Court Information and Parties

Court: Ontario Court of Justice Location: Central West (Brampton) Date: May 3, 2017

Between: Her Majesty the Queen

— And —

Lisa Paul

Before: Justice P.T. O'Marra

Heard: March 22, 2017

Reasons for Judgment Released: May 3, 2017

Counsel

Counsel for the Crown: Seeta Scully

Counsel for the Defendant/Applicant Lisa Paul: Yaroslav Obouhov

Introduction

[1] The Applicant, Ms. Lisa Paul is charged that on January 14, 2016 she operated her motor vehicle while her blood alcohol level was over .08 contrary to section 253(1)(b) of the Criminal Code of Canada.

[2] Initially, the Defence filed a Notice of Application alleging infringements of the Applicant's Charter rights under section 8, 9, and 10(a) and 10(b). This matter proceeded as a blended voir dire. As the evidence developed I am left with the following issues to decide:

(i) Was the Applicant's right to speak to counsel of choice breached contrary to section 10(b) of the Charter?

(ii) If a Charter violation has been established, whether the admission of the breath readings would bring the administration of justice into disrepute and therefore warrant exclusion under section 24(2) of the Charter?

The Position of the Parties

The Defence

[3] The Defence argues that the Applicant when asked by P.C. Gifuni if she had a lawyer of choice, indicated that her husband could facilitate contact with a lawyer. P.C. Gifuni ignored this request and insisted that the Applicant speak to duty counsel. Furthermore, the Applicant was never furnished with a third option that she could contact any lawyer. As a result, the choice that the Applicant made to speak to duty counsel was not fully informed and thus not a choice.

The Crown

[4] The Crown, on the other hand argues that the Applicant never asked P.C. Gifuni in the cell lodging area to call her husband in order to facilitate communication with counsel. If she was concerned about speaking to counsel of her choice she was not diligent in doing so. She voiced no concerns about the quality of the legal advice from duty counsel to neither P.C. Gifuni nor the Intoxilyzer technician P.C. Peel. Finally, there is no evidence that counsel of her choosing was even available at that time.

The Evidence

P.C. Gifuni's Testimony

[5] On January 14, 2016 at approximately 12:14 am the Applicant was operating her motor vehicle eastbound on Steeles Avenue in the City of Brampton. At this time, P.C. Gifuni was following an ambulance westbound on Steeles Avenue that was attempting to make a left turn onto McLaughlin Avenue.

[6] In her opinion, the Applicant failed to stop for the ambulance as she was required to do so pursuant to the Highway Traffic Act. A traffic stop was initiated by P.C. Gifuni.

[7] At 12:18 am after speaking with the Applicant and making specific observations of the Applicant such as "red rimmed and watery eyes, slow physical movements and the smell of alcohol", P.C. Gifuni formed a reasonable suspicion that the Applicant had alcohol in her body while she had operated her motor vehicle.

[8] The ASD demand was made by P.C. Gifuni. At 12:22 am the Applicant registered a 'fail' on the ASD. She was arrested for the offence of "excess blood alcohol". She was advised of her right to counsel.

[9] At 12:25 am P.C. Gifuni asked the Applicant if she had a lawyer and she provided her husband's name, Tahir Shiekh and his cellphone number. At the time she provided the information regarding her lawyer the Applicant failed to advise P.C. Gifuni that this person was in fact her husband.

[10] At 12:37 am P.C. Gifuni called the number that was provided after arriving at 22 Division. There was no answer but a message was left on voicemail.

[11] After the message was left, P.C. Gifuni testified that the Applicant said that "Tahir is my husband, he works for a lawyer's office, but he is not a lawyer". At this point, P.C. Gifuni offered the Applicant the assistance of duty counsel. P.C. Gifuni took it upon herself to place a call to duty counsel at 12:41 am. Duty counsel returned the call at 12:45 am. From 12:45 am until 12:50 am the Applicant spoke to duty counsel.

[12] At 12:57 am the Applicant was turned over to P.C. Peel a qualified Intoxilyzer technician.

[13] The breath room video was played and entered as Exhibit #1 on the voir dire.

