Court File and Parties

Ontario Court of Justice

Date: 2017-09-13

Court File No.: Newmarket 15-01343

Between:

Her Majesty the Queen

— and —

Jetoia Blair

Ruling on Charter Application

Evidence heard: September 12, 2017

Delivered: September 13, 2017

Counsel:

• Mr. Brad Juriansz, counsel for the Crown/Respondent
• Mr. Alonzo Abbey, counsel for the Applicant

Decision

KENKEL J.:

Introduction

[1] Constable Lannigan found Ms. Blair trying to drive out of a steep ditch at the side of the on-ramp to the 400 highway. He removed her from the car and based on information received from a witness and his own observations he administered an approved screening device (ASD) test. The failure of that test led to further tests via an approved instrument (AI). The approved instrument tests led to the charge before the court. The accuracy of the test results is not contested, but the defence submits those readings should be excluded from evidence pursuant to s.24(2) to remedy two breaches of Ms. Blair's Charter rights:

• Section 10(b) – Failure to administer a Prosper warning when the accused abandoned her wait for counsel to call back and asked to proceed with the breath tests

• Section 8 – Failure to make the approved screening device demand, "forthwith" as required under s.254(2) resulting in an illegal demand made worse by the consequences for the accused that flowed from the ASD test.

[2] The Crown submits that there was no breach of the accused's rights. The evidence of the two officers as a whole shows compliance with the principles of a Prosper waiver even if no formal waiver was read. The arresting officer did make a timely informal ASD demand. The delay in reading the formal demand was reasonably explained by the need to remove the accused from the dangerous situation in the ditch. In the alternative, if a s.10(b) breach is found the Crown would concede exclusion pursuant to s.24(2). If only a s.8 breach is found, the Crown submits the very brief delay was not serious, had no impact on the accused and should not lead to the exclusion of test evidence which the defence concedes is reliable.

Section 8 – ASD Demand Forthwith

[3] There is no "forthwith" requirement in s.254(2) but courts have found that condition implicit in the notion of a test forthwith – R v Quansah 2012 ONCA 123. PC Lannigan made an informal ASD demand while Ms. Blair was still in the car in the ditch. He asked her to get out of the car and accompany him to his cruiser to do a breath test and an accident report. In cross-examination he admitted that he didn't recall the exact wording used and he agreed his notes just referred to a "test". He recalled saying breath test.

[4] An ASD demand need not be in any particular form, provided it is made clear to the driver that she is required to provide a sample of her breath forthwith – R v Torsney 2007 ONCA 67 at para 6, leave refused [2007] SCCA No 126. The informal demand made by the officer – to step out and accompany him to the police car for a breath test – meets the requirements of s.254(2). Even if the officer had not included the word "breath" in the demand, the context would have made it clear to a driver who had been drinking and was in the ditch that the officer was taking her for a breath test.

[5] In the alternative, if the officer's informal demand was not sufficient the breach alleged is a very small one – that the officer could have read the formal ASD demand a minute or two earlier than he did. The short delay was to remove the accused from the dangerous situation in the ditch. The formal demand was read, the ASD was prepared, a demonstration self-test and the accused's test all were completed within six minutes of entering the car.

[6] Applying the test in R v Grant 2009 SCC 32, the breach would not be serious. The defence could not articulate any impact such a breach would have on the Charter-protected interests of the accused. It would add nothing to a s.24(2) analysis in relation to a s.10 breach. There would be nothing to detract from society's interest in adjudication of the case on its merits.

Section 10(b) – No Prosper Warning

[7] Both parties agree that:

• A Prosper warning was required in this case where Ms. Blair asked to speak to a particular counsel, was unsuccessful in reaching that counsel, and then changed her mind and asked to proceed with the breath tests

• No formal Prosper warning was given

• The arresting officer's concern about the s.258(1)(c)(ii) 2 hour limit was an error

[8] Ms. Blair was arrested just after she failed the ASD test. Constable Lannigan read her right to counsel advice at that time in standard OPP form. Ms. Blair asked to call a lawyer and at the station she provided the officer with the lawyer's name and number. PC Lannigan called the number. There was no answer at 1:48 a.m. and the call was not automatically forwarded. There was a message but it did not contain any information about after-hours contact. The officer left a voice mail message for the lawyer with a request to call the station. A few minutes later PC Lannigan called a friend of the accused at her request.

[9] The lawyer never called back that evening. At 1:56 a.m. PC Lannigan spoke to another person he thought was duty counsel although his testimony as a whole shows he's now not certain whether it was counsel or another friend of the accused who had called the station. Constable Lannigan had not called duty counsel to that point. At 2:02 a.m. he spoke to the accused to remind her about cell video, privacy blankets and the availability of a washroom outside the cell area. The accused used the washroom outside the cell area and at that time said to him that she wasn't interested in speaking to duty counsel, just her own lawyer.

