Ontario Court of Justice

Date: November 20, 2014

Court File No.: Brockton 315/15

Between:

HER MAJESTY THE QUEEN

— AND —

PAUL FILSINGER

Before: Justice G. F. Hearn

Heard on: May 13, 2014 and October 6, 2014

Reasons for Judgment released on: November 20, 2014

Counsel:

• B. R. Linley, for the Crown
• H. Thompson, for the defendant Paul Filsinger

HEARN J.:

BACKGROUND:

[1] This matter came on for trial on May 13, 2014 and at that time Mr. Filsinger entered a plea of not guilty to the following charge: that he on or about the 21st day of April, 2013 at Hanover, Ontario having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood did operate a motor vehicle contrary to s. 253(1)(b) of the Criminal Code. Prior to trial a Notice of Application of Constitutional Issue was filed by the defence. In that application Mr. Filsinger seeks an order excluding certain evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms as the result of an alleged breach of Mr. Filsinger's rights under s. 10(b) of the Charter. The application sets out the grounds for such an order alleging that Mr. Filsinger was not afforded a reasonable opportunity to consult with counsel of choice and any consultation with duty counsel was not requested nor satisfactory. Mr. Filsinger further alleges the investigating officer was made aware of that dissatisfaction and notwithstanding continued requests to speak with counsel of choice, such requests were not complied with.

[2] The Crown has filed a response to the application denying that any such breach took place and submitting that the police took "all reasonable steps that were open to them in implementing the applicant's right to counsel".

[3] The trial proceeded by way of a blended hearing with the Crown presenting evidence on both the application and the trial. The defence then elected to call evidence on the application. Following that evidence the defence and the Crown both made submissions. The matter was then adjourned to today's date for judgment.

OVERVIEW OF THE EVIDENCE:

(a) Evidence of the Crown:

1. Margrit Frieburger:

[4] Ms. Frieburger was an employee of a gas bar in Hanover on the day in question. She testified as to the accused attending at her location with his son in a vehicle. She described the appearance of Mr. Filsinger on that date and as a result of observations made and her concern with respect to his ability to operate a motor vehicle she placed a call to 911. This call ultimately prompted the police to attend at the location where Mr. Filsinger was situated sitting in his vehicle as described by Cst. Ellis.

2. Constable Jeremy Ellis:

[5] Constable Ellis is a member of the Hanover Police Service and was on duty on Sunday, April 21, 2013. He and another officer were dispatched to a parking lot location in the Town of Hanover at 10:35 a.m. on that morning. The dispatch was a result of a concern about a possible impaired driver that had been seen pulling into that particular parking lot.

[6] The officer arrived on scene at 10:37 a.m., noted the suspect vehicle to be parked in the lot with the accused occupying the driver's seat. The vehicle was observed to be running and the keys were in the ignition.

[7] The officer approached the vehicle and motioned for the accused to roll down his window. The accused complied and at that point the officer detected what he noted was a strong odour of stale alcohol coming from the motor vehicle. He then stated the odour was also coming from the breath of the accused.

[8] The officer had a discussion with the accused during which the accused indicated he had not consumed alcohol on that date but had consumed the night before. As a result, the officer had the necessary suspicion and at 10:39 a.m. read the roadside breath demand.

[9] Another officer arrived with the approved screening device and at 10:41 a.m. the device was tested by the officer and found to be in proper working order.

[10] At 10:43 a.m. a suitable sample of the accused's breath was provided on his third attempt. That sample registered a 'Fail', which to the officer indicated the accused had "in his system 100 milligrams of alcohol per 100 millilitres of blood or greater".

[11] The accused was arrested and at 10:49 a.m. rights to counsel were read. A breath demand was read at 10:51 a.m. There is no issue taken with the wording of either item. Upon reading the rights to counsel the accused indicated in a positive fashion that he understood those rights and when asked if he wished to call a lawyer, the accused indicated "Yes".

[12] At some point around this time a child exited the restaurant on scene. That child had apparently accompanied the accused to that location and another officer attended to that child while the accused was transported to the South Bruce detachment of the Ontario Provincial Police, some ten to 15 minutes away. He was not transported to the Hanover Police Service as a result of no qualified technicians being on duty at that service.

[13] The accused was transported to the O.P.P. detachment at 10:57 a.m., arriving at 11:08 a.m. Mr. Filsinger was placed in a cell at 11:18 a.m. and the officer testified that between the time of arrival and 11:18 a.m. he and the accused had "casual conversation about Mr. Filsinger's employment".

[14] The officer indicated the next thing he did was to contact duty counsel at 11:21 a.m. When asked if there had been discussions "about lawyers prior to phoning duty counsel", the officer indicated the accused had advised he had a lawyer named "Carol". The officer stated the accused was unsure of "Carol's" last name or phone number so he contacted duty counsel on his behalf. The officer testified in-chief that he was unfamiliar with any lawyers who had the first name of "Carol".

