R. v. Kim
Court Information
Court: Ontario Court of Justice
Date: October 27, 2014
Judge: Justice Neil L. Kozloff
Heard: April 17, 2014 and September 22, 2014
Charter Ruling and Reasons for Judgment Released: October 27, 2014
Parties and Counsel
Crown: M. Thomaidis
Accused/Applicant: I. Donnell (for Brian Kim)
Overview
[1] By Information sworn the 30th day of April, 2013, Brian Kim (hereinafter "Kim") stands charged that on or about the 23rd day of April in the year 2013, in the City of Toronto in the Toronto Region, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, (he) did operate a motor vehicle contrary to the Criminal Code.
[2] This matter came before me on April 17, 2014 set for trial. No application under the Canadian Charter of Rights and Freedoms (hereinafter the "Charter") had been filed by the defence. Mr. Donnell advised the court that he had been unable to view the in-car video prior to that date. Following a brief recess to permit him that opportunity, Mr. Donnell informed me that "there would appear to be a s. 8 and a s. 10(b) argument that my friend is prepared to proceed with, if your Honour is." Mr. Thomaidis confirmed that was the case. The accused was arraigned, the Crown elected to proceed by summary conviction, and Kim pleaded not guilty.
[3] The Crown then called two witnesses, Toronto Police Service (hereinafter "TPS") Detective Constable Adrian Duran (hereinafter "Duran") and TPS Constable Vishal Uppal (hereinafter "Uppal"). During the course of Duran's evidence, the in-car video was played. Uppal was present in the courtroom for that portion of Duran's evidence only.
[4] During the course of Uppal's evidence, the booking video and breath room video were played. During the playing of the breath room video, the qualified technician – TPS Constable Kim Greener (hereinafter "Greener") – was present in the courtroom for that purpose only.
[5] Following the completion of the evidence of Duran and Uppal, I heard the evidence of Kim on the Charter application. The matter proceeded in that fashion because we were proceeding by way of a blended trial and Charter voir dire, and because I wanted to expedite the process while providing the Crown with a full opportunity to present its case.
[6] Following Kim's evidence on the voir dire, the matter was adjourned to August 6, 2014 for continuation of the Crown's case, in particular the evidence of Greener. Before the matter was adjourned, Mr. Donnell agreed that he would prepare and file a Charter application with factum and authorities, and that he would provide them to Mr. Thomaidis sufficiently in advance of the return date to permit him to respond. Also, because the Crown had not been given any notice (prior to cross-examination of the police witnesses) that the defence would also be raising a s. 9 argument under the Charter, I advised counsel that (if need be) the Crown would be given an opportunity to address any s. 9 issues with further evidence as well.
[7] Mr. Donnell filed an Application in Form 1 dated July 18, 2014, citing sections 8, 9, and 10(b) of the Charter. Mr. Donnell also provided a Factum. No Response (or Factum) was received from the Crown prior to the next scheduled court date. However, the matter did not proceed on August 6th as counsel had agreed in advance to an adjournment. In the result, the matter was adjourned to September 22, 2014 for continuation.
[8] Mr. Donnell filed an amended Factum and Books of Authorities on September 4, 2014. In the amended Factum, it is alleged that Kim's Charter rights were violated when: (a) the officers failed to make a valid demand for the approved screening device immediately upon forming their suspicion; (b) the officers failed to inform Kim of all of the reasons for his detention; (c) the officers failed to inform Kim of his right to counsel while at the roadside when a reasonable opportunity to exercise same presented itself; and (d) the officers failed to facilitate Kim's right to counsel of choice by failing to turn their minds to the possibility of counsel of choice and Kim's access to same, via Kim's cell phone which was present and functional at the time of detention.
[9] On September 18, 2014, Mr. Thomaidis filed a Respondent's Factum, submitting that the applicant's rights under sections 8, 9, and 10 of the Charter were not infringed, and (alternatively) that even if his rights under the Charter were infringed, it would not be appropriate to exclude the (breath sample) evidence under section 24(2) of the Charter.
[10] On September 22, 2014, the matter continued before me. The Crown advised that there would be no further evidence called either on the Charter application or the trial proper, and closed its case. The defence advised that it would be calling no evidence. I then heard submissions on the various Charter issues as well as on trial issues. This is my ruling on the Charter application and my judgment on the trial.
Evidence
Duran
[11] Duran has been a TPS officer since December, 2006. On the 23rd of April, 2013, he was working a midnight shift in uniform out of 13 Division, driving a marked TPS cruiser with Uppal as his escort.
[12] At approximately 2:18 a.m., Duran and Uppal were stopped on Caledonia Road at the northeast corner of Eglinton Avenue West, seated in their cruiser facing northbound. Duran observed a white vehicle over his shoulder and in his rear-view mirror travelling west bound on Eglinton through the Caledonia intersection at a high rate of speed. Duran turned his cruiser around and pursued the vehicle, eventually catching it and pulling it over in front of 2700 Eglinton Avenue West (a short distance west of Keele Street in neighbouring 12 Division).
[13] At 2:22 a.m., Duran approached the driver's side and sole occupant of the vehicle – Kim – demanding his licence, ownership, and insurance. Kim complied. While speaking with Kim, Duran smelled an odour of alcohol inside the vehicle, noted that Kim's eyes were glossy and red, and asked Kim if he had anything to drink that night, to which Kim replied, "No."
[14] Duran then thought he could (also) smell alcohol on Kim's breath. Giving him the benefit of the doubt, he asked Kim to get out of the vehicle so that he could speak with him on the sidewalk, at which time he satisfied himself that he could smell alcohol on Kim's breath. He advised Uppal of that observation.
[15] At 2:24 a.m., Duran made a request over his police radio for a roadside screening device – which I took to be a reference to an approved screening device (hereinafter "ASD") because he did not have an ASD on board. He then waited approximately fourteen minutes until Constable Saggi (hereinafter "Saggi") arrived at their location with the ASD. At 2:39 a.m., Duran read Kim the ASD demand from the rear of his memo book. Kim said that he understood. At 2:40 a.m., Duran demonstrated to Kim how to use the ASD and conducted the first test on himself. He registered a zero, which he said "meant I didn't have any alcohol in my system."
[16] At 2:41 a.m., Kim provided an insufficient first sample. At 2:43 a.m., Kim provided a second and then third sample, which registered a "Fail". At that time, Duran advised Kim he was under arrest for "over 80 operation", cuffed him to the rear, searched him for weapons, and placed him in the rear of his scout car.
[17] At 2:46 a.m., Duran read Kim his rights to counsel verbatim from the rear of his memo book, asked Kim if he understood and if he wished to call a lawyer. Kim stated that he did understand and that he did wish to call his lawyer. At 2:47 a.m., Duran read to Kim the approved instrument demand from the rear of his memo book, explaining to Kim that this was different from the earlier demand he had read to him.
[18] Parts of the in-car video (filed as Exhibit "1") were then played, commencing from 2:20:48 until 2:24:39, then 2:33:30 to 2:34:07, and then 2:37:38 until 2:48:29.
[19] Mr. Thomaidis asked Duran why he had made the request for the roadside screening device to be brought to the scene. Duran reiterated that he did not have one (on board), "that's why I made that request…for another unit to attend". He was asked again, "And why did you make that request?" Duran responded: "I can smell an alcoholic beverage coming from Mr. Kim's breath and mouth." Mr. Thomaidis then asked, "And as a result of your observations, did you form any suspicion or belief?" Duran responded, "I formed the grounds that Mr. Kim had an unknown amount of alcohol in his system."
