Court Information
Court: Ontario Court of Justice
Date: October 4, 2017
Court File No.: Regional Municipality of Waterloo; Information No. 155971
Parties
Between:
Her Majesty the Queen
— AND —
Roman Sakharevych
Judicial Officer
Before: Justice C.A. Parry
Hearing Dates and Judgment
Heard on: June 20 and November 8, 2016; March 3 and October 4, 2017
Reasons for Judgment released on: October 4, 2017
Counsel
For the Crown: Anita Etheridge
For the Defendant Roman Sakharevych: Fred Fedorsen and Adam Little
Judgment
Parry J.:
I. OVERVIEW OF THE CASE
[1] Roman Sakharevych stands charged with the offence of Operating his Motor Vehicle while his Blood Alcohol Content exceeded 80 mg of alcohol in 100 ml of blood. The offence allegedly occurred on September 11, 2015, at about 2:29 a.m., on King Street in the City of Waterloo, shortly after the accused and his friend departed a bar.
[2] The trial took place on June 20 and November 8, 2016, as well as on March 3, 2017. Due to illness, not all of these allotted trial dates were utilized for either evidence or submissions.
[3] The Crown's case depended upon the evidence of the arresting officer, Cst. Eric Schnarr, and the Certificate of Qualified Breath Technician [exhibit 1] which was tendered during Cst. Schnarr's evidence. The defence conceded the admissibility of the Certificate and that it proved that the accused had a specific blood alcohol content over the prescribed legal limit. The defence also conceded that by operation of statutory presumptions, the certificate was capable of proving the accused's blood alcohol content at the time of his last care and control of the motor vehicle.
[4] The outcome of the case therefore depends entirely upon the outcome of a Charter application brought by the accused.
[5] In the Charter application, the accused alleges that the investigating officer breached his right to be free from unreasonable searches and seizures, his right to be free from arbitrary detention, and his right to retain and instruct his counsel of choice. In short, he alleges breaches of the rights enshrined and protected by sections 8, 9, and 10(b) of the Charter of Rights and Freedoms. As a result of these alleged breaches, and pursuant to section 24(2) of the Charter, he asks the court to exclude the evidence that establishes his blood alcohol content at the time of driving.
[6] The alleged section 8 and section 9 Charter violations are intertwined. The basis for alleging these violations is as follows:
[7] First, he alleges that the Crown tendered no evidence to establish that the arresting officer had the requisite subjective belief required to empower him to make an Approved Screening Device demand at the roadside. Accordingly, he argues that the compulsion to provide a breath sample into the Approved Screening Device constituted an unlawful seizure and therefore an unreasonable one.
[8] Second, he alleges that the arresting officer did not know whether or not the Approved Screening Device had been calibrated recently enough. Indeed he did not know the frequency of calibration required to ensure that he could reasonably trust in the accuracy of the device.
[9] Third, given that he had no basis for reasonably assuring himself of the sufficiency of the recency of the calibration, he could not reasonably conclude that the machine was in proper working order.
[10] Fourth, if he could not reasonably conclude that the device was in proper working order, then he could not reasonably rely upon the results of the accused's roadside screening sample.
[11] Fifth, if he could not reasonably rely upon the results of the roadside screening test as a basis for arresting the accused and making a demand of the accused to come to the police station to provide a breath sample into an Intoxilyzer, then the arrest was unlawful, and the accused was subjected to an arbitrary detention and unreasonable seizure.
[12] The basis for the alleged violation of the accused's right to counsel is as follows:
[13] While the arresting officer initially provided sufficient information about the right to retain and instruct counsel to the accused, the circumstances changed, thereby requiring the officer to provide further information to the accused.
[14] Specifically, the accused asserts that once the arresting officer knew that the accused's father was attempting to communicate with the accused to provide the accused with the name of a trusted lawyer, the officer was obliged to at the very least inform the accused of this state of affairs, so that the accused was in the position to make an informed choice about whether he should accept his father's recommendation or proceed with duty counsel.
[15] The officer's decision to refrain from informing the accused of the call from his father allegedly placed the accused in an "informational" deficit and thereby undermined his right to counsel of choice.
II. SUMMARY OF THE EVIDENCE
A. The Framework of the Voir Dire
[16] The Charter application was heard in a blended voir dire. In other words, the parties agreed that the evidence on the voir dire could be applied to the trial proper, subject to any rulings on the voir dire.
[17] The investigating officer, Cst. Schnarr testified on behalf of the Crown. The accused and his father testified on behalf of the defence. In addition, affidavit evidence was filed on behalf of the accused. By and large, the evidence of each witness accords with the others. There is little disagreement on any material facts.
B. The Facts
[18] On September 11, 2015, Cst. Schnarr was on routine patrol in downtown Waterloo. It was a busy night on one of the first weekends of the school year in a town with two Universities within walking distance of the downtown core. He was parked in a parking lot on a side street, across the street from a bar, and a short distance from King Street, the main street.
[19] Cst. Schnarr saw young men leave one of the local bars across the street from him. One of those young men was the accused, who was 19 years old at the time. They walked in Cst. Schnarr's general direction and towards a BMW that was parked very near the officer's car. As the two young men got close to Cst. Schnarr's cruiser, they noticed him. They then appeared to change course and continue down the side street towards a backstreet.
[20] Cst. Schnarr was obviously suspicious that these two young men had changed their decision to drive because they saw a police car. Given the context, the obvious inference to be drawn is that these two young men knew that they had consumed alcohol and did not want a police officer to see either of them operating a car.
[21] Cst. Schnarr pulled out of the parking lot and circled around the block. As he approached King Street and the parking lot from whence he originally departed, he saw the same BMW across the street. It was coming from the direction of the parking lot and turning onto King Street. The accused was driving the BMW.
