Court File and Parties

Ontario Court of Justice

Date: 2017-04-06

Court File No.: Oshawa 16-33132

Between:

Her Majesty the Queen

— and —

Coady Grant

Before: Justice S. W. Konyer

Heard on: March 23, 2017

Reasons for Judgment released on: April 6, 2017

Counsel:

• Mr. G. Black, counsel for the Crown
• Mr. T. Balka, counsel for the defendant Coady Grant

KONYER J.:

INTRODUCTION

[1] Coady Grant is charged with having the care or control of a motor vehicle on December 17, 2015 in the City of Ajax while his blood alcohol concentration exceeded the legal limit of 80 milligrams of alcohol per 100 millilitres of blood. Mr. Grant was driving on Salem Road and came to the attention of Cst. Mark Brown, a patrol officer who noted some unusual driving behaviour and conducted a traffic stop. After a brief interaction with Mr. Grant, the officer made a demand that he provide a sample of his breath for analysis in an Approved Screening Device (ASD). Mr. Grant complied with this demand, and blew a fail. The fail result led to his arrest and a demand that he provide further samples of his breath at a police station for analysis by an Approved Instrument (in this case an Intoxilyzer 8000C). Mr. Grant ultimately provided breath samples, which were analyzed and show that his blood alcohol concentration was roughly two and a half times the legal limit.

[2] At trial, the defence claimed that Mr. Grant's right to be secure from unreasonable search and seizure, as guaranteed by s.8 of the Canadian Charter of Rights and Freedoms, was infringed because Cst. Brown did not form a reasonable suspicion that Mr. Grant had alcohol in his body at the time he made the ASD demand, as required by s.254(2) of the Criminal Code. The analysis of Mr. Grant's breath samples was a warrantless search. Warrantless searches are presumptively unreasonable, and the onus is on the Crown to prove that the police had reasonable grounds to conduct the search. Here, the fail result on the ASD is the only basis for the search of Mr. Grant's breath samples, so the Crown must prove that Cst. Brown had a lawful basis for making the ASD demand.

[3] The defence also claims that Mr. Grant's right to counsel as guaranteed by s.10(b) of the Charter was infringed because the police failed to immediately reinform him of his right to counsel once he was arrested for an additional charge of possession of marijuana. This occurred while Mr. Grant was being transported to the police station by Cst. Brown, who was informed by other officers that marijuana had been found inside Mr. Grant's truck. The Crown concedes that this 10(b) infringement has been made out on the evidence.

[4] The defence also claims that a further s.10(b) infringement occurred because the police did not take reasonable steps to facilitate Mr. Grant's right to speak to counsel of choice before eliciting incriminating information from him, including statements and breath samples. The Crown argues that the police properly informed Mr. Grant of his right to counsel, took reasonable steps to facilitate that right, and that Mr. Grant waived his right to counsel of choice by requesting duty counsel.

[5] As a remedy for the alleged infringements, the defence seeks an order excluding all evidence obtained by the police following Mr. Grant's arrest pursuant to s.24(2) of the Charter. The Crown argues that the 10(b) breach which is conceded was fleeting and technical, had no real impact on Mr. Grant, and should not justify the exclusion of reliable evidence necessary to the prosecution of this serious offence. Even if I find there to have been further breaches as claimed by the defence, the Crown argues that they do not justify exclusion of the evidence as the police acted in good faith, the impact on Mr. Grant's interests was minimal, and that exclusion would exact too great a toll on the trial's truth-seeking function.

[6] Accordingly, the issues I must decide are as follows:

i) Has the Crown proven on a balance of probabilities that Cst. Brown had a reasonable suspicion that Mr. Grant had alcohol in his body at the time of the ASD demand?

ii) Has the defence proven a breach of Mr. Grant's right to counsel of choice on a balance of probabilities?

iii) Should the evidence, including the results of the analyses of Mr. Grant's breath samples, be excluded as a result of any breach(es), including the 10(b) breach conceded by the Crown?

[7] To resolve these issues, it will be necessary to review the facts in some detail.

