Court File and Parties

Ontario Court of Justice

Date: 2017-06-08

Court File No.: Kitchener 16-6509

Between:

Her Majesty the Queen

— and —

John Soule

Amended: June 12, 2017

Before: Justice C. A. Parry

Heard on: May 1, 2017

Reasons for Judgment

Oral Reasons delivered on May 1, 2017 Written Reasons released on June 8, 2017

Counsel:

• A. McMaster, for the Crown
• A. Bond, for the defendant John Soule

Decision

PARRY J.:

The Charge

[1] John Soule stands charged that on the 22nd of September, 2016 he did without reasonable excuse refuse to comply with a demand made to him by Constable Gill, a peace officer, under section 254(2)(b) of the Criminal Code to provide a sample of his breath as in the opinion of Constable Gill was necessary to enable a proper analysis of his breath to be made by means of an approved screening device. The offence is said to have occurred in the City of Cambridge in the Regional Municipality of Waterloo.

The Charter Application

[2] Mr. Soule through his counsel brings a Charter application alleging that Officer Gill violated his right to retain and instruct counsel. The upshot of the Charter complaint is that the officer formed a subjective belief from the existence of a sufficient delay in the arrival of an approved screening device such that giving the accused an opportunity to speak to counsel was warranted. After advising him incompletely of that right, and before the accused was able to exercise that right, a screening device arrived. The officer is alleged to have violated his duty to hold off eliciting further evidence and went through the ASD testing procedure, wherein he was ultimately met with a refusal by the accused.

Facts

[3] The facts can be briefly stated. Officer Gill was working on patrol. He is in the City of Cambridge and he is driving in the vicinity of Elgin Street. He sees a vehicle approaching an intersection and making a right turn at that intersection. He notices before that right turn happens that the vehicle is driving without a valid licence plate sticker. He pulls that motor vehicle over, advises of the reason for the stop and demands licence, ownership and insurance.

[4] During the course of a brief conversation he eventually notices the odour of an alcoholic beverage emanating from the accused's breath and glossy eyes. The officer inquires of the accused about consumption. The accused denies consumption. Nevertheless, the officer forms a suspicion that the accused had alcohol in his body at the time he was operating his motor vehicle.

[5] As a result, he decides he is going to administer an approved screening device test. So the first thing he does is he calls over the police radio to request an approved screening device. He gets a response from a Constable McKenna. Constable McKenna advised over the radio that he had an ASD and would be en route. However, the officer does not recall what McKenna said about his ETA or his location at the time of the response.

[6] The officer was approximately, in his mind, 500 metres from a police detachment, which begs the question why he did not just take the accused to the detachment if he had a belief that a screening device might be there. But what is clear to me from having listened to Officer Gill is he did not address his mind as to the location of any particular device. He did not address his mind to whether or not the devices were at the police station; whether they were all checked out of the police station; whether McKenna was a kilometre from him; whether McKenna was 20 kilometres from him. He just simply did not ask himself those questions and he does not recall anything McKenna said about his location or estimated time of arrival.

[7] So the upshot of his lack of inquiry is that Constable Gill candidly admitted not knowing when a device might arrive, while simultaneously asserting he thought the device would arrive relatively promptly, two apparently contradictory propositions. His actions though, following whatever thought he put into that issue, tell me the conclusion he reached. His actions were to ask the accused if the accused wanted to speak to a lawyer. That tells me that Officer Gill subjectively believed that the delay in the arrival of a device might be sufficient to allow the accused a reasonable opportunity to speak to his lawyer.

[8] Based upon the lack of information, which was a problem of his own making, that was a reasonable conclusion to reach. The accused had a cell phone available to him and was using it immediately after the invitation to contact counsel was extended. The accused indicated that he had a lawyer in or from Montreal, he had a number for that lawyer and he could contact his parents to get that number. Immediately after making that declaration the accused was on his phone and appeared to be busy engaging in that undertaking.

