Court Information
Court: Ontario Court of Justice
Date: March 28, 2018
Court File No.: 17-33691
Parties
Between:
Her Majesty the Queen
— And —
Shameer Ali
Before the Court
Justice: Paul Burstein
Heard: March 5 and 6, 2018
Reasons for Judgment Released: March 28, 2018
Counsel
For the Crown: O. Fitzgerald
For the Defendant: M. Worsoff
Introduction
[1] Mr. Ali stands charged with having care or control of a motor vehicle while his ability to drive was impaired by alcohol and with care or control while his blood-alcohol content ("BAC") was over the legal limit; namely 80 mg of alcohol per 100 ml of blood.
[2] After his neighbor from across the street had spotted Mr. Ali's vehicle stopped in front of Mr. Ali's family home with him sleeping in the driver's seat, the neighbor watched as Mr. Ali's vehicle slowly drifted about 25 feet up onto the curb and strike a metal hydro box. Following a call from the neighbor, the police (and other emergency services) attended and found Mr. Ali still asleep in the front seat. Cst. McLeod woke Mr. Ali and, after some conversation about what had happened, formed grounds to believe that his ability to drive was impaired by alcohol. She arrested Mr. Ali and transported him to the police station to comply with her s. 254(3) breath sample demand. At the station, Mr. Ali's two breath samples were analyzed as having a BAC of 100 and 90.
[3] The Crown elected to proceed summarily and, on March 5, 2018, Mr. Ali entered pleas of not guilty before me to both charges.
[4] At trial, the Crown called two witnesses to give viva voce evidence, Mr. Ali's neighbor, Ryan Thomas, the arresting officer, Cst. McLeod. Through Cst. McLeod the Crown tendered a copy of the Certificate of Qualified Technician ("CQT") which Cst. McLeod had served upon Mr. Ali before he was released from the police station following the breath testing. In addition, on consent, the Crown filed a report prepared by Cst. Doyle, the qualified breath tech in this case, attesting to Cst. Doyle's observations of Mr. Ali during the course of the breath testing process. After the Crown had closed its case, Mr. Ali testified. The breath technician, Cst. Doyle, was not called to testify in this case.
The Issues
[5] Defence counsel conceded that Mr. Ali was in "care or control" of the vehicle. The issues in this case revolve around whether the Crown has proven beyond a reasonable doubt that when Mr. Ali was in care or control of the vehicle (1) his ability to drive was impaired by alcohol, and/or (2) his blood alcohol content ("BAC") was "over 80".
[6] On the first count (of impaired care or control), the defence contends that there is a reasonable doubt as to whether the indicia of impairment are attributable to the consumption of alcohol as opposed to Mr. Ali's physical and mental exhaustion. That reasonable doubt, says the defence, arises either as a result of Mr. Ali's testimony or simply by virtue of the frailties of the circumstantial evidence relied upon by the Crown. In relation to the "over 80" element of the second count, the defence raises two issues:
In light of the absence of the breath technician's signature on the CQT that was entered as an exhibit at trial, are the statements contained in that CQT deprived of the evidentiary value required for the Crown to prove the statutory preconditions necessary for invocation of the evidentiary presumption set out in s. 258(1)(c) of the Code?
Did Cst. McLeod violate Mr. Ali's s. 10(b) rights by failing to facilitate Mr. Ali's contact with counsel of choice and, if so, should the evidence of the breath tests be excluded pursuant to s. 24(2) of the Charter?