[14] P.C. Peel explained to the Applicant that the room was being video and audio taped. He stated to the Applicant the "video is here to protect your rights". He explained the Intoxilyzer procedure, possible consequences of refusing the demand, the automatic driver's licence suspension etc. He also confirmed that the Applicant had spoken to duty counsel and understood everything that was discussed with duty counsel. He read the formal breath demand, and cautioned the Applicant not to say anything.

[15] P.C. Gifuni testified at no point while in her presence did the Applicant request a specific lawyer or complain about the use of the duty counsel services.

[16] The Certificate of a Qualified Technician and the Notice of Intention to Produce the Certificate were filed on consent and marked as Exhibit #2 in the voir dire. The Certificate disclosed that the Applicant had truncated readings at 1:11 am of 250 milligrams of alcohol in 100 millilitres of blood and at 1:33 am 240 milligrams of alcohol in 100 millilitres of blood respectfully.

[17] P.C. Gifuni testified that while searching the Applicant's motor vehicle she located in the front passenger seat two full Corona beers and an empty bottle of vodka.

[18] P.C. Gifuni testified that she made three phone calls to the Applicant's husband. The first call she left a message assuming that he was a lawyer. The second and third calls she made were to advise her husband that his car was being impounded since he was the owner of the motor vehicle that the Applicant was operating at the time of her arrest.

[19] At 2:51 am the Applicant's husband called back. P.C. Gifuni confirmed with the Applicant's husband that he was going to pick up the Applicant from 22 Division and that his motor vehicle would be impounded for the period of seven (7) days.

[20] In cross-examination, P.C. Gifuni admitted that she did not have a clear recollection of the conversation with the Applicant during the four (4) minute period from 12:37 am (the call to her purported lawyer) and 12:41 am (the call to duty counsel), beyond their conversation about her husband not being a lawyer. P.C. Gifuni testified that she did not record their conversation verbatim in her notes.

[21] In cross-examination, P.C. Gifuni testified that she was unsure if she asked the Applicant if she wished to speak to duty counsel or not. However, once she realized that her husband was not a lawyer her notes reflect that she asked if the Applicant had "a lawyer of choice". The Applicant stated that she did not and as such P.C. Gifuni contacted duty counsel.

[22] In cross-examination, she disagreed with counsel's suggestion that the Applicant asked that she be permitted to call her husband in order that he could provide the name and telephone number of a lawyer.

[23] According to P.C. Gifuni, at no point during this time did she offer the Applicant the 'yellow pages' or the internet to look for the name of a lawyer.

[24] P.C. Gifuni testified that it is her practice to let a detainee speak with only a lawyer. However, in re-examination she clarified that she would call a friend of a detainee to obtain the name of a lawyer.

The Applicant's Testimony

[25] The Applicant testified on the voir dire. She confirmed that after P.C. Gifuni placed the first call she advised the officer that he was not a lawyer "but he has contact information for him to call other lawyers. He would have the name or names of lawyers that I could trust and talk to…he knows the right one to contact".

[26] The Applicant stated that at this point in the conversation P.C. Gifuni asked her if she had the name of another lawyer. She stated that she did not. P.C. Gifuni told her that she could speak to duty counsel.

[27] In cross-examination, the Applicant stated that P.C. Gifuni seemed "confused" after placing the call to her husband and inquired if in fact he was a lawyer. According to the Applicant, P.C. Gifuni remarked that "this part is not being taped". The Crown pointed out that she failed to mention this in her direct examination. The Applicant agreed that she did not mentioned this comment but was simply elaborating on the conversation.

[28] In cross-examination, the Applicant stated that she did not have in mind specific names and numbers of the lawyers to call. She stated that her husband worked for a law firm called "Kashlaw". He has worked at this firm for approximately 10 years. He assisted with telephone calls and paper work.

[29] Although she knew that the law firm has lawyers that practice criminal, family and real estate law she could not remember anyone's names. However, she wanted to contact her husband who would know the name of a lawyer that he trusted.

[30] In cross-examination, the Applicant testified that she thought that using duty counsel was her "only option". Although she stated that she had no problems with duty counsel she would have preferred to have spoken to a lawyer that her husband knew and trusted.

[31] The Applicant agreed with the Crown's suggestion that she neither complained about the quality of the legal advice nor asked if she could call another lawyer. However, the Applicant maintained throughout her evidence that she was never informed of any other options.