[15] Duty counsel returned the call at 12:03 p.m. and at 12:05 p.m. the accused was given an opportunity to speak with duty counsel. The accused was afforded privacy and at the conclusion of that call the accused was then escorted directly to the breath room at 12:10 p.m.

[16] The officer was asked by the Crown if there had been any discussions about "any additional lawyer" prior to the accused speaking with duty counsel. The officer then indicated the accused had stated he would like to speak with "Donnelly's law office". The officer was in fact familiar with that particular law firm and while the accused was speaking with duty counsel at 12:06 p.m. the officer placed a call to Mr. Donnelly's office. Upon clarification the officer indicated a discussion about "Donnelly's law office" had occurred between he and the accused while the accused was on "his way to speak with duty counsel".

[17] The officer phoned the telephone number for the Donnelly law office at 12:06 p.m. It was a Sunday, no one answered but he was directed to an extension and was connected with "a female named Brenda". Although it is not exactly clear, it appears that connection was a recorded message. Cst. Ellis testified he was unable to "capture her last name" but he did leave a detailed message himself. That message included call-back and contact particulars for the officer. The officer did not recall if the message on the machine indicated an after-hours number for the law firm. All of this took place while Mr. Filsinger was on the phone with duty counsel. The officer testified he did not receive a call back, nor was he aware if there had in fact been a call back from the law firm at any time.

[18] In any event, at 12:10 p.m. the officer noted the accused to be off the phone with duty counsel and he then escorted him immediately to the breathalyzer room. The officer was asked if there had been any complaint to him by the accused with respect to speaking to duty counsel, and the officer did not answer that question directly but stated as follows:

"I have noted that he was argumentative and that he wanted to speak with Donnelly's office. I advised him that I had contacted Donnelly's office and left a detailed message."

[19] The accused was escorted to the breath room and turned over to Cst. Cliff, the qualified intoxilyzer operator. Cst. Ellis provided the grounds to the technician and next had contact with Mr. Filsinger at 12:42 p.m. when he was advised of the readings. At 12:53 p.m. Mr. Filsinger was transported back to the Hanover police station where he was served with a Certificate of Technician and Notice of Intention. A copy of that document has been marked as Exhibit #1 in this proceeding. The certificate indicates at 12:13 p.m. the first sample registered 150 milligrams of alcohol in 100 millilitres of blood and the second sample completed at 12:39 p.m. resulted in a reading of 150 milligrams of alcohol in 100 millilitres of blood.

[20] In cross-examination the officer confirmed that upon arrival at the scene he noted Mr. Filsinger to be able to communicate properly and he seemed to understand what was being said to him. He had no difficulty conversing with Mr. Filsinger and noted few signs of impairment.

[21] With respect to rights to counsel, Mr. Filsinger later testified he had indicated from the outset that he wished to speak with a lawyer. The officer did not recall any discussion about "Carol" or Mr. Donnelly at that time. The officer also confirmed that at the detachment at 12:01 p.m. the accused had been "updated" with respect to the officer waiting for duty counsel to call back and at that time the accused had advised him to contact "Donnelly in Goderich". The officer agreed that this conversation took place some 40 minutes after the original call to duty counsel. The officer then confirmed his notes actually indicated the accused had stated he wished to contact "Mike Donnelly of Goderich".

[22] Cst. Ellis was questioned with respect to the initial conversation concerning the lawyer named "Carol". That took place at 11:21 a.m. when Mr. Filsinger had advised he had a lawyer named "Carol" but the officer noted there was an unknown last name or number. The officer was asked if it was at that point he told Mr. Filsinger that he was contacting duty counsel. The officer however does not seem to have answered that directly, but simply indicated in response, "I did contact duty counsel as a result. I wanted to put him in contact with a lawyer". He did that because he was unsure of who "Carol" was or a contact number. The officer did not recall if Mr. Filsinger advised what her last name might be or where she lived. The officer did respond to some questioning in that regard as follows:

Question: Okay. It's possible that he might have said it's Carol, she slips my last name but she works and practises out of Breslau?

Answer: It's possible. I don't recall.

[23] The officer confirmed he was not familiar with the website where he could find contact information for lawyers, although at the Hanover police station did have a book with numbers in it. He further confirmed he contacted Mike Donnelly's office at Mr. Filsinger's request but took no steps to contact Mr. Donnelly at his home as he was unsure of where Mr. Donnelly resided.

[24] Prior to speaking with duty counsel the officer could not recall if he had indicated to the accused that duty counsel was available or if he had asked if he wished to wait for him to place the call to Mr. Donnelly. The officer's response to that was, "I don't recall. I just put him into contact with duty counsel." The officer also confirmed in cross-examination that immediately upon completing the call with duty counsel the accused was escorted directly to the breath room. The following exchange then took place with counsel:

Question: Okay, and at that point Mr. Filsinger was expressing some dissatisfaction with right to counsel? Is that fair to say?

