Judgment on Charter of Rights Applications

Ontario Court of Justice

Between: Her Majesty the Queen — and — David Delaney

Before: Justice Peter Harris

Date: February 14, 2014

Counsel:

• Ms. J. Bruno for the Crown
• Mr. J. Shime for the Defence

Harris, J.:

Introduction

[1] David Delaney was charged with "impaired operation" and "excess alcohol" on the 6th day of December, 2012.

[2] The defendant applies under sections 8, 10(b) and 24(2) of the Charter for the exclusion of the breath sample evidence on the basis that police demanded and obtained samples of the Applicant's breath into an A.S.D. and later an Intoxilyzer, in violation of his s.8 and 10(b) rights.

The Facts

[3] On December 6, 2012, P.C. Seth Reitkoetter was dispatched to the scene of a collision between a pedestrian and a vehicle at Dundas St. West and Palmerston Boulevard in Toronto. The officer was directed to the driver of the vehicle by witnesses. They described the driver as chewing gum vigorously. He asked him to spit it out because, in his experience, "people use gum to mask the smell of alcohol". The officer stated that when he spoke to the driver, he turned his face away – which he believed was another concealment technique. The officer asked the driver to shut off his vehicle and gave evidence that while he spoke to him through the open driver's window, there was an odour of alcohol coming from his breath.

[4] P.C. Reitkoetter testified he formed the opinion there was alcohol in the driver's body which was the basis for making the A.S.D. demand. The grounds for the opinion were: (1) the smell of alcohol on the driver's breath; (2) the fact he was casual and nonchalant in spite of what was a personal injury accident; and (3) the fact he collided with a pedestrian in a lighted area of the road where the pavement was dry. Under cross-examination, P.C. Reitkoetter agreed that his notebook entry reference to "grounds" was the following: "I formed a reasonable suspicion he has been consuming alcohol".

[5] In addition to the foregoing, the in-car video of the officer's interactions with Mr. Delaney offers a glimpse of the "suspect" who can be observed to be looking detached and unresponsive at times.

[6] Following the A.S.D. demand, the use of the roadside instrument and an "F" reading, a demand was made for breath samples and rights to counsel provided. Initially, Mr. Delaney made no response to the usual questions about counsel but prior to arriving at 14 Division he had advised that he wished to consult a lawyer and at the Division he advised he wanted to speak to a lawyer named J.B. Piekes. The officer proceeded to make an online search of the name and determined that the lawyer requested was an estate lawyer. He gave evidence that he advised Mr. Delaney that the lawyer he had chosen was not a criminal lawyer and asked "how he would like to proceed with contacting counsel". The defendant indicated that he wished to call Mr. Piekes and the officer stated he called the number listed on the website and left a call back message at 1:45 a.m. He then called the emergency number which was not answered. He did not have any notes as to whether he left a message on the emergency line. At 1:48 he advised Mr. Delaney there was no answer at either number and that he had left a voicemail. The officer then asked if he wished to speak to any other counsel "and the indication was that he did not". He stated he again asked, "You do not wish to talk any other lawyer?" – to which the defendant indicated that was "Correct". No return call was received from Mr. Piekes by the time the officer reported off duty at 7:00 a.m.

[7] At 2:00 a.m. the defendant was taken into the breath room and at 2:08 the first breath test was completed. P.C. Reitkoetter testified that after the first breath test he again offered the defendant the opportunity to speak with a "lawyer or someone else" to which there was no response, after which "he fell asleep immediately". Under cross-examination P.C. Reitkoetter agreed that he waited 14 minutes between 1:46 and 2:00 a.m. for counsel to return the call before ushering Mr. Delaney into the breath technician's office. He also agreed that he was not aware of the Prosper obligation to hold off from trying to obtain incriminating evidence while an accused person is waiting for an opportunity to contact counsel. As well the officer agreed that he had not given Mr. Delaney the "Prosper caution" – in other words informed him that the police have the obligation to give him a reasonable opportunity to speak with counsel of choice and they should hold off eliciting evidence until such time as "you have an opportunity to consult with your counsel". P.C. Reitkoetter gave evidence that he did not know "that legal privilege".

