Court File and Parties
Date: October 7, 2016
Court File No.: Brampton15-12991
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Tina Duong
Before: Justice Paul F. Monahan
Heard on: September 13 and 14, 2016
Reasons on: The Charter and Voluntariness Voir Dires
Released on: October 7, 2016
Counsel:
- Mr. P. Maund for the Crown
- Ms. D. Sederoff for the defendant Tina Duong
MONAHAN J.:
Overview and Introduction
[1] Ms. Tina Duong is charged that on or about October 9, 2015 that she did operate a motor vehicle while her ability to do so was impaired by alcohol or a drug contrary to section 253(1)(a) of the Criminal Code of Canada (the "Code"). In addition, she is also charged with having operated a motor vehicle having consumed alcohol in such a quantity that the concentration in her blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Code.
[2] I heard the trial of this matter on September 13 and 14, 2016. The defence brought a Charter application which was heard at trial on a blended basis on consent. The defence alleged a violation of sections 8, 9 and 10(b) of the Charter. In final argument at trial, the defence indicated that as concerns the Charter, the defence was only proceeding with the s.10(b) argument.
[3] The defence also submitted that the Crown had not established beyond a reasonable doubt that the statements made by Ms. Duong to police were made voluntarily.
[4] The Crown called five witnesses: Randy Aucoin (a civilian witness); Robert Morrison (a firefighter who arrived at the scene of the accident); Officer Tammy Lee (the officer-in-charge); Officer Alaina Canonico (the arresting officer); and Officer Dan Scobie (the breath technician). The defence called no evidence either on the Charter voir dire, the voluntariness voir dire or the trial proper.
[5] I have been asked by both parties to render a ruling on the Charter application/voir dire and the voluntariness voir dire and these reasons constitute my ruling in this regard. The parties have asked that I not deal with other potential arguments relating to the as soon as practicable argument or the impaired driving charge at this time.
The Facts
[6] What follows below are my findings of fact. Most of the facts, particularly as concerns the Charter application/voir dire and the voluntariness voir dire, are not contested.
[7] I will set out the chronology of the facts so as to provide a framework for my decision on the rulings required:
5:03 AM — There is a call over the police radio system indicating a single car accident at Mississauga Road and Williams Parkway.
5:08 AM — Officer Lee testified that she was dispatched to the accident scene. She arrived shortly after this time.
5:15 AM — Officer Canonico arrives on scene. Fire and ambulance are already there. She receives information, among other things, that Ms. Duong is the driver of the vehicle.
5:19 AM — Officer Canonico arrests Ms. Duong for impaired driving. She is later charged with over 80 as well.
5:28 AM — Rights to counsel and caution are provided to Ms. Duong. Ms. Duong indicates that she wishes to call a lawyer, Mr. Sederoff.
5:32 AM — An approved instrument demand is made.
5:50 AM — Officer Canonico and Ms. Duong arrive at the police station.
5:56 AM — Officer Canonico places a call to Mr. Sederoff and leaves a message for him.
5:59 AM — Officer Canonico places a call to duty counsel and leaves a message.
6:05 AM — Duty counsel calls back and Ms. Duong speaks to duty counsel until 6:11 AM.
6:07 AM to 6:12 AM — Officer Scobie receives grounds from Officer Canonico.
6:15 AM — Officer Canonico makes a second call to Mr. Sederoff and leaves a message.
6:12 AM to 6:17 AM — Prior to entering the breath room, Ms. Duong apparently says something to Constable Scobie which gives him the impression that her second choice for counsel after Mr. Sederoff is duty counsel. He was challenged on this point at trial but I accept Constable Scobie's evidence as he indicates clearly on the breath room video (at 6:22 AM) that he is under the impression from something she has said that duty counsel is her second choice. I note however that this must have simply been a misunderstanding with Ms. Duong because duty counsel was clearly not her second choice and this became clear within a few minutes.
6:17 AM — Constable Scobie takes custody of Ms. Duong and the breath room video captures the remaining interactions of note between the police and Ms. Duong.
6:18 AM — Constable Scobie seeks to confirm with Ms. Duong that she has consulted with duty counsel and he says "you spoke to duty counsel". Ms. Duong responds "I only spoke to my lawyer". Constable Scobie responds "you spoke to the free lawyer". Ms. Duong responds "No. Just my lawyer." Constable Scobie speaks to Officer Canonico to understand if Ms. Duong has spoken to Mr. Sederoff or not and then he repeats to Ms. Duong that she has spoken to the free lawyer and not her own lawyer. Ms. Duong has a quizzical look on her face and says "I did not speak to anyone from my lawyer". She makes it clear that she wishes to speak to Mr. Sederoff.