[10] At 2:10 a.m. PC Lannigan spoke with the accused to tell her that her lawyer had not called back. He said he was prepared to wait another five minutes. In his mind that limit related not just to a reasonable waiting time but also to the need for breath tests within two hours of operation. The officer's concern about the two hour limit was an error, but waiting until 2:15 a.m. would otherwise have been a reasonable 27 minute period, particularly late at night where the lawyer had made no provision for after-hours contact.

[11] Ms. Blair told the officer that she didn't want to wait, she wanted to get the test over with and she wanted to do the test "now". He did not read a formal Prosper warning and his notes don't reveal what if any further conversation was had about duty counsel as an alternative.

[12] The accused was turned over to the qualified breath technician PC Klassen at 2:15 a.m. He introduced himself and tried to explain his role but Ms. Blair repeatedly interrupted him and told him she just wanted to get the breath test over with so she could go home.

[13] At 2:16 a.m. she told Constable Klassen that she'd never received right to counsel advice. That wasn't true, but it caused Constable Klassen to read the right to counsel advice to her in standard form. She was told she could still call any lawyer she wished and she also had the right to free advice from a legal aid lawyer immediately available for that purpose. There is no evidence that she asked PC Klassen to contact any lawyer on her behalf and she specifically declined to speak with duty counsel.

[14] A "Prosper warning" is meant to equip detainees with the information required to know what they are giving up if they waive their right to counsel – R v Fountain 2017 ONCA 596 at para 27. Where a detainee has asked to speak to counsel but has not been able to do so and then changes her mind and abandons that request, there is a high burden on the Crown to prove that the waiver was, "a clear, free and voluntary change of mind made by someone who knew what they were giving up." – Fountain at para 27. The rights at stake when right to counsel is waived include not only the right to speak with a lawyer, but also the right to have the police hold off taking any investigative step until that consultation with counsel can be accomplished – Fountain at para 28.

[15] In R v Lobo 2015 ONSC 6673 at para 13, Justice MacDonnell observed that the, "obligations imposed by Prosper are not to be interpreted in a mechanistic or artificial fashion." The Crown submits that the lack of a formal Prosper warning is not fatal where the whole of the evidence proves a voluntary waiver with awareness of the consequences. The defence submits that in the absence of a formal Prosper warning the evidence does not meet the high burden imposed upon the Crown to prove a valid waiver.

[16] While the arresting officer did not make it clear to the accused that the breath tests could wait if she wished to contact another lawyer or speak to duty counsel, the discussion with PC Klassen showed Ms. Blair that she still had the right to legal advice and that the police would implement that right if she wished. She was aware that the police would "hold off" testing until the right was accommodated.

[17] Ms. Blair was in a hurry. She cut short the wait for her lawyer and asked to proceed with the breath tests. She interrupted PC Klassen's introductory explanations to tell him that she wanted to get the tests over with so she could go home. She did not ask PC Klassen to contact any lawyer and she refused to speak with duty counsel. The change of mind was plainly voluntary, free from any pressure or suggestion by the police. The statement by PC Lannigan showing that the wait for counsel to call back was not indefinite did impose a timeline, but it was not unreasonable and there was no suggestion that the accused would be left with no other option. Her full right to counsel options were again repeated and offered to her in the breath room prior to testing. The repetition of that advice and the options provided confirmed to the accused that the officers were still prepared to hold off the investigation if she wished to speak with a lawyer. The s.10(b) right does not impose an obligation on the accused to speak with a lawyer – Prosper at para 44. Ms. Blair was entitled to change her mind and abandon her request if she wished to do so.

[18] Considering the evidence as a whole, and mindful of the high burden upon the Crown on this point, I find that the Crown has proved that the accused's waiver of the right to counsel was free and voluntary, without direct or indirect compulsion by the police. Ms. Blair was aware of what she was giving up and she was aware of the next investigative step that would follow. There is no breach of s.10(b) in these circumstances.

Section 24(2)

[19] In the alternative, if a s.10(b) breach were found, the Crown would concede exclusion of the breath test evidence under s.24(2).

[20] As explained above, if there were a s.8 breach, applying a Grant analysis that breach would add nothing to a 24(2) analysis in relation to s.10(b) and could not reasonably lead to exclusion of evidence on its own.

Conclusion

[21] The Crown has proved a valid waiver of the right to counsel and the Crown has proved that the warrantless ASD test met the s.254(2) statutory criteria. The Charter application is dismissed.

Delivered: September 13, 2017

Justice Joseph F. Kenkel