[22] Cst. Schnarr turned onto King Street and followed the BMW. The BMW accelerated quickly. Cst. Schnarr reached a speed of 90 km/h in his effort to stay close with the BMW. He also activated his emergency lights. After travelling about 4 city blocks, the accused stopped for Cst. Schnarr at 2:29 a.m.
[23] Cst. Schnarr approached the driver's side of the BMW. He then explained to the accused the reason for stop. He had stopped him for failing to signal his turn onto King Street and for speeding. He then asked for the accused's driver's licence, insurance slip, and ownership document. The accused provided all of these items at once.
[24] Cst. Schnarr detected an odour of alcohol from inside vehicle, so he asked the accused whether he had consumed any alcohol that evening. The accused denied any consumption. As the accused spoke, Cst. Schnarr put his head up to the driver's mouth. In doing so, Cst. Schnarr could smell a strong odour of an alcoholic beverage coming from the accused's mouth. He also noticed that the accused had a pale face and bloodshot eyes.
[25] Cst. Schnarr then read an approved screening device demand to the accused. In doing so, he directed the accused to turn off his car and exit his car to accompany the officer for the purpose of providing an approved screening sample. The officer opened the door for the accused. The accused exited his car and walked towards the back of the cruiser. He moved slowly and almost lost his balance at one point.
[26] By this point in time, another officer had arrived to assist, that officer being Cst. Saddler. Cst. Schnarr left the accused with Cst. Saddler in order to retrieve the Approved Screening Device [ASD] from his cruiser.
[27] In his evidence in chief, Cst. Schnarr described the device as being an 8100 model. Then, upon reviewing his notes, refreshed his memory and informed he court that the device employed was an Alcotest 7410 GLC. In cross-examination, he indicated that his police force began using new devices in 2015. He was trained in 2015 on the use of the 6810 Alcotest. Upon closer examination of his notes during cross-examination, he concluded that he did not in fact utilize the 7410 GLC, thereby necessarily implying use of the newer model.
[28] With respect to the 6810 Alcotest, Cst. Schnarr was unsure about what if any error codes might be displayed on the device. He could not recall being trained on error codes for the 6810 model. He believed that, if the machine was properly calibrated and if he received a reading of zero on a self-test, the machine was in proper working order. He performed a self-test and received a reading of zero. Cst. Schnarr also examined the 6810 device for the presence of a calibration sticker. Having determined the presence of a calibration sticker and having received a self-test reading of zero, he concluded the device was in proper working order.
[29] Cst. Schnarr knew that the device had to be regularly calibrated. However, he did not know the required minimum frequency of calibration. Defence counsel then asked him how he could conclude the device was properly calibrated if he did not know the required frequency of calibration. The officer replied, "I don't know the answer to that." The officer then testified that he believed the device would be regularly calibrated by a traffic officer and so would have been properly calibrated. He then agreed that he knew that proper calibration required calibration within a certain time period of the use of the device. He further agreed that he did not "know what that time period is for it to be appropriately calibrated."
[30] In sum, Cst. Schnarr agreed that he did not know whether or not the device he was using had been calibrated within the time limit prescribed for the device in question. Cst. Schnarr also testified, "And I noted the calibration date. I don't know if that was the specific time range that would say that it's in good working order…."
[31] The logical implication of Cst. Schnarr's admissions was the following:
(1) He knew that the proper working order of the device depended upon frequent calibration;
(2) He was unaware of the precise required frequency of the calibration;
(3) Although he examined the calibration sticker, he did not profess to recall the calibration date.
(4) While he believed that traffic officers calibrated the devices frequently, he had no basis for concluding that the device he was using had been calibrated recently enough such that he could conclude the device was in proper working order.
[32] Despite this state of affairs, Cst. Schnarr nevertheless professed a belief that the device was in proper working order.
[33] The officer then presented the ASD to the accused, who provided a sample. The ASD produced a "Fail" result. Accordingly, at 2:35 a.m., Cst. Schnarr arrested the accused for the commission of a s. 253(1)(b) offence.
[34] At 2:36 a.m., Cst. Schnarr read the breath demand to the accused. Then, referring to the wording in his notebook, Cst. Schnarr read to the accused his right to counsel. The content of the information provided was as follows:
I'm arresting you for Over 80. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free legal advice from a Legal Aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now.
[35] Cst. Schnarr then asked, "Do you wish to call a lawyer now?" The accused replied in a manner that conveyed the following information: "I do not have one. Yes to duty counsel." I do not however, accept that this is the precise account of his reply, but a summary of the essential elements of his reply.
[36] Knowing that the accused did not have his own lawyer, Cst. Schnarr nevertheless did not offer to the accused the opportunity to search for a lawyer of his choosing using a lawyer's directory, phone book, or the internet. At this point in time, he knew the accused was only 19 years old.
[37] Cst. Schnarr departed the scene with the accused at 2:58 a.m. He arrived at 3:07 a.m. He placed the accused into an interview room at 3:14 a.m. He did not interact with the accused again until duty counsel later returned the officer's call.
[38] Cst. Schnarr testified about receiving a call from the accused's father. The officer did not make note of the timing of his call, but initially suggested that the dad called after the accused spoke with duty counsel. However, when his evidence is considered in conjunction with the videotape evidence from the detachment [as tendered through an agreed statement of fact], and the evidence of the accused's father, it is clear that the conversation with the accused's father took place prior to the call from duty counsel.
[39] The accused's father referred to his cell phone records and testified that the call to Cst. Schnarr took place at 3:18 a.m.
[40] Cst. Schnarr testified that the accused's father [Taras Sakharevych] told him that he had the name of a lawyer for his son and wanted to provide it directly to the accused. Cst. Schnarr would not allow Taras Sakharevych to directly pass on the lawyer's information to the accused. Cst. Schnarr ended the conversation with Taras Sakharevych by hanging up on him.