6:20 AM — Constable Scobie says to Ms. Duong that we will wait a "reasonable time" for Mr. Sederoff to call back. Ms. Duong asks what is a "reasonable time" to which Constable Scobie responds that they will wait 30 minutes, effectively another 10 minutes. He then says that he thinks that is reasonable period of time to wait and he asks her if she thinks it is reasonable and she says yes.
6:22 AM — In response to questioning from Constable Scobie, Ms. Duong indicates that she has a second choice for counsel of choice, namely Ms. Kim Schofield. Constable Scobie looks her up on the internet and leaves messages for her at various numbers at 6:26 AM, 6:29 AM and 6:33 AM.
6:28 AM — Constable Scobie asks Ms. Duong if she wishes to talk to anyone else in the offices of either Mr. Sederoff or Kim Schofield and she indicates "just Sederoff or Schofield".
6:34 AM — Constable Scobie asks Ms. Duong if she wants them to wait and see if Mr. Sederoff will call back or are you happy with what we have done. Ms. Duong responds "if possible-I know you guys are busy". Constable Scobie says, in effect, "I think we have waited so long for him (Mr. Sederoff) and I think we are good to go with the test but I just called Ms. Schofield so we will wait a few minutes". Constable Scobie says that he had to go over the cautions with her in any event.
6:44 AM — After going through rights to counsel and cautions with Ms. Duong, Constable Scobie says in effect that I think we have waited a reasonable amount of time for them to call back and so we are going to go ahead with the breath test to which Ms. Duong responds "okay".
6:44 AM — Ms. Duong provides her first breath sample which registers a truncated reading of 220 mg of alcohol in 100 mL of blood.
6:44 AM to 6:49 AM — Constable Scobie asks Ms. Duong a number of questions. Before doing so he advises her that the questions are voluntary and that she does not have to answer them. She answers them. They are mostly innocuous answers in the court's view and relate to her height and medical information.
6:49 AM — Ms. Schofield calls back and a consultation is facilitated between Ms. Duong and Ms. Schofield which lasts until 6:55 AM.
7:13 AM — Ms. Duong has considerable difficulty providing the second breath sample but does so and it registers 184 mg of alcohol in 100 mL of blood. Because it was not within 20 mg of the first sample, Constable Scobie's training is to take a further sample.
6:55 AM to 7:17 AM — Constable Scobie asks further questions of Ms. Duong and she provides answers which the Crown takes the position are incriminating, including an admission by Ms. Duong that alcohol may have impaired her ability to drive and been a factor in the accident.
7:17 AM — After providing the incriminating statements above, Ms. Duong asks if she can call her lawyer again.
7:18 AM — The police call Ms. Schofield again and leave a message. There is no evidence that she called back at any time.
7:18 AM to 7:38 AM — No further evidence is sought or received as the police wait for Ms. Schofield to call back.
7:40 AM — When Ms. Schofield does not call back, a third breath sample is obtained and registers a truncated reading of 210 mg of alcohol in 100 mL of blood.
7:43 AM — After being told her readings, Ms. Duong makes an allegedly incriminating statement when she says that she made a "big mistake".
[8] The foregoing chronology provides the framework of facts in which the following issues set out below arise.
Issues
Issue 1. Should the oral statements made by Ms. Duong to police be excluded on the grounds that the Crown has failed to prove beyond a reasonable doubt that the statements were made voluntarily?
Issue 2. Was Ms. Duong's right to counsel under S. 10(b) of the Charter violated because police failed to make reasonable efforts to contact Ms. Duong's counsel of choice in that they failed to wait a reasonable time for counsel to call back?
Issue 3. If there was a violation of the right to counsel, should the breath samples and statements to police be excluded pursuant to s. 24(2) of the Charter?
[9] I will review each issue in turn.
Issue 1. Should the oral statements made by Ms. Duong to police be excluded on the grounds that the Crown has failed to prove beyond a reasonable doubt that the statements were made voluntarily?
[10] The defence submits that the Crown has not established that the various statements made to police by Ms. Duong were voluntary. As is well known, the Crown must prove beyond a reasonable doubt that all statements made to a person in authority are voluntary. In this case, there were various statements made to Constable Scobie on the breath room video that may be incriminating. Most, if not all, of the statements the Crown seeks to rely on were made by Ms. Duong after she spoke to her counsel of choice at approximately 6:49 AM to 6:55 AM.