Answer: Uh, yes. He was argumentative, wanting to speak with Donnelly's office. I advised him that they were contacted and a message was left.

Question: Okay, but you indicated you weren't going to wait for any call back, right?

Answer: I don't recall indicating that.

Question: Okay. Did you say to him, well we can wait a few minutes or….

Answer: My understanding was he spoke with legal representation. I was unsure of when Mr. Donnelly's office would contact us.

[25] The officer stated as well he believed the accused was trying to "stall by pacing slightly". He was, however, unsure if the accused was "happy or not" with the conversation he had had with duty counsel. The officer's position was that Mr. Filsinger had spoken with duty counsel and was unsure if the lawyer was working Sunday or if he would call back. The officer also stated he was not "overly concerned of a time constraint" in dealing with Mr. Filsinger.

[26] At this point in the cross-examination a portion of a video was played for the officer. That video commenced while Mr. Filsinger was being escorted to the breath room on the day in question. The video had to be replayed a number of times but clearly there was some conversation taking place between Mr. Filsinger and the officer as the officer escorted Mr. Filsinger to the breath room. The conversation is somewhat distorted on the video but both counsel and the officer agreed that during the course of that conversation there appears to be some mention of the word "Carol" as well as "legal aid". The officer could not recall specifics of the conversation but did confirm that although it is somewhat unclear, the conversation with Mr. Filsinger included those particular words. The officer believed there had also been a mention of a message being left at Donnelly's office.

[27] Finally, in cross-examination the officer was asked if the accused had requested the call to duty counsel and he responded as follows:

Answer: He indicated that he wished to speak to a lawyer. I couldn't provide you with Carol's information so I was obliged I thought to contact duty counsel for him on his behalf.

Question: Okay, as what, like, a fallback in case he couldn't get or remember Carol's name or….

Answer: Well he requested to speak with a lawyer when he was read his rights to counsel.

[28] That concluded the evidence of Cst. Ellis.

3. Constable Jennifer Cliff:

[29] Constable Cliff is the qualified intoxilyzer technician who was involved with Mr. Filsinger in the taking of samples on the date in question. The Certificate of Analysis has been filed and there is no issue taken with respect to the wording of the certificate, nor the qualifications of the officer.

[30] During the course of this officer's evidence the videotape was played showing the interaction in the breath room between this officer and Mr. Filsinger. That DVD has been marked as Exhibit #2 in this proceeding.

[31] Relevant to the Charter issue, this officer testified she had asked Mr. Filsinger if he had had an opportunity to speak to counsel and his response was, "Yes". There was no further discussion with respect to the nature or quality of that advice nor were any complaints lodged during the course of the video by Mr. Filsinger with regard to the issue of right to counsel.

[32] This officer testified as to the workup of the machine and the delay occasioned as a result of Mr. Filsinger exercising his right to speak to a "lawyer". Constable Cliff had arranged for the transfer of the call to duty counsel and was aware that discussion was taking place prior to her actual involvement with Mr. Filsinger.

[33] Ultimately, this officer's evidence is not in dispute with respect to timing and the operation of the machine and it seems this witness was called by the Crown simply to show what appears to be an absence of any concern expressed by Mr. Filsinger with respect to his discussion with duty counsel or otherwise concerning counsel.

(b) Evidence of the Defence:

1. Paul Filsinger:

[34] Mr. Filsinger is 55 years of age and has apparently spent most of his working life on the family farm, although the farm has now been sold. He is currently employed in the farming industry elsewhere.

[35] He testified that on April 21, 2013 he had driven to the A & W location in Hanover with his 14 year old son. He acknowledges being approached by Cst. Ellis and ultimately providing a breath sample into an approved screening device which registered a 'Fail'.

[36] He was thereafter arrested and read his rights to counsel. Mr. Filsinger indicated at that time he provided the names of both Carol Fitzgibbons and Michael Donnelly as counsel he wished to contact. He was adamant he had provided a last name for "Carol" to the officer and also indicated to the officer that Mr. Donnelly was in Goderich and Ms. Fitzgibbons was in Breslau. Mr. Filsinger's evidence is that he provided the names of both counsel, both at the parking lot and while being escorted to the breath room.

[37] Mr. Filsinger then gave a good deal of evidence with respect to his knowledge of Ms. Fitzgibbons. She had been the family lawyer for a number of years and had acted for Mr. Filsinger on a family court matter relating to "back support". The lawyer had also helped with respect to the certification of organic growth on the family farm. Further he had been to her home in Breslau which was a farm and on which he had done some chores. All of this evidence was to indicate to the court that Mr. Filsinger had rather extensive involvement with Ms. Fitzgibbons and would have been unlikely to not recall where she lived or practised or her last name as suggested by the officer.

[38] Mr. Filsinger in-chief testified he had never asked Cst. Ellis to contact duty counsel and when he did ultimately speak with duty counsel he could not understand him. He was in the room talking with duty counsel for a very short period of time and within a minute was then escorted to the breathalyzer room.