Analysis: Reasonable Suspicion

[8] The section 8 issue can be described as: did the arresting officer apply the correct test for the ASD demand and was there sufficient evidence to meet the test?

[9] The requisite screening device test and constitutional precondition for a lawful search under s.8 of the Charter is - did the officer reasonably suspect that the operator of a motor vehicle had alcohol in his body? The Charter provides that the officer must have this subjective belief and there must be objective evidence to support that conclusion: R. v. Storrey. Mr. Shime has argued that the smell of alcohol coming from the driver's breath is objectively insufficient and non-compliant with the statutory test in section 254(2). Respectfully, I disagree. In R. v. Lindsay, the Court of Appeal held that the smell of alcohol alone coming from a driver's breath is sufficient grounds for a screening test (see also R. v. Zarokovic).

[10] As to the officer's subjective belief, even if I accept the defence premise that the most reliable indication of the officer's subjective grounds was found in his notebook: "I formed the reasonable suspicion he has been consuming alcohol," – that still amounts to a reasonable suspicion that Mr. Delaney had alcohol in his body, for the following reasons:

(1) The perceptual juxtaposition of the smell of alcohol on the breath and the reasonable suspicion of consuming alcohol logically amounts to a reasonable suspicion of alcohol in the body; I cannot imagine how one could consume alcohol without it somehow entering the body.

(2) The words "reasonable suspicion" of alcohol in the body" are not some magical incantation or formula that must be uttered precisely by the witness: R. v. Harris at paragraph 45; R. v. Stauch; R. v. Gibbons.

(3) The cases referred to by the defence are distinguishable on the facts. In R. v. Dignum, the Court held that the evidence that the officer formed a suspicion that the defendant, "Was impaired by alcohol" even though he observed no signs of impairment prior to taking the roadside screening demand, amounted to employing the wrong statutory test in the absence of any evidence. In R. v. Fetterley, the Court found that the officer's reasonable suspicion the accused "had been consuming alcohol" was inadequate because the officer did not say he suspected there was alcohol in his body at the time the driver was operating a motor vehicle. This result would likely have been overturned on appeal in Ontario. This really was a "failure to say the magic words" conclusion particularly where an accused said his last drink was "one-half hour ago". As well, there was an exclusion of evidence in this case without any s. 24(2) analysis.

(4) Finally, the law in Ontario is that the officer's subjective belief does not have to be anything more than a suspicion a driver has alcohol in his body: R. v. MacPerson; R. v. Swietorzecki. All of the circumstances outlined by the arresting officer would at least constitute a sincerely held subjective opinion amounting to a suspicion of alcohol in the defendant's body even if gum chewing, the turning away of the face and the collision might not objectively amount to a reasonable suspicion.

[11] Consequently, I have concluded that the arresting officer in the instant case applied phraseology that was sufficiently close to the correct test and that from a subjective and objective point of view there was sufficient evidence to meet that test.

Analysis: Section 10(b) Charter of Rights

[12] The second issue involves a Defence assertion that the defendant's 10(b) rights were violated as a result of the officer's failure to give a "Prosper warning" and establish an unequivocal waiver of his right to counsel. P.C. Reitkoetter admitted he did not explain to the defendant the duty to hold off, or that he had a right to a reasonable opportunity to consult counsel, nor did he explain what he was giving up or clarify whether Mr. Delaney had any appreciation of what he was giving up. Essentially, then there was no "Prosper warning" and no unequivocal waiver of the right to counsel. The Crown takes the position that the defendant was not being reasonably diligent in the exercise of his right to counsel having turned down the offer to contact another lawyer when his lawyer of choice could not be reached, and accordingly, the correlative duties of the police were suspended and there was no impediment to the continuation of the investigation and the request for a breath sample.

[13] The foregoing is a replay of the classic debate about the interrelationship between the respective "Prosper" duties of the police and the need for an accused to be reasonably diligent in the exercise of his right to counsel, particularly when counsel of choice cannot be reached and the accused is offered a chance to contact another lawyer or duty counsel.