[41] Taras Sakharevych confirmed the officer's account of their conversation. He added that the officer was rude and hung up on him before he had finished speaking to the officer. He did not call back because he was disappointed and did not know what to do. He did not feel like the officer was going to cooperate with him. Taras Sakharevych also spoke of referring others to his lawyer, Fred Fedorsen. He had known Mr. Fedorsen 10 years. He knew from past experience that you could reach Mr. Fedorsen in the middle of the night – if not on the first attempt, usually no later than the second attempt. He also knew that if you could not get a hold of Mr. Fedorsen, you could call his associate Mr. Little, whose cell phone number was on the office voice mail message. He testified that he felt the need to speak to his son directly, because his son had never had any criminal troubles before. He believed that his son would therefore not know to call Mr. Fedorsen's number a second time if he did not get an answer on the first occasion.
[42] Affidavit evidence from Mr. Fedorsen's office was admitted on consent as evidence on the voir dire. It spoke of counsel's after hours availability and the provision of after-hours cell phone numbers of counsel on Mr. Fedorsen's voice mail. The evidence establishes on a balance of probabilities that accused people seeking to contact Mr. Fedorsen or his associate would be able to do so after hours.
[43] Cst. Schnarr testified that the Waterloo Regional Police Service are 100 percent in control of the means by which accused people contact counsel. According to his training, if you are an adult accused, the only person you will be permitted to speak with is a lawyer. He said his police force did not allow accused people to directly contact third parties for any purpose, including contact with counsel. Indeed, an accused in custody never gets access to a phone that can dial out. He further indicated that he has never allowed accused people to go through phone books for the purpose of selecting their own counsel. Cst. Schnarr was unaware of any case law that required the police to allow accused persons to contact third parties for the purpose of accessing counsel.
[44] Cst. Schnarr testified that he believed he would have advised the accused of his father's call; however, he had no current recollection. Cst. Schnarr agreed that, if the conversation occurred at all, it would have taken place in the interview room. Examination of the video tape of the interview room discloses that no such conversation took place [an assertion that was tendered by an agreed statement of fact]. Cst. Schnarr testified that he had [erroneously] believed that he would have informed the accused that his father had called because he viewed his information as being important. The information was important, in his view, because it would help facilitate counsel of choice.
[45] The accused confirmed that he had not been given a phone book, a lawyer's directory, or any other means by which he might select a lawyer of is choice. When being told of his right to counsel, he interpreted the officer to be saying that, if he did not have a lawyer, he would have to talk to duty counsel. He did not know he was allowed to search for and select his own counsel. No one had told him that. Similarly, no one told him that his dad had called the police station in an effort to provide him with the name of a counsel for him to contact. Having regard to the evidence of the officer and the accused, I accept as a fact that the accused had no idea that his father had called until after he had provided his breath samples, been charged, and released. I also accept that he did not know that he had the option of searching through listings to find a counsel of his choosing.
[46] The accused also testified that had he been told that his dad had phoned with the name/number of a lawyer, he would have asked if he could take the name and number of the lawyer. He also would have called that lawyer. He would have trusted an independent lawyer more than duty counsel. Similarly, had the officer told the accused that his father refused to simply leave the name and number of the lawyer with the officer, he would have asked the officer place a call to his father. I accept the accused's evidence on this point.
[47] At 3:38 a.m., duty counsel returned Cst. Schnarr's earlier phone call and then spoke with the accused. The accused was not satisfied with duty counsel's advice. To him, it seemed as if the advice was rushed, almost as if the duty counsel was reading off cue cards. However, he did not advice the officer that he was unhappy with duty counsel. He did not feel he had any other options available to him. I accept the accused's evidence in this regard.
[48] Once the accused had spoken to duty counsel, Cst. Schnarr took the accused to see the breath technician at 3:47 a.m. The accused provided two suitable samples of his breath, as indicated in the Certificate of Qualified Breath Technician.
III. WAS THE ACCUSED THE SUBJECT OF AN ARBITRARY DETENTION AND AN UNREASONABLE SEARCH AND SEIZURE?
[49] I will say at the outset that I have inferred from Cst. Scharr's evidence that he subjectively believed that the accused had alcohol in his body at the time he made the Approved Screening Device demand. I draw this inference despite Cst. Schnarr's less than satisfactory evidence on this point – but that is not the end of the matter.
[50] The "Fail" result on the ASD was a necessary component of the formation of the officer's subjective grounds to arrest the accused and to make the breath demand.
[51] It has been well established that an unlawful arrest or detention is necessarily an arbitrary one.
See R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353
[52] An arrest pursuant to s. 495 of the Criminal Code for the offence in question requires the formation of reasonable and probable grounds to believe that the accused had been operating a motor vehicle while his blood alcohol level exceeded the legal limit. Cst. Schnarr was required to subjectively believe in the existence of facts which he believed established a probability that the accused is guilty of an offence. That subjective belief must be objectively reasonable. Reasonable and probable grounds will exist where an assessment of the all the facts known to the arresting officer reveal that credibly-based probability replaces suspicion.
See R. v. Storrey, [1990] 1 S.C.R. 241
[53] In this case, Cst. Schnarr was aware that the reliability of his ASD depended upon the existence of a calibration within a specific prescribed period of time. He gave evidence that he examined the device and confirmed that it had been calibrated at an unspecified earlier date. He further gave evidence that he believed the device had been calibrated within the prescribed period. He also gave evidence of a belief that traffic officers regularly calibrate the devices used by the police force. Unfortunately, he also gave evidence that conclusively established he had no clue about the duration of time for which any device calibration remained valid. In effect, he testified in a belief that the instrument has passed its reliability test, but he did not know what constituted a passing grade.