[11] The leading decisions on the question of voluntariness are R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 and R. v. Spence, 2007 SCC 11, [2007] 1 S.C.R. 500. As those cases make clear, the question of voluntariness is a contextual one. There are several factors to be considered in determining whether the Crown has proved voluntariness of the statements beyond a reasonable doubt, including whether there were any threats, promises, oppression or police trickery and whether the person making the statement had an operating mind.
[12] In this case, the defence concedes that there were no "Oickle factors" meaning there were no threats, promises, oppression or police trickery and there is no issue about Ms. Duong having an operating mind. Rather, the defence submits that the voluntariness issue is closely aligned with the alleged breach of the right to counsel and, in any event, the defence submits that voluntariness has simply not been proven beyond a reasonable doubt.
[13] It is my view that the Crown has established the voluntariness of all statements made after Ms. Duong's arrest. I note that the arresting officer gave Ms. Duong the standard caution at the roadside that she did not need to say anything but that if she did, it could be used in evidence against her. The breath technician (Constable Scobie) gave the same caution again shortly after Ms. Duong entered the breath room. Further, before asking for the questions which gave rise to the allegedly incriminating statements, Constable Scobie told her the questions were voluntary and that she did not have to answer them. He repeated this same point again after her consultation with counsel at 6:49 AM. As a practical matter, I don't consider that she made any incriminating statements to police until after she had spoken to Ms. Schofield. I appreciate that the cautions given and the counsel taken do not prove voluntariness per se. They are only factors to be considered in the contextual application of the voluntariness rule.
[14] I have watched the breath room video numerous times and considered the full context of the statements and all of the circumstances. I am satisfied that all of the statements made by Ms. Duong to police after her arrest have been proven by the Crown to be voluntary beyond a reasonable doubt.
Issue 2. Was Ms. Duong's right to counsel under S. 10(b) of the Charter violated because police failed to make reasonable efforts to contact Ms. Duong's counsel of choice in that they failed to wait a reasonable time for counsel to call back?
[15] It is the position of the defence that the police did not make sufficient efforts to contact counsel of choice in that they failed to wait a reasonable period of time to have counsel of choice call back. Further, it is the submission of the defence that all breath samples given and statements made by Ms. Duong post arrest should be excluded by reason of the breach of the right to counsel. The defence further submits in support of the right to counsel argument that after Ms. Duong was permitted to speak to counsel of choice, the police should have stopped gathering evidence (breath samples and statements) after Ms. Duong asked to speak to counsel of choice again at 7:17 AM. I note that the police tried to reach counsel of choice a second time at 7:18 AM, and waited before gathering further evidence until 7:38 AM at which time police proceeded to obtain the third sample and obtained allegedly terminating statements from Ms. Duong.
[16] The law with respect to right to counsel is not in dispute. The parties agreed that the law is as set out by Justice Ellies in R. v. Vernon 2015 ONSC 3943. I would add that the recent decision of my colleague, Justice Stribopoulos, in R. v. Maciel 2016 ONCJ 563 also provides an excellent summary of the law in this area.
[17] I will not set out all of the legal principles from Vernon and Maciel other than to note as follows:
(1) There is an informational and implementational component to the right to counsel. The onus is on the detained person to prove a breach of the right to counsel on a balance of probabilities: R. v. Bartle, [1994] 3 S.C.R. 173 at p. 192;
(2) The informational component includes telling the detained person that they have a right to wait for a reasonable period of time for their counsel of choice to call back: Vernon at para. 21;
(3) Should a detainee exercise the right to seek to speak to counsel of choice, they are entitled to have a reasonable opportunity to do so prior to questioning. They have the right to refuse to speak to other counsel and to wait a reasonable period of time for their counsel of choice to call back. What constitutes a reasonable period of time will depend on the circumstances as a whole, and will include the seriousness of the charge and the urgency of the investigation: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 at para. 35;
(4) In fulfilling the implementational aspect of the right to counsel, the police cannot simply "default" to duty counsel: Vernon at paras. 49-50;
(5) A detained person has an obligation to be "reasonably diligent" in exercising the right to counsel: R. v. Prosper, [1994] 3 S.C.R. 236 at para. 35 and Maciel at para. 35.
(6) In the context of a case where there was no 24-hour duty counsel available, the Supreme Court of Canada has said that the existence of the two hour requirement under s. 258(1)(c) of the Code for the police and the Crown to rely on the "presumption of identity", does not, by itself, create an urgent circumstance such that the window for the reasonable opportunity for a detained person to contact counsel is closed more rapidly. A statutory presumption designed to assist the Crown does not override or "trump" the right to counsel: see Prosper at paras. 45 and 55.