[39] He was questioned on the video of the escort which had been seen earlier during Cst. Ellis's evidence and advised that he was telling the officer at the time he could not understand duty counsel and he continued his request to speak to "Carol". Notwithstanding that conversation, he was within a minute after speaking with duty counsel presented to the breath technician.

[40] Mr. Filsinger also testified that very recent to the giving of his evidence he had checked on line the site for the Law Society of Upper Canada and had been able to find Ms. Fitzgibbons's telephone number and address in Breslau.

[41] In cross-examination Mr. Filsinger acknowledged he had consumed alcohol the night before his arrest but his last drink had been around midnight. He denied drinking on the day of his arrest or while driving the vehicle. He confirmed again he could not understand duty counsel as the duty counsel had "quite an accent", although he seems to have understood some of the advice that had been given, particularly as it related to not answering questions.

[42] The witness testified consistently he had provided both names for "Carol" and had indicated to the officer she was from Breslau. The officer seemed to have ignored that and contacted duty counsel. The officer had indicated to him he had tried to phone Mr. Donnelly and the accused had asked what about "Carol", at which time the officer had stated he could not find her number. All of this conversation took place apparently on the way to the breath room.

2. Roy Bargie:

[43] This witness was called by the defence simply to confirm he had known the accused for a number of years and was also aware of Carol Fitzgibbons. The witness believed that she was a lawyer and had met her at Mr. Filsinger's farm "at least two times quite a while ago".

ISSUE TO BE DETERMINED:

[44] The defence has called evidence on the application and has elected not to call evidence with respect to trial issues should the application fail. This matter then is to be ultimately determined on the basis of the decision as to whether or not Mr. Filsinger's rights to retain and instruct counsel afforded him pursuant to s. 10(b) of the Charter have been breached and, if so, whether the evidence obtained thereafter, and specifically the results of the breath tests, should be excluded pursuant to s. 24(2) of the Charter.

[45] As a result of the evidence heard then the court must determine if the applicant has met the necessary onus and established:

1. Whether or not Mr. Filsinger was provided with his proper rights to counsel at the scene and thereafter whether or not he was afforded an opportunity to implement his right to counsel of choice.

2. If in fact an appropriate right to counsel was provided to Mr. Filsinger, did the police officer take all reasonable steps to ensure that Mr. Filsinger's right to consult was with his counsel of choice.

3. If counsel of choice was not available and/or Mr. Filsinger did not act diligently with respect to contacting counsel of choice, was in fact his opportunity to consult with duty counsel appropriate and reasonable in the circumstances.

4. If in fact there is a breach of s. 10(b), should the evidence, specifically the results of the breath tests be thereafter excluded pursuant to a proper analysis under s. 24(2).

ANALYSIS OF LAW AND THE FACTS:

[46] Section 10(b) of the Charter states as follows:

"Everyone has the right on arrest or detention,

(b) to retain and instruct counsel without delay and to be informed of that right".

[47] As set out in Regina v. Bartle, (1994) 92 C.C.C. (3d) 289, S.C.C. by Justice Lamer, there are three duties imposed on the police upon arresting or detaining an accused:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise his right to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and,

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[48] Once an accused has contacted counsel, the police may question the accused as an informed detainee and the accused has the right to choose between exercising his or her rights to silence under s. 7 of the Charter, or, in fact engaging and speaking with the police. (See Regina v. Hebert, 1992 S.C.R. 151 at page 184.)

[49] The first duty is an informational one, that is, that the police must provide certain information with respect to the exercising of right to counsel to an accused. The next two duties are implementational duties and are triggered once an accused indicates a desire to exercise his or her right to counsel.

[50] What constitutes a reasonable opportunity to retain and instruct counsel or reasonable diligence in contacting counsel depends on the circumstances of an individual case. The right to counsel is not an absolute right and unless an accused when exercising that right is reasonably diligent in doing so the duty imposed on the police to provide a reasonable opportunity and refrain from eliciting evidence does not arise at all or will be suspended.

[51] There are two components that must be complied with, the informational component and the implementation component. In Regina v. Blacket, [2006] O.J. No. 2999, the test to be applied in determining if there has been a s. 10(b) violation was set out as follows:

(1) Did the police fulfill their duty to act diligently in facilitating the rights of the accused to consult with counsel of choice? If so, then there is no 10(b) breach.

(2) If the police did not fulfill their duty then there are two possibilities:

i) if the police breach their duty because they took no step to facilitate the right to counsel then the breach is established;

ii) if the police breached their duty because they have made some effort but it is found not to constitute reasonable diligence the trial judge must decide whether the accused failed in his or her duty to act diligently to exercise the right to counsel. If the answer is yes, then there is a 10(b) breach made out. If no, then this trumps the breach of duty by the police and there is no breach of s. 10(b); and,

iii) if there is a breach established then s. 24(2) will come into play and the areas of concern set out in Regina v. Grant will be balanced.