SUMMARY OF THE FACTS

[8] On consent, the evidence on the Charter applications and the trial proper was heard together. The Crown called Cst. Brown, the arresting officer, and Cst. Jonathan Prins, a qualified technician who conducted an analysis of Mr. Grant's breath samples on the Intoxilyzer. The defence chose to call no evidence on either the Charter applications or on the trial itself.

[9] Cst. Brown was driving a marked police cruiser southbound on Salem Road in the city of Ajax at 9:49 p.m. when he noticed a pickup truck ahead of him, also traveling southbound. The truck was traveling in the left hand lane with its hazard lights flashing, and the officer noticed it weaving within its own lane. Cst. Brown followed the truck for a short distance over the highway 401 overpass, when the truck made a sudden u-turn. The truck made a wide turn, and mounted the curb at the far side of the northbound lanes of Salem Road before heading back towards highway 401. Cst. Brown followed the truck and immediately conducted a traffic stop.

[10] Cst. Brown approached the truck and determined that Mr. Grant was the driver and sole occupant of that vehicle. When he first approached the truck, the driver's window was already down, and Cst. Brown detected what he described as an "overpowering" smell of cigarette smoke. Mr. Grant held a lit cigarette in his left hand close to the open window. When Cst. Brown requested documents, he said that Mr. Grant stared at him for an extended period, and that his eyes were glossy but without noticeable redness. At this time Cst. Brown detected a faint odour of alcohol coming from Mr. Grant's person. He asked Mr. Grant if he had consumed any alcohol, to which Mr. Grant replied "no". He followed up by asking Mr. Grant if he was sure he had not even consumed one drink, to which Mr. Grant responded "not one" in a slurred voice. He took no further steps, such as asking Mr. Grant to step out of the vehicle, to determine whether the faint odour of alcohol was emanating from Mr. Grant's breath or some other source.

[11] Cst. Brown said that he did not believe Mr. Grant's denials, and suspected that he had alcohol in his body. His suspicion was based on the totality of the circumstances, including the driving behaviour, glossy eyes, slow response to the request for documents, slurred speech and odour of alcohol. He demanded that Mr. Grant provide a sample of his breath into an Approved Screening Device. Mr. Grant complied with this request and blew a fail, which meant to Cst. Brown that he had alcohol in his blood at a level that exceeded the legal limit. At this point, Cst. Brown placed him under arrest.

[12] The time of the arrest was 9:55 p.m. Cst. Brown said he informed Mr. Grant that he was under arrest for "exceed". At 9:57 p.m., he informed Mr. Grant of his rights to counsel using the wording contained in the back of his police issued notebook, starting off by telling Mr. Grant again "I am arresting you for exceed" before informing him of his right to retain and instruct counsel without delay, as well as providing information about the availability of duty counsel. Mr. Grant said that he understood the information he had been provided. When asked if he wished to call a lawyer, Cst. Brown said in examination in chief that Mr. Grant told him that he had a lawyer but that duty counsel would be fine. He then cautioned Mr. Grant against making any statement, again telling him that he was under arrest for "exceed".

[13] In cross examination, Cst. Brown confirmed that his memory of specific details of this investigation was aided by the notes and report that he had made. However, he did not complete his notes until after he had transported Mr. Grant to the station while Mr. Grant was in the custody of Cst. Prins, the Qualified Technician. He completed his report after the testing was done and Mr. Grant was lodged in cells. On the issue of Mr. Grant's response to being informed of his right to counsel, Cst. Brown agreed that his notes say that Mr. Grant told him simply that "duty counsel would be fine" while his report says that Mr. Grant told him that "he had his own lawyer but that duty counsel would be fine". Cst. Brown agreed that he did not record what Mr. Grant told him at the time of his response to being read his rights, but rather recorded the response from memory at a later time.

[14] After arresting Mr. Grant, Cst. Brown called for other officers to attend the scene to wait with his pickup truck until a tow truck arrived. These officers arrived promptly, and Cst. Brown left the scene at 10:07. While en route to the station, he was notified by radio that the officers he had left in charge of Mr. Grant's truck had performed a search of the vehicle and had found some marijuana. As a result of learning this information, Cst. Brown immediately informed Mr. Grant that he was under arrest for possession of a controlled substance. He did not inform Mr. Grant of his right to counsel or caution him in relation to this arrest.