[14] In fact, one very troubling feature of this case is the fact that P.C. Reitkoetter candidly admits that he did not know it was the law in Canada that he was under an obligation to provide a "Prosper warning" or obtain an informed, unequivocal waiver of the right to counsel before taking the next investigative step.

[15] At page 83 and 84 the transcript of December 3, 2013, defence counsel Mr. Shime asks the officer if he was aware of his obligation to provide a "Prosper warning":

Q. An additional informational obligation on police is triggered once a detainee who has previously asserted the right to counsel indicates a change of mind and no longer wants legal advice. The police must at that point tell the detainee of the right to a reasonable opportunity to contact counsel and that the obligation on the part of the police to hold off during that period. Any indication of a change of mind must be clear and the burden of establishing an unequivocal waiver is on the Crown.

Were you aware that was the status of the law on December sixth, 2013?

A. Not specifically, no.

Q. No. Nowhere in your notes do you reflect that you told Mr. Delaney first of all, that he had a reasonable opportunity to consult with counsel, right?

A. Outside of the rights to counsel, no.

Q. Nowhere in your notes do you convey – is it reflected that you conveyed to Mr. Delaney that you, as a police officer, have an obligation to hold off from eliciting evidence against him, correct?

A. That is correct.

Q. Nowhere in your notes does Mr. Delaney reflect that he's waiving his right to counsel, does it?

A. Correct.

Q. Mr. Delaney was 28-years-old at the time right?

A. I believe so.

Q. Mr. Delaney has never had any prior engagement with the criminal justice system, correct?

A. I would have to refer to the arrest screen – I don't believe so.

The Prosper Duties

[16] In the seminal decision on rights to counsel in R. v. Prosper, Lamer C.J. delivered the majority judgment:

34. As this Court has stated on a number of occasions, s. 10(b) imposes both informational and implementational duties on state authorities who arrest or detain a person. (See Bartle, at pp. 192-94; R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1241-42; R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; Brydges, at pp. 203-4.) Once a detainee has indicated a desire to exercise his or her right to counsel, the state is required to provide him or her with a reasonable opportunity in which to do so. In addition, state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. As the majority indicated in R. v. Ross, [1989] 1 S.C.R. 3, at p. 12, once a detainee asserts his or her right to counsel, the police cannot in any way compel him or her 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.

35. …courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.

36. Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Ross, at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high: Clarkson v. The Queen, [1986] 1 S.C.R. 383, Manninen, and Evans. As I said in Bartle, at pp. 192-94 and 206, a person who waives a right must know what he or she is giving up if the waiver is to be valid. That being said, it stands to reason that the right to counsel guaranteed under s. 10(b) must not be turned into an obligation on detainees to seek the advice of a lawyer.

37. Finally, I wish to point out that there may be compelling and urgent circumstances in which, despite a detainee's being unable to contact a lawyer due to the unavailability of a "Brydges duty counsel" system, police will not be required under s. 10(b) to hold off. However, in the context of impaired driving cases, I am satisfied that the existence of the two-hour evidentiary presumption available to the Crown under s. 258(1)(c)(ii) of the Code does not, by itself, constitute such a compelling or urgent circumstance. "Urgency" of the kind referred to by this Court in cases such as Manninen, supra, and R. v. Strachan, [1988] 2 S.C.R. 980, is not created by mere investigatory and evidentiary expediency in circumstances where duty counsel is unavailable to detainees who have asserted their desire to contact a lawyer and been duly diligent in exercising their s. 10(b) rights. A detainee's Charter-guaranteed right to counsel must take precedence over the statutory right afforded to the Crown which allows it to rely on an evidentiary presumption about what a breathalyser reading would have been at the time of care and control of a vehicle.

The Defendant's Duty to Exercise Reasonable Diligence

[17] In R. v. Brydges, [1990] 1 S.C.R. 190, the Supreme Court of Canada summarized the principles relating to "reasonable diligence on the part of the detainee" in the context of section 10(b) rights:

Fair treatment of an accused person who has been arrested or detained necessarily implies that he be given a reasonable opportunity to exercise the right to counsel because the detainee is in the control of the police, and as such is not at liberty to exercise the privileges that he otherwise would be free to pursue. There is a duty then, on the police to facilitate contact with counsel because, as I stated in R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43:

The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights. ... For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence.