[52] With respect to the onus of proof where an individual such as Mr. Filsinger alleges that a right under s. 10(b) guaranteed by the Charter has been violated the onus is on that party to prove the violation complained of on a balance of probabilities.

[53] The burden of proof then lies initially with Mr. Filsinger on the balance of probabilities which is the degree of proof required of civil actions. The standard of balance of probabilities also has been referred to as "a proof on a preponderance of probabilities" or "a proof on a preponderance of evidence". This onus is different than the onus resting on the crown to prove the guilt of an accused beyond a reasonable doubt which has been acknowledged in numerous cases to be a higher standard.

[54] Relevant to the issues to be determined is whether or not Mr. Filsinger was given a reasonable opportunity to consult with counsel of choice. Subsumed in that particular issue is whether or not the police acted diligently in facilitating the right of Mr. Filsinger to consult with his counsel of choice.

[55] In dealing with this issue in the circumstances here the availability of counsel of choice and the availability of duty counsel who was in fact consulted by Mr. Filsinger are also matters to consider.

[56] The availability of duty counsel cannot be used by the police as an excuse to ignore requests by the accused to speak with counsel of choice. Further, even if the accused does not ask to speak with a particular counsel until after speaking with duty counsel, they have the right to have the police facilitate that contact provided they are honestly attempting to obtain legal advice. (See Regina v. Kumarasamy, [2002] O.J. No. 303).

[57] The issue to be determined is not whether the police could have done more in the circumstances, but rather whether what they did was reasonable. (See Regina v. Pickard, [2006] O.J. No. 4123).

[58] The issue of right to counsel was discussed most recently in Regina v. Taylor, July 18, 2014, a decision of the Supreme Court of Canada where the court reaffirmed again the responsibilities of the police and the fact that to give effect to the right to counsel the police must inform the detainees of their s. 10(b) rights and facilitate access to those rights where requested, both without delay. Until the requested access to counsel is provided, it is uncontroversial that there is an obligation on the police to refrain from taking further investigative steps to elicit evidence.

[59] The majority of the evidence on this trial which dealt with the application of the accused for relief under the Charter was provided primarily by Mr. Filsinger and Cst. Ellis. Cst. Cliff's evidence does really very little to assist the court in the determination of the application although the court appreciates her evidence that Mr. Filsinger at no time expressed any concern about the quality of the legal advice he had received and acknowledged to that constable that he had exercised his rights to counsel. The issues of credibility and more appropriately reliability then of both the evidence of Mr. Filsinger and Cst. Ellis is an issue to be determined to some extent. There is however also some corroboration of Mr. Filsinger's evidence I find ultimately in the form of the video and as well to some extent in the evidence of Cst. Ellis himself.

[60] I should state initially that I found the evidence of both Mr. Filsinger and Cst. Ellis to have been given in a candid and forthright manner. The officer and the accused were responsive to the questions asked and both were consistent in their evidence in-chief and in cross-examination. Cst. Ellis very candid and forthright in answering questions put to him by both counsel particularly when he stated that in certain situations he did not recall the evidence and in others seemed to be open to the suggestions put to him by defence counsel.

[61] It is open to the court to accept some, none or all of the evidence given by any particular witness. It is quite evident here that the main area of conflict in the evidence of the officer and the accused relates to whether or not sufficient information was provided by Mr. Filsinger to the officer to enable him to contact "Carol" or at least enable him to make inquiries from any resource he might have to determine the ability to do so.

[62] Mr. Filsinger is quite clear in his evidence that he mentioned not only Carol Fitzgibbons, but also Michael Donnelly at the scene after having been read his rights to counsel. The officer has no recollection of that. The officer does recall conversations however with respect to "Carol" prior to the call to duty counsel. Although the officer did not testify that Mr. Filsinger had provided a surname, nor a means of contact, the officer did leave it open somewhat when he acknowledged that there may have been mention of "Breslau" at some point in time. Mr. Filsinger of course goes through a considerable exercise when being questioned by his own counsel to indicate he has full particulars of Carol Fitzgibbons' name and circumstances and would not have failed to recall those on the night in question. Mr. Filsinger when he gave his evidence although also in a straightforward manner did appear somewhat nervous and he strikes the court as an individual who might be nervous on occasions when confronted with situations such as that before the court. I accept the officer's evidence that the surname of "Carol" and particulars of contact other than perhaps a mention of Breslau were not provided by Mr. Filsinger as he states in his evidence. That is not to say I find Mr. Filsinger is purposely misleading the court and I suspect his nervousness manifested itself somewhat with the officer when he was arrested. His recollection I find is not accurate with respect to what actually he told the officer about "Carol" although I find he mentioned her first name and possibly "Breslau". I find otherwise his recollection is clouded with respect to this particular issue and I perceive his memory has been somewhat affected by perhaps nervousness, the stress of the situation otherwise and somewhat from the events of the night before.

