Ontario Court of Justice
Date: July 4, 2017
Between:
Her Majesty the Queen
— and —
Donald Campbell
Heard: June 13, 2017
Reasons for Judgment released on: July 4, 2017
Counsel:
- H. Cooke, for the Crown
- H. Bassi, for the Defendant
Table of Contents
I. Introduction II. Charter Application A. Onus B. Analysis – s. 10(b) C. Analysis III. s. 24(2) of the Charter – Exclusion of Evidence A. Introduction B. Seriousness of the Charter-infringing State Conduct C. Impact on Charter-protected Interests D. Society's Interest in an Adjudication of the Case E. Balancing IV. Disposition of the Trial
Reasons for Judgment
Justice S. Felix:
I. Introduction
[1] The defendant is charged with "Over 80" arising out of a police investigation on April 10, 2016.
[2] The investigating police officer and his partner (a new police officer he was training) received information from police dispatch concerning a possible impaired driver. Equipped with information about poor driving and the identifying particulars of the vehicle, the police went to the registered address of the driver.
[3] The investigating police officer had contact with the defendant on a driveway in front of a residence. There were no physical indicators suggesting that the driver was intoxicated but there was a faint odour of alcohol. The officer formed a reasonable suspicion and made an approved screening device [ASD] demand. The defendant failed the ASD and was arrested.
[4] The defendant (as applicant) brought an application pursuant to s. 8, 9, and 10(b) of the Charter of Rights and Freedoms [Charter] seeking exclusion of the breath readings.
[5] The applicant asserted that there was an unjustified delay of approximately (7) seven minutes after arrest during which rights to counsel were not provided. The applicant argued that the approach of the investigating police officer was akin to providing rights to counsel "as soon as practicable" rather than "without delay" as required by the Supreme Court of Canada in R. v. Suberú, 2009 SCC 33 [Suberú].
[6] The respondent Crown Attorney submits that the delay was reasonable and explained. There was no breach of the Charter.
[7] For the reasons that follow, the applicant has established a breach of s. 8, s. 9, and 10(b) of the Charter on a balance of probabilities; However, the applicant has not established a remedy pursuant to s. 24(2) of the Charter.
[8] The breath readings are admissible.
[9] The defendant is found guilty.
II. Charter Application
A. Onus
[10] The applicant bears the onus on the s. 9 and s. 10(b) Charter arguments on a balance of probabilities. The respondent has the onus on the related s. 8 assertion because there was a warrantless search and seizure in this case: R. v. Haas, [2005] O.J. No 3160 (QL) (C.A.), at paras. 24-26; leave ref'd [2005] S.C.C.A. No. 423.
[11] With respect to the remedy sought pursuant to s. 24(2) of the Charter, the applicant must establish a nexus between the breath samples and the asserted Charter breaches. The applicant must also establish on a balance of probabilities that the admission of the evidence would tend to bring the administration of justice into disrepute: R v. Pino, 2016 ONCA 389 at para. 36 [Pino].
B. Analysis – s. 10(b)
[12] The submissions in this case make it clear that the s. 8 and s. 9 complaints are dependent on the core issue around provision of rights to counsel.
[13] The police officer testified that the delay in the providing rights to counsel was for the following reasons:
a. He was trying to determine his legal authority to tow the defendant's vehicle given he had observed it on the roadway but it came to rest on a private driveway. His consultations with others provided him with the logistical dilemma that he would have authority to tow only after the first breath test;
b. He had to notify another unit to attend to address the tow of the vehicle;
c. During the search incidental to arrest he found $300.00 in twenty dollar bills in the defendant's front right pocket and he had to count this money in front of the defendant for safekeeping;
d. Open liquor was located in the defendant's vehicle and he was providing verbal direction to the second officer at the scene (his trainee) concerning the search. This also lead to officer safety and evidence preservation concerns around the need to secure evidence (the liquor) before anyone (possibly) came out of the residence; and,
e. His general practice to wait a minute or two for detainees to calm down given the arrest so that they might calmly process and understand their rights to counsel.
[14] During cross-examination it was put to the officer that his approach to rights to counsel was more akin to providing rights to counsel "as soon as practicable". The officer largely agreed with this characterization.