As a result, s. 10(b) of the Charter imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First the police must give the accused or detained person a reasonable opportunity to exercise the right to retain and instruct counsel, and second, the police must refrain from questioning or attempting to elicit evidence from the detainee until the detainee has had that reasonable opportunity. The second duty includes a bar on the police from compelling 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 the person has had a reasonable opportunity to exercise the right to counsel: R. v. Ross, [1989] 1 S.C.R. 3, at p. 12:

It is the case, however, that the rights set out in the Charter are not absolute. Indeed, this Court has held that the right to retain and instruct counsel must be exercised diligently by the detainee. If the detainee is not diligent, the correlative duties on the police are suspended: R. v. Tremblay, [1987] 2 S.C.R. 435. What constitutes reasonable diligence on the part of the detainee has been considered by this Court in R. v. Ross, supra, at p. 11:

Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.

A detainee may, either explicitly or implicitly, waive his right to retain and instruct counsel, although the standard will be very high where the alleged waiver is implicit. A majority of this Court in Clarkson, supra, concluded as follows in respect the right to counsel at pp. 394-95, a passage that has been cited with approval in subsequent cases dealing with s. 10(b):

... it is evident that any alleged waiver of this right by an accused must be carefully considered and that the accused's awareness of the consequences of what he or she is saying is crucial. Indeed, this Court stated with respect to the waiver of statutory procedural guarantees in Korponay v. Attorney General of Canada, [1982] 1 S.C.R. 41, at p. 49, that any waiver "... is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process". [Emphasis in original.]

This then, briefly stated, is a summary of the principles developed thus far.

Reconciling the Police Duties and Reasonable Diligence on the Part of the Accused

[18] Applying the facts to all of the foregoing, it is clear that Mr. Delaney indicated that he wished to consult with counsel of choice and he was as diligent as he could be in doing so. He requested a named counsel and did what was expected by waiting from the time a message was left at 1:46 a.m. It is clear the officer intended to terminate the waiting at 2:00 a.m., fourteen minutes later and offer the defendant an alternative opportunity to consult with counsel, but in the absence of any note-taking as to the questions asked, it is impossible to know precisely what the defendant's responses meant or what he elected to do (see transcript above). The officer was of the belief that Mr. Delaney was declining the offer to "speak to duty counsel or any other counsel." There is no alternative but to accept P.C. Reitkoetter's version of what transpired, but it is clear that he did not think the questions and answers regarding rights to counsel were important enough to memorialize in his notebook.

[19] The point is ─ that if, as the officer says the defendant in fact declined an offer to speak with duty counsel or any other counsel, the logic of the two bedrock decisions noted above is that when the police cannot reach counsel of choice, and the defendant indicates he has changed his mind and no longer wants legal advice, the "Prosper duties" must be complied with and an unequivocal waiver obtained ─ and only then will a defendant's failure to avail himself of duty counsel amount to a failure to exercise reasonable diligence. In my view, 'reasonable diligence' on the part of the defendant never comes into play in this case.

[20] The only way that Prosper and all the 'reasonable diligence' cases can be reconciled is by giving effect to the case authorities noted above and placing the police duties and the accused's right to counsel obligations in their natural order. When counsel of choice cannot be reached after a reasonable waiting period, and an accused wishes to speak with alternate counsel, or duty counsel, an accused has to pursue that choice with reasonable diligence. Where an accused indicates that he or she has changed his or her mind and no longer wants legal advice, police must provide constitutionally sufficient information (the Prosper caution) in order to allow him or her to make a fully informed decision. This "additional informational requirement" on police "ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up," according to R. v. Prosper.

[21] At this point, the police either have an informed, unequivocal waiver or a renewed interest in consulting counsel in respect to which, the accused must exercise reasonable diligence. This is a simple formula that could be reduced to print in the back of a memo book. As the Ontario Court of Appeal stated in R. v. Devries, "There is value in the use of a standardized s. 10(b) caution which complies with the informational requirements established in the Supreme Court of Canada jurisprudence." And police should be instructed to make careful notes of the accused's responses. Ideally, to avoid the perpetual contest about what information was conveyed and what answers were given, this information/waiver process should take place on video prior to any request to provide breath samples.