[32] The Applicant stated that P.C. Gifuni was polite for the most part but rather "pushy" and "tricky" during the four (4) minutes. The Applicant felt that the officer was rushing her to speak to duty counsel.

[33] The Applicant confirmed that while in the breath room P.C. Peel was neither "mean nor pushy". She confirmed that she raised no issues with having to speak with duty counsel nor did she request to speak to her husband. According to the Applicant, she "was just going along".

The Issue: Was the Applicant's Right to Consult with Counsel of Choice Breached?

[34] The Applicant alleges that P.C. Gifuni denied her the right to speak to a lawyer of her choice, by not contacting her husband for the purpose of obtaining the name and number of a lawyer. As well P.C. Gifuni never told her that she could speak to any lawyer, not just duty counsel. The Applicant bears the onus to prove this breach on a balance of probabilities. If the breach is made out, any evidence arising is still admissible unless it is demonstrated that the admission of the breath test results into the evidence could bring the admission of justice into disrepute.

[35] The only factual dispute between the parties is whether or not the Applicant asked P.C. Gifuni to call her husband in order to obtain a name and number of a lawyer that he knew? However, the resolution of this particular factual dispute is not dispositive of the issue of whether the counsel of choice right was infringed.

[36] I have carefully reviewed the evidence of P.C. Gifuni and the Applicant, the submissions by counsel, and the onus on the Applicant on balance of probabilities to satisfy the court that a breach of section 10(b) of the Charter has occurred. I have applied the requirements set out in R. v. W.(D.), [1991] 1 S.C.R. 742. I am aware that this is not a credibility contest between a police officer and the Applicant.

[37] As the whole I found that the Applicant was credible and was clear in her evidence. I do have some reservations about her evidence on several points, but not enough concern to dismiss it. The Applicant was an honest witness, but there could be an argument made that she was not a reliable witness given her extraordinarily high blood alcohol concentration. However, she showed only minimal signs of intoxication.

[38] I accept that the Applicant offered her husband's name and telephone number when she was asked at the roadside "Do you have a specific lawyer?" I accept that once the call was placed at 12:37 am she volunteered the truth about the fact that her husband was not a lawyer. I note at this stage in the investigation approximately 23 minutes had passed since the time of driving.

[39] I prefer the Applicant's evidence over P.C. Gifuni's on the point that she asked P.C. Gifuni to call her husband to get the name and number for a lawyer. My concern lies in the failure of P.C. Gifuni to accurately record the entire conversation from 12:37 am to 12:41 am in her notebook. "Reliable, independent and contemporaneous police officer notes are central to the integrity of the administration of criminal justice. See Schaeffer v. Woods, 2011 ONCA 716. I see no reason why this conversation should not have taken place in full view of an audio and video camera within the booking area at 22 division. A common sense approach would be for the Region of Peel to utilize and install this technology for the protection of police officers and detainees.

[40] But more importantly it would have been a preferable course of action for P.C. Gifuni to at least provide a lawyer's directory to the Applicant or access to the internet, or at least inquire as to the name of the law firm that employed her husband. I do not believe the officer turned her mind to taking further steps to put the Applicant in touch with counsel that her husband could possibly arrange for her. As Justice Stribopoulos stated in R. v. Maciel, 2016 ONCJ 563, [2016] O.J. No. 4789 at paragraph 48:

In my view, in this day and age, these are the sorts of very basic steps that any reasonably diligent individual who was attempting to contact a lawyer would undertake. These are entirely in keeping with the Supreme Court's direction that the police are required to take proactive steps to turn the right to counsel into access to counsel. Further, given the obligation upon the police to be reasonably diligent in contacting counsel of choice, it would make good sense for them to properly memorialize the steps that they undertake as they endeavor to discharge their constitutional obligations.

[41] I believe that the Applicant perceived that she did not have any option other than to use duty counsel. It is clear that she wanted to speak to her husband. But as soon as P.C. Gifuni was told that he was not a lawyer she contacted duty counsel.