[54] The Crown now essentially asks me to assume that the device was calibrated recently enough such that reliance upon it was reasonable. I have difficulty with this submission. Implicit in the evidence regarding the need for regular calibrations is the assertion that this device is an instrument that can, after a time, go out of tune. Unfortunately, the instrument is not like a piano. One cannot hear when it is out of tune. Calibration is required. The officer's purported belief that the machine was still properly calibrated and in proper working order is illogical. Without knowing the maximum allowable time between calibrations [or the maximum allowable number of uses between calibrations] he can have no way of knowing whether or not the device had been calibrated recently enough. Any assertion to the contrary is illogical and unreasonable.
[55] I therefore conclude that, with his stated belief in the above noted set of facts, the officer could not reasonably have concluded that the device was in proper working order. It follows that he could not reasonably rely upon the results produced by that device.
[56] I am mindful of the case law that suggests that an officer's stated belief that the machine is in proper working order will suffice to provide a basis for the officer's reliance upon that machine. However, those cases stand for the proposition that the Crown need not prove that the machine was in fact in proper working order, but rather only that the officer reasonably believed in this fact. Those cases also do not involve a set of facts that lead to the logical conclusion that the officers conclusion of reliability was in logical opposition to the information known and/or not known by the officer at the time the officer purported to rely upon the device. I whole heartedly agree that the Crown need not prove that the machine was in fact in proper working order. However, I also whole hearted agree with the defence submission that when one is aware of the need to have recently tuned the instrument prior to using it, one better know what the maker of the machine defines as "recently". Otherwise, one is proceeding upon hope rather than reason. As noted, a lawful arrest requires reason in the form of reasonable and probable grounds.
[57] I will refer to some of the case law on this issue at this juncture. In R. v. Topaltsis, [2006] O.J. No. 3181 (C.A.), the court of appeal concluded that the trial judge erroneously required the Crown to establish that the machine was in fact in proper working order. In that case, there was specific evidence about the date on which the machine was last calibrated. There was also specific evidence that the machine was not calibrated within the period prescribed by his police department. However, there was also evidence that the officer relied upon information he received from a representative of the manufacturer [at a trade show] that the device only needed calibration every 6 months. The breath sample was taken well within that time frame. Accordingly, the officer concluded that the device had been calibrated recently enough and was in proper working order. This case is illustrative of the proper reasoning process required by an officer when purporting to rely upon a device – and it eloquently illustrates the logical flaws in Cst. Schnarr's reasoning.
[58] It has long been established that officers making ASD demands must address their minds to whether or not they can obtain a reliable reading by administering the breath test. In some circumstances, an officer will be required to delay the taking of a screening sample where the known last drink was too proximate to the time at which the officer is ready to take a sample. In those circumstances, the subjective knowledge of a state of facts may give rise to a reasonable subjective conclusion of the presence of mouth alcohol that may provide a false or unreliable reading. In this line of cases, courts have repeatedly concluded that
If officers do not, or reasonably could not, rely upon the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
The logical premise of this line of cases is applicable to the case at bar.
See R. v Mastromartino, et al., [2004] O.J. No. 1435 (SCJ).
See also R. v. Bernshaw, [1995] 1 S.C.R. 254
R. v. Einarson, [2004] O.J. No 852 (C.A.)
[59] Given the facts known to and not known by Cst. Schnarr, I conclude that the officer's subjective belief in the reliability of his ASD device was not objectively reasonable. Reliance upon the results of the ASD screening was essential to the formation of grounds to arrest. Having concluded that these results cannot be relied upon by the Crown to establish the existence of reasonable and probable grounds for the accused's arrest, I conclude that the arrest was unlawful. I therefore conclude that the accused was the subject of an arbitrary detention.
[60] For the same reasons, I conclude that the breath demand was made without reasonable and probable grounds. The seizure of the accused's breath sample was a warrantless one. It is therefore prima facie an unreasonable seizure. The burden falls upon the Crown to establish that the search was a reasonable one. In order to do so, the Crown must show on a balance of probabilities that the search was authorized by a reasonable law. Given the absence of reasonable and probable grounds, the Crown has failed to do so. I therefore conclude that the accused was the subject of an unreasonable search and seizure.
IV. DID THE POLICE VIOLATE THE ACCUSED'S RIGHT TO COUNSEL?
[61] Everyone has the right on arrest or detention to
(1) Be informed promptly of the reasons therefor; and
(2) To retain and instruct counsel without delay and to be informed of that right.
[62] This right imposes duties on any police officer who performs an arrest. The duties include
(1) The duty to inform the accused of his or her right to retain and instruct counsel without delay and to inform the accused of the existence of the availability of Legal Aid duty counsel [the informational component] ;
(2) The duty, once the accused asserts the right, to provide the accused a reasonable opportunity to exercise the right (except in dangerous or urgent circumstances) [the implementational component] ; and
(3) Refrain from seeking to elicit evidence from the accused until the accused has had a reasonable opportunity to exercise that right (except in dangerous or urgent circumstances) [the duty to hold off].
[63] Once properly informed of the right, the law places an obligation upon the accused to employ reasonable diligence in the exercise of that right. If the accused does not employ reasonable diligence in the assertion of the right, then the police may be absolved of any complaint about their implementation of the right and any complaint about a failure to refrain from eliciting evidence prior to the exercise of the right.
[64] Courts must ensure that the right to counsel is not too easily waived. An additional informational obligation on police is triggered once a detainee, who has previously asserted this right, indicates a change of mind and no longer wants legal advice. The police must at this point tell the detainee of the right to a reasonable opportunity to contact counsel and of the obligation on the part of the police to hold off during this period. This additional information is now commonly referred to as the "Prosper warning." Any indication of a change of mind must be clear and the burden of establishing an unequivocal waiver is on the Crown. The waiver must be free and voluntary and must not be the product of either direct or indirect compulsion. The standard required for an effective waiver of counsel is very high. A person who waives a right must know what is being given up if the waiver is to be valid.