[22] The essence of Prosper is the fact that it sets out the fundamental principles that marshal our understanding of the Charter right to counsel. The central concepts are clearly stated: (1) Courts must ensure that the Charter-protected right to counsel is not too easily waived, and (2) Given the importance of the right to counsel… the standard required for an effective waiver of the right to counsel is very high: Clarkson v. The Queen, Manninen, and Evans, and (3) The evidentiary presumption under s. 258(1)(d) of the Code, which provides that readings taken within two hours of an alleged offence are proof of the blood alcohol level at the time of the offence, is not a sufficiently "urgent" factor to override a detainee's right to counsel under s. 10(b), and (4) It is now well accepted that s. 10(b) serves to protect the privilege against self-incrimination, a basic tenet of our criminal justice system which has been recognized by members of this Court to be a "principle of fundamental justice" under s. 7 of the Charter: R. v. P. (M.B.), [1994] 1 S.C.R. 555, and R. v. Jones, [1994] 2 S.C.R. 229.

[23] In my respectful opinion, somewhere along the jurisprudential trail many of the section 10(b) principles have had a tendency to be lost in a "blended analysis of the overall situation" and police duties and the diligence of the accused have a tendency to become jammed together. For example, in R. v. Richfield, the Ontario Court of Appeal considered the question of "reasonable diligence:" and concluded that:

12 The appellant, upon being informed that the lawyer that he had asked the police to call had not called back, did not ask to make a further call to his counsel of choice or to another counsel. When asked if he wished the assistance of duty counsel, the appellant indicated that he did not. The appellant was not reasonably diligent in exercising his right to counsel in the circumstances. The fact that the police could have made greater efforts earlier does not detract from the appellant's own lack of diligence at a later stage in exercising his right to counsel.

[24] As well, in R. v. Blackett, Ferguson J. dealt with police duties and diligence in the following commentary:

25 It seems inescapable that the appellate courts have decided that, where duty counsel is available, the scope of the police duty to facilitate contact with counsel of choice is minimal. It would appear from the decision in Richfield that a good faith perfunctory effort by the police to locate counsel of choice is sufficient to "suspend the correlative duties on the police" if it is followed by an offering of access to duty counsel and the failure by the accused to take advantage of duty counsel.

[25] At first blush, these oft-quoted paragraphs appear to proceed on the basis that a minimalist, perfunctory approach to section 10(b) was all that was required and that the Prosper duties and an unequivocal waiver were no longer necessary. In fact the above cases are entirely consistent with the Supreme Court jurisprudence. It is noteworthy that in both Richfield and Blackett the accused requested counsel of choice and when counsel was not available, the accused were offered duty counsel, which they refused, and continued to insist on counsel of choice. (See also R. v. Van Binnendyk, R. v. Boyce, ─ decisions that followed Richfield in which accused steadfastly insisted on their own unavailable counsel). These Courts quite properly found that the accused were not being reasonably diligent in exercising their right to counsel. That is a much different set of circumstances from those in which accused change their minds and no longer wish to exercise the right to counsel. That classic scenario continues to be governed by the Supreme Court jurisprudence and the traditional high standards required for an effective informational/waiver process will still be required to ensure an accused knows what it is that he or she is actually giving up.

[26] A number of jurists have recognized this distinction such as Beninger J. in R. v. Bourgeois, where he makes the following ruling:

The Crown states that the accused failed to exercise due diligence in contacting a lawyer. R. v. Richfield, supra, states that an accused person must be reasonably diligent in exercising their right to counsel. An important consideration in R. v. Richfield was the availability of duty counsel, the use of which was not pursued by the accused in that case. In this case, Mr. Bourgeois was adamant in rejecting the availability of duty counsel services. However, in R. v. Richfield, there were significant efforts made by police to facilitate the right to counsel for the accused. I distinguish the facts in this case from R. v. Richfield, in that a) there is a change of mind by this accused which triggers the Prosper requirements….(See also R. v. Bell; R. v. DesRosiers; R. v. Spurrell to the same effect)