[63] I also find that if the officer had the information as suggested by Mr. Filsinger in such detail during the course of his examination in-chief the officer would in fact have followed up on that. That would be consistent with the approach the officer took with respect to the Donnelly law office and his efforts to contact that office once the information had been provided by Mr. Filsinger.

[64] However, although I accept the evidence of the officer with respect to the particulars or more appropriately the lack of particulars with respect to "Carol" that is not the end of the matter. I still find ultimately that there has been a breach of Mr. Filsinger's s. 10(b) rights for the following reasons:

1. Both the officer and Mr. Filsinger agree that Mr. Filsinger not only mentioned the name of "Carol", but also the name of the Donnelly law office and more particularly Michael Donnelly. Mr. Filsinger says he told the officers that and the officer acknowledges he was told that and as shown by his efforts to contact and ultimately contact the answering service or machine at the Donnelly office on that particular Sunday.

2. He left a message and a method of contact. Clearly the officer was attempting to afford Mr. Filsinger an opportunity to instruct the counsel of his choice when he made that call.

3. Also clearly the officer contemplated there was a possibility the call might be returned given the fact that he left contact information. The officer's evidence as to what was on the message he heard is absent, but whatever the message was it prompted him to leave information to enable Mr. Donnelly or someone from his office to contact Mr. Filsinger on that date.

4. When Cst. Ellis placed the call to Mr. Donnelly is perhaps unique to the particular circumstances before the court since it appears the efforts to contact counsel of choice at that time were made while Mr. Filsinger was talking with duty counsel. There is no evidence to support a finding that Mr. Filsinger requested duty counsel be called and indeed Mr. Filsinger says he did not and the officer cannot recall how that call came to be. It would seem then the court is left in the position of that call to duty counsel having been made by the officer on behalf of Mr. Filsinger whose consent or request was absent and was a call placed on the officer's own initiative.

5. So even if Mr. Filsinger did not provide particulars of contact with "Carol" and the officer did not make specific inquiries to try to determine further information about "Carol". I find that the officer had placed the call to duty counsel without a request from Mr. Filsinger or his input. It is also clear that while Mr. Filsinger was speaking with duty counsel, the officer placed a call to counsel of choice yet after Mr. Filsinger was finished with duty counsel the officer did not wait any period of time for Mr. Donnelly's office to return the call.

The Crown argues that there was no obligation on the officer to wait for any specific period of time and various courts seem to have different views on how long an officer should wait for the call to be returned by counsel of choice. However, that is not really even an issue here because it is clear on the evidence that Cst. Ellis waited no time at all as Mr. Filsinger was taken directly from the room where he had consulted duty counsel to the breath room and turned over to Cst. Cliff.

6. Mr. Filsinger's evidence which I accept and which is confirmed somewhat by the interaction disclosed on the video that the court viewed is that his contact with duty counsel was not satisfactory as he could not understand duty counsel. He was still maintaining his right to call counsel of his choice while being escorted by the officer to the breath room. That exchange although neither the court nor counsel could make out all of the words clearly included words to the effect of "legal aid" and the word "Carol". The officer has no recollection of any further specifics of that conversation and I am prepared to find on a balance of probabilities that what took place between the interview room and the breath room was that Mr. Filsinger had indicated to the officer he was not happy with the contact with duty counsel because of language difficulties and was maintaining his position that he wished to speak to counsel of choice as he testified to.

[65] In my view the officer should have either not have called Mr. Donnelly at all and simply processed Mr. Filsinger relying on the failure of Mr. Filsinger to provide particulars of contact with "Carol" and relying as well as on Mr. Filsinger's consultation with duty counsel.

[66] However, I find then that:

1. Details of Carol were not provided nor is there evidence of any efforts made by the officer to find out those particulars.

2. Duty counsel was called not at the request of Mr. Filsinger, but on the officer's own initiative.

3. That while being escorted to talk with duty counsel Mr. Filsinger provided the name of Michael Donnelly and the officer followed up by placing a call to that law office leaving a message with contact particulars all while Mr. Filsinger was speaking to duty counsel.

4. The call to duty counsel was short and I am satisfied that given Mr. Filsinger's evidence as well as after having observed the video there was a conversation between the officer and Mr. Filsinger during which Mr. Filsinger expressed dissatisfaction with duty counsel or "legal aid" and continued to maintain a request to speak with counsel of choice.

5. Cst. Ellis himself confirms there was some conversation with respect to legal aid and "Carol" during the transport to the breath room and I find that Cst. Ellis had an obligation to hold off any further questioning or involvement with Mr. Filsinger until the right to counsel had been fully exercised. Mr. Filsinger acted diligently and the officer as well complied with the request to call Mr. Donnelly, but simply did not wait for Mr. Donnelly to return the call. The officer clearly and candidly acknowledges time was not a concern to him and one wonders why he would have made the call to the Donnelly law office when he had no intention of waiting any period of time for the call to be returned.