(7) The availability of 24-hour duty counsel is a relevant consideration in determining how long police should have to wait for counsel of choice to call back. At a certain point, after efforts have been made to contact counsel of choice and they have not called back, a detained person may be expected to contact duty counsel or risk a finding that they were not been duly diligent in the exercise of their right to counsel: Maciel at para. 39.
(8) Where a detained person indicates that they wish to speak to counsel of choice, as long as the detained person is reasonably diligent in exercising his or her right to counsel, the onus is on the Crown to establish waiver: Vernon at para. 44.
[18] In this case, the right to counsel issue turns on whether police waited a reasonable period of time for counsel of choice to call back and whether Ms. Duong was duly diligent in the exercise of her rights to counsel. If there is a breach of the right to counsel, then s. 24(2) of the Charter must be considered and that will involve, at least in part, a consideration of whether the consultation that did take place with counsel of choice at 6:49 AM affects the potential exclusion of evidence obtained before and after that consultation.
[19] The cases make it clear that all the circumstances must be considered in determining how long is a reasonable time to wait. It is instructive to review a number of the cases in this regard. In R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.), an impaired driving case, the police waited an hour for counsel of choice to call back after having left a message at 1:42 AM. The detained person in that case declined to speak to duty counsel. The Court of Appeal found no violation of the right to counsel.
[20] In Vernon, a drinking and driving case, the police waited 30 minutes for counsel of choice to call back but defaulted to duty counsel just one minute after trying to reach counsel of choice. A duty counsel consultation took place. Justice Ellies of the Superior Court upheld a finding of a violation of the right to counsel on the basis that the detained person was not told by police that the police were required to wait a reasonable period of time for counsel of choice to call back. The evidence was excluded in that case. The Court found that the Crown had not established that the detained person had waived their right to speak to counsel of choice.
[21] In Maciel, a drinking and driving case, Justice Stribopoulos considered the fact that the police waited only 25 minutes on Christmas Day for counsel of choice to call back (and other factors) and found a violation of the right to counsel and excluded the evidence of the refusal in that case.
[22] In R. v. Jurewicz, [2001] O.J. 1276 (Sup. Ct.), another drinking and driving case, Justice Polowin dealt with an appeal where police had waited 37 minutes after calling counsel of choice and facilitated a call with a lawyer on the 24-hour defence counsel list (not counsel of choice). Justice Polowin upheld the provincial court judge's ruling that there was no violation of the right to counsel.
[23] Applying the foregoing case law to the case at bar, I return briefly to the facts of this case. Ms. Duong's first counsel of choice, Mr. Sederoff, was called at 5:56 AM and a message was left. Duty counsel was called at 5:59 AM even though there was no discussion between the arresting officer and Ms. Duong about whether she wished to speak to duty counsel. Ms. Duong did speak to duty counsel from 6:05 to 6:11 AM. A further message was left for Mr. Sederoff by the arresting officer at 6:17 AM.
[24] Ms. Duong entered the breath room at 6:17 AM. It is apparent that she thought that she has spoken to Mr. Sederoff, not duty counsel. Constable Scobie said to her "you spoke to duty counsel" and she responds "I only spoke to my lawyer". Constable Scobie says again "you spoke to the free lawyer" to which Ms. Duong says "No. Just my lawyer". She then apparently realizes that she has not spoken to her lawyer. She makes it clear that she wishes to speak to her lawyer. At 6:20 AM, Constable Scobie tells her that they will wait a reasonable time for her lawyer to call back. She immediately asks what is a reasonable time and Constable Scobie says they will wait about one half hour and he asked Ms. Duong if she thought that was reasonable and she said she thought it was. In my view, her agreement as to what is "reasonable" is meaningless in determining the content of the right to counsel. Ms. Duong does not even know what time it is and the clock on the wall was broken. Moreover, she has no idea what the obligation on the police was in the circumstances.
[25] At 6:22 AM, in response to questioning from Constable Scobie and after realizing she has not spoken to counsel of choice, Ms. Duong gives the name of another lawyer she would like to contact as her second counsel of choice, namely Ms. Kim Schofield. Constable Scobie then proceeds to look up Ms. Schofield's number on the internet and leaves messages for her at 6:26 AM, 6:29 AM and 6:33 AM. At 6:28 AM, Ms. Duong is asked if she wants to call anyone else and she says no, just Sederoff and Schofield.
[26] At 6:33 AM, Constable Scobie says "you want us to wait to see if Mr. Sederoff calls back". Ms. Duong responds "if possible, I know you guys are busy".
