R. v. Anikhovskiy
Ontario Court of Justice Old City Hall - Toronto
Between: Her Majesty the Queen And: Alexander Anikhovskiy
Counsel:
- T. DiMuzio for the Crown
- B. Brody for the Defendant
Heard: August 26 and October 9, 2014
Released: December 8, 2014
REASONS FOR JUDGEMENT
Justice Melvyn Green
A. INTRODUCTION
[1] Alexander Anikhovskiy, the defendant, was driving in downtown Toronto around midnight on January 7, 2013. He was pulled over for a rear-lights infraction. A charge under the Highway Traffic Act (HTA) followed, as did four others under the HTA for offences involving breaches of the defendant's G1 driving licence privileges. In addition, he was charged with the Criminal Code offence of operating a motor vehicle with a legally excessive blood alcohol concentration (BAC) – or, in the vernacular, the offence of "over 80". It is this latter charge that gives rise to these reasons for judgement.
[2] The defendant concedes:
- He was the driver of the car;
- He was a G1 licence holder;
- The sole passenger in the car held only a G2 licence;
- The language of the police-made demands, rights-to-counsel advisories and cautions do not attract complaint;
- The approved screening device (ASD) was in proper working order;
- His roadside arrest was reasonable;
- The approved instrument (an Intoxilyzer) was in proper working order; and
- There is no issue respecting the propriety or accuracy of the Intoxilyzer results.
What is at issue is whether the police complied with the implementational facet of s. 10(b) of the Charter, the defendant's right to counsel and, in particular, his right to counsel of choice. The defence says the police did not and that exclusion of the Intoxilyzer readings is the appropriate remedy for the constitutional breach. The burden respecting both the alleged infringement and any contingent remedy rests on the defence on the civil standard of balance of probabilities.
[3] The trial proceeded by way of a blended proceeding. The defendant did not testify. The Crown relies on the evidence of the arresting officer, DC Lemonia Paroussoudi, and, if admitted into evidence, a Certificate of Analysis recording the defendant's excessive Intoxilyzer readings of 120 and 110 milligrams of alcohol in 100 millilitres of blood at 1:13am and 1:37am, respectively. While the ultimate burden, as always, rests on the Crown on the venerable standard of proof beyond reasonable doubt, the defence concedes that a conviction on the charge of "over 80" is inevitable if its constitutional claim proves unavailing.
B. EVIDENCE
[4] The defendant was driving northbound on Spadina Avenue near Queen Street in downtown Toronto. The car's rear lights were not operating. DC Paroussoudi, who was on patrol in the area, pulled the car over at about 12:10am on January 7, 2013 to investigate the apparent HTA infraction. A woman occupied the passenger seat.
[5] The defendant tendered his G1 driver's licence. Paroussoudi smelled alcohol on his breath. When asked if he had consumed any alcoholic beverages, the defendant replied, "Yes, this morning". Paroussoudi made an ASD demand. The defendant complied. She instructed him to "blow like you are blowing out candles on a birthday cake". The defendant registered a "Fail". Paroussoudi formed reasonable grounds to believe that the defendant was operating a motor vehicle with an excessive BAC and arrested him for this offence. She read him his rights to counsel, which the defendant said he understood. She advised him that he could speak to his own lawyer or to duty counsel. Asked if he wished to talk to a lawyer now, the defendant replied, "No". Paroussoudi then advised him to just let her know if he changed his mind at any time and she'd place a call to his lawyer. She could not recall if the defendant responded. Paroussoudi also read the defendant the conventional cautions and the approved instrument demand. The defendant indicated he understood.
[6] A second officer arrived at about 12:26am to handle the tow. Paroussoudi and the defendant left the scene at 12:34am, arriving at Traffic Services at 12:42am. The officer in charge effectively repeated the defendant's right to counsel. For the first time, the defendant indicated that he wished to speak to a lawyer.
[7] The defendant told Paroussoudi of a "friend" who he thought was a lawyer. He seemed uncertain. Paroussoudi retrieved the defendant's cell phone from his jacket and wrote the number and the friend's name, "Harvey", in her notebook when the defendant located it. She stepped out of the interview room and dialed the number at 12:53am. She reached a generic voicemail message, in a male voice, advising that she had reached the dialed number and inviting her to leave a message. The recorded message did not identify a law firm or provide an alternative or referral number. To Paroussoudi, it seemed more like a personal than a business voicemail. She left a message explaining that the defendant was at Traffic Services, along with the station's front desk phone number.