[9] While on his phone the accused paused and asked the officer if he still needed the insurance slip that the officer had previously requested. Up until that point in time the accused had only been able to provide his driver's licence and ownership. He was not able at first instance to procure the insurance slip. The officer replied in the affirmative, that production of the insurance slip was an ongoing legal requirement that the officer still required the accused to fulfill.

[10] In response to that declaration by the officer, the accused stopped what he was doing with his phone [the details of which are unclear], went to his vehicle, looked for and eventually found an insurance slip which turned out to be outdated. There was then further inquiry made by the officer of the accused about the validity of the insurance slip and whether or not in fact he was an insured driver. That entire inquiry happens after the accused was told he was allowed to speak to a lawyer.

[11] In any event, a mere six minutes after the motor vehicle stop, during this discussion about the insurance slip, Constable McKenna arrives with the approved screening device from a locale unknown. After there is a demonstration of the device and an explanation of it to the accused there is then discussion over the course of, roughly speaking, three minutes wherein the accused ultimately, I believe more than once, refused to provide a sample.

[12] I am not privy to the details of the conversation between the officer and the accused because the officer did not make note of the particulars of the conversation. The general assertion, however, is that the accused repeatedly refused to co-operate in providing a sample, and the officer in general terms provided ample warnings as to the possible outcomes for a refusal.

Legal Framework

[13] I will then deal now with the legal framework. In an appeal decision from the Ontario District Court in the case of Regina v. Belecque, [1989] O.J. No. 3073, the summary conviction appeal court concluded that where an officer erroneously provides an accused a right to counsel prior to the administration of an approved screening device test, gave rise to a defence in the circumstance of a refusal.

[14] In that case at paragraph 29 the appeal court noted:

"In this particular case, there was no obligation to inform the accused of his rights to counsel in relation to the demand made for a breath sample for the purposes of the roadside screening device. At the same time once the officer had informed the accused of that right there was implicit in those words once used that the officer would provide him with a reasonable opportunity to permit him to contact counsel. In my view that part of the decision appealed from that relates to the reliance on principles set out in Regina v. MacDonald and section 7 of the Charter are not necessary to decide this case. I do not propose to now comment on them. In my view once the accused was informed of his right to counsel there was implicit in those words that the accused would be given the opportunity to consult counsel. This was not done. In my view the trial judge came to the correct conclusion."

[15] That conclusion by the trial judge was that the accused was entitled to refuse the breath demand. To the best of my knowledge the Belecque case was not itself appealed, and I know of no higher appellate authority in Ontario that overrules Belecque. I am not aware of any appellate authority of concurrent jurisdiction that disagrees with Belecque. I am aware of authorities from other provinces that disagree with Belecque.

[16] The Belecque decision is somewhat different than our situation. In our situation the question arises whether or not the officer was obligated, given his subjective state of mind, to advise the accused of his right to counsel and then begin to implement that right. Leaving aside that question for a moment, assuming there was no obligation it would appear that Belecque, absent another Ontario appellate authority, would be binding.

[17] I say it would be binding because the logic in Belecque would apply all the more forcefully if the officer was required to give the right to counsel. Surely that logic would apply more so than in a case where the officer was not obliged to give the right to counsel.

[18] I am aware of the Hanley decision, which was an over 80 case not a refuse, wherein Ms. Hanley was erroneously given her rights to counsel upon initial detention and prior to demand where she sought unsuccessfully to have the intoxilyzer results excluded because the police, having advised her of her rights, did not allow her to exercise them.

[19] That raises a different question. Justice Hearn, who was upheld on appeal, noted the initial giving of rights to counsel was unnecessary.

"…you cannot create a right which does not otherwise exist and in any event would not result in a Charter breach on the reasoning set out in Thomsen, i.e. the section 1 limit on the right to counsel as discussed in that particular case."

[20] I think, however, there is a distinction to be drawn between a refusal when an opportunity to contact counsel is extended in a case wherein there is no refusal and samples are obtained and the accused seeks to have those samples and the test results excluded.