[27] The final point to be made is that when an individual finds himself (or herself) in a police Division under arrest and in detention, the relationship between the individual and the police is not a level playing field. It stands to reason that a person in custody for the first time, under the influence of some level of alcohol and being required to make some very stressful choices about counsel and whether to provide a breath sample, is likely to feel quite overwhelmed. This is precisely why the Prosper informational/waiver process is so vitally important. The conclusions of the Court in R. v. Bourgeois are entirely applicable to the case at bar:

With reference to the circumstances of this accused, I note that, once he was under detention, any potential access to a lawyer was completely controlled by the police. The only access by the accused to a phone was through the police. For such access, the procedure was for the police to make the phone calls and receive the phone calls, with the accused person only then being able to speak to someone, who had already been screened by the police, on the phone. The police had the phone books, which provided the information required to contact a lawyer. The police had established a Mobile Command Centre (a modified Winnebago trailer) in a location of their convenience to expediently and efficiently process their investigations. With that level of control over the accused, the duty on the police to fulfill their informational and implementation duties under s. 10(b) of the Charter is substantial.

[28] As well, in R. v. Brydges, 53 CCC (3d) 330 (S.C.C.), the Court stated, "fair treatment of an accused person who has been arrested or detained necessarily implies that he has been given a reasonable opportunity to exercise the right to counsel because the detainee is in the control of the police and as such is not at liberty to exercise the privilege that he otherwise would be free to pursue."

[29] In regard to the discourse between P.C. Reitkoetter and Mr. Delaney at the Division regarding the exercise of the right to counsel, I find there was not a clear and unequivocal waiver of the right to counsel by the defendant. The information given by the defendant to the officer was ambiguous as a result of the lack of a full and proper record or notebook entry. Additionally, the arresting officer did not meet the Prosper requirements. He admitted he did not explain the duty to hold off, or that the defendant had a right to a reasonable opportunity to consult counsel, nor did he explain to the accused what he was giving up or ascertain that the accused had any appreciation of what he was giving up. He agreed there was no waiver. Consequently, there is no basis for concluding that the defendant was provided with an informed understanding of the right he was giving up. Given the high standard for waiver set out by the Supreme Court in Prosper, Clarkson and subsequent cases, I find in all the circumstances that the rights of the accused under s. 10(b) of the Charter were breached.

The Section 24(2) Analysis – (R. v. Grant)

[30] According to the majority in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the fact of a Charter breach means that damage has already been done to the administration of justice – understood in this long term prospective sense of maintaining public confidence in the justice system viewed in the long term. The inquiry is objective. It asks whether a reasonable person, informed of all the relevant circumstances would conclude that the admission of evidence would bring the administration of justice into disrepute. Section 24(2) starts from the proposition that the Charter breach means that damage has already been done to the administration of justice and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. There is one further purpose achieved by a determination under s. 24(2) according to R. v. Grant:

[70] Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[31] As noted in Grant, the s. 24(2) inquiry engages 3 avenues of inquiry – each rooted in public interests engaged by s. 24(2) viewed in a long term, forward looking, and societal perspective.

First Inquiry: Seriousness of Charter Infringing Conduct

[32] The Grant decision sets the parameters for this analysis. There are several considerations to be applied. The more severe or deliberate the conduct the more the need for courts to dissociate themselves from that conduct to preserve public confidence in the rule of law and its processes. The point being made is that the rule of law requires state authorities to uphold the rights guaranteed by the Charter. There is a spectrum from inadvertent or minor to instances where evidence is obtained through wilful or reckless disregard of the Charter which would inevitably have a negative effect on public confidence in the rule of law. Extenuating circumstances, such as the need to prevent the disappearance of evidence may attenuate the seriousness of police conduct. Good faith will reduce the need for the Court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded and negligence or willful blindness cannot be equated with good faith.