[15] Cst. Brown arrived at the Pickering detachment at 10:12 p.m., and brought Mr. Grant before Sgt. Devries, the Staff Sergeant on duty. This area of the cell block is captured by video surveillance, which was played at trial. Portions were also audio recorded. On the video, Mr. Grant can be seen entering the cell block and sitting on a bench until Sgt. Devries arrived. At this point, the audio was turned on and the following exchange occurred between the officers and Mr. Grant.[1]

Devries: Okay Mr. Grant, have you been told why you're under arrest? Sir, these questions are for you now. Have you been told why you're under arrest?

Grant: Yes sir.

Devries: Has this officer advised you that you can phone a lawyer and such?

Grant: This officer right here?

Devries: Yes.

Grant: Yes.

Devries: Okay. Would you like to phone a lawyer?

Grant: What are the charges sir?

Devries: The charges? I don't know what the charges are right now, at any rate, you're under arrest right now for obviously an impaired driving or driving over with the amount of alcohol in the blood stream and it looks like possession of marijuana. So those are the charges. So do you have a lawyer you would like to be called, or can we offer you a thing called duty counsel which is a free legal aid service that we can put you in touch with a lawyer?

Grant: I have a lawyer, yes sir. I would just like to ask this officer's suggestion on what I should do.

Brown: I can't give you advice. I can't give you advice on that. If you have a lawyer you can give me his name, I'll call him and leave a message, hopefully he calls back. If you would like to speak to a free duty counsel lawyer, I'll call him. They'll call back in 15 um, 10 to 15 minutes.

Grant: Alright. I'd like to take the officer's advice for a free lawyer.

Devries: Okay great.

Grant: I'll call duty counsel.

Devries: So no problem.

Grant: I don't want to argue against him.

[16] Cst. Brown placed a call to duty counsel at 10:31, and at 10:44 duty counsel called back and spoke to Mr. Grant privately. At 10:53, Mr. Grant was turned over to Cst. Prins, a qualified technician, for the purpose of analyzing samples of his breath on the Intoxilyzer. Their interaction in the breath room was also captured on an audio/video recording.[2]

[17] Cst. Prins began by telling Mr. Grant "I'm going to explain everything to you" and "Starting off, I'm going to explain exactly what's going to happen okay?" Mr. Grant was very talkative throughout the breath room procedures, though his responses were often rambling and unfocussed. For example, he repeatedly asked for a cigarette despite having this request refused, he repeatedly tried unsuccessfully to shake the officer's hand despite being told not to, and he asked Cst. Prins for his first name and marital status while the officer attempted to explain the procedure. Then, the following exchange occurred:

Prins: So you're being charged with exceeding 80 mg of blood alcohol content. Do you wish to say anything in answer to the charge, you're not obligated to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you…

Grant: No, I want my lawyer here for that…

Prins: … understand that?

Grant: … for that…

Prins: Do you understand that?

Grant: I want my lawyer here for that.

Prins: Okay, you understand you don't have to say anything to me?

Grant: I'm not saying shit.

Prins: Okay, that's fine. I do not need you to say anything, I just need you to understand that if you do tell me anything it's going to be used as evidence.

Grant: I want my lawyer here.

Prins: You're lawyer's not going to come here. So as long as you understand that, okay? Second thing: if you've spoken to any police officer or anyone with authority or if any such person has spoken to you in connection with this case I want it clearly understood that I don't want it to influence you in making any statement. Do you understand that?

Grant: No I don't. (laughing)

Prins: It means that nobody…

Grant: (inaudible interruptions)

Prins: … promised you anything, nobody's said anything that is expressed as "if you do this breath test, I'm gonna do this for you" or "if I tell you this information we'll do this for you" type of thing.

Grant: Yeah, I talked to that officer, officer … (inaudible)

Prins: Yup, okay. You understand then?

Grant: He walked me through all the steps.

Prins: Yup.