[27] At 6:44 AM, Constable Scobie says that he thinks they have waited long enough and they are going to take the breath tests. Ms. Duong says okay. The first sample is taken at this time and various allegedly statements are made before Ms. Schofield calls back at 6:49 AM. A consultation takes place with Ms. Schofield at 6:49 AM to 6:55 AM. Two further breath samples are taken and numerous other allegedly incriminating statements are made by Ms. Duong after the consultation with Ms. Schofield.
[28] My first concern with these facts is that although Ms. Duong is told that the police will wait a reasonable time, at no time is she told the police must wait a reasonable time (see Vernon para. 21). Ms. Duong is very deferential to the police throughout saying things such as "I know you guys are busy" in response to whether or not they should wait to have her lawyer call back. However, this is not my principal concern.
[29] The Crown argues that Ms. Duong was not duly diligent with respect to exercising her right to counsel because she unreasonably only wanted to talk to Mr. Sederoff or Ms. Schofield. I disagree with this submission. I thought she acted perfectly reasonably. It was the arresting officer who defaulted to duty counsel almost immediately after calling her counsel of choice and this led to the confusion, not surprisingly in my view, over who she had spoken to. When she spoke to Constable Scobie and told him that she only wanted to speak to Mr. Sederoff or Ms. Schofield, she was not being unreasonable. Just the opposite. She was trying to limit the scope of what she was asking the police to do. She did not want to "bother" the police by having them contact others or make further efforts. Thus, she made the statement mentioned above "I know you guys are busy". Further, she expressed similar sentiments at the end of the breath room video when she apologized to the police for troubling them.
[30] In fact, I consider that before proceeding with the breath sample, police should have given her another opportunity to speak to duty counsel. This is separate and apart from my concern that they did not give sufficient time for counsel of choice to call back and I will address that point below. It is true that she must have then known as to the existence of duty counsel but she was not told that she could speak to them again. Not only that, given the confusion about who she had spoken to the first time, she should have been given another opportunity to speak to duty counsel before being asked to give the breath sample.
[31] However, my main concern is the very little time that was given for Ms. Schofield to call back in this case. There was no urgency to take the breath samples. It is true that the police waited 48 minutes for Mr. Sederoff to call back. However, once the police became aware of a second counsel of choice at 6:22 AM, calls were placed to that counsel at 6:26, 6:29 and 6:33 AM. Police waited only 11 to 18 minutes for Ms. Schofield to call back. This is substantially less than what Constable Scobie said would be a reasonable time: namely 30 minutes when he was thinking that they were simply waiting for Mr. Sederoff to call back. He made that comment at 6:20 AM before he knew about the existence of a second counsel of choice. He applied the 30 minute wait time to attempts to contact Mr. Sederoff but not to the attempts made to call Ms. Schofield.
[32] Let me be clear. Constable Scobie is an excellent officer and breath technician. He made numerous efforts to reach counsel of choice and was professional and unfailingly polite in all of his dealings with Ms. Duong. Even she commented to him on the breath room video how professional she thought he was. However, in my view, 18 minutes is not long enough to wait for counsel to call back. The two-hour requirement for the presumption of identity was not mentioned as a reason for proceeding as he did, but it seems likely that it was at least in his mind. In any event, it does not matter. Eighteen minutes is not long enough. The approach that seems to have been taken is that police considered that they had made reasonable efforts to contact one counsel of choice, namely Mr. Sederoff, but that anything further as concerns a second counsel of choice was almost gratuitous or extra on the part of the police. This was effectively what Constable Scobie said at 6:34 AM when he said, in substance, that he thought they had waited long enough for Mr. Sederoff to call back and that he thought they were good to go with the test but that as he had just called Ms. Schofield, he was willing to wait a little longer as he went through further information with Ms. Duong.
[33] In my view, Ms. Duong was acting in a reasonably diligent fashion in moving off of Mr. Sederoff and coming up with the second counsel of choice namely Ms. Schofield. She did so as soon as she was asked if there was another lawyer she wished to contact. She was acting in good faith and not attempting to delay the matter. The police were acting appropriately in attempting to contact Ms. Schofield but in my view the police could not rely on the 48 minutes they gave Mr. Sederoff to call back once Ms. Duong indicated, in good faith and acting reasonably diligently, that she wished to speak to Ms. Schofield. Then the question became how long should the police wait for Ms. Schofield to call back and, in my view, that question is not answered by looking at the time that was given for Mr. Sederoff to call back. Even if the time that was given for Mr. Sederoff is a consideration for how long the police needed to wait for Ms. Schofield to call back, the overall time allotted for both of them to call back was not enough in my view considering all of the circumstances. This is particularly so where there was absolutely no urgency that the test be taken.