[20] Duran said he was not told (nor, apparently, did he ask) how long it would take for the ASD to be brought to his location, and - given the fact that they were now approximately one kilometer into 12 Division - his expectation was that it would take "about 10 minutes depending upon where the traffic vehicle (i.e. the TPS vehicle with the ASD on board) is at the time of that request." (Emphasis added)
[21] Duran was asked if he advised Kim of his rights to counsel during that time, which I took to mean the period between when Kim was pulled over and asked to get out of his vehicle (2:22 a.m.) and when, Saggi having arrived with the ASD and Duran having read the formal ASD demand, Duran was ready to receive a sample of Kim's breath (2:40 a.m.). Duran replied, "I did not. Mr. Kim wasn't under arrest but I did read the -- I advised him that the roadside was on its way and I did read him the roadside demand from the rear of memo book."
[22] Duran testified that he had noted that the ASD – a Drager Alcotest 6810 – had last been calibrated on April 11, 2013, that he had turned it on and let it do its cycle, that he had himself provided a sample that registered zero, and that he was confident that the device was in proper working order, given his understanding that calibration is good for thirty-one calendar days.
[23] Asked what the "Fail" registered by Kim on the third sample meant to him, Duran said it "meant that Mr. Kim's blood alcohol level was over the legal limit of point zero eight, so that gave me the grounds to arrest Mr. Kim for over 80."
[24] At approximately 2:49 a.m., Duran transported Kim to TPS Traffic Services, where they arrived at 3:07 a.m. At 3:08 a.m., Kim was brought into the booking hall. During the booking process, Duran explained to the OIC Sgt. Collins why Kim was there in custody.
[25] At 3:17 a.m., Kim was taken to an interview room where Duran asked him if he had counsel that he'd like to speak to prior to the first test being conducted. Kim told Duran his counsel was Anthony Robbins. Duran then left Kim and made efforts to locate a phone number for Mr. Robbins. Duran said that Kim did not have a phone number for Robbins and, in particular, that Kim did not have a cell phone number for Mr. Robbins that he could call "off hours". At 3:23 a.m., he called the only contact number he could find (using Google) – the law firm of Rusonik, O'Connor, Robbins, Ross, Gorham, and Angelini, adding, "Given the time of day – that time, I didn't feel it necessary to leave a voice-mail because it was the firm and, and they were closed." Duran then contacted duty counsel at 3:28 a.m. in order to provide Kim an opportunity to speak to counsel.
[26] Duran said that he told Kim it was the (Robbins) law firm number that he had called, that no other numbers for Robbins were listed, and, that he had contacted (and to expect a call from) duty counsel. Kim did not suggest any other counsel, nor did he suggest any other way of getting a different phone number for Mr. Robbins.
[27] At 4:58 a.m., Duran served Kim with documents including an appearance notice, the A.D.L.S. 90-day suspension notice, and, a copy of the certificate of qualified technician (filed as Exhibit "A") which Duran had received from Greener and which Kim acknowledged receipt of by signing.
[28] With respect to the service of Exhibit "A", the following exchange took place (involving Mr. Thomaidis, Duran, Mr. Donnell, and me):
Q: Okay, and do you recall how many – how many copies did you receive of this document?
A: Well, I believe it was two, but I'm not certain how many.
Q: Okay. And did you compare the copies?
Mr. Donnell: Well, wasn't that really leading?
The Court: Sorry…
Mr. Donnell: Isn't that really a leading …
The Court: …Mr. Donnell…
Mr. Donnell: … question?
The Court: … are you speaking to me or Mr. Thomaidis?
Mr. Donnell: I beg your pardon, Your Honour. I'm speaking to you.
The Court: Thank you.
Mr. Donnell: Is that not leading?
The Court: Mr. Thomaidis, there is a way of doing this that does not imply or involve putting the answer in the question. "What, if anything, did you do with the document before serving it on the accused?" would be an appropriate question.
Mr. Thomaidis: Thank you, your Honour.
Q: Constable Duran, what, if anything, did you do with the documents before serving Mr. Kim?
A: Aside from reading it to Mr. Kim in the interview room when he was – what he was being served with – present there when he acknowledges it and signs it. And I believe there are usually two copies, one that's given to the accused and there's another for the file.
Mr. Thomaidis: Your Honour, I am going to ask that this document be marked as the next or in this case the first exhibit.
The Court: Exhibit A.
Mr. Thomaidis: Thank you, Detective Constable Duran, those are all of my questions.
[29] The in-car video was then made Exhibit 1, following which Mr. Thomaidis returned to the subject of Exhibit A:
Mr. Thomaidis: Just to be clear then, I understand, your Honour, the certificate has been marked as an exhibit for identification.
The Court: Yes
Mr. Thomaidis: Let me give the video that I have, that's been marked Exhibit 1, to Madam Registrar. Can I see Exhibit A? Your Honour, could I ask a few more questions, regarding this exhibit, at this time?
The Court: Yes
Mr. Thomaidis: I'm giving this back to Detective Constable Duran.
Q: Detective Constable Duran, I've given you back a document that's now been marked as Exhibit A.
A: Yes
Q: Okay. And I just want to be clear, I understood your testimony before, in this respect – do you recognize this document?
A: I do, yes.
Q: Okay, and how is it that you recognize it?
A: I recognize it to be the document number – the third document in my notes that I served on Mr. Kim, which was the certified (sic) certificate of a qualified technician.
Q: Okay. And you've seen this particular document?
Mr. Donnell: Well, I'm standing, Sir, and my objection is, this has been asked and answered at least twice.
Mr. Thomaidis: I don't believe there's any such rule of evidence, in the law of Canada, in any event but …
The Court: Yes there is.
Mr. Thomaidis: Asked and answered?
The Court: Yes. You have already dealt with the matter, so you are now, basically, repeating your questions.
[30] Mr. Thomaidis then candidly put to me that he did not appreciate why the certificate of qualified technician had been marked (for identification purposes) as Exhibit A. When I explained that I had done so because there was a Charter application and that until its admissibility was determined it would be Exhibit A, the examination-in-chief of the witness was complete.
[31] Exhibit "A" is a computer generated form – TPS 323, 2012/01 – comprised of (i) a Certificate of a Qualified Technician, and (ii) a Notice in Accordance with section 258(7) of the Criminal Code. The former bears the signature of the qualified technician (Kim Greener) and the latter bears the signature of the accused (Brian Kim) next to the words: "I acknowledge receipt of a true copy of this certificate." At the bottom of the form appear the words "Distribution: Original – Insert in Confidential Crown Envelope Copy – To Person Tested Copy – Technicians' Copy."
[32] Under cross-examination, Duran confirmed that, in his mind, Kim was detained as soon as he asked him to step out from his vehicle and ascertained that there was a smell of alcohol coming from his mouth. As he put it, when asked if Kim was free to leave at that point, "That wasn't going to be an option. Had Mr. Kim advised that he was gonna (sic) walk away, I would have read the demand, right then and there and advised him he wasn't free to leave." He then explained that he did not advise Mr. Kim that he was not free to leave because "Mr. Kim was compliant, as you can see in the video. I did not feel the need to, to advise him."
[33] Duran explained that he called for a traffic unit because at the time the traffic cars – as opposed to the primary response unit (hereinafter "PRU") vehicles such as the one he was operating that night – were the only ones that would be equipped with an ASD, albeit in his experience there were usually two ASDs assigned to the division and there may or may not have been an additional one for the rest of the PRU to take out.