Grant: And he told me I would be able to speak with my lawyer.

Prins: Which you did right?

Grant: Nope, that's not my lawyer.

Prins: Well that's the lawyer you requested to speak with?

Grant: Yeah.

Prins: Right.

Grant: But that officer was awesome.

Prins: So you understand that?

Grant: Yeah. I want the court to know that.

Prins: That's what we like to hear.

Grant: (sudden agitation) I'm not starting a fight anybody or anything man.

Prins: … before we get any further.

Grant: Yeah, I don't want to fuck myself in the ass.

Prins: All I need you to tell me is if you understand what I said.

Grant: (inaudible)

Prins: If you've spoken to any police officer…

Grant: Yeah.

Prins: ... or if anyone with authority or if any such person has spoken with you in connection to this case, I want it clearly understood that I don't want it to influence you to making any statements. Nobody's bribing you to making statements or anything like that?

Grant: No sir, I understand, okay.

Prins: That's all I needed from you man.

Grant: Sorry man.

[18] At no time did Cst. Prins reinform Mr. Grant of his right to counsel, nor did he ever offer Mr. Grant the opportunity to speak to either duty counsel or his own lawyer. When pressed in cross-examination, he said it was his understanding that Mr. Grant had been informed of his right to counsel and that he had exercised that right. He agreed with the suggestion that he had an obligation to clarify this point if anything said during his interview of Mr. Grant led him to believe that Mr. Grant misunderstood his 10(b) rights or was dissatisfied with the legal advice he had received.

[19] Cst. Prins maintained that he never had any concerns in this regard as a result of his interview with Mr. Grant. The entire breath testing procedure lasted over 40 minutes as it was necessary to take a third sample from Mr. Grant because the results of the analyses of the first two samples were not in good agreement. Mr. Grant remained very talkative throughout the entire procedure.

[20] The conversation returned to the topic of a lawyer after the completion of the first sample. Cst. Prins tried to confirm that Mr. Grant had spoken to a lawyer before questioning Mr. Grant about the specifics of the events that led to his arrest. This prompted an outburst of comments from Mr. Grant, including the following:[3]

• "That cheapy lawyer"
• "I'm gonna get fucked for that"
• "Tell me what to do man, I don't know what to do, you're a cop"
• "That wasn't my lawyer, you tell me what to do, you're a cop"
• "My lawyer is off, it's 10 at night"

[21] At this point, Cst. Prins asserted to Mr. Grant that he made the choice to call duty counsel, prompting Mr. Grant to reply "you guys told me, I'm not fucking with you guys". Cst. Prins then asked if Mr. Grant understood why he was under arrest, to which he replied – "For drinking? Are you suspecting me of drinking and driving? That's why I think I might be here."

[22] The results of the analyses of the second and third samples provided by Mr. Grant were 210 and 209 milligrams of alcohol per 100 millilitres of blood, respectively. No issue was taken with the qualifications of Cst. Prins, the functioning of the Intoxilyzer, or the manner in which the testing was conducted. Mr. Grant was subsequently charged with the offence before the court, as well as possession of marijuana. The marijuana charge was previously withdrawn. Mr. Grant was not charged with operating or having the care or control of his vehicle while impaired by alcohol.

ANALYSIS OF THE ISSUES

i) The s.8 Charter claim – has the Crown proven that Cst. Brown had a reasonable suspicion that Mr. Grant has alcohol in his body?

[23] I accept that Cst. Brown detected an odour of alcohol coming from the person of Mr. Grant while he was still seated in his truck. I do not believe his claim, made for the first time when pressed on the issue in cross-examination, that he actually detected the odour of alcohol emanating from Mr. Grant's breath prior to making the ASD demand. Cst. Brown is an experienced police officer. Had he taken additional investigative steps to isolate the source of the odour of alcohol, it stands to reason that he would have conveyed this information to Cst. Prins when providing his grounds, and to Crown counsel when asked in examination-in-chief.