[34] The Crown argues that there was an urgency to take the breath samples as Ms. Duong was eliminating alcohol from her system as each minute passed by. I disagree. Of course she was eliminating alcohol from her system but there is nothing in evidence to suggest that the police needed to proceed at 6:44 AM with the first breath sample or risk the entire over 80 investigation. The police ultimately proceeded to take breath samples from her for almost another hour (until 7:40 AM) and could use that evidence to prove the over 80 case notwithstanding that she was eliminating alcohol that whole time.
[35] The fact that Ms. Duong spoke to duty counsel from 6:05 to 6:11 AM is not relevant to the question of whether police waited a reasonable time for counsel of choice to call back. Ms. Duong made it clear both before and after her conversation with duty counsel that she wished to speak to counsel of choice. The arresting officer admitted that she in effect "defaulted" to duty counsel only three minutes after calling counsel of choice and this is not permitted under the case law. Ms. Duong did not even know she was speaking to duty counsel. She asked to speak to Mr. Sederoff and a few minutes later she is on the phone with duty counsel thinking it is Mr. Sederoff. Indeed, the Crown fairly acknowledged in final argument that the fact that she spoke to duty counsel did not answer or inform the question of whether or not the police waited a reasonable time for counsel of choice to call back and did not answer the right to counsel question. The Crown did submit that the fact of the consultation with duty counsel would be relevant in any s. 24(2) Charter analysis.
[36] I note as well that the efforts to call counsel in this case did not occur in the middle of the night as occurs in some cases and when police might reasonably expect that it would be difficult to reach counsel. In this case, it was a regular workday on a Friday morning at 5:56 AM to 6:44 AM when efforts were being made to contact counsel. While "hindsight is 20/20", it is instructive to note that Ms. Schofield called back at 6:49 AM, only 23 minutes after she was first called. Common sense suggests that many people, including lawyers, are going to be up between 6 and 7 AM on a regular work day, and there is a reasonable expectation that if they are left messages around this time and given a reasonable time to call back, they can be expected to do so.
[37] Before leaving this issue, I need to address one further point: defence counsel argued that the police also violated Ms. Duong's right to counsel by failing to put her in touch with Ms. Schofield a second time when she requested it at 7:17 AM. I disagree with this submission. She had had a consultation with her counsel of choice at 6:49 AM for six minutes. For there to be such an obligation on police to contact counsel a second time and facilitate a consultation, there must be a change in circumstances such that the choice facing the detained person has been significantly altered: R. v. Sinclair, 2010 SCC 35, [2010] S.C.J. 35 at para. 65. In this case, there was no change in jeopardy or the circumstances at 7:17 AM. The police did attempt to contact Ms. Schofield a second time when it was requested at 7:17 AM but they were unsuccessful. There was no obligation on police to attempt to contact Ms. Schofield a second time and no violation of the right to counsel on this ground. As there was no obligation to contact her, it does not matter how long they waited for her to return the call.
[38] In summary, notwithstanding the efforts that were made to contact counsel of choice in this case, they were not sufficient. There was no urgency in this case. Without deciding when the accident took place in this case, it is true that the two hour window of the presumption of identity was likely to close around 7 AM as the police had information that the accident was around 5 AM. However, this is of no moment. A toxicologist could have been called to address this issue in this case. The right to counsel of Ms. Duong was violated.
[39] I do not wish to be taken as saying that the 48 minutes given for Mr. Sederoff to call back was necessarily sufficient or that Constable Scobie's suggestion that 30 minutes was the right amount of time to wait. My conclusion is that the 18 minutes given for Ms. Schofield to call back was not sufficient in all of the circumstances of this case where there was no urgency to proceed with the tests.
Issue 3. If there was a violation of the right to counsel, should the breath samples and statements to police be excluded pursuant to s. 24(2) of the Charter?
[40] Section 24(2) of the Charter requires a consideration of the analytical framework laid down by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The test is well known and involves a consideration of three factors: (i) the seriousness of the Charter infringing conduct; (ii) the impact of the breach on the Charter protected rights of Ms. Duong; and (iii) society's interest in adjudication on the merits. The Court must balance an assessment of each one of these factors in order to determine whether, considering all the circumstances, the admission or exclusion of the evidence would bring the administration of justice into disrepute: see also Maciel at para. 53.
[41] I acknowledge that in undertaking the Grant analysis, the Ontario Court of Appeal in R. v. Manchulenko (2013), 2013 ONCA 543, 116 O.R. (3d) 721 (C.A.) makes it clear that the Court must consider the consultation with counsel of choice that took place from 6:49 AM to 6:55 AM, between the first and second breath samples. That is because in order to determine whether s. 24(2) is available as a basis for the exclusion of the evidence, it must be established that the evidence was "obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter" as required by s. 24(2).