[34] Asked whether during the fourteen plus minutes he was waiting for the ASD to be brought to the scene he had ever turned his mind to advising Mr. Kim of his right to counsel, Duran said: "It didn't cross my mind at the time … Mr. Kim was very compliant, as you can see in the video … and throughout the process."
[35] Duran went on to explain, "To be fair, if he had a cell phone and advised me that he wanted to contact counsel, I wasn't in the position to let him have that phone call … because Mr. Kim has a, a reason to privacy or an expectation of privacy to speak to counsel. On the roadside, I wasn't going to put him in my car because if I had put him in the rear of my scout car, I would activate the in-car camera. So there's … that wasn't an option. I wasn't gonna (sic) -- I wasn't prepared to let Mr. Kim step in his vehicle and use the phone there, had he asked. And outside, there wasn't any way of guaranteeing his privacy, to speak with counsel, so…"
[36] Asked whether he could have put Kim in the back seat of his vehicle and taken the keys, thereby addressing both the privacy and security issues, Duran responded: "In hindsight, and I'm not suggesting Mr. Kim would have done anything wrong, but by taking the vehicle or letting him in the back seat, I had not searched Mr. Kim, he wasn't under arrest and I don't know what else could be in that vehicle. I'm not suggesting Mr. Kim would have done anything or had anything in there that could cause us harm, but in an officer safety standpoint, I wasn't prepared to do that. I didn't have the grounds to search his vehicle, so I wouldn't have put him in the back seat or I didn't know if there was anything in there that could cause him harm. So that wasn't gonna (sic) be an option."
[37] Duran said he was not surprised that it took fourteen minutes - rather than the ten minutes he said he had expected it to take - for the ASD to be brought to the scene. Asked if ten minutes was the norm, he said that it depends on what is going on in a given division and "there's times where the wait has been much longer than 10, 14 minutes, it's been 20, 25 minutes. Resources play a role in that; time of day, depending on where the traffic vehicles or where the Alcotest (ASD) is…there's times where the traffic cars aren't available … so that would require someone to travel to the station to pick up an Alcotest and drive to … the vehicle stop."
[38] Duran clarified that (at the station), (1) he went on the internet and sourced the office number for Mr. Robbins, (2) he placed the call, and (3) he then asked Kim if he had any other number, possibly a cell phone that Mr. Robbins might be reached at off hours. Kim told him he did not, at which point he then advised Kim that he would contact duty counsel on his behalf.
Uppal
[39] Uppal testified that when shortly after 2:20 a.m. Duran brought Kim out of his vehicle he advised Uppal "he could smell odour of alcohol off the driver's breath", that he (too) smelled a strong odour of alcohol coming from Kim's breath, and that he (Uppal) advised Duran to call for the ASD to be brought to their location. He said that after he gave that advice to Duran, and they were "standing by" for the traffic unit to bring the ASD to the location, Kim had asked him (Uppal) what he was referring to, and that he had told Kim that it was a machine that he would blow into "and to get to – receive how much alcohol, if there is any in his system." He was shown the in-car video and confirmed that this conversation took place at or about 2:24 a.m.
[40] Uppal said the ASD arrived with Constable Saggi at 2:39 a.m. at which time Uppal said he "partook in explaining" to Kim how to use the machine. Uppal confirmed that he (too) was of the view that Kim was not free to leave at any time and that he did not advise Kim of his rights to counsel while they were waiting for the ASD to be brought to their location. Uppal said he believed that Kim did have a cell phone in his possession at the time he was booked into the station.
[41] Uppal testified that he received a call for Kim from duty counsel at 3:36 a.m. and that he brought Kim out of the interview room and into the separate phone booth where the accused spoke to duty counsel for approximately four minutes. At 3:40 a.m., he brought Kim to the washroom at Kim's request, following which he turned Kim over to the qualified breath technician (Greener) at 3:43 a.m.
Kim
[42] Kim testified next on the Charter Application only. He said that he "was feeling detained" as soon as he was told to exit his vehicle at the scene, and, when asked what his thoughts were then, he said he was questioning why he was being detained and that he did not know why (he was being detained).
[43] With respect to the right to counsel, Kim said "Well, if I had a chance to call my lawyer on the spot, I would have loved to do that. But they did not -- the two officers that told me to exit the vehicle, they just kept on questioning me and then they – when we had to wait for the breathalyzer roadside device, they were just questioning me about who do I know, what am I doing, where was I going.
[44] Kim acknowledged that he not did tell the officers that he would like to speak to a lawyer, nor did he ask the officers if he could do that, and explained that he did not because he did not realize he was being arrested.
[45] Kim had a cell phone – an iphone -- on him. He acknowledged that he did not know the number of his lawyer off the top of his head, because the last time he had talked to his lawyer was two years prior to this. While Kim's iphone has a contacts list, Mr. Robbins is not in it. However, Kim said the iphone is a smart phone on which he can access the internet and presumably, obtain a contact number (or numbers) for Mr. Robbins.
[46] Kim said that the period while he was detained at the scene waiting for the ASD to be brought to their location would have been a good opportunity to call his lawyer. He said he did not ask the officers (if he could do that) because "I didn't really know what was going on at the time … I felt like he was being intimidated … it felt like I was guilty at the time… they didn't give me much space … they told me stay on the sidewalk; I couldn't move. They started questioning me."
[47] Kim said that the cell phone he had with him that night had internet service, that he could have looked up a phone number, and that had he been given the opportunity "I would probably have called Anthony Robbins, ask him what my rights are."
[48] Under cross-examination, Kim said that while they were waiting for the ASD to arrive the officers were asking him where he had been drinking. He acknowledged that his iphone came out of his pocket at the time he was searched, which was after the roadside test, and that up to that point he did not give the officers any reason to believe that he had a telephone on his person.
[49] Kim said that he believed he could have obtained Mr. Robbins cell phone number - assuming Mr. Robbins had one at the time – on the internet, albeit he acknowledged that he had not put his mind to that on the night in question.
Issues
[50] Based upon the Charter application, the evidence on the blended Charter voir dire and trial, and the submissions of counsel, the following Charter issues arise in this case:
Did the officer fail to make a valid demand for the approved screening device by failing to make the ASD demand immediately upon forming the requisite suspicion?
Were the Intoxilyzer breath samples provided by Kim at the station taken in breach of Kim's s. 8 Charter right to be secure against unreasonable search or seizure?
Was Kim unlawfully detained at the roadside in breach of his s. 9 Charter right not to be arbitrarily detained or imprisoned?
Was the failure of the officer to inform Kim of his right to counsel while he was detained at the roadside a breach of his s. 10(b) Charter right?
Could the officer realistically have fulfilled the obligation to implement Kim's s. 10(b) rights before requiring the sample?
[51] An additional issue concerning the sufficiency of the evidence at trial and argued by Mr. Donnell in his final submissions is whether Kim was served with a true copy of the Certificate of Analysis such that the Crown can rely on the certificate?
Applicable Law
The Demand for the Approved Screening Device
[52] Section 254(2) of the Criminal Code provides that if a peace officer has reasonable grounds to suspect that a person has alcohol in their body and has within the preceding three hours operated a motor vehicle, he may by demand require the motorist to provide forthwith a sample of breath that in the officer's opinion will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
[53] The term "forthwith" suggests that the breath sample is to be provided immediately. Thus a demand made by a police officer who is without the device and requires half an hour for the device to arrive does not satisfy the conditions of this subsection. Since the demand is invalid, the accused is under no obligation to comply with it and his failure to comply with it could not constitute an offence.