C. Analysis
[15] It has been many years since the Supreme Court of Canada provided clear guidance concerning the timing of the provision of rights to counsel. Consider the Court's clear statement found in Suberú at paragraphs 40-42:
40 As with "detention", any interpretation of the phrase "without delay" must be consistent with a purposive understanding of the Charter provision in which it occurs. As this Court noted in R. v. Therens, [1985] 1 S.C.R. 613, at pp. 641-42, and in R. v. Bartle, [1994] 3 S.C.R. 173, the purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.
41 A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.
42 To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
[16] Police officers are required to provide rights to counsel immediately upon detention or arrest.
[17] That presumptive constitutional obligation is suspended by operation of s. 1 of the Charter during roadside sobriety investigations: R v. Thomsen, [1988] 1 S.C.R. 640 (S.C.C.); R v. Orbanski, [2005] 2 S.C.R. 3 (S.C.C.).
[18] Police officers are permitted to breach the Charter rights of a detainee while investigating drinking and driving offences. The s. 1 Charter justification is premised upon a focused and efficient use of police investigative power to detect and prevent the carnage associated with drinking and driving.
[19] Once the detainee is arrested, the rationale for the suspension of rights is gone.
[20] The only justifiable basis for delaying the provision of rights to counsel is "subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter.": Suberú, para. 42.
[21] The explanations provided by the officer in items (a) and (b) above are not sufficient to justify a delay in the provision of rights to counsel. The vehicle was in a private driveway, not a live lane of travel on the road. There was no safety issue to address associated with the vehicle. Resolving the issue of the legal authority to tow the vehicle could be left to another officer.
[22] Items (c) and (d) are legitimate police concerns but should not have been prioritized ahead of the provision of rights to counsel. On the record at this proceeding, counting money obtained incidental to arrest, should not have been prioritized ahead of rights to counsel. Seizing evidence such as alcohol was important but there was another officer present who was dealing with that task. The investigating officer was not personally dealing with that issue.
[23] Item (e) is a legitimate police concern as well. The officer testified that often it is beneficial to wait a minute or two after the arrest to allow the detainee to calm down. He testified that when providing rights to counsel, it is important that the detainee actually process the information provided and understand their rights. I believe that this was a sincere belief held by the officer. If the length of the delay for this purpose was mere moments, it might possibly be justified in some circumstances. This is not to suggest that a standard practice of waiting minutes to provide rights to counsel should be countenanced.
[24] The total delay in providing rights to counsel was in the range of seven minutes. The officer engaged in other activities (as outlined in this judgment) prior to providing rights to counsel. The provision of rights to counsel should have been the priority. The officer's approach in this case cannot be harmonized with the standard in Suberú.
[25] The applicant has established a breach of s. 10(b) of the Charter and the dependent s. 8 and s. 9 breaches on a balance of probabilities.
III. s. 24(2) of the Charter – Exclusion of Evidence
A. Introduction
[26] The applicant seeks exclusion of breath sample results obtained from in violation of s. 8, 9, and 10(b) of the Charter.
[27] The applicant has established on a balance of probabilities the nexus between the breath samples and the Charter breaches. But the applicant has not established on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute: R. v. Pino, 2016 ONCA 389.
B. Seriousness of the Charter-infringing State Conduct
[28] The conduct of the investigating officer in this case was not in compliance with Suberú.
[29] This was an officer with almost a decade of experience. He was keenly aware of his responsibility to provide rights to counsel. He prioritized other activities ahead of the provision of rights to counsel. In effect, his evidence drove towards the logistical considerations at the side of the road in a somewhat dynamic situation. His explanations were logical and concerned with his duty as a police officer even if such matters should not supplant the primacy of rights to counsel.
[30] The police had a legal obligation to address the tow of the vehicle. I have already held that the investigating officer did not have to be that person given that other officers could have been tasked with this obligation. Nevertheless, given there was some debate about his authority, it is actually commendable that he took time to clarify his authority. Police officers should carefully examine their authority (statutory or otherwise) before taking action. This is a good thing in a democracy. However, this analysis could have, and should have, occurred after rights to counsel.
[31] Counting the money seized from the defendant incidental to arrest was an important police duty so that the property is safeguarded. This was not a frivolous action on the part of the officer. But once again, it could have waited the sixty seconds needed to communicate rights to counsel.
[32] Seizing the open liquor and searching the vehicle was also an important police duty as it related to the preservation of evidence. But the investigating officer did not physically involve himself in the removal of alcohol or the search of the vehicle. There was another officer dealing with that matter. So given there was a second officer it was not necessary for the investigating officer to address it personally (like it might if he were alone).