[42] Accordingly, in my view, the question of the exclusion of evidence must look at the evidence gathered before 6:49 AM with counsel of choice and the evidence obtained after 6:49 AM.
(i) Evidence obtained before the 6:49 AM consultation with Counsel of Choice
[43] The evidence obtained before the 6:49 AM consultation with counsel of choice consists of the 6:44 AM breath sample and some statements made between 6:44 and 6:49 AM concerning her height and some medical information. I consider that these statements are of little or no value to the Crown. The 6:44 AM breath sample is important to the Crown if they wish to rely on the presumption of identity in s. 258 and they apparently do wish to rely on this presumption. There is no dispute that s. 24(2) is potentially available to the defendant to seek the exclusion of the evidence obtained before 6:49 AM and that there is a nexus between the breach of the right to counsel and the evidence in issue. As a result, the three-part Grant analysis must be considered.
[44] Turning to the question of the seriousness of the Charter infringing state conduct, I consider that a breach of the right to counsel is serious. Compliance with the right to counsel for those in custody is absolutely essential.
[45] On the other hand, there are some mitigating circumstances here. First, the police were not acting in bad faith. Constable Scobie was very professional in his dealings with Ms. Duong. He (and the arresting officer) made numerous efforts to contact two different counsel of choice. The primary failure of the police was a failure to wait a reasonable time for Ms. Schofield to call back. The fact that there was a consultation with duty counsel is potentially mitigating. However, I do not think it was made clear to Ms. Duong that she was speaking to duty counsel. She clearly thought she was speaking to her own lawyer. The arresting officer "defaulted" to duty counsel almost immediately after leaving a message for counsel of choice. The arresting officer essentially admitted this point in her cross-examination. Given that Ms. Duong did not ask to speak to duty counsel and did not even know she was speaking to counsel undermines the potentially mitigating effect of the duty counsel consultation in my view.
[46] R. v. Manchulenko has some similarities to the case at bar. It was a drinking and driving case in which the detained person said that they wished to contact counsel but then changed their mind and said they did not need to but they were not given a Prosper warning. In that case, a breath sample was given and then there was a change of mind again and the detained person indicated that they wished to speak to counsel before giving a further sample and such a consultation was facilitated. The Court of Appeal upheld a breach of the right to counsel. The Court of Appeal further stated at para. 98 that the trial court should have considered the consultation after the first sample and its impact on the seriousness of the earlier violation of the right to counsel and whether it reflected good faith on the part of the police such that the first breath sample should not have been excluded. Applying that principle to the case at bar, in my view, the fact that Ms. Duong was permitted to speak to her lawyer at 6:49 AM does little to mitigate the earlier violation. What choice did police have once Ms. Schofield called back only 23 minutes after she was first called? The violation of the right to counsel in this case lies in failing to wait a reasonable period of time for Ms. Schofield to call back in the first place. The fact that Ms. Duong was permitted to speak to her counsel when she did call back does little to mitigate the earlier breach in my view. In my view, it does have a significant impact on the evidence gathered after 6:49 AM but that is another matter.
[47] Two further points are worth making in connection with the first branch of the Grant test. First, a lack of bad faith does not equate to good faith. Second, the problem with right to counsel issues in Peel is common (see Justice Stribopoulos' judgment in Maciel at para. 55).
[48] I leave the first Grant factor with the conclusion that the breach of the right to counsel in this case was serious.
[49] I turn to the second Grant factor. In this case, I think that the impact on the Charter protected interests was limited. While it is difficult to say, the fact that Ms. Duong provided two breath samples and incriminating statements after she spoke to counsel of choice at 6:49 AM, suggests to me that if she had spoken to Ms. Schofield before the first breath sample, it seems likely that nothing much would have changed. However, not being afforded the opportunity to speak to your counsel of choice before being compelled to give evidence in the form of breath sample (which will then be used against the person in court) must be taken to have some impact. To summarize on this point, I consider that the impact on the Charter protected rights of Ms. Duong was limited.