[21] There is also a distinction to be drawn, in my view, between a situation where the officer was not obliged to afford the accused a right to counsel but nevertheless did, than a situation where the officer subjectively believed in a duty to afford the accused the right to counsel and that subjective belief is objectively reasonable based upon an analysis of the information known to the officer at the time that the right to counsel is provided.

[22] In that regard I consider the case of Regina v. George first and foremost. Paragraph 42 of the decision in George, Justice Gillese speaking for the court indicates:

"In the instant case, the officer was aware that there would likely be a delay of fifteen to twenty minutes before the screening device arrived. In the face of that information, it was incumbent upon the officer to take reasonable steps to facilitate the respondent detainee's right to consult counsel. Such steps would involve asking the detainee whether he had a cellular telephone. In this case, the evidence is that the respondent would have used his cellular telephone and called his lawyer. I consider the proximity of the cellular telephone more fully below."

[23] There is further case law that speaks of the opportunity to contact counsel involving more than simply being able to call counsel, it could also involve a meaningful consultation. I note, for example, the case of Regina v. Torsney, 2007 ONCA 67 and the decision of Regina v. Lionel Albert Ruck, 2013 ONCJ 527, a decision of Justice Paciocco released on September 26, 2013.

[24] It seems clear to me that George speaks of the officer's subjective belief at the time the officer asked the question, "Should I be giving this detainee an opportunity to contact counsel?". It is clear to me from reading Regina v. Latour, it is not incumbent on the officer to ask the question, "Should I be giving the detainee an opportunity to provide the right to counsel prior to the making of the demand and insisting upon compliance of the demand?". It is not incumbent upon the officer to ask whether or not meaningful contact with counsel can take place before the facilitation of the approved screening device test.

[25] However, I read George as indicating that although it may not be incumbent upon you to ask that question, if you do and the answer you arrive at is that there is a meaningful chance for the accused to speak to counsel prior to the arrival of the device, once you arrive at that conclusion then you are obliged to comply with the informational component of section 10(b) as articulated in cases such as Regina v. Bartle and Regina v. Prosper. There is also, in my view, a duty to take steps to facilitate the exercise of that right.

[26] In this case it appears apparent to the officer that he knew the accused had a cell phone; that there was going to be an unknown period of delay between the request and the arrival of the device; that the officer thought it best in those circumstances to let Mr. Soule know that he could speak to a lawyer if he so chose. And it would appear, based on the circumstantial evidence I have, that the accused then immediately began that procedure.

[27] In my view, at that juncture what happened is the suspension of the right to counsel by operation of section 254(2) of the Criminal Code was in and of itself suspended by the conduct of the officer. I appreciate that in retrospect we know the device arrived in such a short time that it is likely that the accused could not complete a meaningful consultation with counsel. But, it is clear to me that the officer did not know or believe that at the time he brought up the subject of speaking to a lawyer. It is also clear to me that given that he had the informational obligation, that he failed to properly and fully inform Mr. Soule of his right to counsel. He did not advise him of the availability of free legal aid duty counsel. He did not advise him of the availability of a 1-800 number. He simply invited him to speak to a lawyer if he had one.

[28] He then failed in his duty to hold off when he reiterated in response to a question by the accused that he still needed the accused's insurance slip. It would appear his affirmative response was an intervening act that played a causal role in Mr. Soule's conduct immediately thereafter. Mr. Soule then abandoned the use of his phone and went to retrieve the insurance slip being requested by the officer. That is, he was procuring information and evidence at the request of an officer who was not abiding by his duty to hold off eliciting further information and evidence while the accused was in the process of apparently, from the officer's subjective point of view, engaging in efforts to contact counsel.

[29] Then, when the insurance slip was produced and it would appear to be out of date, the officer then engaged in questioning about the apparent out-of-date insurance slip, again eliciting further evidence and not abiding by the duty to hold off seeking further evidence as required by the principles laid down in Regina v. Manninen. As noted, it is during that inquiry that Officer McKenna arrives with the device.

Analysis and Conclusion

[30] The Crown argues that now that we know it only took six minutes for the device to arrive the officer's failure to act in accordance with his objectively reasonable subjective belief should absolve him of any failures. That is, because the device arrived quickly, more quickly than I infer the officer in reality expected it to, that there is no harm and no foul.