R. v. Grant, [1991] 3 S.C.R. 139 at 150
[54] Writing for the court in Grant, Lamer C.J. said this:
Without delving into an analysis of the exact number of minutes which may pass before the demand for a breath sample falls outside of the term "forthwith", I would simply observe that where, as here, the demand is made by a police officer who is without an A.L.E.R.T. unit and the unit does not, in fact, arrive for a half hour, the provisions of s. 238(2) [the equivalent of s. 254(2)] will not be satisfied.
[55] A demand did not comply with this subsection where the officer did not have the screening device with him, had to take the accused to the detachment, and a total of fourteen minutes elapsed between the making of the demand and the time when the device was ready. For the sample to be provided "forthwith", it must be provided immediately, meaning very shortly after the accused has been requested to accompany the officer for the purpose of providing the sample.
R. v. Cote, 6 O.R. (3d) 667 (C.A.)
[56] At the same time, Grant and Cote also stand for the proposition that in order to meet the statutory standard of being able to take a sample given forthwith, a police officer need not have an approved screening device in his or her cruiser.
R. v. Singh, [2000] O.J. No. 4992, Hill, J.
[57] The meaning to be given to s. 254(2) must be informed by its purpose. Parliament created a two-step detection and enforcement procedure in s. 254 that necessarily interferes with Charter rights. First, s. 254(2) authorizes peace officers, on reasonable suspicion of alcohol consumption, to require drivers to provide breath samples for testing on an ASD, at or near the roadside, to determine whether more conclusive testing is warranted. Second, s. 254(3) allows peace officers who have the requisite reasonable and probable grounds – usually obtained from the ASD test – to demand breath samples for a more conclusive (intoxilyzer) analysis. This two-step process provides the police with a powerful tool to curtail, investigate, and prosecute drinking and driving offences. The death and substantial societal costs associated with drinking and driving fully justifies this procedure.
R. v. Quansah, 2012 ONCA 116, [2012] O.J. No. 778 (CA)
[58] At paras. 21, 22 and 23 of Quansah, Laforme J.A. states:
The "forthwith" requirement of s. 254(2) is inextricably linked to its constitutional integrity: see Woods, at para 29. This justifies what would otherwise be sustained as violations of ss. 8, 9, and 10(b) of the Charter. Thus, in interpreting "forthwith", this court must bear in mind Parliament's choice of language and Parliament's intention, which is to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights: see Woods, at para. 29.
So long as the demand is validly made pursuant to s. 254(2) – that is, so long as it is made "forthwith" – for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel. This is because this statutory detection and enforcement procedure constitutes a reasonable limit on Charter rights, given the extreme danger represented by unlicensed or impaired drivers on the roads: see Degiorgio, at para 37.
As this court noted in Degiorgio, at para. 46, the "forthwith" period is the time in which Charter rights are justifiably infringed. That is to say, within this time a detained person can be required to comply with an ASD demand and respond to that demand – be it blowing and registering a "fail" or be it refusing or failing to blow – and incur criminal liability that is justified despite ss. 8, 9, and 10(b) of the Charter.
[59] Section 254(2) does not explicitly require that the ASD demand be made "forthwith"; rather, it only specifically requires that the motorist provide a breath sample "forthwith". However, "it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. This is the only interpretation which is consistent with the judicial acceptance of an infringement on the right to counsel provided for in s. 10(b) of the Charter. If the police had discretion to wait before making the demand, the suspect would be detained and therefore entitled to consult a lawyer." (Emphasis added)
R. v. Pierman, R. v. Dewald, 19 O.R. (3d) 704 (C.A.)
[60] The constitutional validity of s. 254(2) depends on its implicit and explicit requirements of immediacy. The term "forthwith" in s. 254(2) therefore means "immediately" or "without delay" and indicates a prompt demand by the peace officer and an immediate response by the person to whom the demand is addressed.
[61] In unusual circumstances, "forthwith" may be given a more flexible interpretation than its ordinary meaning strictly suggests. For instance, if the circumstances indicate that a "short delay" is necessary for the officer to obtain an accurate result, the officer is justified in delaying either the making of the demand or the administration of the test after the demand: see Pierman, at para 21, and R. v. Bernshaw, [1995] 1 S.C.R. 254.
[62] The need for some delay should not be taken to mean that a police officer is not required to make an ASD demand as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body.
R. v. Au-Yeung, 2010 ONSC 2292, T. Ducharme, J.
[63] While "forthwith" may be interpreted with some flexibility, this should only be done in "unusual circumstances" such as those involving the "exigencies of the use of the equipment".
[64] If there has been a realistic opportunity to consult counsel that has not been accorded to the detained person when the sample is demanded and the person has responded to the demand by either providing the sample or refusing to blow, the "forthwith" requirement is not met.
R. v. Quansah, supra at para. 34
[65] The immediacy requirement in s. 254(2) necessitates that the courts consider five things: (1) The analysis of the forthwith or immediacy requirement must always be done contextually, bearing in mind Parliament's intention to strike a balance in eradicating driver impairment and safeguarding individual Charter rights; (2) The demand must be made by the police officer promptly once he forms the reasonable suspicion that the driver has alcohol in his system. (3) Forthwith connotes a prompt demand and an immediate response. The time from the formation of reasonable suspicion to the making of the demand to the detainee's response must be no more than is reasonably necessary to enable the officer to discharge his duties as contemplated by s. 254(2). (4) The immediacy requirement must take into account all the circumstances. These may include a reasonable delay where breath tests cannot be immediately performed because an ASD is not immediately available or where a short delay is needed to ensure an accurate result or where a short delay is required due to articulated and legitimate safety concerns; that is, delay that is no more than reasonably necessary to enable the officer to properly discharge his duty. (5) One of the circumstances for consideration is whether the police could realistically have fulfilled the obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" requirement is not met. (Emphasis added)
R. v. Quansah, supra at paras. 45-49
The Right to Counsel
General Principles
[66] The purpose of the right to counsel guaranteed by section 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law, and to obtain advice on how to exercise those rights and fulfill those obligations. This opportunity is made available because, when state authorities detain an individual, that person is in a position of disadvantage relative to the state. A person who is detained within the meaning of section 10 of the Charter is in "immediate need" of legal advice in order to protect his right against self-incrimination and to assist him in regaining his liberty. Under section 10(b) of the Charter a detainee is entitled as of right to seek such legal advice without delay and upon request. The right to counsel is intended to ensure that persons who are arrested or detained are treated fairly in the criminal process.
R. v. Bartle, 92 C.C.C. (3d) 289 at pp. 300-301 (S.C.C.)
[67] Section 10(b) of the Charter imposes the following obligations upon state authorities who arrest or detain a person:
to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;
if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances), and
to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency).
[68] The first obligation is an informational one. The second and third obligations can be characterized as implementation duties and are not triggered unless and until the detainee has indicated a desire to exercise his or her right to counsel.