[33] The majority in Grant provided some additional guidance. Deliberate police conduct in violation of established Charter standards may require that the Court disassociate itself from such conduct. It follows that such conduct tends to support exclusion. For every Charter breach, many others may go unidentified and unaddressed because they do not turn up evidence that leads to a charge. The recognition of evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[34] It is noteworthy that the arresting officer in this case was not aware of any obligation on police officers to provide a Prosper warning in the event of a change of mind about contacting counsel. Further, in a context involving a detainee who was 28 years of age with no prior arrests, there was no effort made to advise him he had a reasonable opportunity to consult with counsel (aside from the rights that were read) or advise that he had, as a police officer, an obligation to hold off from eliciting evidence against him pending an opportunity to exercise his rights and an obligation to obtain an unequivocal waiver should he decide against consulting counsel. Most importantly, the administration of the defendant's right to counsel was a matter of so little importance that the officer "neglected" to put in his notes what specific questions he asked, and testified, "I've simply only put down his responses." This was a perfunctory exercise in which there was a faulty understanding of police duties, a neglectful recordkeeping process and failure to conduct a constitutionally appropriate information/waiver inquiry amounting to a lack of awareness of his obligations under the Charter. While good faith may reduce the need for the Court to disassociate itself from the police conduct, a major gap in the officer's training resulting in a lack of appreciation of Charter standards must not be rewarded. The Prosper requirements have existed for some twenty years and should be well known and well recognized by the police who are called upon to uphold those standards. There is no question this Charter-infringing conduct was serious.

[35] Additionally, while the general rule that "conscriptive evidence obtained in violation of an accused's s. 10(b) rights should automatically be excluded" (R. v. Collins, 33 C.C.C. (3d) 1) is no longer the law given the revised s. 24(2) framework in Grant, a violation of the right to counsel is a breach of fundamental rights (see para. 20, above) and is a serious matter. As the majority in Prosper concluded, "Neither the undeniable good faith of the police, nor the relative seriousness of the drinking and driving offence with which the appellant was charged can compensate for the adjudicative unfairness which I find admission of the evidence would produce."

Second Inquiry: Impact of Charter Protected Interests of the Accused

[36] This inquiry focuses on the extent to which the breach actually undermined the interests protected by the right infringed. According to R. v. Grant, the impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that the admission of the evidence may signal to the public that Charter rights are of little avail to the citizen breeding public cynicism and bringing the administration of justice into disrepute.

[37] In terms of the breach's impact on protected interests – it must be said that the protected interests under section 10(b) of the Charter are the rights against self-incrimination and ultimately the protected interests of security of the person, privacy and human dignity as a result of being taken to a police detachment in handcuffs. Both the taking of a statement and breath sample evidence constitute a conscriptive search of the body in respect to which the defendant enjoys a constitutional protection against self-incrimination. Consequently, any breach of an accused's s. 10(b) rights followed by the obtaining of incriminating evidence is deemed more serious than another type of intrusion upon protected interests because of the impact of a violation on the defendant's fair trial interests. The right to counsel "information and implementation" duties prevent the police from compelling 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 the person has had a reasonable opportunity to exercise the right to counsel: R. v. Ross, supra. These type of violations favour exclusion in order that the court is not seen to condone or associate itself with trial unfairness.

[38] Even though Charron J. in Grant, in a wide-ranging discussion, referred to breathalyzer tests as being relatively non-intrusive, the majority in R. v. Bernshaw, [1995] 1 S.C.R. 254 thought otherwise and in my view the intrusiveness factor associated with the process of arrest, handcuffs, search, detention, parading before a staff sergeant, a more extensive search, and being held in custody for hours and deprived of contact with friends and family, amounts to a relatively serious incursion into the protected interests of privacy, liberty and security of the person. I would adopt the phraseology in R. v. Bartle, "Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him ─ or herself." In my view, the impact on these Charter-protected interests is serious and would also favour exclusion.

Third Inquiry: Society's Interest in an Adjudication on the Merits

[39] The Court in Grant emphasizes that the public generally expects that a criminal allegation will be adjudicated on the merits. Consequently, the third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion. The exclusion of relevant and reliable evidence may undermine the truth seeking function of the justice system and render the trial unfair. However, if a breach (such as one that effectively results in incriminatory evidence) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence.