[24] Although the officer's lack of candour on this point is troubling in a general sense, it does not impact my conclusions on the s.8 issue. The threshold for a reasonable suspicion within the meaning of s.254(2) is low. All that is required is that the officer subjectively suspect that the driver has alcohol in his or her body, and that the suspicion be objectively reasonable: see R. v. Daynes, 2000 O.J. No. 1782 (S.C.J.), para. 2. It is clear that the existence of the odour of alcohol on the breath of a driver would suffice: see R. v. Lindsay, [1999] O.J. No. 870 (C.A.) and R. v. Carson, 2009 ONCA 157, [2009] O.J. No. 660 (C.A.). Further, I agree with the analysis of Justice Duncan in R. v. Mason, [2013] O.J. No. 2822, where he held that an odour of alcohol emanating from a vehicle occupied only by the driver is a sufficient basis for an objectively reasonable suspicion that the driver has alcohol in his or her body, despite the fact that there may be other plausible explanations for the source of the odour.

[25] Here, Cst. Brown subjectively believed that he had a reasonable suspicion based on a totality of the circumstances, including the poor driving, vacant stare, glossy eyes and odour of alcohol from Mr. Grant's person. I find that his belief was objectively reasonable.

[26] Accordingly, the Crown has met its onus. Mr. Grant's s.8 rights were not infringed.

ii) The s.10(b) Charter claim – has Mr. Grant proven an infringement of his right to counsel of choice?

[27] The Supreme Court has held that "[t]he 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": R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. The emphasis, therefore, is on assuring that the detainee's decision to cooperate with the investigation or to decline to do so is free and informed": R. v. Sinclair, 2010 SCC 35, [2010] S.C.J. No. 35, at para. 26. Furthermore, the ability of a detained or accused person to choose their counsel is an important safeguard to ensure a level playing field between the individual and the state: R. v. McCallen, [1999] O.J. No. 202 (C.A.), at paras. 32-40.

[28] In order to achieve this purpose, the law imposes obligations on police officers who arrest or detain individuals. I agree with the following succinct summary of these obligations in the context of drinking and driving investigations set out by Justice Javed in R. v. Ablack, [2016] O.J. No. 2597 (C.J.) at para. 45:

The law is clear that the police must give rights to counsel to a suspect before taking breath samples and must give the individual (a) sufficient information concerning the right (the informational component) and (b) a reasonable opportunity to exercise those rights (the implementational component): R. v. Brydges, 53 C.C.C. (3d) 330 (SCC). In R. v. Baig, 37 C.C.C. (3d) 181 (SCC) at 183, the Supreme Court of Canada stated that when police properly inform a detainee about his s.10(b) rights and the evidence does not suggest that the detainee did not understand these rights, compliance is presumed unless the detainee proves on a balance of probabilities denial of a reasonable opportunity to ask for or consult with counsel.

[29] In Mr. Grant's case, I have a real concern about whether the police complied with the informational component of the right to counsel. Mr. Grant was apparently told by Cst. Brown that he was under arrest for "exceed", which is clearly a deficient explanation. Although it is true, as the Crown argues, that an arrestee in these circumstances could infer through the application of logic and common sense that he or she was under arrest for a drinking and driving related offence, this is not what the law requires. A person under arrest is entitled to be told the specific reason for the arrest in order to make an informed decision about whether and how to assert their right to counsel. The law imposes an obligation on detained or arrested persons to act diligently in exercising their right to counsel. It is reasonable to expect police officers to act diligently in providing the information necessary to permit the detained or arrested person to make this choice. Cst. Brown is an experienced police officer and it is troubling that he did not act with greater care in complying with his constitutional obligations.

[30] The Crown argues that any deficiencies in the informational component of the right to counsel were cured when Mr. Grant was booked by Sgt. Devries. It is noteworthy that Mr. Grant asked what charges he was facing in response to a query from Sgt. Devries whether he wanted to exercise his right to counsel. This ought to have highlighted the need to ensure that Mr. Grant was informed with specificity of his legal jeopardy before he was called upon to decide whether to exercise his right to counsel. Instead, he was told "I don't know what the charges are right now, at any rate, you're under arrest right now for obviously an impaired driving or driving over with the amount of alcohol in the blood stream and it looks like possession of marijuana." On the record before me, this is different information than what was provided to Mr. Grant at the roadside, and it would be a stretch to say that this answer clarified Mr. Grant's legal jeopardy in any meaningful way. It is difficult to understand why neither officer took the time to ensure that Mr. Grant was informed of the specific reasons for his arrest at this juncture.