[67] Mr. Filsinger's right to counsel was violated. He did not have an opportunity to speak with counsel of his choice and the fact that he expressed dissatisfaction with the contact with duty counsel simply confirms his position which I accept that he was wishing to speak to "Carol" or to Michael Donnelly. The officer should have waited a period of time and he waited none at all. How long that time should be is an academic question and it is unnecessary to consider here as there was no wait. In my view any period required for the officer to wait would depend on the message that was heard by the officer, the message that was left by the officer, the time of day and perhaps other relevant circumstances none of which are present in the evidence of the officer.

[68] If Cst. Ellis assumed that Mr. Donnelly would not be available on a Sunday then one wonders why:

(a) he would make the call at all;

(b) leave a detailed message with contact information; and

(c) make that call while Mr. Filsinger was speaking to duty counsel and before any dissatisfaction had been expressed.

[69] Once dissatisfaction was expressed Cst. Ellis in my view had an obligation to wait a period of time for Mr. Donnelly to return the call or alternatively have other duty counsel contacted if so requested by Mr. Filsinger.

[70] I find that there was in fact a breach of Mr. Filsinger's s. 10(b) rights and as a result it is now necessary to consider the remedy, if any, that is available in analysis under s. 24(2) of the Charter.

ANALYSIS UNDER s. 24(2):

[71] The issue of exclusion requires the court to consider the assessment and balancing of the factors set out in Regina v. Grant 2009 SCC 32, [2009] S.C.J. 32 where the court stated at paragraph 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 that the justice system condones serious state misconduct);

2. the impact of the breach of the Charter interests on 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."

[72] At the first stage then, the court must consider the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to Charter violation, the greater the need for the court to dissociate itself from that conduct by excluding evidence linked to that conduct in order to preserve public confidence in an ensured state adherence to the rule of law.

[73] The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on those interests the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

[74] At the third stage the court asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown's case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the courts in each case.

[75] The phrase "bring the administration of justice into disrepute" is set out in s. 24(2). It means an understanding in the long term sense of maintaining the integrity and public confidence in the justice system. While exclusion of evidence resulting in an acquittal may provoke immediate criticism, s. 24(2) does not focus on an immediate reaction to the individual case, but rather it looks at whether the whole overall repute of the justice system viewed in the long term will be adversely affected by the admission of evidence. The inquiry is an objective one and 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. The s. 24(2) focus then is not only long term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice and s. 24(2) starts with that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Section 24(2) is not aimed at punishing the police by providing compensation to the accused, but rather at systemic concerns.

[76] Grant then sets out a flexible multi-factored approach to the admissibility of bodily evidence as required under s. 24(2) due to the wide variation and its kinds. The first step involves the consideration of the police conduct and the reasons for it. The second line of inquiry requires the court to consider the degree to which the violation intruded upon the privacy, bodily integrity and human dignity of the accused and the third line of inquiry generally supports admission because bodily evidence is usually reliable.

[77] In general, where an intrusion is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded notwithstanding its relevance and reliability. On the other hand, as noted in Grant itself where the violation is less egregious and the intrusion on privacy, bodily integrity and dignity is less severe, bodily evidence may be admitted. In Grant, it was specifically indicated that this would usually be the case with the breath sample evidence where the method of collection is relatively unintrusive.

a) THE SERIOUSNESS OF THE CHARTER INFRINGING STATE CONDUCT:

[78] Here, after considering all of the evidence it is clear in my view that the breach of Mr. Filsinger's s. 10(b) rights was both unnecessary and clearly avoidable. Although Cst. Ellis seems to have understood his obligation with respect to the implementation of the request for right to counsel I find he acted inappropriately and was somewhat reckless, although perhaps trying to be careful and thorough. His evidence is unclear as to what efforts he made to obtain further details of "Carol" or ascertain her whereabouts notwithstanding that he seems to have recalled some discussion about "Breslau".

[79] More importantly he appears to have assumed Mr. Filsinger would be satisfied with duty counsel and apparently made the decision to call duty counsel without consultation with Mr. Filsinger. Further, even while that contact had been arranged and was about to be implemented, he continued to receive information from Mr. Filsinger about counsel of choice and he indeed called Donnelly's office to attempt to make contact with that office while Mr. Filsinger was speaking with duty counsel. As noted previously, he listened to a message the wording of which is unknown, but it certainly prompted him to leave contact information as he stated in his evidence. Notwithstanding that, Mr. Filsinger was effectively paraded from the room where the call to duty counsel had been made immediately upon that call ceasing directly to the breath room without any effort on the part of the officer to wait for any reasonable period of time for Mr. Donnelly to return the call. Perhaps one could reasonable state that not only was the wait unreasonable, it effectively was non-existent.