[40] According to Grant, the Court must balance the interests of truth with the integrity of the justice system (see also R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 per Iacobucci J). The Court must ask whether the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial. The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. The admission of evidence of questionable reliability is more likely to bring the administration into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the administration of justice where the remedy effectively guts the prosecution. Finally, the goals furthered by s. 24(2) operate independently of the type of crime for which the individual stands accused: R. v. Burlingham, [1995] 2 S.C.R. 206 (para 51).

[41] The evidence being considered for exclusion in this case is mainly the intoxilyzer readings. This highly reliable evidence is the core of the crown's case on the very serious charge of operating a motor vehicle with excess alcohol in the blood. As had been said so often, the public expects the justice system to reliably deal harshly with conduct that is perennially so dangerous to life and limb. This favours inclusion. However, as noted above, there is another aspect to the societal interest besides the adjudication of a criminal charge on the merits. Section 24(2) is focused on the broad impact of admission of the evidence on the long-term repute of the justice system. Which is to say there is a strong public interest in the law being followed as intended by the Supreme Court of Canada, particularly in regard to vitally important procedural requirements that ensure meaningful compliance with a Charter-protected right that is, "A basic tenet of our criminal justice system which has been recognized by members of this Court to be a "principle of fundamental justice" under s. 7 of the Charter": R. v. Prosper.

[42] One of the purposes of section 10(b) is to provide detainees with an opportunity to make informed choices about whether to exercise their legal rights or waive them. This opportunity is no less significant when police officers intend to obtain incriminating breath sample evidence. Law enforcement officers play a vital role in facilitating a detainee's right to counsel. This right is of such a super-ordinate importance that the burden of establishing an unequivocal waiver falls on the Crown and the standard required for an effective waiver of the right to counsel is very high. Here, the Crown cannot meet the burden of establishing that Mr. Delaney knew what the officer's obligations were or what he was giving up by changing his mind about consulting counsel. P.C. Reitkoetter essentially asked the defendant twice whether he wanted to "speak to any other counsel" and received a negative response both times. This not only amounts to a complete failure to adhere to constitutional standards of conduct, it appears that the officer had no idea what those standards were. Additionally, the error was compounded by the failure to keep a careful record of this communication about the right to counsel.

[43] The casual institutional disregard for an individual's section 10(b) rights in this case suggests a systemic deficiency and a major gap in police training. On the one hand, the reception into evidence of the defendant's breath samples would be in the interests of justice based on the fact the public generally expects criminal allegations to be adjudicated on the merits. On the other hand, in terms of protecting societal values ─ where the police have fallen far below accepted constitutional standards, the admission of the intoxilyzer results would bring the administration of justice into disrepute.

[44] I can well imagine the pressure to rush through what might seem to be a meaningless ritual to police in order to procure the first breath sample 'as soon as practicable' and within the two-hour evidentiary presumption available to the Crown under s. 258(1)(c)(ii) of the Code. The fact is Mr. Delaney was arrested at 1:13 a.m. and at 2:00 a.m. he was taken into the breath technician's office. The first breath sample was obtained by 2:08 a.m. With more than one hour remaining on the "clock" and the overriding Prosper principle that an accused's rights to counsel trump the two-hour evidentiary presumption, there was no justification for such a thoughtless, mechanical and hurried response to the defendant's change of mind about contacting counsel. The significance of an individual's right to counsel on arrest or detention must be communicated to policing agencies: it is one key feature that differentiates constitutional democracies from regimes in which individuals are detained and held incommunicado for lengthy periods while state agents attempt to procure incriminating evidence.

Conclusion

[45] Having made the above three inquiries, which encapsulate considerations of "all the circumstances of the case", I have determined that, after engaging in a balancing process, and having regard for s. 24(2)'s focus on "systemic concerns" (Grant, paragraph 70), the admission of the evidence obtained by this Charter breach would bring the administration of justice into disrepute in the long term. Accordingly, the breath sample evidence and any statements obtained following the breach of the defendant's section 10(b) rights will be excluded pursuant to section 24(2) of the Charter.

Harris, J.

February 14, 2014