[8] Paroussoudi then returned to the interview room. In direct examination, she indicated that she briefed the defendant about what had occurred and informed him that she would put him in touch with "Harvey" if he called back. At 12:55am she asked the defendant if he would like her to call duty counsel. He did. Paroussoudi immediately placed the call. Duty counsel called back at 1:03am and engaged in a private conversation with the defendant from about 1:04 to 1:08am. Paroussoudi then escorted the defendant to the breath room. The defendant did not express any dissatisfaction with his conversation with duty counsel. Paroussoudi did not recall the defendant subsequently asking about or otherwise referring to "Harvey". She never advised the defendant that he could not speak to anyone else because he had spoken to duty counsel.
[9] The defendant provided two suitable samples to the qualified breath technician who completed the Certificate of Analysis recording the defendant's excessive BAC readings.
[10] Paroussoudi agreed that the station had phone books and Internet service. She also agreed that she had concerns about whether the number she had called was associated with a lawyer. As noted, Paroussoudi first testified that she told the defendant little more than that she had left "Harvey" a message. In cross-examination, she recalled telling the defendant that she did not think the number connected to a law firm. She had no note of this and was initially uncertain of her recollection. Pressed, she became "pretty sure" she had conveyed her doubts to the defendant. As the examination proceeded, she grew increasingly certain that she had. Paroussoudi thought she might have asked the defendant if he wished to call anyone else; if so, she had no note of such inquiry and no specific recollection other than a generic "this is my practice". Had she made this inquiry, she could not recall what the defendant said in reply other than that he did not give her any alternative number to call.
[11] Paroussoudi did not provide the defendant with a copy of the Lawyers' Directory. She made no effort to reverse-search the number he had given her. She did not check the accuracy of the number she recorded. She first testified that she could not recall if the defendant asked to wait for a callback from "Harvey" before she suggested the call to duty counsel. Asked why she did not wait, Paroussoudi replied that she told the defendant he could wait or call duty counsel. She understood that the defendant had no previous contact with the criminal justice system.
C. ANALYSIS
(a) Introduction
[12] Thanks to counsels' realistic concessions, the resolution of this case is narrowly focused. Exclusion would, if ordered, prove fatal to the Crown's successful prosecution of this charge. Accordingly, and as noted earlier, a not guilty verdict effectively depends on my finding that the defendant's right to counsel (and, in particular, his right to counsel of choice) as guaranteed by s. 10(b) of the Charter was violated and that the appropriate remedy is a s. 24(2) order excluding evidence of his breath test results.
[13] The analytical framework by which to assess a claim of breach of an accused's Charter-protected right to counsel of choice is well developed in the governing jurisprudence. Counsel accept as accurate my recitation of that scaffolding as set out in R. v. Veljovic, 2012 ONCJ 336. Should I find an infringement of the defendant's s. 10(b) rights, they also agree that, with respect to the application of s. 24(2) of the Charter, the admissibility of the breath test results primarily rests on the first line of inquiry under R. v. Grant (2009), 2009 SCC 32, that pertaining to the seriousness of the state conduct.
(b) Assessing the Claim of S. 10(b) Breach
[14] As I earlier wrote in Veljovic, at paras. 22-23:
The general principles governing the right to counsel are long settled. Persons detained by the police must be informed forthwith of their right to consult a lawyer and, if they elect to do so, promptly afforded such opportunity. Detainees are both vulnerable to the exercise of the state's power and in legal jeopardy. Section 10(b) is designed, as said by the Supreme Court in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 28, to provide detainees with an "opportunity to mitigate this legal disadvantage." The provision, the Court stated at para. 27, is intended to ensure "that detainees have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations."
A detainee's right to counsel extends to his or her counsel of choice, as does the police implementational obligation to provide a reasonable opportunity to exercise such right and, as said by the Supreme Court in R. v. Bartle (1994), 92 C.C.C. (3d) 289, at [192 and] 301, "to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity". Justice Bruce Durno captures the first of these correlative duties in R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont. S.C.J.), at para. 25:
In the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee's efforts to do so: R. v. Brydges (1990), 53 C.C.C. (3d) 330 (S.C.C.). This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel's number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.
More recently, in R. v. Taylor (2014), 2014 SCC 50, 311 C.C.C. (3d) 285, at paras. 21-27, the Supreme Court strongly re-affirmed both the rationales for the right to counsel generally and the coterminous implementational obligations borne by the police.
[15] Applying these principles, I am driven to conclude that the defendant's right to counsel of choice was here infringed. There is no suggestion that the defendant was less than diligent in asserting his right to counsel or that he otherwise attempted to game the system. Further, DC Paroussoudi understood him to have had no prior interface with the criminal justice system. Accordingly, his legal disadvantage arose not only from his being in police custody and being entirely dependent on his custodians for access to the outside world (and, in particular, for independent legal advice) but, as well, for at least cursory information about his rights, their meaning and how to navigate their exercise in a terrain with which he was completely unfamiliar. Put otherwise, the defendant's naiveté only enhanced his legal vulnerability and his dependence on the police and, accordingly, Paroussoudi's burden to closely honour her 10(b) implementational duties.