[33] I accept the officer's concern that associates of the applicant might come out of the residence and involve themselves in the investigation. This had happened to him before. But once again, I find that notwithstanding these considerations the officer had time to communicate rights to counsel.
[34] While the court should not endorse a general practice of waiting a minute or two to provide rights to counsel, the rationale expressed by the officer involved a concern that the detainee actually understand their rights. I believed this evidence from the officer. He was sincere in describing his wish to let the heat of the arrest subside slightly before providing rights to counsel.
[35] Finally, although the officer agreed with a suggestion that his approach was akin to "as soon as practicable" provision of rights to counsel rather than immediate, his overarching explanation for his delay related to the matters that I have analyzed. I am required to analyze the conduct as a whole rather than draw conclusions based on a single answer. It is also important that the officer further emphasized that his police training required him to make sure that the "environment was safe" thereby asserting a generalized police safety consideration that I found to be justifiable.
[36] On this record, the applicant has not satisfied me that the Suberú breach is a general practice or problem in the Durham region. I am thinking of Schreck P.A.J.'s persuasive decision in R. v. Sandhu 2017 ONCJ 226 (C.J.) at paragraphs 9-11 wherein he lists numerous cases where Courts had addressed the Suberú issue in the Region of Peel en route to a finding that there was a systemic problem. There is no such record in this case.
[37] I found the officer in this case to be a credible witness. He was professional, detailed, and directly responsive to questions in his testimony. He sincerely held the views he expressed about his priorities.
[38] I acknowledge that the officer's evidence and the evidence of the civilian witness differed with respect to the position of the applicant's vehicle at the time of the investigation (i.e., whether the car was on the roadway or on the driveway at the time of first interaction with the officer). I could not resolve this difference between the two witnesses. But in the end, the positioning of the vehicle was not very important in this proceeding nor was it important to the resolution of Charter issues.
[39] The failure to provide rights to counsel was serious, but on this record it was understandable or explainable. It was driven by the circumstances. I did not find the investigating officer to be cavalier or reckless. He was thoughtful and logical.
[40] Notwithstanding this characterization of the officer's conduct, the Supreme Court of Canada's guidance in Suberú is clear and unambiguous.
[41] This analysis of this factor supports exclusion.
C. Impact on Charter-protected Interests
[42] I have no evidence from the applicant concerning what effect the seven minute delay had on his rights.
[43] The investigating officer facilitated access to counsel of choice back at the station. He left several messages for counsel of choice but given the time of night the applicant did not speak to counsel. He refused to speak to duty counsel. He only wanted to speak to a specific lawyer.
[44] In such circumstances it is unclear to me that providing rights to counsel seven minutes earlier would have made much of a difference. The informational component of rights to counsel was addressed at the scene. The ASD demand was communicated "forthwith". Access to counsel would have been facilitated at the station in either scenario.
[45] Section 10(b) of the Charter is primarily focused on self-incrimination. No incriminating evidence was gathering by the police during the delay. The applicant was not placed in a position where self-incrimination concerns arose.
[46] In my view the impact of the breach was fleeting. The informational component of the rights to counsel was delayed but not denied.
[47] This factor favours admission of the evidence.
D. Society's Interest in an Adjudication of the Case
[48] Adjudication of this case on its merits is warranted.
[49] The evidence sought to be excluded in this case is highly reliable.
[50] This factor favours inclusion of the evidence.
E. Balancing
[51] The officer in this case failed to comply with a clear statement of law from the Supreme Court of Canada in Suberú. Overall, I found that he was not ignorant of this standard. He inappropriately, but understandably, prioritized other matters over his responsibility to communicate the rights to counsel.
[52] There is no reason for the Court to distance itself from this behavior. I am not convinced that the good repute of the administration of justice and the long-term confidence of the public in the justice system would be impacted by the conduct in this case.
[53] An informed reasonable person would be concerned about the failure to provide rights to counsel immediately but support the approach of the officer in this case.
[54] The applicant has not established the basis for the 24(2) remedy.
[55] The evidence is admissible.
IV. Disposition of the Trial
[56] Both Defence Counsel and the Crown Attorney agreed that there were no trial-related arguments in this case.
[57] The breath readings are admissible.
[58] The defendant is found guilty.
Released July 4, 2017
Justice S. Felix