[31] This is the context in which Mr. Grant was required to decide whether to exercise his right to counsel. He clearly understood that he had a choice between calling his own lawyer or accepting advice from duty counsel. He clearly conveyed to the police that he wished to exercise his right to counsel, that he had his own lawyer and was uncertain whether he should call his own lawyer or duty counsel for assistance. As he told Sgt. Devries: "I have a lawyer, yes sir. I would just like to ask this officer's suggestion (indicating Cst. Brown) on what I should do."

[32] Cst. Brown testified that when he asked Mr. Grant if he wished to call a lawyer after informing him of his right to counsel at the roadside, that Mr. Grant told him that he had his own lawyer but that duty counsel would be fine. Cst. Brown did not make contemporaneous notes of this conversation, and in fact did not make any notes until Mr. Grant was in the breath room with Cst. Prins. His made notes about that conversation after arresting Mr. Grant, waiting for other officers to arrive to deal with his vehicle, transporting Mr. Grant, booking him, placing a call to duty counsel, conveying his grounds to Cst. Prins and turning over custody of Mr. Grant to Cst. Prins. He did not record Mr. Grant's utterances verbatim, and I find that he likely recorded a summary of his conversation with Mr. Grant. From what Mr. Grant had to say to both Sgt. Devries and Cst. Prins, I find that Mr. Grant likely sought advice at the roadside about whether to call his own lawyer or duty counsel. I do not believe that Mr. Grant simply said that duty counsel would be fine. This is bolstered by what he did tell Sgt. Devries: "I'd like to take the officer's advice for a free lawyer" and "I don't want to argue against him".

[33] On the record before me, I find that Mr. Grant did not clearly and unequivocally waive his right to speak with his own lawyer; rather, he appears to have relied upon what he believed to be advice from the officer who arrested him. Whether such advice was actually given or not, once Mr. Grant communicated his thought process, it was in my view incumbent upon the police to ensure that he was making his decision free of any influence. He should have been clearly told that he had the right to call his lawyer, that the police would give him a reasonable opportunity to reach his lawyer, and that any investigation could be held off while efforts were made to reach his lawyer. It is true that he was told that he could provide his lawyer's name, that the police would "leave a message, hopefully he calls back" and that Mr. Grant did indicate a wish to speak to duty counsel at that time. A fair reading of this entire exchange, together with his subsequent comments to Cst. Prins, makes it clear however that Mr. Grant made this choice in reliance on what he thought was advice from Cst. Brown.

[34] A detained person does not have an absolute right to speak to counsel of choice in all circumstances: see R. v. Richfield, [2003] O.J. No. 3230 (C.A.), at para. 7. When an accused person alleges a breach of s.10(b) on the grounds that the police did not take reasonable steps to facilitate contact with counsel of choice in circumstances where the accused spoke to duty counsel, the accused must furnish an evidentiary basis for the court to find, at a minimum, that he or she expressed some dissatisfaction with duty counsel: see R. v. Littleford, [2001] O.J. No. 2437 (C.A.), at para. 8. In other words, an accused person cannot accept advice from duty counsel, stand mute, and then later claim that they were dissatisfied with duty counsel and really wanted advice from their own lawyer.

[35] In R. v. Zoghaib, [2006] O.J. No. 1023 (C.A.), the Ontario Court of Appeal upheld a summary conviction appeal court ruling that there had been no counsel of choice infringement in circumstances that are instructive. "The Appellant was fully advised of her right to counsel at the roadside and understood those rights. On the finding of fact made by the trial judge, any subsequent misapprehension by the appellant of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought processes, none of which were conveyed to or known by the officer. The Summary Conviction Appeal Court correctly held that as a matter of law the appellant's unexpressed desire to speak to her own lawyer could not result in a breach of s.10(b) of the Charter [emphasis added]."