[50] Turning to the question of society's interest in a trial on the merits, I recognize that this factor will usually favour the admission of the evidence. The breath sample is reliable evidence and largely non-obtrusive to obtain. The statements are not in the same category but I consider the pre-6:49 AM statements to be no value to the Crown. More importantly, if the second and third breath samples are admissible, and in my view for my reasons set out below they are, the impact of excluding the sample taken at 6:44 AM and any statements made until 6:49 AM is less. While the Crown did not call a toxicologist in this case, it could have easily done so and if the second and third breath samples are admissible (as I think they are) a toxicologist could have been used to prove the over 80 charge without the evidence obtained before 6:49 AM. Moreover, without a toxicologist and without the pre-6:49 AM evidence, the Crown can still pursue the impaired driving charge and may choose to make submissions on the over 80 charge. So the exclusion of the evidence obtained before 6:49 AM does not end the Crown's case or the truth-seeking function of the trial.
[51] Summarizing the three Grant factors, I consider that the violation of the right to counsel was serious; the impact on the Charter protected rights limited and while society has an interest in adjudication on the merits, the exclusion of evidence obtained prior to 6:49 AM would not doom the Crown's case on the over 80 case if a toxicologist had been called (and still may not doom it without a toxicologist) and it does not end the impaired driving case.
[52] In my view, balancing all of the Grant factors, the long-term interests of justice and the reputation of our justice system will be best served by the exclusion of the breath sample taken at 6:44 AM and the statements made before the consultation with counsel at 6:49 AM.
(ii) Evidence obtained after the 6:49 AM consultation with Counsel of Choice
[53] I have already signalled my view with respect to the breath samples and statements taken after 6:49 AM when Ms. Duong consulted with their counsel of choice. My view is that the breath samples obtained and statements made after 6:49 AM should not be excluded by reason of the earlier violation of the right to counsel. My reasons are as follows. In order for the defendant to avail herself of s.24(2) as a potential vehicle for the exclusion of evidence, the defendant must establish that the evidence was "obtained in a manner" that infringed the person's Charter rights or rights. In this case, the Charter right that was breached was the right to counsel by reason of my conclusion that the police failed to wait a reasonable time for counsel of choice to call back. That has led me to conclude that the breath samples and statements obtained prior to 6:49 AM should be excluded under s. 24(2) of the Charter. However, the breath samples and statements obtained after 6:49 AM are in an entirely different category. This evidence was obtained after the consultation with counsel of choice which lasted five or six minutes. I recognize that "obtained in a manner" does not require a causal connection between the violation and the evidence obtained. There must only be a nexus between the violation and the evidence and the nexus need only be temporal, contextual or causal. The evidence will be tainted if the violation and the evidence are part of the same transaction. What occurs during the passage of time between the violation and the obtaining of the evidence is an important consideration: see Manchulenko at paras. 72-73 for a discussion of the foregoing points.
[54] In this case, there was a clear and clean break between the violation, which was not waiting long enough for Ms. Schofield to call back, and the evidence obtained subsequent to the consultation with Ms. Schofield. The Court of Appeal in Manchulenko at para. 77 stated that such a consultation may be potentially a "fresh start" which eliminates the nexus between the Charter violation and the evidence obtained. The Court of Appeal ordered a new trial in that case because the trial judge failed to consider this and other points.
[55] In this case, I do consider that the consultation with Ms. Schofield amounted to a fresh start which severed the nexus between the Charter violation and the evidence obtained after 6:49 AM.
[56] If I am wrong in the foregoing conclusion, and s. 24(2) is available to the defendant, I would conclude that the Grant analysis would not lead to the exclusion of evidence obtained after 6:49 AM. The analysis has some similarities to the one above for the pre-6:49 AM evidence, but differs in that the seriousness of the violation is now minimal because the very matter that the defendant complained about namely the failure to wait a sufficient time for counsel of choice to call back, was remedied when counsel did call back and a consultation was facilitated at 6:49 AM. Similarly, the second branch of the Grant analysis would indicate a minimal impact on the Charter protected interests, more so than in connection with the pre-6:49 AM evidence. The final factor points towards the admission of the evidence. This time, the exclusion of the post-6:49 AM evidence would completely eliminate all of the Crown's case. In my view, the final factor in the Grant analysis favours admission of the evidence obtained post-6:49 AM.
[57] The balancing of the Grant factors points towards the admission of the post-6:49 AM evidence as all three factors tend to favour the admission of the evidence as does the long term impact on the justice system.
Conclusion
[58] For the foregoing reasons, I have concluded that all statements made by Ms. Duong to police after her arrest were voluntary.
[59] I have concluded that the breath sample taken at 6:44 AM and the statements made up until 6:49 AM were obtained in violation of Ms. Duong's right to counsel and will be excluded pursuant to s. 24(2) of the Charter.
[60] I have further concluded that the breath samples and statements obtained after 6:49 AM are admissible in evidence.
Released: October 7, 2016
Justice Paul F. Monahan