that time was to speak with duty counsel or proceed without the advice of counsel.

[32] In Wilding, the court viewed the police efforts as having been made in "good faith". In this case, I have not ascribed any individual malafides to the officers involved. However, I have concluded that the applicant has established institutional or systemic bad faith arising from a designed channeling of suspects to duty counsel and a resulting concurrent undermining of diligence or good faith efforts in facilitating access to private counsel of choice.

[33] The importance of the right to consult counsel of choice and the systemic frustration of that right strongly favors exclusion of the evidence.

The Impact of the Breach on this Accused

[34] This second line of inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right that was violated.

[35] The Crown submits that any breach in this case was substantially cured by the accused's consultation with duty counsel. Where a standby duty counsel system exists and when an accused uses that system without complaint, the courts have been consistently reluctant to provide a remedy based on a failure to facilitate access to counsel of choice.

[36] I agree with the Crown that the impact of the breach would be significantly greater had there been no consultation with counsel at all. In Wilding, the court relied heavily on the lack of real prejudice to the accused based on the finding in that case that the respondent spoke to duty counsel and was content with the advice he received.

[37] There is a clearly understood duty on an accused to exercise due diligence in accessing counsel of choice and the police can hardly be expected to act on concerns that are never voiced. The accused before me gave a fair explanation in evidence as to why he felt too intimidated to complain about his experience with duty counsel and so while I find his lack of complaint significant, I do not consider it to be fatal to his application and I am not prepared to assume that there was no real prejudice flowing from the overarching failure to sufficiently facilitate what he had initially requested: access to counsel of choice.

[38] It was also suggested in submissions that the limited scope of proper legal advice in a drinking and driving situation somehow minimizes the importance of providing access to counsel of choice. I reject that submission. To place weight on that aspect of things in the context of the 24(2) analysis would be to unduly insulate every right to counsel breach in any drinking and driving investigation.

[39] To summarize, this accused was not denied access to counsel completely. However, he was denied the right to counsel of choice completely. The actual impact on this accused was mixed, not extreme. All things considered, the actual impact of the breach on this accused, in this case does not strongly favor exclusion of the evidence.

Society's Interest in an Adjudication of the Case on the Merits

[40] The applicant submits that all things considered this factor is essentially neutral in this particular case. The Crown on the other hand submits that societal interests overwhelmingly favor the admission of the evidence.

• The generally acknowledged reliability of breath test results favors admission.
• The Supreme Court has declared that breath-testing procedures are, in the grand scheme of investigative measures, minimally intrusive.
• The exclusion of the breath test results will be immediately fatal to the prosecution.

[41] All of these factors weigh against excluding the evidence. The Crown submits that the exclusion of reliable evidence needed to establish the offence would do more harm than good to the administration of justice and so the repute of the justice system would suffer if the evidence were excluded.

[42] The applicant acknowledges the general correctness of the Crown's position but submits that there is little in this particular case to warrant a "prosecution at all costs" approach. This accused was stopped at random; there is no suggestion of any actual bad driving or actual impairment; the breath readings were not extreme. Although not part of the applicant's submissions, I could add that there appear to be some potential defences on the merits, looming on the horizon, should the accused be put to a defence.

[43] The applicant cites in support of his position a passage from R. v. Delaney:

the significance of an individual's right to counsel on arrest or detention must be communicated to policing agencies: it is one key feature that differentiates constitutional democracies from regimes in which individuals are detained and held incommunicado for lengthy periods while state agents attempt to procure incriminating evidence.

[44] Earlier, in finding a breach in this case I referenced the comments of then ACJO O'Connor in McCallen on the exceptional importance of the right to, not only counsel, but to, counsel of choice. Justice O'Connor emphasized that, for a variety of important reasons, the right to counsel of choice "… enhances the objective perception of fairness… " in the administration of justice by the state. That perception of fairness will be damaged by a failure to provide a remedy in the face of a continuing systemic violation of s. 10(b). Again in the words of Justice O'Connor, "…the intangible value to the accused and the symbolic value to the system of criminal justice of the 10(b) right are of fundamental importance and must be vindicated when breached." Failure to do so will surely tend to bring the administration of justice into disrepute.

[45] The public interest engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective requires that there be a remedy in some cases where the individual breach, in isolation, may not seem to be that extreme. A continual "forgiveness" of systemic violations of Charter rights will tend to undermine public confidence in the integrity of the administration of justice.

[46] The societal interest of this case proceeding on its merits in the face of the breach of this accused's rights to counsel is, at best, neutral.

Conclusion

[47] The final stage of the Grant analysis requires a balancing of all the considerations canvassed above. This exercise is not a mathematical equation, it is a qualitative assessment. On balance, I am persuaded that the evidence must be excluded.

[48] The exclusion of the breath test evidence is fatal to the Crown's case and the charge is therefore dismissed.

Released: April 29, 2014

Signed: "Justice W. Horkins"