[31] To my mind that involves an invitation to encourage the court to sanction breaches in order to determine whether or not a right exists. And it would be inconsistent, at least by analogy, with the reasoning in Hunter v. Southam, and Feeney and other seminal section 8 cases where the courts have repeatedly indicated that the fruits of a search cannot be used ex post facto to rehabilitate the grounds.

[32] In my view, if an officer subjectively believes that the delay will be sufficient to require consultation with counsel while one awaits the arrival of an ASD device, provided that subjective belief is objectively reasonable then the officer has a stated belief that triggers a requirement for that officer to begin compliance with section 10(b) of the Charter.

[33] To sanction an officer deliberately in not complying with a known obligation because the officer turns out in hindsight to be wrong in his reasonable belief would be a line of reasoning that would incentivize breaches of right to counsel.

[34] So in that respect our case is somewhat different than the Belecque case. In Belecque, as I say, the court concluded there was no obligation at all to begin with, but nevertheless there was a right to refuse once the offer was extended. Here, in my view, the facts apparent to the officer, despite being generated by his lackadaisical approach of inquiring into the availability of a device, led to a reasonable conclusion that a device would not arrive quickly enough and that he should therefore give the accused an opportunity to consult with counsel.

[35] In those circumstances once that happens, in my view, the police have a duty to hold off until the consultation is complete. In that regard, I note a hypothetical that can arise in such situations where an accused may be on the phone with counsel and the device arrives unexpectedly early and that is a situation where, I believe, the police would be duty-bound to hold off and allow for the consultation to continue.

[36] In my view, as a matter of public policy, once the right is afforded and it appears there has been reasonable diligence in the assertion of that right, one has to hold off. The difficulty here is the right was not even fully afforded because the officer did not provide all the information required to do so once the right is triggered.

[37] Without all the information it is hard to insist upon reasonable diligence. That said, on the facts I have before me it would appear the accused quickly began the process of seeking counsel before that process was interrupted by the repeated request for the insurance slip.

[38] So, in my view, there was a breach of the right to counsel which makes the continuing demand for the breath sample following that breach unlawful, which makes the refusal to provide a sample not an offence.

Final Remarks

[39] I will pause finally. I have given brief oral reasons. I did so in the interests of completing the matter today. But, I will observe that there is merit to the argument raised by the Crown because a lot of the authorities reflect back on a known quantity of time after that known quantity of time has elapsed in assessing whether or not the accused ought to have been informed of his right to counsel during that known quantity of time. By and large those authorities deal with the situation where the officer has not formed the subjective belief apparently formed by our officer in this case.

[40] While there would appear to be logical pitfalls inherent in attaching the definition of "forthwith" to the question of the exercise of right to counsel, this case would appear to be one example of the difficulties of that rubric. But that is the rubric we have and the rubric we must apply.

[41] I will say that I was asked to consider section 24(2) of the Charter. In my view, I am not required to, so I will decline to do so. I would have noted, if I was required to, some sympathy with the officer in this very difficult area of law, particularly when keeping in mind that officers have to make these decisions on the fly without the benefit of being handed a number of cases with apparently conflicting views on the same subject.

[42] One final note is that the ruling on this Charter issue does not resolve the entirety of the trial. As Mr. Bond noted, it is still open to his client, had I not reached this conclusion, to call a defence to explain the reason for his refusal, which may in fact touch on some of the same subject matter; which may not. I will not know because we have not gotten that far in this case, but it is certainly conceivable the accused might raise similar issues in terms of his right to refuse.

[43] I note a case called Delarm, a Superior Court decision in this province, which indicates while there is no right to speak with counsel before taking an ASD, an accused's request to speak with counsel left a reasonable doubt in a refuse case.

[44] So, it is still a live issue on the trial proper should I be found to be incorrect in my ruling on the Charter.

[45] For those reasons, hastily assembled as they are, there will be a dismissal of the charge before the court.