[69] The informational duty under s. 10(b) requires that the detained person be informed of the right to speak with a lawyer without delay. The words "without delay" in s. 10(b) mean immediately:
To allow for a delay between the outset of a detention and the engagement of the police duties under s.10(b) creates an ill‑defined and unworkable test of the application of the s.10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill‑defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s.10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
R. v. Suberu, [2009] S.C.C. 33 at para. 42
[70] Once a detainee has indicated a desire to exercise his right to counsel, the state is required to provide him with a reasonable opportunity to do so. State agents are required to refrain from eliciting incriminatory evidence from the detainee until he has had a reasonable opportunity to reach counsel. Put another way, the police cannot in any way compel the detainee to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. In other words, the police are obliged to "hold off" from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel.
R. v. Prosper, 92 C.C.C. (3d) 353 at p. 375 (S.C.C.)
[71] The police are under an obligation to provide the accused or detained person with a reasonable opportunity to exercise the right to retain and instruct counsel, and to refrain from questioning or attempting to elicit evidence from the detainee until the detainee has had that reasonable opportunity. The police are barred from compelling the detainee to make a decision or participate in a process that could ultimately have an adverse effect in the conduct of an eventual trial until the individual has had a reasonable opportunity to exercise the right to counsel. The right to retain and instruct counsel must be exercised diligently by the detainee. If the detainee is not diligent, then the correlative duties on the police are suspended.
R. v. Brydges, 53 C.C.C. (3d) 330 (S.C.C.)
[72] The reasoning underlying why the police are required to provide the accused with a reasonable opportunity to exercise the right to retain and instruct counsel is because the accused is under the control of the police and is unable to exercise his right to counsel unless the police have provided him with the reasonable opportunity to do so.
R. v. Manninen, 34 C.C.C. (3d) 385 at pp. 391, 392 (S.C.C.)
[73] Privacy is inherent in the right to retain and instruct counsel. The accused must be free to discuss the circumstances of his case with counsel. An accused telephoning a lawyer while in police custody is entitled to privacy and is not under any obligation to request privacy or greater privacy than what is provided:
R. v. McKane, 35 C.C.C. (3d) 481 (Ont. C.A.)
At the Roadside
[74] A motorist required to supply a sample of his breath at the roadside is detained within the meaning of s. 10(b) of the Charter. Pursuant to s. 1 of the Charter, however, it is a reasonable limitation on the right to counsel that the motorist supply the breath sample without being entitled to consult counsel.
R. v. Thomson, [1988] 1 S.C.R. 640
[75] In Singh, supra, the accused/appellant was stopped at 12:08 a.m. for investigation of erratic driving. At 12:11 a.m. - based on observations of red eyes and a slight odour of alcohol on the driver's breath - the arresting officer formed a suspicion that the driver was operating his motor vehicle with alcohol in his body. At 12:12 a.m., the officer radioed his dispatcher to have an approved screening device brought to the scene. He was then told that all radio transmissions were to cease (10-3 radio silence) on account of an unrelated matter relating to officer safety. Accordingly his request to have another officer attend with the device was temporarily refused, albeit he was told that as soon as the 10-3 ended an officer would be radioed to attend with an ASD. During the period of radio silence – 12:12 a.m. to 12:20 a.m. – the officer explained to Singh that he was attempting to arrange for the delivery of the device and that it would be a couple of minutes. At 12:20 a.m., the officer heard radio transmissions return to normal and heard the dispatcher radio an officer with an ASD on board to deliver it to his location. The officer then asked Singh to have a seat in his cruiser. The officer with the ASD arrived at 12:25 a.m. The device was turned on and warmed up, the arresting officer explained to Singh how to provide a proper sample, and at 12:30 a.m. the formal s. 254(2) demand was read. Singh then provided a sample which registered a "fail".
[76] In allowing the appeal from conviction, Hill, J. held that the arresting officer was obliged to make the s. 254(2) demand at 12:12 a.m. when he formed the reasonable suspicion that Singh was operating his motor vehicle with alcohol in his body. He found that the arresting officer elected not to do so, initially because he had no idea when the ASD would arrive and because he hoped that the 10-3 would be lifted shortly or that computer contact would be made with the officer with the ASD on board. Accordingly, Hill, J. concluded: "[U]ntil 12:30 a.m., Mr. Singh was detained without authority and was not given the section 10(b) Charter right to which he was entitled."
[77] In Mohammad [2103] O.J. No. 1518 (Ontario Superior Court of Justice) F.E. McWatt J., the formal demand for the ASD was made some 13 minutes after the onset of the appellant's detention and after the delivery of the ASD to the arresting officer. On the appeal from conviction, McWatt, J. found that (1) the immediacy requirement in making the demand was satisfied even though there was no "forthwith" demand made at the appellant's vehicle; (2) there was evidence that, while waiting for delivery of the ASD, the arresting officer asked the appellant to stay in his vehicle and stand by to wait for the ASD, and that he made an "informal" demand, and (3) the 13 minute delay between the onset of the appellant's detention and the arrival of the ASD was reasonable on all the evidence. It took two additional minutes after its arrival for the officer to read the formal demand, test the instrument, and receive the samples of the appellant's breath. McWatt J. concluded that there was no realistic possibility for the officer to implement the appellant's s. 10(b) rights during those 13 minutes taking into account (a) the fact that the appellant had no number for a lawyer, (b) did not contact counsel at the station afterwards, (c) it was a Saturday morning just after midnight, and (d) a call would have had to have been made to duty counsel who would have had to call back.
The Test for Exclusion of Evidence Pursuant to Section 24(2) of the Charter
[78] The test for exclusion of evidence is set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The court is required to inquire into the seriousness of the Charter-infringing conduct, the impact on the Charter-protected rights of the accused, and society's interest in an adjudication on the merits. The court is then to weigh the various indications and determine whether, on balance, the admission of the evidence obtained in violation of the accused's Charter rights would bring the administration of justice into disrepute.
[79] The words of s. 24(2) capture its purpose: to maintain the good repute of the administration of justice. The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances, and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. R. v. Grant, supra at para. 67-68
Reliance on the Certificate of Analysis
[80] In order to take advantage of the statutory presumption in s. 258 of the Criminal Code (that the Intoxylyzer readings taken at the police station portray a motorist's blood alcohol level at the earlier point of driving), it is not necessary for the prosecution to call the qualified Intoxilyzer analyst to testify. The prosecution may prove the fact by certificate evidence i.e. by filing the certificate of analysis at trial.
[81] S. 258(7) of the Criminal Code provides that no certificate shall be received in evidence against an accused unless the Crown has, before the trial, given the defence reasonable notice of his intention to produce it and a copy of the certificate.
[82] In order to meet the requirements of s. 258(7), it is only necessary that the trial judge be satisfied, on a balance of probabilities, that the certificate given to the accused is a copy.
R. v. MacKinnon, 42 M.V.R. (4th) 205 Ont C.A.
[83] The words of the section, "a copy of the certificate", contemplate that there exists an original or first copy of the certificate. The authorities are obliged to effect pre-trial service of a copy of that certificate – not any copy but a true copy of the first-created version of the certificate.
R. v. Naidu, [2004] O.J. No. 2471 (Ontario Superior Court of Justice), Hill, J.
[84] In Naidu, Hill, J., sitting on an appeal from conviction, noted that the trial judge (a) had rejected the defence submission that the Crown had failed to prove service of a true copy of the certificate and (b) was satisfied on the balance of probabilities – particularly where there was no evidence to the contrary – that the accused had been properly served in accordance with s. 258(7). (Emphasis added)
[85] After making reference to the onus enunciated in R. v. MacKinnon, supra, Hill, J quotes from his own decision in R. v. Munshi, [2002] O.J. No. 4281. What follows are the salient portions thereof, with case names and citations omitted:
The purpose of s. 258(7) of the Code is to ensure the defendant receives reasonable and adequate notice of the certificate … to enable preparation of full answer and defence… Compliance with s. 258(7) is an essential pre-condition to certificate admissibility.