See R. v. Prosper, [1994] 3 S.C.R. 236
[65] What the Supreme Court makes clear in Prosper is that if, after the accused has asserted a desire to speak with counsel, the police become aware of circumstances that suggest the accused lacks the information necessary fully exercise that right or validly waive that right, the police will have a duty to provide additional information. In Prosper the circumstances involved (1) the unavailability of the counsel of choice and (2) the accused's decision to waive the previously asserted right. If the police fail to provide the additional required information, they deprive the detainee of the ability to make an informed waiver of the previously asserted right.
[66] In R. v. Vernon, 2015 ONSC 3943, [2015] O.J. No. 4157 (S.C.J.), Justice Ellies, sitting on a summary conviction appeal, applied Prosper in a slightly different set of circumstances. In that case, the accused had asked to speak to a specific lawyer. The breath demand was made after hours. The police officer called that lawyer, but the lawyer was unavailable. The officer advised the accused that the lawyer was unavailable and told the accused that duty counsel was on the line and available. The accused testified that he did not feel that he had any other choice but to speak to the duty counsel. Justice Ellies upheld the trial judge's ruling and confirmed that a Prosper warning was required in these circumstances. Leave to appeal to the Ontario Court of Appeal was refused.
[67] In R. v. Evans, [1991] 1 S.C.R. 869, when asked if he understood his right to counsel, the accused, who had a "subnormal mental capacity", indicated he did not understand his right. Further inquiry revealed an inaccurate understanding, based upon American television. The court indicated that, in many circumstances, the police can properly infer from the circumstances that the accused understands what he has been told. However, the court also indicated that, where it becomes apparent or should become apparent to the police that the accused lacks an understanding of his rights, the police have an obligation to provide the accused additional information. A person who does not understand his or her right cannot be expected to assert it.
[68] The Evans and Prosper cases share a common thread: the existence of a set of circumstances that disclose or ought to disclose to the mind of a reasonable police officer the existence of an informational deficit in the mind of the accused. The awareness of this informational deficit triggers a duty to ensure the accused properly understands his right.
[69] In Mr. Sakharevych's case, Cst. Schnarr was dealing with a 19 year old first offender. This first offender asserted a desire to speak to counsel. In doing so, he plainly communicated that he did not know of any lawyers. In those circumstances, a reasonable person would conclude that this young person lacks the information necessary to choose a lawyer. In short, in asserting his right Mr. Sakharevych also asserted an informational deficit.
[70] Any reasonable member of the public and the legal community would consider it entirely inappropriate for a police officer to steer each arrestee to a particular member of the defence bar. A police officer who carried a stack of cards from a single lawyer's office and handed them out at each arrest, would no doubt face a stinging rebuke from this court. What is improper about this conduct? The answer is clear: the officer is steering all arrestees to a single counsel. In doing so, the officer is subverting the freedom to make informed decisions by restricting the information available to the accused. The subversion is exacerbated if the detainees are not told of the right to search for any other counsel; further exacerbated if the accused is not provided any other means by which to search for a different counsel; and further exacerbated if the officer completely controls the actual physical process of contacting counsel on the phone. Now, I ask, how is this behaviour made acceptable when the only counsel specifically named or provided by the officer is duty counsel? In my view, it is not. Constable Schnarr may not have handed out a lawyer's business card, but he effectively read from one when he read from the standard right to counsel warning in his notebook.
[71] It had to be patently clear to the police officer in this case that the accused did not have a lawyer and did not know one. When asked to assert his right, the accused was standing at the roadside. There was no phone book. There was no legal directory. Indeed, there was no phone yet. Upon arrival at the police station, the police officer made the phone call on behalf of the accused. He controlled 100% of the means by which the accused was put in contact with counsel. The accused did not even have the opportunity to dial the toll free number previously recited by the police officer. Contrary to the assertion made in the pre-written right to counsel, the accused did not have the power to "telephone any lawyer" he wished. Without a phone book and free use of a phone, that power was illusory – falsely advertised.
[72] The difficulty with the approach taken by Cst. Schnarr, and with the policy he purported to follow, is that the police largely remove from the accused the ways and means by which he can employ any informed reasonable diligence in the exercise of his right. By removing these ways and means, they curtail the accused's ability to assert his free will or to even know its full scope.
[73] The choices the accused does make are done in a near vacuum. That near vacuum effectively whittles down the options: call no lawyer, call the one provided by the police, or take a more combative stance with the armed uniformed officer who holds him in custody and demand rights many would not know exist.
[74] The flaw in this approach is highlighted by the facts in this case. In my view, most reasonable people in the shoes of the accused would acquiesce to the tacit steering of the unschooled accused to duty counsel. This tacit steering is insidious, even if done with the best of intentions.
[75] The solicitor-client relationship is as much personal as it is professional. To make informed decisions in the face of a state prosecution, accused people must trust the loyalty, integrity, and wisdom of the person providing the advice. They must also trust the lawyer to maintain their confidence. Each arrestee will have his/her own unique reasons for arriving at that state of trust in his/her chosen lawyer. It is not the place of the court to scrutinize the means by which that trust is obtained. It is the place of the court, however, to safeguard the right of each individual charged with an offence to seek and obtain that relationship of trust between solicitor and client.
[76] The failure to inform the accused of the right to search for and choose counsel was simply the beginning of the Charter breach in this case. The breach was further exacerbated by the officer's decision to not inform the accused that the accused's father had called for the purpose of providing him the name of a lawyer. Constable Schnarr subjectively believed that this information was important. Why? Because he viewed this information as important to the accused's ability to exercise his right to his counsel of choice. Accordingly, it came as a bit of a surprise to him when learning that the cell block videos might not support his belief that he had conveyed this important information to the accused. I pause here to highlight the officer's subjective belief. He believed the information would be important to the accused and may impact the accused's decision about his counsel of choice. No doubt, this belief was fortified by his knowledge that the accused did not personally know of any lawyers he might call. As noted from the authorities, when an officer forms the subjective belief that a set of circumstances has arisen that may impact upon the ability of the accused to properly exercise his right to counsel [e.g. An inability to understand the right; or the unavailability of counsel] the officer faces an additional duty to eliminate the accused's informational deficit. Constable Schnarr failed to do so. Consequently, he compounded the ongoing breach of the accused's right to counsel.