[16] The defendant signaled his wish to speak to counsel when he arrived at the station. Although uncertain, he thought his "friend" Harvey was a lawyer and wanted to consult with him. No complaint can be made of Paroussoudi's initial response. Within a few minutes she had retrieved the defendant's cellphone and recorded and then dialed the number she was provided. It is what happened immediately after she reached a recorded message that raises s. 10(b) concerns.
[17] In direct examination, Paroussoudi testified only that she told the defendant she had left a voicemail message and that she would put him in touch with Harvey if he called back. In cross-examination, the officer for the first time recalled, and with growing conviction, that she had conveyed her personal doubt about whether the number connected to a law firm. She had no note of this critical exchange; nor of the possibility that she asked the defendant whether he wished to call anyone else; nor, when strenuously pressed as to why she simply did not wait, of her claim to having told the defendant he could wait for the call-back or call duty counsel. I cannot accept the Paroussoudi's evidence in this regard. None of it is reflected in her notes or her examination-in-chief. Paroussoudi, I find, tried too hard to back-fill the increasingly apparent gaps in a narrative of compliance with s. 10(b)-implementational obligations.
[18] What remains is Paroussoudi telling the defendant she left a callback number on Harvey's voicemail and, within the same minute, asking the defendant if he wished to call duty counsel, an offer he accepted. There was nothing urgent about the circumstances, yet Paroussoudi made no inquiry as to whether the defendant wished to try and contact someone else. She did not convey her doubts about whether the number he provided connected to a lawyer. She made no effort to confirm that she had recorded the number accurately. She did not endeavour to reverse-search the number. She did not place or even offer to place a second call. She did not positively inform the defendant that he had a right to a reasonable opportunity for the callback or to a further out-call, to Harvey or someone else. She could not even recall if the defendant had requested waiting for a callback from Harvey before she proposed contacting duty counsel. In short, the defendant, dependent on Paroussoudi to facilitate his access to counsel of choice, was deprived of the knowledge he required to make an informed decision whether to continue to pursue his effort to reach personal counsel or accept the public alternative.
[19] As said in R. v. Taylor, supra, at para. 33, "Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel" (emphasis in original). Those "proactive steps" were not here taken. They were replaced by a perfunctory nod to the obligations imposed by s. 10(b). "The availability of duty counsel 24 hours a day cannot", as put in R. v. Kumarasamy, supra, at para. 21, "be used to trump a detainee's right to counsel of choice". The defendant's s. 10(b) rights were infringed.
(c) The Question of Remedy
(i) Introduction
[20] At the risk of appearing more than overly self-referential, I here repeat the language I employed in Veljovic, at paras. 28-29, to describe the analytical calculus directed by the Supreme Court in R. v. Grant, supra, to determine whether the evidence of the defendant's breath test results "shall be excluded" under s. 24(2) of the Charter:
Not every infringement of an accused's constitutionally protected rights gives rise to remedy. A court is afforded a discretion to determine such redress, if any, as is "appropriate and just". Further, where, as here, the remedy sought is one of the exclusion of evidence, an accused must establish on the balance of probabilities that its admission would "in all the circumstances … bring the administration of justice into disrepute". …
Section 24(2) looks to the integrity and repute of the administration of justice in the long term. The analysis is primarily objective and the focus prospective. Three avenues of inquiry are mandated. Regard must first be had to the seriousness of the Charter-infringing state conduct. The second concern is the impact of the breach on the Charter-protected interests of the accused. The third consideration is society's interest in an adjudication of the case on its merits. These assessments must then be balanced "to determine whether, considering the circumstances, admission of the evidence would bring the administration of justice into disrepute". The test is a flexible, multi-faceted and contextual one that comprehends, as constitutionally dictated, "all the circumstances" and that weighs competing interests and values in achieving the proper balance "between the search of truth and the integrity of the trial". (See Grant, supra, at paras. 67-71, 102.)
[21] DC Paroussoudi's conduct is the focus of the first line of inquiry, the single Grant factor about which Crown and defence are in strong disagreement. With respect, I think a somewhat broader analytical aperture is required. While the gravity of the state's departure from constitutional norms is central, a nuanced assessment of not only the direction but the weight of the two other factors must also be conducted given the requisite balancing of all s. 24(2) considerations. I begin, then, with the first line of inquiry.