[7] In addition to those two issues on the "over 80" count, the defence had initially also sought to argue that the Crown had failed to prove that the copy of the CQT which the arresting officer had served upon Mr. Ali was in fact a "true copy", as required by the Code. During the trial, at the point when the Crown had sought to tender the CQT as an exhibit, I had invited defence counsel to state any objections and, if necessary, to cross-examine the arresting officer on a voir dire prior to making any such submissions. Defence counsel declined both offers. Accordingly, the CQT was entered as an exhibit prior to the completion of Cst. McLeod's examination-in-chief. After the Crown had completed that examination-in-chief, the defence cross-examined Cst. McLeod about her apparent inability to confirm that she had served Mr. Ali with a true copy of the CQT prepared by Cst. Doyle. At the conclusion of the case, after both sides had already closed their cases, defence counsel sought to argue that the CQT should not have been admitted because the Crown had not proven beyond a reasonable doubt that Mr. Ali had been served with a true copy. After some discussion about the propriety of attempting to raise this issue at that late juncture, defence counsel abandoned his challenge to the admissibility of the CQT but maintained his position that the absence of a signature deprived it of the evidentiary value required for the Crown to invoke the s. 258(1)(c) presumption. I will later address the issue of whether the absence of a signature on the CQT has any material impact on the Crown's case.
The Evidence at the Blended Trial and Voir Dire
[8] At around 6:00 a.m. on February 11, 2017, Ryan Thomas was still at home in bed when he received a call from his mother alerting him to a vehicle parked across from the family home on Hitchen Avenue in Ajax. His mother reported that she had seen a man sleeping in that vehicle before she and Ryan's father had left for work. After getting up to go to the washroom, Ryan went over to his window to have a look outside. He saw a vehicle with its lights on parked on the opposite side of Hitchen Avenue. He watched as the vehicle started to move forward slowly, "curving" into a green metal box containing hydro equipment. The vehicle travelled about 25 to 30 feet before slowly striking the metal box. The front door of the vehicle opened. Ryan could see a man still laying in the car, not moving. That is when Ryan called 9-1-1.
[9] Cst. McLeod responded to the 9-1-1 call, arriving on scene at 6:28 a.m. The fire department had also responded. Mr. Ali's vehicle was half over the curb. It had come to rest against the metal lid of the hydro box, having displaced it from its moorings. It appeared that the vehicle had also made contact with a sign post prior to bumping into the hydro box. Cst. McLeod saw that Mr. Ali was still in the driver's seat. Cst. McLeod could not see past Mr. Ali to tell whether the vehicle was still running and whether it was in "park". She also did not take note of whether the keys were in the ignition. Cst. McLeod asked Mr. Ali to step out of the vehicle so that the fire department could make sure that there was no danger resulting from his vehicle's contact with the hydro box.
[10] According to Cst. McLeod, Mr. Ali had no difficulty getting out of his car. She did notice that his eyes seemed bloodshot. Furthermore, when Cst. McLeod was speaking with him, he seemed to have difficulty focusing on her when she was asking him questions. In his testimony, Mr. Ali explained that, having awoken to find the police and fire fighters all around, he was confused. To complicate matters, he said, he believed that there were various people talking to him about his car when Cst. McLeod was asking him questions. Other than the bloodshot eyes and being distracted, Mr. Ali did not exhibit any other symptoms of impairment; that is, no slurred speech, no unsteadiness and no difficulties with his motor skills.
[11] Based on her conversation with Mr. Ali, her observations of him and the circumstances of the collision, Cst. McLeod formed a belief that his ability to drive was impaired by alcohol. Having observed him climb out of the driver's seat, she also confirmed that the engine of the vehicle was still warm to the touch. She therefore also formed a belief that he had been operating the motor vehicle. Accordingly, she arrested him for impaired operation of a motor vehicle and made a s. 254(3) breath demand. (I note that, despite having filed notice of an intention to challenge the reasonableness of the officer's grounds to make the s. 254(3) demand, the defence expressly abandoned that challenge during final argument.)
[12] After arresting Mr. Ali at 6:38 a.m., Cst. McLeod enlisted some help from Cst. Torcivia, a male officer who had also arrived on scene. She had Cst. Torcivia search Mr. Ali. Then Csts. McLeod and Torcivia worked together to get Mr. Ali, a man of large stature, into the rear seat of Cst. McLeod's cruiser. At 6:51 a.m., Cst. McLeod read Mr. Ali the standard "rights to counsel" warning from her memo book. When asked if he understood, Mr. Ali said "no". After reading it a second time, Cst. McLeod then explained it in "lay terms". Cst. McLeod began transporting Mr. Ali to the police station at 6:59 a.m., arriving there at 7:08 a.m.