[77] To summarize, I make the following findings of fact:
(1) The accused was a 19 year old arrestee with no prior record;
(2) He did not know of any lawyers and told Cst. Schnarr as much;
(3) Cst. Schnarr did nothing to inform the accused of his right to search for a lawyer using a phone book, lawyers lists, the yellow pages, or the internet; he likewise did not inform the accused of his right to contact third parties for the purpose of contacting counsel;
(4) Cst. Schnarr controlled 100% the means by which the accused was put in contact with counsel, including the manual dialing of the phone to duty counsel.
(5) The accused interpreted the officer to be telling him that, if he did not have a lawyer, he would have to talk to duty counsel;
(6) The accused's interpretation was entirely reasonable.
(7) The accused did not know he was allowed to search for and select his own counsel; no one had told him that;
(8) Similarly, no one told him that his dad had called the police station in an effort to provide him with the name of a counsel for him to contact;
(9) Cst. Schnarr knew the accused's father called, but withheld this admittedly important information from the accused prior to the accused accepting the call from duty counsel;
(10) Constable Schnarr was also unaware of the longstanding legal precedents that permit an accused person to contact third parties for the purpose of making contact with counsel;
(11) In prohibiting the accused from speaking to the accused's father, Cst. Schnarr was following what he believed to be his departmental policy, a policy which prevented accused persons from speaking to third parties, even when for the purpose of contacting counsel;
(12) The accused spoke to duty counsel, because he did not know of any other viable option;
(13) Having spoken with duty counsel, the accused was unhappy with the advice, which seemed rushed, almost as if the duty counsel was reading off cue cards;
(14) However, the accused did not advise the officer that he was unhappy with duty counsel -- he did not feel he had any other options available to him.
[78] I would hasten to add that the accused's behaviour and subjective interpretation of his options (or lack thereof) was entirely reasonable, and in fact predictable. I would have been surprised if he had behaved and thought differently.
[79] Having regard to all of these factual circumstances, I conclude that Constable Schnarr violated the accused's right to counsel. In doing so, he perpetuated what he believed to be a standing policy of his police department: controlling completely the means by which the arrestee is put in touch with counsel.
[80] I am fortified in my conclusion, having considered similar cases in which the accused was presented with a "false dichotomy" of choosing between unknown lawyers and duty counsel, thereby effectively steering the accused to duty counsel. A number of recent decisions have concluded that such circumstances give rise to a breach of the right to counsel.
See R. v. McFadden, [2016] O.J. No. 6932 (C.J.)
R. v. Vlasic, [2016] O.J. No. 6892 (C.J.)
R. v. Ricardo Morales [unreported] (December 5, 2016)
R. v. Maciel, [2016] ONCJ 563 (C.J.)
R. v. Panigas, [2014] O.J. No. 2058 (C.J.)
R. v. Pita, [2013] O.J. No. 5974
[81] I wholeheartedly concur with the words of Justice Horkins in R. v. Panigas, supra, wherein he stated, at para 10:
Because the police have taken it on themselves to be the exclusive conduit to legal advice, it is essential in my mind that they explain very carefully that the accused has options at this point in the process. It must be carefully explained that speaking to the provided duty counsel is not their only choice…. The accused also has a right to contact any number of private lawyers.
[82] I am also fortified in my conclusion on this issue when I examine police practices in other parts of the country. In Alberta for instance, it would appear to be a matter of routine for the police to place the accused in a room, with a telephone, a telephone book, and information about Legal Aid, so as to allow the accused to properly exercise his/her right to counsel.
See R. v. Wolbeck, 2010 ABCA 65, [2010], A.J. No. 508 (C.A.)
R. v. Akot, 2000 ABPC 100, [2000] A.J. No. 795 (A.P.C.)
R. v. Silvester, [2014] A.J. No. 795 (A.P.C.)
R. v. Junek, [2014] A.J. No. 1066 (A.P.C.)
V. EXCLUSION OF EVIDENCE
A. The Law
[83] An applicant who establishes a breach of his or her Charter rights, seeks redress under subsection 24(1) of the Charter. In a hearing conducted pursuant to subsection 24(1), the applicant may seek the exclusion of evidence obtained during the course of a Charter breach.
[84] Subsection 24(2) of the Charter articulates the test to be applied in the determination of the request to exclude evidence. Subsection 24(2) reads as follows:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[85] The subsection reveals that the party seeking exclusion must establish two things:
(i) the evidence sought to be excluded was obtained in a manner that infringed a Charter right; and
(ii) the admission of the evidence would bring the administration of justice into disrepute.
The applicant must establish these two things on a balance of probabilities.
[86] In determining whether or not the evidence was "obtained in a manner that infringed or denied any rights or freedoms" of the applicant, the court should be guided by the following considerations:
(1) the approach should be generous, consistent with the purpose of s. 24(2);
(2) the court should consider the entire "chain of events" between the accused and the police;
(3) the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
(4) the connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;
(5) but the connection cannot be either too tenuous or too remote.
See R. v. Pino, supra, at para 72.
[87] Judicial interpretation of subsection 24(2) has continuously evolved since the enactment of the Charter. R. v. Grant, [2009] S.C.R. 353, is now the leading authority on the interpretation and application of subsection 24(2), particularly the second branch of the test codified in that subsection.