Service of a "copy" contemplates a true copy …
Over time, as is apparent from the relevant jurisprudence, police forces have employed different methods of creating an original certificate and copies thereof – longhand copying, use of carbon copy paper, snapset forms, photocopying, and word processor – created and printed forms. Modernization of the copying process and technological changes has led to the view that there can be duplicate originals which may reasonably be described as copies … The court is entitled, from examination of the copy introduced into evidence in court, to find that a photocopying process was employed to make copies …
The first created document may be viewed as an "original … copy"… Where an exact-copy replication process is used, i.e. "Xeroxing or from a carbon paper", it is generally unnecessary to compare the original or top copy with the copies.
[86] Hill, J found on the evidence in Naidu that – excepting the ink signature of the analyst – "the original certificate resides in the computer", that "a second original is printed on command and signed by the analyst", and that "[T]hat document is photocopied or a further print command to the computer produces a copy of the Certificate which is signed as well by the analyst." He concluded:
With the employ of computer word processing technology it is unnecessary for the serving officer to compare the texts of the printed Certificates. Constable Tyrell received the copy of the Certificate given to Mr. Naidu directly from the qualified intoxilyzer technician who tested the appellant and then satisfied himself that a signed copy was served upon the appellant.
[87] In the more recent decision of R. v. Chung, [2009] O.J. No. 1546 (Ontario Superior Court of Justice), Croll, J. sitting on a Crown appeal from acquittal, concluded that "[T]he trial judge erred in finding that the Crown could not rely on the certificate, as there was nothing that rebutted the presumption that the accused was served with a true copy of the form. Such error was of no consequence given the judge's findings regarding the timing of the breath samples."
Analysis
Did the officer fail to make a valid demand for the approved screening device by failing to make the ASD demand immediately upon forming the requisite suspicion?
[88] I find on the evidence that Duran had reasonable grounds to suspect that Kim had been operating a motor vehicle with alcohol in his body at 2:24 a.m. I am satisfied based upon his responses that Duran had formed the requisite reasonable grounds, notwithstanding that Duran - despite the best efforts of Mr. Thomaidis - never properly articulated the complete answer while testifying.
[89] I find on the evidence that Duran did not make a formal demand for the approved screening device until 2:39 a.m. – some fifteen minutes after forming the reasonable grounds that entitled him to make a "forthwith" demand.
[90] At or about 2:24 a.m., Duran learned that Constable Saggi was en route with the ASD. However, I find that Duran was never told, nor did he ask, how long it would take for Saggi to deliver the ASD to his location. His evidence-in-chief – that it was his "expectation" that it would take about 10 minutes for the ASD to be brought to his location – was admittedly contingent upon where the traffic vehicle was at the time of his request. Moreover, Duran further qualified this "expectation" in cross-examination when he said that that he was not surprised that it took fourteen minutes - rather than the ten minutes he said he had expected it to take – adding that "there's times where the wait has been much longer than 10, 14 minutes, it's been 20, 25 minutes."
[91] I find that Kim was detained from 2:24 a.m. when Duran, having smelled alcohol coming from Kim's vehicle, asked him to step out of his vehicle so that he (Duran) could satisfy himself that there was a smell of alcohol on Kim's breath.
[92] From 2:24 a.m. until 2:39 a.m., Duran delayed in making the formal demand contemplated by s. 254(2) even though he had been told that the ASD was on its way. While it is apparent that shortly after 2:24 a.m., Duran and/or Uppal informed Kim that an ASD was on its way and what would be required of him once the device arrived, in my view this discussion did not amount to a constructive demand.
[93] Had the s. 254(2) demand been made at 2:24 a.m. and had specific assurances been received from Saggi or the dispatcher as to the anticipated time of arrival of the device, the 15 minute delay in the delivery of the ASD would not (necessarily) have been objectionable.
[94] Duran was obliged to make the s. 254(2) Criminal Code demand at 2:24 a.m. when he formed the reasonable suspicion that Kim was operating his motor vehicle with alcohol in his body. He apparently elected not to do so because - despite his stated "expectation" that the ASD would be delivered in 10 minutes - he really had no idea when the ASD would arrive. It is evident from his testimony that Duran gave no thought that night to how long it would take for the ASD to be delivered. If he had given the matter any thought, he would have asked. While he may have hoped that it would take 10 minutes, that hope is more accurately described as an optimistic guess given his evidence that "there's times where the wait has been much longer than 10, 14 minutes, it's been 20, 25 minutes."
[95] Duran also said that, had Kim advised that he was going walk away, he would have read the demand, right then and there, and that he did not make the formal demand because, as he put it, "Mr. Kim was compliant, as you can see in the video. I did not feel the need to, to advise him."
[96] In my view, neither an optimistic guess nor the detainee's evident compliance is a legitimate basis for a delay in the making of the formal s. 254(2) demand. In the circumstances, I find that Duran failed to make a lawful demand for the ASD.
Were the Intoxilyzer breath samples provided by Kim at the station taken in breach of Kim's s. 8 right to be secure against unreasonable search or seizure?
[97] Where the approved screening device test occurs within a reasonable time, the initial demand, made at the time the officer formed his reasonable suspicion described in s. 254(2) of the Code, is considered lawful (and dispensation with the s. 10(b) Charter right constitutional).
[98] However, in this case, the 15 minute detention, in the absence of both the s. 254(2) demand and the provision of the s. 10(b) Charter right, causes the driver's detention to be unlawful: R. v. Singh, supra at para. 39.
[99] The "fail" reading result from the breath sample into the ASD led to the production of Kim's breath samples into the Intoxilyzer device. There is a temporal and causal connection between the obtaining of that evidence and the unlawful detention.
[100] Accordingly, I find that the Intoxilyzer breath samples taken at the station were taken in breach of Kim's s. 8 right to be secure against unreasonable search or seizure.
Was Kim unlawfully detained at the roadside in breach of his s. 9 Charter right not to be arbitrarily detained or imprisoned?
[101] As previously noted, Kim was detained from 2:24 a.m. until 2:39 a.m. The 15 minute detention, in the absence of a s. 254(2) demand or the provision of the s. 10(b) Charter right, causes the driver's detention to be unlawful: R. v. Singh, supra at para. 39. Moreover, Kim was not advised that he was being detained, nor was he told the reason for his detention, albeit he apparently overheard Duran's request for an ASD to be brought to their location and - in response to his own query - was then told by Uppal at or about 2:24 a.m., that the ASD was a machine that he would blow into "and to get to – receive how much alcohol, if there is any in his system."
[102] Accordingly, I find that Kim was unlawfully detained in breach of his s. 9 Charter right not to be arbitrarily detained or imprisoned.
[103] Although s. 10(a) was not addressed in submissions or argument, as noted above it is also apparent that the officers failed to inform Kim promptly of the reasons for his detention.
Was the failure of the officer to inform Kim of his s. 10(b) Charter right to counsel while he was detained at the roadside a breach of that right?
[104] Based on his testimony, it is evident to me that Duran was at the time of this investigation (and, apparently, still is) unaware that section 10 rights are triggered on arrest or detention. (Emphasis added) That is both perplexing and troubling, given that he was at the time well into his seventh year as a TPS officer, and that he currently holds the rank of Detective Constable.