[46] Mr. McMaster, if there is any interest in appeal I will reserve my right to refine the wording to perhaps make it more legible. Sticking to the spirit of my reasons as articulated during submissions and oral judgment I reserve my right to be a bit more cogent in a written formulation of what I have just said. But, thank you for your submissions. They have been very helpful, as always; as well Mr. Bond. It is a perplexing area of law when you get to these somewhat unusual facts.

Addendum

[1] As indicated in my brief oral judgment on this matter, I reserved the right to augment my reasons in the event of an appeal. I do so now.

[2] In these reasons, I have indicated that the officer, by his conduct, suspended the suspension of the accused's right to counsel – a suspension necessarily implicit in the invocation of the power granted by section 254(2) of the Criminal Code of Canada. These remarks require further clarification.

[3] It is my view that upon arrest or detention, an accused has a right to counsel. It is my view that an officer has, when sufficient grounds arise, the discretion to invoke the power granted by section 254(2) to suspend that right. I have no doubt that there are many occasions where an officer has reasonable grounds to suspect the presence of alcohol in the body of a detained motorist but nevertheless chooses not to make an ASD demand – thereby choosing not to invoke the power accorded to that officer by section 254(2). The point is this: Neither the statute nor the common law perform arrests or detentions; it is the officer who exercises his or her discretion (pursuant to the authority provided by common law or statute) to detain or arrest a suspect.

[4] When the officer formed a reasonably held belief that the device might not arrive in sufficient time for the statutorily imposed suspension of the right to counsel to remain in effect, he effectively decided to suspend his reliance upon the authority of section 254(2) and the corresponding implicit suspension of the right to counsel. He then used his discretion to advise the accused of his right to counsel and to provide an opportunity to contact counsel. In my view, once that fatal decision is made, for the reasons already articulated, the officer has a duty to hold off from eliciting further evidence, including from re-invoking the power vested in the officer by section 254(2), until the accused has received the full information component of his 10(b) rights and has been given the means to implement the assertion of that right. In other words, the officer is estopped from re-invoking the implicit suspension of the right to counsel that is otherwise authorized by section 254(2). In my view, the corollary of this conclusion is that the time involved in allowing a reasonable opportunity to contact counsel is a necessary investigative function that impacts upon the assessment of whether the police sought compliance with the demand "forthwith". In short, the time involved in the consultation with counsel in the circumstances of a case like this should not detract from any assertion that the demand and the required compliance with that demand occurred made forthwith. In other words, this kind of delay in obtaining an ASD sample should, pursuant to the authority of Regina v. Quansah, 2012 ONCA 123, be considered a delay that is no more than is reasonably necessary for an officer to properly discharge his or her duty.

[5] I also wish to further explain my remark that acceding to the Crown's submission would in effect sanction the breaching of a right in order to determine whether or not it exists. To accede to the Crown submission, in my view, gives rise to an invitation to the police to breach a right that they reasonably believe exists in the hopes that history will, in retrospect, prove that initial belief to be incorrect. Put another way, if the Crown's argument were to succeed, an officer may be encouraged to breach a right to counsel a right he/she reasonably believes exists [because of the anticipated late arrival of an ASD], in the hopes that, contrary to expectations, the device arrives at an earlier point, thus proving [in retrospect] the previously held belief to have been wrong. In my view, such an approach incentivizes a systemic sullying of the repute of the administration of justice, and for that reason is untenable.

[6] Finally, because I have reached the conclusion that the officer suspended the invocation of the power vested in him by s. 254(2) [and the corresponding implicit suspension of the right to counsel] and was estopped from re-invoking the power [and the corresponding implicit suspension of the right to counsel] until the accused had been given a reasonable opportunity to consult with counsel, I have also concluded that any re-invocation of the power prior to compliance with the Right to Counsel renders the premature continuation of the demand unlawful. It is for this reason that I have concluded that the demand in the case at bar was rendered unlawful; and it is for this reason that I have concluded that the accused did not commit an offence when refusing to provide a sample.

Released: June 8, 2017

Signed: Justice C. A. Parry