[88] In Grant, McLachlin C.J.C. and Charron J.A. noted that the subsection is concerned with the maintenance with the rule of law and with the defence of Charter rights in the justice system as a whole. The court noted that a Charter breach in and of itself brings the administration of justice into disrepute. However, in their view, subsection 24(2) was concerned with the future impact of the admission/exclusion of the evidence on the repute of the administration of justice. In other words, the court was concerned with whether admission/exclusion would do further damage to the repute of the justice system. In doing so, the court noted that the analysis required a long-term view, one aimed at preserving the integrity of our justice system and our democracy.
[89] Interpreting subsection 24(2) from this perspective, the majority in Grant held that a trial court must assess and balance the effect of the admission of the evidence on society's confidence in the justice system having regard to:
(1) The seriousness of the Charter-infringing state conduct [admission may send the message that the justice system condones serious state misconduct];
(2) The impact of the breach on the Charter-protected interests of the accused [admission may send the message that individual rights count for little]; and
(3) Society's interest in the adjudication of the case on its merits.
See Grant, supra.
[90] The seriousness of Charter-infringing state conduct may require a court to disassociate itself from the police conduct. However, the presence of good faith during the course of the breach may lessen this need. Trial courts must keep in mind, though, that ignorance of Charter standards, negligence, and wilful blindness cannot be equated with "good faith", and should not be encouraged or rewarded through the admission of evidence. Systemic police misconduct will be considered more serious and will be more likely to require a court to disassociate itself from the conduct.
See Grant, supra, at para 75.
[91] Needless to say, deliberate state misconduct will tend to support the exclusion of evidence.
See Grant, supra.
[92] The third branch of the Grant analysis places emphasis on the truth seeking function of the trial process. This portion of the analysis requires the court to balance concerns about the integrity of the justice system with the interests of seeking the truth. Admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the Crown's case. Conversely, the exclusion of highly reliable evidence may have a more negative impact upon the repute of the justice system, if exclusion proves fatal to the prosecutions ability to prove its case.
B. Application of the Law to the Facts In this Case
1. Seriousness of the Charter Infringing State Conduct
[93] I do not view Cst. Schnarr's violation of the accused's section 8 and 9 Charter rights to be trivial. Impaired driving investigations are the bread and butter of patrol officers. One can reasonably expect on any given shift that a patrol officer may encounter a motorist that is suspected of impaired driving. Indeed, Cst. Schnarr set up in downtown Waterloo in the midst of several bars and pubs for the apparent purpose of monitoring the conduct of patrons who departed those bars and pubs.
[94] The instrument relied upon by the officer ostensibly provided that officer with the authority to detain a motorist for the time necessary to transport that motorist to a police station and compel that motorist to incriminate himself. It is not too much for citizens of this province to expect the police to understand the basic functioning of an instrument, and thereby understand the roots of their power. Cst. Schnarr concluded the device in question was properly calibrated and in working order, despite conceding he did not know whether or not the machine had been calibrated sufficiently recently. He asserted to himself and this court a belief that his machine had passed the reliability test, without knowing what score constituted a passing grade. As noted, his evidence was illogical and suggests a lackadaisical approach to the use of a vital instrument. Essentially, his use and understanding of the operation of the instrument was not up to par. I therefore cannot conclude that the breach was committed in good faith. In the circumstances I consider the breach to be serious Charter infringing state conduct.
[95] I would pause here to say that the officer's error is one that is easily fixed, and hard to repeat once identified. This, as they say, is a teachable moment. I have every faith that this officer can avoid this error in the future.
[96] With respect to the breach of the right to counsel, I also consider this conduct to be serious Charter infringing state conduct. The conduct falls into two categories: (1) conduct pertaining to the police control of the access to counsel and the failure to provide information that would enable access to counsel other than duty counsel [what Justice Band called the creation of a false dichotomy in R. v. McFadden, supra; and (2) the deliberate decision to withhold from the accused news that his father called with the name of a lawyer.
[97] With respect to the "false dichotomy" aspect of the s. 10(b) breach, I note that the officer appears to have been carrying out a department policy that restricts an accused's ability to select a counsel of choice and to personally make contact with that counsel. I appreciate that, in Ontario at least, this is a developing area of law. I do not for a moment suggest that the "false dichotomy" aspect of the breach was conducted in bad faith. However, on the evidence I have heard much of the Charter infringing state conduct was systemic in nature. Given the systemic nature of the conduct, it becomes incumbent upon the court to distance itself from this conduct in an effort to avoid further damage to the repute of the administration of justice. I also note that when dealing with a person with no criminal history, it should be obvious to any officer that the accused is unlikely to know any lawyers and might therefore benefit from a perusal of a phone book. It is basic common sense. The officer's approach to facilitating a meaningful choice of counsel appears to have been quite glib, as glib as his assessment of the reliability of the ASD. I find this attitude to be a factor that aggravates the seriousness of the Charter infringing state conduct.
[98] I must say that I also take a dim view of Cst. Schnarr's decision to withhold from the accused the news that his father had called to provide the name of a lawyer. The encounter with Taras Sakharevych, appears to have been somewhat of a testy affair. On the one hand, Taras Sakharevych insisted on speaking to his son personally. On the other hand, Cst. Schnarr insisted that Taras Sakharevych would not be permitted to speak to his son. The exchange ended between the two when Cst. Schnarr hung up on Taras Sakharevych. He then withheld news of this conversation from the accused. I infer from the circumstances that Cst. Schnarr's decision to withhold this important news was a petulant reaction to an unpleasant conversation with Taras Sakharevych. I can conceive of no other rational explanation for the officer's decision to withhold what he considered to be important information from the accused. Given the officer's perception of the importance of this information, I consider the breach to be a flagrant and serious one.
[99] Consideration of this aspect of the Grant analysis favours exclusion.