[42] She was never provided with an option to contact "any" lawyer. The danger this presents is that the Applicant will not be fully informed of her right to counsel of choice. As Justice Band stated in para. 132 to 135 of R. v. McFadden, [2016] O.J. No. 6932:

The risk, as in this case, is that duty counsel is then foist upon a detainee who may very well have had a lawyer of choice.

But even if I am wrong about that, the options police presented to Ms. McFadden were incomplete in this case. By creating a false dichotomy, they failed to inform her that she, like any other detainee, has a third option: to contact any lawyer. That option, in this case, would have placed additional responsibilities on the police to facilitate contact by providing her with resources, such as a lawyers' directory.

Setting aside her general confusion, which was understandable, I find that Ms. McFadden was not fully informed of her right to counsel of choice.

As a result, any apparent choice she made to speak to duty counsel was not fully informed and therefore not a choice.

[43] If requested to do so the police are expected to contact third parties on behalf of the detainee. Justice Durno in para. 23 – 26 of R. v. Kumararasamy, [2002] O.J. No. 303 wrote:

Is there a breach of s. 10(b) if the police do not permit the detainee to contact a friend or relative to facilitate contact with counsel? In R. v. Tremblay, 60 C.R. (3d) 59, the accused was permitted to contact his wife and asked her to call back when she had reached his lawyer. The Court found a breach of s. 10(b), when the officers did not wait for the return call before asking the accused to provide a breath sample. Had the right to counsel not included the right to do so through the assistance of a third party, there would have been no violation of s. 10(b).

Relying on Tremblay, supra, Borins J. concluded in R. v. McNeilly, (1988), 10 M.V.R. (2d) 142 (Y.T.S.C.), the right to retain and instruct counsel includes the right to contact others to obtain counsel. Similar conclusions were reached in R. v. Oester, [1989] A.J. No. 648 (Alta. Q.B.), R. v. LaPlante, 40 C.C.C. (3d) 63, and R. v. Goodine, [1989] A.J. No. 220 (Alta. C.A.).

In the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee's efforts to do so: R. v. Brydges, 53 C.C.C. (3d) 330. This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel's number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.

This is not to say that a detainee is always entitled to make one or a series of calls to friends or relatives. The determination must be made on a case by case basis. No doubt there will be rare cases where a call to a friend or relative in private could jeopardize an ongoing investigation. For example, if the detainee has accomplices who had not been arrested, or if persons or property could be placed in jeopardy by permitting a call to someone other than a lawyer, a delay might be justified. That is not the case here.

[44] The Supreme Court in R. v. Prosper, [1994] 3 S.C.R. 236 has also explained the urgency in displacing the right to consult counsel should not rise in drinking and driving cases because of the passage of time may jeopardized the Crown's reliance on the two hour statutory presumption found in subsection 258(1)(c)(ii) of the Criminal Code. The Crown is still entitled to call expert evidence to relate back the blood alcohol level to the time of driving.

[45] The law also states that efforts to contact counsel of choice have proven unsuccessful the detainee will be expected to utilize duty counsel or face the risk of not being diligent in the circumstances. See R. v. Brydges, supra and R. v. Richfield, 178 C.C.C. (3d) 23.

[46] In R. v. Willier, [2010] S.C.C. 37 the Court also indicated that there is a positive duty on the detainee to exercise his or her rights with diligence. As well there is a corresponding duty of police to afford those detained a reasonable opportunity to contact a lawyer of their choosing and imposes a positive duty to enable contact.

[47] There was a positive duty on P.C. Gifuni to provide a third option to permit the Applicant access to a conventional lawyer's directory or conduct an internet search for a lawyer's name. In my opinion, P.C. Gifuni failed to fulfill the informational requirement imposed on her under section 10(b) and therefore, deprived the Applicant of her counsel of choice.

[48] The Crown argues that the Applicant failed to voice any dissatisfaction with the quality of the legal advice and that it is impossible for the police to read the mind of a detainee. Although a factor in the counsel of choice analysis, it is not dispositive. See McFadden, supra para. 140.

Section 24(2) of the Charter

[49] I must now consider whether or not the breath samples regarding the Applicant should be included or excluded from the trial under section 24(2) of the Charter. In doing so I must keep in mind the long term effect the inclusion or exclusion of this evidence will have on society's confidence in the criminal justice system. I must carefully examine the analytical framework as set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 having regard to three factors:

1. The seriousness of the Charter infringing conduct.
2. The impact on the Applicant's Charter protected interests.
3. Society's interest in the adjudication of the case on its merits.