[105] It is also evident that the officers chose to question Kim regarding the location where and quantity of the alcohol he had consumed while they waited at the roadside for the delivery of the ASD. It is axiomatic that state agents are required to refrain from eliciting incriminatory evidence from the detainee until he has had a reasonable opportunity to reach counsel: R. v. Prosper, supra. Needless to say, the failure to advise an accused that he is being detained and the reasons for his detention, and the failure to accord an accused his s. 10(b) Charter right, does not obviate that requirement.
[106] I do not accept the suggestion - proffered by Duran in response to the hypothetical put by Mr. Donnell - that he could not have accorded Kim his s. 10(b) Charter right at the roadside due to both privacy and officer safety concerns. In the circumstances of this case it would not have taken a great deal of thought to effectively address privacy at the roadside. As for officer safety, if Kim – whose compliance throughout the process with the officers was cited by Duran in explanation for why he did not make the ASD demand immediately – was not a good candidate for a roadside consultation with counsel, I cannot imagine who would be.
[107] In the result, I find that Duran was required to provide Kim his s. 10(b) Charter right while awaiting the arrival of the ASD, and that Kim was detained for at least 15 minutes in breach of his s. 10(b) Charter right.
Could the officer realistically have fulfilled the obligation to implement Kim's s. 10(b) rights before requiring the sample?
[108] It remains to be determined whether Duran could realistically have fulfilled the obligation to implement Kim's s. 10(b) Charter right in the period between 2:24 a.m. – when Duran formed the requisite reasonable suspicion, (and) when the (unlawful) detention of the accused commenced, (and) when the accused's s. 10(b) rights were triggered – and 2:39 a.m. - when the ASD was brought to the scene - or 2:40 a.m. - when the instrument was ready to receive a sample: R. v. Quansah, supra at paras. 45-49.
[109] It is evident that, when at 2:46 a.m. he was first advised of his right to counsel and asked if he understood, Kim stated that he did understand and that he did wish to call his lawyer.
[110] Moreover, Kim did have (and did provide the name of) a lawyer - Mr. Robbins - to the officers that evening.
[111] It is equally evident that Kim did not have a phone number for Mr. Robbins and, in particular, did not have an office number or home or cell phone number for Mr. Robbins that he could call "off hours".
[112] In order for Kim to have reached Mr. Robbins from the scene, he would have had to:
(a) look up his number(s) on the internet;
(b) successfully source the number(s);
(c) dial the number(s)
(d) (i) if he called a home phone number and/or cell phone number for Mr. Robbins, and Mr. Robbins answered, consult with Mr. Robbins regarding the matter at hand, and
(ii) if he called the office number (as Duran did) and Mr. Robbins was in at that time and responded to the call, consult with Mr. Robbins regarding the matter at hand; and
(iii) if there was no one in the office – Mr. Robbins or otherwise - leave a message on the office voice mail for Mr. Robbins to call, wait for Mr. Robbins to return his call, which of course assumes that there was a system in place at the firm to forward voicemail automatically, that Mr. Robbins was reachable at that hour; that Mr. Robbins would have responded at that hour; and that if Mr. Robbins did return the call, consult with Mr. Robbins regarding the matter at hand. (Emphasis added)
[113] Duran testified that at 3:23 a.m. he called the only contact number he could find (using Google) – the law firm of Rusonik, O'Connor, Robbins, Ross, Gorham, and Angelini. He said that, "Given the time of day – that time, I didn't feel it necessary to leave a voice mail because it was the firm and, and they were closed."
[114] Duran's explanation for why he did not leave a message on the law firm voice mail -"Given the time of day – that time, I didn't feel it necessary to leave a voice mail because it was the firm and, and they were closed." – suggests that he gave no thought to the possibility that the Robbins firm had a system in place to forward voice mail messages to the lawyers' home and or cell phones.
[115] Duran then confirmed that Kim did not have another number for Robbins before contacting duty counsel at 3:28 a.m. in order to provide Kim an opportunity to speak to counsel. Duty counsel returned the call at 3:36 a.m. and Kim consulted with duty counsel for four minutes.
[116] In the circumstances, I am left to guess whether (1) Kim could have sourced the office number for Mr. Robbins from the scene on his iphone as Duran subsequently did; (2) Kim could have sourced a home and/or cell phone number for Mr. Robbins from the scene on his iphone; (3) Mr. Robbins was either in his office to receive a call (on the office number) or at home to receive a call on his home phone or in possession of an operating cell phone on which to receive a call (on the cell phone number) at between 2:24 a.m. and 2:39 a.m. and, if he was, (4) there would have been a sufficient opportunity for Kim and Mr. Robbins to consult regarding the matter at hand before the ASD was ready to receive a sample; (5) if he had for any reason been unable to reach Mr. Robbins, whether he could have reached duty counsel (by leaving a message and waiting for the call back) quickly enough to provide himself with a sufficient opportunity to consult regarding the matter at hand before the ASD was ready to receive a sample.
[117] All of this guess work would have been obviated had Duran advised Kim of his s. 10(b) Charter right at 2:24 a.m. It would then have fallen to Kim to successfully contact Mr. Robbins or duty counsel in order to avail himself of the opportunity to be informed of his rights and obligations under the law, and to obtain advice on how to exercise those rights and fulfill those obligations: R. v. Bartle, supra.
[118] All that said, on the evidence before me I am satisfied that Duran could realistically have fulfilled the obligation to implement Kim's s. 10(b) rights before requiring the sample.
Section 24(2) Analysis
[119] I will now address the seriousness of the Charter-infringing conduct, the impact on the Charter-protected rights of the accused, and society's interest in an adjudication on the merits, weigh the various indications, and determine whether, on balance, the admission of the evidence obtained in violation of the accused's Charter rights would bring the administration of justice into disrepute.
Seriousness of the Charter-Infringing State Conduct
[120] The first inquiry under the revised s. 24(2) framework of analysis requires an evaluation of the seriousness of the state conduct. The main concern is the preservation of public confidence in the rule of law and its processes. State conduct resulting in Charter violations varies from minor or inadvertent to wilful or reckless. The former have a minimal impact on the repute of the justice system but the latter inevitably have a negative effect on public confidence in the rule of law. The Charter is the supreme law of the land and police are expected to abide by its standards regardless of the offence they are investigating. Deliberate police misconduct in violation of Charter standards tends to support exclusion as does evidence that the conduct was part of a pattern of abuse. On the other hand, extenuating circumstances such as the need to preserve evidence or good faith may lessen the need for the court to disassociate itself from the state conduct. However, carelessness or ignorance of Charter standards are not to be encouraged, and negligence and/or wilful blindness do not constitute good faith. Misleading in-court evidence from police about the circumstances surrounding a breach, although not part of the breach itself, adds to its seriousness and increases the need for the court to disassociate it from their conduct: R. v. Grant, supra.
[121] It is apparent that the inquiry into the nature of the state conduct that resulted in the Charter breach seeks to place the conduct along a continuum of misconduct. The graver the state's misconduct the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court's processes from that misconduct. That disassociation is achieved by excluding the evidentiary fruits of the state misconduct:
R. v. Blake, 2010 ONCA 1, [2010] 251 C.C.C (3d) 4 at para.23
[122] A proper assessment of the gravity of the state's misconduct in this case must begin with a consideration of the multiplicity of breaches of the Applicant's Charter rights under ss. 8, 9, and 10(b). The breaches were neither minor nor inadvertent. There is no question here of good faith on the part of the officer. The breaches were a product of either his ignorance or his negligence or both.