2. The Impact Upon the Charter Protected Rights of the Accused
[100] In recent case law, the Supreme Court has commented upon the minimal intrusion of a breath sample upon the diminished expectation of privacy of an accused person in his or her breath when engaged the performance of the regulated activity of driving.
See Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46, [2015] S.C.J. No. 46, at para 51.
R. v. Grant, 2009 SCC 32, at paras. 111 and 113
[101] I note, however, that the comments in those cases were obiter dicta. In neither case was the court asked to consider the interrelationship between a section 8 breach and a section 9 breach in drinking and driving cases. As noted by Justice Ducharme in R. v Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 (S.C.J.):
60 As for the s. 8 violation, it is true that the taking of breath samples pursuant to either s. 254(2) or 254(3) is not "a significant compelled intrusion upon the body." While the taking of a breath sample interferes with privacy of the person, the most assiduously protected privacy interest, the procedure is minimally intrusive in two respects. First, the procedure involved in collecting and analyzing breath samples is minimally intrusive in a physical sense. Second, the information gleaned from a breath sample is far from the "biographical core of personal information" that is protected by s. 8. These factors favour the admission of the evidence
61 But that should not end the matter, because the demands placed on a driver to facilitate these tests are often not minimally intrusive. In this case, the appellant was arrested, handcuffed, placed in the rear of a police car and taken to a police station, a sixteen minute trip, and, once at the station, he was kept in police custody for another hour and fifty minutes. Thus, while the trial judge was correct in saying that the treatment of the appellant was not "oppressive" that is not the test. Certainly, such an interference with the appellant's personal liberty cannot be dismissed as minor. Thus, where the police lack the requisite grounds for the s. 254(3) demand, these aspects of the appellant's treatment constitute a significant violation of s. 9.
[102] It is also worth noting that while breath samples may involve a minimal intrusion upon the accused's privacy interests, they involve a significant statutorily mandated intrusion upon the accused's right against self-incrimination.
[103] Having regard to the circumstances and duration of the accused's detention after his arrest; and having regard to the fact that the accused was compelled to incriminate himself when complying with the unlawful breath demand during his arbitrary detention, I conclude that the s. 9 breach gave rise to a significant impact upon the Charter protected rights of the accused.
[104] With regard to the breach of the right to counsel, I consider the impact upon the accused's Charter protected right to be significant. In my view, admission of the evidence would send the message that the accused's right to counsel counts for little.
[105] Justice G.A. Martin once described the right to counsel as one of "superordinate" importance. It is the means by which individuals can gain an understanding of all their rights, obligations, and vulnerabilities; and it is the means by which individuals may then begin to assert their other rights.
[106] While Mr. Sakharevych spoke to a duty counsel, he did not speak to a person in whom he had trust, and was left unsatisfied with the advice he received. The decision to withhold news that Taras Sakharevych had called with the name of a recommended counsel perpetuated and preserved a steering of the accused towards duty counsel, a course plotted the moment the officer became aware the accused knew of no other lawyers. This sequence of breaches had a direct causal effect upon the accused's confidence in his solicitor client relationship. The impact upon his Charter protected right was therefore profound.
[107] Given the evidence I have heard, I am satisfied on a balance of probabilities, that, given the choice, the accused would have spoken to the counsel recommended by his father, given the chance. I am also satisfied on a balance of probabilities that the accused would have been able to speak to either Mr. Fedorsen or Mr. Little within a reasonably prompt time. While I can only speculate as to whether or not the accused may have provided a sample after having spoken to counsel, I nevertheless conclude that the evidence elicited from the accused occurred during the course of this series of breaches of the right to counsel. There is an immediate temporal connection. In addition, given that the consultation was at least in part for the purpose of seeking advice on the advisability of providing a sample, there existed the possibility of a causal connection between the breaches and the elicitation of the evidence. In this regard, I would note that since the release of Grant in 2009, the decision about providing a sample has become more complex. In certain circumstances, where there appears to be a relatively minor breach [for example, a demand made not quite as soon as practicable], some accused may choose to take their chances with a Refuse Sample charge [believing in the existence of a reasonable excuse to refuse (the unlawfulness of the demand)] rather than attempt exclusion of evidence in an Over 80 trial [I say this while keeping in mind the ethical constraints that would prevent a lawyer from advising the commission of one offence to avoid prosecution on another]. Having regard to these complexities, I am of the view that consultation with counsel is not a pro forma exercise. In these circumstances, it is certainly not one that should leave the accused with the impression that his lawyer is reading from cue cards. I am therefore fortified in my conclusion that the impact of the breaches on the accused's Charter protected right to counsel was significant.
[108] Having concluded that there exists a significant impact upon the accused's right against arbitrary detention and the accused's right to counsel [and having touched upon the impact upon the accused's right against self-incrimination], I therefore conclude that this aspect of the Grant analysis favours exclusion.
3. Society's Interest in a Trial on Its Merits
[109] This aspect of the Grant analysis typically favours admission of the evidence, particularly in circumstances where the evidence is reliable and crucial to the successful prosecution of the accused. This case is no exception to that general rule.
4. Conclusion
[110] Usually, when the first two aspects of the Grant analysis favour exclusion, a court should exclude the evidence. While there may exist some exceptional cases in which admission is nevertheless warranted, this case is not one of those exceptional cases. In my view, the circumstances of this case warrant the exclusion of the evidence obtained during the course of the breach. In my opinion, admission of the evidence would do further damage to the long term repute of the administration of justice.
[111] I therefore order the exclusion of the evidence pertaining to the provision of the accused's breath samples at the detachment and the analysis of those samples.
Released: October 4, 2017
Signed: Justice C.A. Parry
ADDENDUM: Paragraph 110 has been amended to correct drafting error.
[1] In delivering the judgment orally, I repeated the content of this paragraph. The written version of the judgment has been edited to eliminate this repetition.