[36] The circumstances in Mr. Grant's case are markedly different. For the reasons already expressed, I am not satisfied that he was provided with the information necessary for him to make a fully informed decision about whether and how to exercise his right to counsel since he was not properly informed of the reason for his arrest. He was then not properly informed that he had the right to wait while efforts were made to contact his lawyer. Nothing was said to him to disabuse him of his expressed belief that the police had a preference that he speak to duty counsel rather than making efforts to contact his own lawyer. Most importantly, Mr. Grant expressed his dissatisfaction with duty counsel and preference for his own lawyer in no uncertain terms to Cst. Prins, and he did so repeatedly. It was also apparent from the breath room video that Cst. Brown listened to much of this conversation and intervened in relation to other issues, yet he too never addressed the right to counsel issues raised in the breath room.

[37] In R. v. Sinclair, 2010 SCC 35, [2010] S.C.J. No. 35, the Supreme Court held that police may be required to provide an additional opportunity to consult with counsel where circumstances arise that call into question the detainee's understanding of the right. "If events indicate that a detainee who has waived his right to counsel may not have understood his right, the police should reiterate his right to consult counsel, to ensure that the purpose of s.10(b) is fulfilled: Prosper. More broadly, this may be taken to suggest that circumstances indicating that the detainee may not have understood the initial s.10(b) advice of his right to counsel impose on the police a duty to give him a further opportunity to talk to a lawyer." [para. 52]

[38] The only reasonable inferences available from the record of interactions between Mr. Grant and the police is that he was unsure about how to exercise his right to counsel, that he chose to speak to duty counsel in a belief that the police thought this the best course of action, and that he was dissatisfied afterwards with duty counsel. Unlike Zoghaib, in this case Mr. Grant communicated his own thought processes and confusion to the police. His desire to speak to his own lawyer did not go unexpressed. In my view, any reasonable observer would be compelled to the conclusion that Mr. Grant was unhappy with the legal advice he received from duty counsel and that he wanted to speak to his own lawyer.

[39] I agree with Justice Javed in Ablack, supra, where he held that "[h]ad he been equivocal in his responses about who to consult, it would have been incumbent on the police to assist him to contact a lawyer of his choice" [para. 48]. Here, Mr. Grant's responses were absolutely equivocal, and the police were required to do more than accept his mere acquiescence of what was clearly the easiest route for the police to implement his 10(b) rights. Mr. Grant's situation is very different from that of Mr. Ablack, who fully understood his right to counsel, chose to speak to duty counsel and registered no complaint after the fact. Mr. Grant's clear confusion on the point, his expressed desire for assistance in making the choice between his own lawyer and duty counsel, and his clear dissatisfaction with duty counsel after the fact all distinguish his case from the cases relied upon by the Crown, including Ablack, Zoghaib, Littleford, Richfield, supra, and R. v. Papanastasiou, [2014] O.J. No. 3447 (C.J.).

[40] In Mr. Grant's case, the police failed to act diligently by not taking reasonable steps to properly inform him of the reasons for his arrest, by not ensuring that his choice of duty counsel was made freely, and by ignoring his complaints about duty counsel after the fact. He has established a breach of his right to counsel.

iii) The s.24(2) Charter remedy – should any evidence be excluded?

[41] In order to determine whether the admission of results of the analysis of Mr. Grant's breath samples would bring the administration of justice into disrepute, I must "assess and balance the effect of admitting the evidence on society's confidence in the justice system": R. v. Grant, 2009 SCC 32 at para. 71. There are three branches to the section 24(2) inquiry: first, I must consider the seriousness of the Charter-infringing state conduct; second, I must weigh the impact of the infringement on Mr. Grant's Charter-protected interests; and third, I must also consider society's interest in an adjudication of the case on its merits.

a) The seriousness of the Charter-infringing state conduct

[42] I consider the police conduct to be serious. Multiple officers wilfully ignored the need to take steps to ensure that Mr. Grant was provided with clear information relevant to his choice of counsel. The Crown rightly concedes a 10(b) breach flowing from Cst. Brown's failure to reinform Mr. Grant of his right to counsel following his second arrest for possession of a controlled substance, but argues that this breach was of no consequence since Sgt. Davies subsequently informed Mr. Grant of his right to counsel in relation to that charge, and that Mr. Grant exercised this right. Were this the only 10(b) infringement that occurred, I would agree. I find, however, a pattern of carelessness on the part of the police towards their duty to facilitate a proper understanding by Mr. Grant of his right to counsel. I also find that multiple officers demonstrated an indifference towards their duty to ensure that Mr. Grant's 10(b) rights were properly implemented.