[80] Again it escapes the court to understand why the officer would make the call to Donnelly's office at all in the circumstances as he described it. The matter is further compounded by the officer's failure to recollect the conversation that took place between he and Mr. Filsinger while Mr. Filsinger was being escorted to the breath room. The video provided clearly indicates there was some discussion about "legal aid" and "Carol" and I am satisfied that discussion included an indication to the officer that the contact with duty counsel had not been satisfactory as testified to by Mr. Filsinger. This would have, in my view, further prompted the officer to wait for Mr. Donnelly to return his call or seek particulars of other counsel to be contacted. The timing according to the officer was not a problem and although the officer indicates Mr. Filsinger was argumentative and stalling, the details of the stalling are minimal and the "argumentative" nature of the contact with Mr. Filsinger I find was likely prompted given the video by his dissatisfaction with duty counsel and his inability to speak with counsel of choice.

[81] I find that the conduct of the police was not inadvertent or minor in nature and in the circumstances of this particular case the conduct is serious and represents a disregard for the exercise of right to counsel. That conduct effectively pays only lip service to the obligation of the police when implementing contact with counsel as requested by Mr. Filsinger. There is nothing in the evidence to indicate Mr. Filsinger was playing games. He was clear in his request at least to talk to Donnelly's office. The address and telephone number were known to the officer or were ascertained without a lot of effort and the exercise the officer went through with respect to the Donnelly office was incomplete and perfunctory. Analysis under this heading favours the exclusion of the breath tests.

b) IMPACT OF THE BREACH ON MR. FILSINGER'S CHARTER PROTECTED INTERESTS:

[82] Mr. Filsinger ultimately provided breath samples. They involved an intrusion on his privacy, bodily integrity and dignity and although taking the breath samples may have been relatively unobtrusive they still represent an intrusion on Mr. Filsinger's privacy and human dignity. He was processed and although he was permitted to speak with duty counsel to obtain legal advice that opportunity was short lived and unproductive. Mr. Filsinger at the very least indicated to Cst. Ellis that he wished to speak to counsel of choice, ie. Mr. Donnelly or "Carol". A call was placed to Donnelly's office, no appropriate time is waited for a return call. Mr. Filsinger was directed to the breath room with no apparent regard for his concerns about the quality of advice he had received from duty counsel and without any concern on the part of the officer that he should wait some period of time for Mr. Donnelly to return the call that he had placed himself. I find the impact in the circumstances was significant and Mr. Filsinger was not afforded a reasonable opportunity to consult with counsel notwithstanding a bona fide wish to do so. This inquiry also favours exclusion of the breath tests.

c) SOCIETY'S INTEREST IN AN ADJUDICATION OF THE CASE ON ITS MERITS:

[83] Here the samples are reliable and there is no issue taken with respect to such reliability. They are relevant and without the samples the Crown's case will fail. The third line of inquiry argues in favor the breath samples as evidence at trial.

[84] In Regina v. Taylor (2014) S.C.C. 50 the Supreme Court revisited the admissibility of breath tests following the breach of an accused's Charter rights and in particular his s. 10(b) rights to counsel. Justice Abella, on behalf of the court noted at paragraph 38 as follows:

"It goes without saying that the public has an interest in an adjudication of the merits of a case where, as here, the evidence sought to be excluded is reliable and key to the case. But as this court has consistently said most recently in Regina v. Spencer (2014) S.C.C. 43 at paragraph 80, the public also has an interest in ensuring that the justice system remains above reproach in its treatment of those charged with serious offences."

[85] Considering all of the factors and balancing those factors I find in this case the admission of the test results into evidence would bring the administration of justice into disrepute particularly in light of the conduct of the officer. The failure to respond to what I find was Mr. Filsinger's indication that the call to duty counsel was unsatisfactory and the failure to wait for a reasonable period of time for a return call from Mr. Donnelly's office placed by the officer during that period of time are matters of concern to the court.

[86] Here the BAC readings were not excessive although not minimal. There was no issue of the driving conduct that amounted to impaired operation by alcohol of the motor vehicle. There is no accident and the signs of impairment appear to be relatively minimal. There is in fact no charge of impaired operation before the court. Although the officer may have acted in what he thought was good faith, there was at least indifference on his part in enabling Mr. Filsinger to exercise his right to counsel of choice.

[87] In Grant itself the court notes that it is long term, prospective and societal interests that inform the ultimately assessment under s. 24(2). I find here that the seriousness of the breach and the impact of the conduct on Mr. Filsinger are such that the admission of the evidence would impact public confidence in the administration of justice so as to warrant exclusion of the evidence. The evidence of the Intoxilyzer tests are therefore excluded. As the Crown's case rises or falls on this particular decision, the Crown is therefore not in a position to prove the essential elements of the charge before the court beyond a reasonable doubt and as a result Mr. Filsinger will be found not guilty.

Released: November 20, 2014

Signed: "Justice G. F. Hearn"