The Seriousness of the Charter Infringing Conduct

[50] I could conclude that the infringement of the Applicant's section 10(b) right falls at the lower end of the spectrum if I only had to consider that there was no evidence that Applicant's husband was even available to arrange counsel of choice. But that is not the singular reason I have found that a breach had occurred. As I have stated earlier it was also P.C. Gifuni's failure to comply with the informational component of the right to counsel of choice that deprived the Applicant from making an informed choice.

[51] I cannot conclude that P.C. Gifuni deliberately set out to violate the Applicant's right to counsel of choice. The Applicant describe P.C. Gifuni as "polite" but "pushy" and "tricky". I think that it is far more likely that once she was told that the Applicant's husband was not a lawyer she "foisted" the duty counsel service upon the Applicant without any due consideration or awareness of the third option.

[52] It may have been a good faith based error, which is defined to mean where the police make an honest and reasonable error regarding the scope of their legal authority. I cannot accept that P.C. Gifuni committed an honest and reasonable error, rather I believed that she acted in ignorance of the law on counsel of choice. But even if I am wrong in my assessment of what constitutes good faith, the Supreme Court made it clear in Grant, supra at para. 76 that "ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith". As Justice Stribopoulos stated in Maciel, supra at para. 54 while citing the Supreme Court in Grant, supra at para. 133 "[t]his is because the police are rightly expected to know what the law is". See also R. v. Romaniuk, [2017] O.J. No. 1735.

[53] P.C. Gifuni demonstrated a lack of patience to even allow a 'call back' from the Applicant's husband. P.C. Gifuni called duty counsel within four (4) minutes after leaving a message for her husband. Implicitly, I find that P.C. Gifuni was in a hurry. The failure to wait for a call back and/or not calling her husband immediately thereafter for the name of a lawyer, in my opinion, may have been a product of the timelines that are set out by the Criminal Code concerning breath samples. This urgency is not permitted to displace the right to counsel. See Prosper, supra.

[54] This was not a breach committed in bad faith, but more likely a failure to fully understand the availability of a third option which in my view was due to faulty understanding or indifference to police obligations. The court must dissociate itself from this kind of breach in order to maintain society's confidence in the administration of justice.

[55] For these reasons the infringing state conduct militates towards exclusion.

The Seriousness of the Impact on the Charter Protected Interests of the Applicant

[56] Crown argues that the impact on the Applicant was minimal because she agreed to speak to duty counsel and seemed to agree to the advice. However, there is more to this inquiry than that.

[57] As Justice Harris wrote recently in R. v. Clayton, [2017] O.J. No. 1522 at para. 46:

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. The taking of a breath sample constitutes 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. It could be argued that these type of violations favour exclusion in order that the court is not seen to condone or associate itself with trial unfairness.

[58] But I agree with the Crown that since the Applicant did have the benefit of legal advice before entering the breath room, did not voice a concern and also seemingly remained silent throughout the process, lessens the impact of the infringing state conduct.

Society's Interest in the Adjudication on the Merits

[59] I must determine whether the truth-seeking function of the trial process would be better served by the inclusion or the exclusion of the evidence. I am mindful of the seriousness of the case, the reliability of the evidence and its importance to the Crown's case.

[60] The exclusion of the breath samples in an "over 80" case would prove to be fatal. This favours inclusion.

[61] Drinking and driving has potentially deadly and life altering consequences. The carnage that it creates is a scourge to our society. See R. v. Bernshaw, [1995] 1 S.C.R. 254. But I am also aware of the fact that the seriousness of the offence should not take on a disproportionate significance. See R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494.

The Balancing

[62] In balancing the above mentioned factors, the public's interest in the prosecution of drinking and driving offences, the breach of the Applicant's right to counsel of choice, the importance of this fundamental right, I believe that in order to best serve the long-term repute of the administration of justice the breath test results should be excluded.

Conclusion

[63] As a result, the breath results are excluded and the charge against the Applicant is dismissed.

Released: May 3, 2017

Signed: Justice P.T. O'Marra