(ii) Seriousness of the Charter-Infringing State Conduct
[22] The concerns animating the seriousness of the Charter-infringing state conduct are addressed at para. 72 of Grant:
The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
[23] As in the case of Veljovic, supra, at para. 30, I do not find the officer's conduct "egregious, willful, nor deliberately intended to subvert the defendant's Charter rights". I do, however, find that DC Paroussoudi's efforts to comply with her constitutional obligations never transcend the cursory. She recognized that the defendant was unfamiliar with the criminal justice system. Yet, beyond the first and futile out-call she appears to have done nothing to meaningfully explain, let alone facilitate, the exercise of his right to counsel of choice. Although the s. 10(b) violation was here admittedly less flagrant than that in R. v. Taylor, supra, the Court's comments, at para. 39, have resonance in the immediate context:
The record indicates that the s. 10(b) breach was not the result of a wilful disregard for Mr. Taylor's rights. Nevertheless, [the officer's] failure to facilitate Mr. Taylor's s. 10(b) rights constituted a significant departure from the standard of conduct expected of police officers and cannot be condoned.
As in Taylor, I conclude that, "This branch of the Grant test therefore leans in favour of exclusion".
(iii) Impact of the Breach on the Accused's Charter Interests
[24] The second line of inquiry, as said in Grant, at para. 76:
… focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. … The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
[25] Assessment of the second factor thus requires examination of both the impact of the infringement on the defendant's right to counsel of choice and, as said in Grant, at para. 109, "the degree to which the search and seizure intruded upon the privacy, bodily integrity and human dignity of the accused". There is, of course, a continuum of state trespass on these protected interests. As to those engaged by the latter considerations, it is well recognized that breath tests (unlike, for example, the forcible taking of blood samples or a rectal cavity search) lies towards the less invasive end of the continuum: See Grant, at para. 111. Measured along this axis alone, the impact of the second line of inquiry, while favouring exclusion, is of relatively small impact.
[26] However, constitutional scrutiny of the force of the breach on the defendant's Charter-protected interests here extends beyond any modest invasion of his privacy and physical integrity. The infringement of the defendant's s. 10(b) right clearly compounds the impact, interfering with the exercise of his chosen mode of right to counsel and ultimately depriving him of the opportunity to make critical choices informed by partisan legal advice. It is of small if any attenuation to suggest that there was no guarantee that the defendant would ever have spoken with his counsel of choice as the opportunity to test that thesis was effectively foreclosed by the conduct of the police. In the result, I am of the view that the infringement of the defendant's constitutional rights here falls towards the more serious end of this spectrum.
(iv) Society's Interest in an Adjudication on the Merits
[27] The third inquiry "asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion": Grant, para. 79. This factor supports receipt of the impugned evidence. The results of the defendant's breath test are both reliable and essential to the prosecution. Further, societal interest in a trial on the merits in circumstances that represent a hazard to public safety is predictably high. One must not, however, lose sight of those prospective considerations that underlie the exclusionary remedy. As recently said by Abella J. on behalf of a unanimous Supreme Court in another "drinking and driving" prosecution (R. v. Taylor, supra, at para. 38):
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 R. v. Spencer, 2014 SCC 43, at para. 80, the public also has an interest "in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences".
(See, also, the Supreme Court decisions in R. v. Grant, supra, at para. 84; R. v. Collins, [1987] 1 S.C.R. 265, at 282; R. v. Greffe (1990), 55 C.C.C. (3d) 161; and R. v. Burlingham (1995), 97 C.C.C. (3d) 385.)
(v) The Balancing
[28] Balancing society's interest in a trial on the merits with the seriousness of the violation and its impact on the defendant I am of the view that exclusion, rather than admission, of the breath test results would better serve the long-term integrity of the administration of justice. Accordingly, this evidence will not be received at the defendant's trial.
D. CONCLUSION
[29] For the forgoing reasons, I conclude that exclusion of the defendant's breath test readings is the appropriate remedy for the infringement of his s. 10(b) right to counsel of choice. As the prosecution's "over 80" case is reliant on these readings, an acquittal for this offence necessarily follows. The exclusion of this evidence has no impact on four of the five HTA charges the defendant faces, and I shall address their resolution in due course.
[30] I add, if gratuitously, that the dissimilarity in result between this case and that of Veljovic, supra, is a product of a differing calibration of the ultimate balancing. Each case, of course, depends on its own facts. That banality observed, I have, here, found the state's constitutional misconduct less benign and its effect on the defendant's interests more invasive than in Veljovic. Further, the impetus for a trial on the merits is here somewhat less commanding, particularly in view of the Supreme Court's reminder in Taylor of the nuanced impact of this final branch of the s. 24(2) calculus. These distinctions, I find, are here sufficient to slide the fulcrum from admission to exclusion.
Released on December 8, 2014
Justice Melvyn Green