[123] As noted above, all it would have taken to comply with the Charter in this case was for Duran to have advised Kim at 2:24 a.m. that he was being detained, the reasons therefore, and of his s. 10(b) right to counsel.
[124] To the extent that the "unconstitutionally obtained evidence sought to be excluded could have been obtained by lawful means had the police chosen to adopt them", at the first inquiry a violation will be considered more serious if the evidence could have been discovered through legal means.
R. v. Cote, 2011 SCC 46, 2011 S.C.C. 46, [2011] 3 S.C.R. 215 at para. 66
R. v. MacMillan, 2013 ONCA 109 at para. 67
[125] I find that the failures on the part of Duran to advise Kim that he was detained (and the reason therefore), and to advise Kim of his s. 10(b) rights, were the result of the officer's disregard, or ignorance of well-known principles. The state of the law was clear at the time of the breaches. The nature of the state conduct tends to bring the administration of justice into disrepute. Cumulatively, these tend to place the conduct of the officer at the serious end of the spectrum and support exclusion: R. v. Spencer, 2014 SCC 43 at para 77.
[126] In my view, the seriousness of the Charter-infringing state conduct weighs strongly in favour of exclusion of the evidence.
The Impact of the Breaches on the Charter-protected Interests of the Accused
[127] At this stage, I am required to evaluate the extent to which the breach actually undermined the interest protected by the right infringed. This requires that I identify the interests engaged by the infringed right and examine the degree of impact from the violation:
R. v. MacMillan, supra at para. 77
[128] In cases involving the seizure of breath samples, the principle focus will usually be on the s. 8 violation and hence the interests engaged by the protection against unreasonable search and seizure, namely privacy and human dignity generally, as well as bodily integrity in the case of bodily samples. With respect to the degree of impact, given a spectrum of seriousness of intrusion from the highly intrusive, such as the forcible taking of blood samples or dental impressions, to the relatively innocuous, such as fingerprint or iris recognition, breath samples fall at the relatively non-intrusive end of the spectrum.
[129] To conclude from that, however, that breath sample evidence will inevitably be admissible notwithstanding the fact it is obtained in breach of an applicable provision of the Criminal Code as well as in breach of ss. 8 of the Charter is to ignore the place and importance of s. 9 - which is intended to protect liberty interests – and most especially s.10(b) - which is intended to protect the interest in being able to make an informed choice when dealing with the police - within the Charter framework.
[130] On the facts as I have found them and the applicable law, the officers committed multiple breaches of Kim's Charter rights under ss. 8, 9, and 10. There is no question here of good faith or of technicalities somehow mitigating the impact of the breaches of his Charter rights, or any of them. The breaches were neither fleeting nor technical.
[131] In my view, the impact of the breaches on the Charter-protected rights of the accused weighs strongly in favour of the exclusion of the evidence.
Society's Interest in an Adjudication on the Merits
[132] The factors under consideration in this inquiry are the reliability of the evidence, the importance of the evidence to the Crown's case, and the seriousness of the offence. Breath test evidence is reliable. Its exclusion would conclusively undermine the Crown's case by in effect gutting the only count. The offence at issue here – operate 'over 80' – is serious.
[133] Grant, supra tells us that the third line of inquiry – the effect of admitting the evidence on the public interest in having a case adjudicated on its merits – will usually favour admission in cases involving bodily samples, particularly where the intrusion is less severe and the violation is less egregious. (Emphasis added)
[134] Here, however, the violations were both numerous and serious. The rights being protected – particularly the right to counsel – are of the highest importance. We are also reminded by our highest court that the seriousness of the offence should not take on disproportionate significance: R. v. Harrison, supra.
[135] I am nevertheless of the view that society's interest in an adjudication on the merits favours admission of the evidence.
Balancing the Three Lines of Inquiry
[136] As Justices Fish and Lebel remind us in their dissent in R. v. Sinclair, 2010 SCC 35, 2010 S.C.C. 35, [2010] 2 S.C.R. 310 at para. 225, "While society has an interest in the adjudication of a case on its merits, sometimes …that interest will be outweighed by the protection of the most fundamental rights in the criminal justice system. The right to counsel guarantees and safeguards the effective exercise of the legal rights that ensure the fairness of our criminal process."
[137] The gravity of the state misconduct herein obliges me to address the need to preserve the long-term repute of the administration of justice by disassociating the court's processes from that misconduct, a disassociation which can only be achieved by excluding the evidentiary fruits of the state misconduct.
[138] In balancing the lines of inquiry, Grant requires that I must bear in mind the long-term and prospective effect upon the fair administration of justice, focussing less on the particular case than on the impact over time of admitting the evidence obtained by infringement of the constitutionally protected rights of the accused.
[139] In my view, the admission of the evidence obtained in this case in violation of the Applicant's Charter rights under ss. 8, 9, and 10(b) Charter would bring the administration of justice into disrepute.
Charter Ruling
[140] The Applicant's Constitutional rights guaranteed under section 8, 9, and 10(b) of the Charter were violated. More particularly,
(a) Duran failed to make the demand for the ASD in conformity with s. 254(2) of the Criminal Code, and, as a consequence thereof, the Intoxilyzer samples were taken in breach of s. 8 of the Charter;
(b) Duran did not advise Kim that he was being detained at the roadside in violation of s. 9 of the Charter (nor for that matter did he advise Kim of the reasons for his detention in violation of s. 10(a) of the Charter);
(c) Duran did not inform Kim of his right to counsel on detention at the roadside in breach of section 10(b) of the Charter; and,
(d) These breaches constituted an unacceptable interference with Kim's opportunity to be informed at the roadside of his rights and obligations under the law, and to obtain advice on how to exercise those rights and how to fulfil those obligations.
[141] I am persuaded that admitting the breath sample evidence of the Applicant in this case would bring the administration of justice into disrepute.
[142] The Intoxylyzer samples obtained by Greener will be excluded.
Trial Issue
Was Kim served with a true copy of the Certificate of Analysis such that the Crown can rely on the certificate?
[143] While my ruling on the Charter application has effectively put an end to the prosecution of this offence, I will address the issue of service in the event that I have erred in excluding the Intoxilyzer sample evidence.
[144] It is only necessary that I be satisfied, on a balance of probabilities, that the certificate given to the accused is a copy: R. v. McKinnon, supra.
[145] I am persuaded by the evidence in this trial, an examination of Exhibit "A", and the reasoning of Hill, J. in Naidu, supra that:
(1) a photocopying/exact-copy replication process - computer word processing technology - was employed by the qualified (Intoxilyzer) technician to make copies in this case,
(2) in such circumstances it is generally unnecessary to compare the original or top copy with the copy served on the accused to be satisfied that they are the same, and
(3) Duran received the copy of the Certificate given to Kim directly from Greener - the qualified Intoxilyzer technician who tested the appellant - and then (Duran) satisfied himself that a signed copy was served upon the appellant.
[146] In the result, I am satisfied on the balance of probabilities – particularly where there was no evidence to the contrary – that Kim was properly served by Duran in accordance with s. 258(7).
Judgment
[147] The evidence of the breath samples having been excluded, there is no admissible evidence of Kim's blood alcohol level at the time of driving. Accordingly, the charge is dismissed.
Date: October 27, 2014
Signed: Justice Neil L. Kozloff