[13] Once at the station, Cst. McLeod gave Mr. Ali his cell phone because Mr. Ali had told her that he had a lawyer with whom he wished to speak. He had told her that his lawyer's name was "David Heath" and that Mr. Heath's number was in Mr. Ali's cell phone. Cst. McLeod gave Mr. Ali his cell phone. He found the name of his lawyer and showed her the electronic entry in his cell phone. Cst. McLeod noted that the entry said "Health", rather than "Heath". She did not, however, make any note of whether the entry also said "David". She noted down that the number was "41699433 08". That was the number Cst. McLeod dialed. A male answered and told Cst. McLeod that there was no one at that number by the name of "Heath" or "Health" nor anyone associated with a lawyer. According to Cst. McLeod, she confirmed with that male that she had dialed the number "correctly" (i.e., that she had dialed the number she had intended to dial).
[14] There is no evidence suggesting that Cst. McLeod ever allowed Mr. Ali to try and dial the number, whether from his cell phone or from a phone at the police station. Nor is there any evidence that Cst. McLeod ever confirmed with Mr. Ali that the correct number for Mr. Heath was "4169943308". At trial, Mr. Ali testified that the number for Mr. Heath which Mr. Ali had stored in his cell phone at the time was actually "41699433 80". Mr. Ali confirmed that Exhibit 3 was a print-out of the contents of the electronic entry which he had stored in his cell phone for "David Health" – "Health" having simply been a typo for "Heath". Exhibit 3 clearly shows that the number which Mr. Ali had for Mr. Heath was not the number dialed by Cst. McLeod. On cross-examination, Cst. McLeod conceded that it was possible that she had made a mistake when transcribing the number in her memo book by mixing up the order of the last two digits.
[15] After Cst. McLeod spoke with the unknown male who answered "41699433 08", she went to the "2016 Ontario Lawyers' Directory" and looked for the names "David Heath" and "David Health". According to her, she was unable to find any entry which seemed to relate to those names. She then asked Mr. Ali if he wanted to try and find a different lawyer or if he wanted to speak with duty counsel. According to Cst. McLeod, Mr. Ali said that he wanted to find another lawyer. In response to Mr. Ali's request, Cst. McLeod provided him with the 2016 Ontario Lawyers' Directory. According to her, Mr. Ali flipped through it briefly and returned it to her.
[16] I pause at this point to express my concern that I was provided with very little evidence about the "2016 Ontario Lawyers' Directory" that was used by the police to help facilitate Mr. Ali's contact with counsel. The only evidence before me is that it is a hard cover book that is a listing of lawyers in Ontario and that Cst. McLeod has used it before to look up lawyers, that is, to find the number for a lawyer whose name she has been provided. Despite the Court's familiarity with the Directory, it is not appropriate to take judicial notice of how the Directory is organized (e.g., merely alphabetically by name versus categorically by area of law), how many thousands of names are included or whether all practicing lawyers in Ontario are necessarily named in that Directory (i.e., that registration is somehow mandatory). Regardless of which party bore the evidentiary burden on this point, it was regrettable that such an important factual issue was not addressed either by evidence or an agreed statement of facts. As I will explain more fully below, to the extent that either party sought to rely on the nature of the Directory to support their position on the Charter issue in this case, the absence of evidence which was readily available for either side to introduce must inure to that party's detriment.
[17] Turning back to what happened once Cst. McLeod had called the wrong number, the evidence is clear that Mr. Ali was unable to provide Cst. McLeod with the name of any other lawyer with whom he wished to consult. When Cst. McLeod again asked if he wanted her to put in a call to duty counsel, Mr. Ali agreed. At 7:28 a.m., Cst. McLeod placed a call to duty counsel and was able to make contact with Mr. Murphy. Cst. McLeod transferred the call to a private room where Mr. Ali spoke with Mr. Murphy until 7:37 a.m. Cst. McLeod then escorted Mr. Ali to the breath room. Within a minute or so of Mr. Ali having been in the breath room, Cst. Doyle came out to tell Cst. McLeod that Mr. Ali had said that he was not happy with his consultation with duty counsel and that Mr. Ali "wanted to speak with another lawyer".