[43] Wilful ignorance of Charter standards cannot be equated with good faith. Since the purpose of the right to counsel is to ensure fairness in interactions between the state and detained or arrested persons, conduct by the state which undermines this right impacts basic procedural fairness. It is important that courts disassociate themselves from such conduct. This factor militates in favour of the exclusion of the evidence.

b) The impact on Mr. Grant's Charter-protected interests

[44] Mr. Grant did speak to counsel, and in the absence of evidence to the contrary I must presume that he received competent legal advice. Although it is clear that Mr. Grant disparaged duty counsel during his interaction with Cst. Prins, there is no evidence before me to suggest that the advice he received was inadequate.

[45] Since the purpose of the right to counsel is to ensure that detained and arrested persons receive independent and competent legal advice in order to level the playing field, I conclude that the impact on Mr. Grant's Charter-protected interests was minimal. This branch of the analysis therefore favours admission of the evidence.

c) Society's interests in an adjudication of the case on its merits

[46] The results of the analysis of Mr. Grant's breath samples by the Intoxilyzer 8000C are reliable. No challenge has been taken to the operator's qualifications, the machine's calibration or reliability, or the manner in which the tests were conducted. Exclusion of the readings would deprive the public of an adjudication of a serious criminal charge on its merits. This factor favours admission of the evidence.

[47] It is worth noting, however, that the police chose not to lay a charge of impaired operation despite the existence of powerful evidence of impairment that exists independently of the s.10(b) breach. Therefore, although exclusion of the breath readings would gut the prosecution on the s.253(1)(b) charge, the substance of the allegation of criminal conduct against Mr. Grant could have nevertheless been adjudicated on its merits had the police laid a charge of impaired driving.

d) The balancing of interests

[48] The purpose of s.24(2) is to maintain the good repute of the administration of justice in the long term. The focus of the balancing of interests is not on the immediate case before the court, but rather "whether the overall repute of the justice system, viewed in the long term, will be adversely affected by the admission of the evidence": Grant, supra, at para. 68. My concern is not with punishing the police or compensating the accused. Rather, the focus is societal, and I must consider objectively whether "a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute": Grant, supra, at para. 68.

[49] This is a close case, and I recognize that two out of the three lines of inquiry under s.24(2) favour admission of the evidence. The balancing, however, is an exercise in judgment and not a mathematical formula. Where the need to disassociate the court from serious Charter infringements is strong, the balance may tilt in favour of exclusion even though the actual impairment of the Charter interests was minimal and the loss of evidence will deprive society from a trial of the case on its merits: see R. v. Mehta, [2012] O.J. No. 5587 at para. 21 and R. v. Biernaskie, [2014] O.J. No. 2236 at para. 35-37. My best judgment in this case is that the need to disassociate the justice system from the wilful and ongoing disregard shown by multiple officers for Mr. Grant's 10(b) rights in this case outweighs the competing factors. The evidence is excluded.

[50] In the result, there is no evidence of Mr. Grant's blood alcohol concentration and the sole charge before me is dismissed.

Released: April 6, 2017

Signed: "Justice S. W. Konyer"

Footnotes

[1] No official transcript of this recording was produced, but portions of the conversation was transcribed in the Crown's Response to the Charter application, at para. 36. Counsel have agreed that these portions were accurately transcribed, and I have relied on same.

[2] Again, no official transcript was prepared. I am relying on portions transcribed in the Crown Response at para. 38, as well as my own review of the recording for those portions not produced by counsel.

[3] This portion of the recording was not transcribed.