Ontario Court of Justice

Date: 2018-03-26

Court File No.: TORONTO 4817 998 16-75003138

Between:

Her Majesty the Queen

— AND —

Blair Munro

Before: Justice Richard Blouin

Heard on: September 26 and 27, December 1, 2017 and January 10, 2018

Reasons for Judgment released on: March 26, 2018

Counsel:

• Mr. Matthew Morley, counsel for the Crown
• Mr. Michael Rombis, counsel for the defendant Blair Munro

BLOUIN J.:

[1] Blair Munro was charged with driving over 80 after a police investigation on July 13, 2016. The police made a demand for a roadside screening sample of Mr. Munro's breath. Approximately 20 minutes passed before the ASD was delivered. Mr. Munro failed and was arrested. He was taken to a police station and eventually provided two breath sample readings of 170 mgs, which were presented as evidence by way of a certificate of a Qualified Technician.

[2] Mr. Rombis submitted the Crown failed to prove the case in three ways:

(1) the time of driving was not accurately recorded such that one could be satisfied that the breath readings were obtained within two hours as required by s. 258(1)(c);

(2) the breath samples were not taken as soon as practicable as required by s. 258(1)(c); and,

(3) section 24(2) of the Charter should be invoked to exclude the breath reading evidence obtained after Mr. Munro's right to counsel under s. 10(b) had been violated.

[3] The first two arguments can be settled quickly. The arresting officer (Sergeant Sidhu) established the time of driving to be 2:46 a.m. by reference to his dashboard video. The first breath sample was completed at 4:35. There was no competing evidence that suggested those times to be inaccurate.

[4] Regarding the as soon as practicable issue, I similarly find no violation of s. 258(1)(c). The seven minutes before booking was explained (a computer issue) and not unreasonable. The 26 minutes between breath samples was a longer delay than usual (it must be 15 minutes, and is normally 17). However, Mr. Munro was taken back to the breath room for the second test 19 minutes after the first was completed. The remaining seven minutes are captured on the breath room video (Exhibit 3) and primarily contain the defendant speaking to the breath technician about his son. In R. v. Vanderbruggen, the Ontario Court of Appeal provides that not every minute needs to be accounted for and the test is whether the police acted reasonably promptly. There was nothing unreasonable regarding that short delay.

[5] Finally, since the arresting officer did not have an ASD on board, he had to wait 20 minutes to get one. Although, in certain fact situations, there might be another legal argument regarding the "forthwith" requirement in s. 254(2), here that period is not unexplained. Especially so since the arresting officer was a road sergeant who received a 911 call. He was not primarily looking for impaired drivers and not likely to carry an ASD. Accordingly, the Crown has established the breath samples were taken as soon as practicable as required to allow into evidence the certificate of a Qualified Technician.

Right to Counsel

[6] Mr. Munro testified that he asked to speak to counsel and was given an opportunity to speak to duty counsel in a private room at the police station. He believed duty counsel was reading from a prepared statement and, as a result, had a number of questions. At some point during this consultation, Constable Penwell motioned to her wrist area and circled her hand. She then knocked on the door and asked if duty counsel was still on the phone. She took the phone, ensured counsel was on the other end, returned the phone to Munro, and left. He told duty counsel he needed to end the call even though he had more questions. Penwell's actions caused him to feel his time with duty counsel was up. He thought that was odd, but was unfamiliar with police procedures and didn't want to upset the officers by complaining. He did not think he had the right to tell the officers that he wished to continue speaking with counsel.

[7] Munro agreed in cross-examination that he said nothing to any officer regarding his dissatisfaction with the consultation. In fact, Exhibit 3 shows the Qualified Technician addressing the issue. He confirmed, albeit briskly, that Munro had spoken to duty counsel and there were no problems. Munro responded, "Everything's fine." He indicated that he said that because he did not want to upset the officers who had already indicated that would likely release him. He did not want to make his situation worse, and he felt co-operation with police to be the best approach.

[8] Constable Penwell testified that Mr. Munro seemed to be taking a long time (most people are three-four minutes talking to duty counsel), so she knocked on the door, checked to see that duty counsel was still on the phone, and then left when satisfied. She did not remember the exact conversation when she entered the privacy room. She did not remember if there was even a window on the door of the room. Her partner, Constable Whitfield confirmed that there was such a window. When asked if she had indicated to Munro that he was taking too long, she said "I don't recall saying that" and "I don't believe that's something I would say." She specifically denied tapping her wrist area and making a circular motion to indicate that Munro should wrap up his consultation. She testified that duty counsel was called at 4:13, when in fact, according to PC Whitfield, duty counsel was called eight minutes earlier and he returned the call at 4:13.

Findings

[9] Firstly, as to the important factual background surrounding consultation with counsel, I accept the evidence of the defendant. His memory of the events while inside the consultation room is more certain and internally consistent with other evidence. I believe Mr. Munro's evidence that the officer made a hurry-up motion through the window. His evidence regarding the existence of a window was confirmed by Whitfield while Penwell was uncertain. In my view, her intimation that he hurry up was consistent with her entering the room to ensure he was speaking to duty counsel, and with the end of the two hours' time frame to use certificate evidence approaching. I am aware that she said that was not a consideration and that the case could still be proved, but I do not accept that it was not a factor.

[10] I also accept Mr. Munro's evidence that his consultation was cut short, and that he still had not obtained clear advice as to assist him in deciding whether he wished to provide incriminating evidence. A corollary to the right to consult counsel is the obligation on the defendant to pursue that right diligently. Although he voiced no objection when the breath technician broached the consultation issue, I accept, as valid, the reasons why he did not.

[11] It is a longstanding principle to be not only informed of the right to counsel upon arrest or detention, but equally, if not more importantly, to obtain advice as to how to exercise those rights (see R. v. Maninen, 1987 S.C.R. 1233). Here, that advice was interrupted and effectively curtailed by Constable Penwell's action. I find no compelling reasons to do so. The defendant had been in the consulting room for less than 15 minutes and there was no evidence that he was stalling. And to even enter the private room and engage in a discussion with counsel was completely unwarranted. I conclude a violation of s. 10(b) of the Charter.

Exclusion of Evidence

[12] I must apply s. 24(2) of the Charter, and conduct an analysis as directed by R. v. Grant, 2009 SCC 32. In my view, the right to speak to counsel and meaningfully consult with counsel is a bedrock principle of a democratic society. When police abrogated that right by effectively halting the consultation process, it cannot be considered anything but serious. This is not a technical breach but one where the police have essentially prevented full access to a protected right, which places it to the bad faith end of the spectrum.

[13] The impact on the defendant's Charter-protected right does not appear, at first instance, to be significant in that the law requires a defendant to provide a sample of his breath upon a lawful demand. However, even in a breath sample case, a reasonable consultation with counsel regarding the lawfulness of the demand might inform the arrestee's decision to participate in the collection of evidence against him. In other words, given a full consultation, the defendant could well have decided this was not a lawful demand. He might have refused to provide a breath sample, and argued at trial that the prosecution had not proven the lawfulness of the demand. A finding of not guilty may have resulted. These first two Grant factors militate toward exclusion in my view.

[14] There is no doubt that excluding the breath sample evidence would thwart the prosecution and deny society's interest in adjudicating the case on its merits. The evidence is reliable, and this third factor militates towards its inclusion. I find, on examining the Grant factors, the balance slightly tips toward exclusion. Accordingly, the certificate evidence is not admitted, and the defendant will be found not guilty.

Released: March 26, 2018

Signed: Justice Blouin