[18] According to Cst. McLeod, she did not have any further discussion about Mr. Ali's concern with Mr. Ali. Instead, as soon as she was informed by Cst. Doyle's about Mr. Ali's concern, Cst. McLeod simply made another call to duty counsel "on Mr. Ali's behalf". She did not provide him with any phone book or lawyers' directory, nor did she offer him any other option for choosing or locating "another lawyer". Cst. McLeod reached duty counsel at 7:39 a.m. and transferred the call into the privacy room. Mr. Ali spoke with duty counsel until 7:54 a.m. He was then escorted back to the breath room. There is no evidence that he voiced any further concerns about counsel, nor is there any evidence as to whether he was ever again asked by either Cst. McLeod or Cst. Doyle. When cross-examined at trial, Mr. Ali was never asked whether or not he was satisfied with that second consultation or whether either officer had made such an inquiry of him.
[19] Once Mr. Ali had completed the breath testing process, Cst. Doyle transferred custody of him back to Cst. McLeod. She had not been present in the breath room for the tests. According to Cst. McLeod, she received some documents from Cst. Doyle when Mr. Ali was handed over to her, including the "Certificate of Qualified Technician" which was ultimately entered as Exhibit 1 at trial. Cst. McLeod was able to identify the signatures on the bottom portion of Exhibit 1 as belonging to Mr. Ali and herself. They were affixed to the CQT when Cst. McLeod was serving Mr. Ali with the documents relating to the case. When asked, Cst. McLeod conceded that she had not checked to see that the copy of the CQT which she served upon Mr. Ali was a "true copy" of the CQT which was ultimately entered as Exhibit 1 at trial. Cst. McLeod said that she trusted that it was because she trusted Cst. Doyle's integrity as a breath technician. As noted earlier, it turns out that the CQT which was entered as Exhibit 1 at trial was not signed by Cst. Doyle as the breath technician. There was no evidence as to whether the copy provided to Mr. Ali did or did not have Cst. Doyle's signature.
Analysis and Findings
A. Impaired Care or Control
[20] It is well settled that the Crown need only prove that a defendant's ability to drive was "slightly impaired" to establish that essential element of the s. 253(a) offence. However, the essential elements of the offence require the Crown to also prove that any such "slight impairment" was caused by alcohol or by the combination of alcohol and drugs. Impairment caused by alcohol's exacerbation of the effects of other non-criminal causes of impairment, such as the consumption of a prescribed amount of medication or the lack of sleep, may still ground a criminal conviction. However, where the Crown claims that a defendant's impaired ability to drive was caused by alcohol's additive effect to such non-criminal causes of impairment, the burden remains on the Crown to prove beyond a reasonable doubt that alcohol did in fact have such an additive effect and that it was not simply the prescribed medication or lack of sleep alone which caused that impairment.
[21] In this case, I am readily satisfied that the Crown has proven beyond a reasonable doubt that when Mr. Ali was in the driver's seat of his vehicle in front of his house on Hitchen Ave at 6:19 am that his ability to drive was impaired. Indeed, Mr. Ali essentially admitted to that in his own evidence. That said, having considered all of the evidence in this case in light of the Supreme Court of Canada's decision in R. v. Villaroman, I am not satisfied that the Crown has proven beyond a reasonable doubt that the cause of Mr. Ali's impaired ability to drive was attributable in any way to his prior consumption of alcohol.
[22] I accept the evidence of Cst McLeod concerning her observations of Mr. Ali, including the fact that he emitted a strong odour of alcohol and that his eyes were bloodshot. Without hearing any expert opinion to suggest more can be inferred from those observations, I am not prepared to find that those observations show anything more than prior consumption of alcohol by Mr. Ali, a fact to which he also readily admitted in his testimony. I am certainly not prepared to take judicial notice of the alleged "fact" that there is some correlation between the strength or duration of an odour of alcohol and the quantity consumed or the recency of consumption. I note that, while there was also evidence that Mr. Ali's BAC at 8:00 a.m. was over the legal limit, even if I were to consider that evidence on the impaired care or control count, without the benefit of any expert opinion evidence, I am not prepared to simply infer that a man the size of Mr. Ali would necessarily have been impaired by the BAC readings of 100 and 90 generated during the breath tests.
[23] Apart from the odour of alcohol and the bloodshot eyes, there was very little evidence to suggest that Mr. Ali's impaired ability to drive was caused by alcohol. None of the common symptoms of alcohol impairment were observed by Cst. McLeod during any of her dealings with Mr. Ali. From the moment she had him exit his vehicle through to when she last escorted him to and from the breath room, she never noted anything wrong with his balance or the way he walked. According to her, Mr. Ali's speech was never slurred.
[24] The Crown points to the fact that Mr. Ali allowed his vehicle to drive into the green hydro box as a strong indicia of impairment. I agree. However, that impairment is also consistent with the extreme sense of fatigue to which Mr. Ali testified. I accept Mr. Ali's testimony that he had worked a 12 ½ hour shift until 4:30 p.m. the day before and that he had gone out at about 11:15 p.m. with friends to a club in Toronto, where they remained until almost 4:00 a.m. I also accept Mr. Ali's testimony that he had consumed a relatively limited amount of alcohol (i.e., beer) prior to driving on the morning of February 11, 2017 and that his impaired ability to drive was attributable exclusively to his physical exhaustion. While I suspect that Mr. Ali's consumption of alcohol may have contributed in some way to his impairment, the evidence does not persuade me beyond a reasonable doubt of this essential element.
[25] Accordingly, Mr. Ali will be acquitted of the impaired care or control charge.
B. Care or Control Over 80
[26] As stated earlier, Mr. Ali raises two issues in relation to the Crown's proof of the care or control over 80 charge:
Has the Crown proven the statutory preconditions necessary for it to invoke the evidentiary "assist" (i.e., the presumption) set out in s. 258(1)(c) of the Code? Put differently, in view of the missing signature on the CQT that was entered as an exhibit at trial, is the Certificate deprived of any or all of its evidentiary value?
Did Cst. McLeod violate Mr. Ali's s. 10(b) rights by failing to facilitate contact with his named counsel of choice and, if so, should the evidence of the breath tests be excluded pursuant to s. 24(2) of the Charter?
1) Evidentiary Consequences, if Any, of the Absence of a Breath Technician's Signature on the CQT
[27] In order to discharge its burden on the over 80 count, the Crown in this case must discharge its burden of establishing the statutory preconditions for reliance upon the evidentiary presumption afforded by s. 258(1)(c) of the Code, namely, that:
each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
an analysis of each sample was made by means of an approved instrument operated by a qualified technician.
[28] In R. v. Egger, the Supreme Court of Canada recognized that when Parliament creates an evidentiary presumption relating to proof of an essential element of a criminal offence, the Crown may be expected to prove beyond a reasonable doubt the conditions which trigger that presumption. As the Court explained in the context of the s. 258(1) "presumption of identity":
… While proof on a balance of probabilities is an acceptable standard in deciding a preliminary question of fact with respect to the admissibility of evidence (see R. v. B. (K.G.), [1993] 1 S.C.R. 740, the general rule with respect to determination of vital issues in the criminal process requires proof beyond a reasonable doubt. See R. v. Gardiner, [1982] 2 S.C.R. 368, at p. 415. The issue here is very different from a question of admissibility of evidence. The effect of satisfying the burden of proving preliminary facts to the admissibility of evidence is only that the evidence is admitted: it determines neither the weight of the evidence nor the guilt of the accused. This occurs in the next step in the process during which the Crown must satisfy its legal burden. When admission of the evidence may itself have a conclusive effect with respect to guilt, the criminal standard is applied. This accounts for the application of this standard with respect to the admission of confessions (see Ward v. The Queen, [1979] 2 S.C.R. 30, at p. 40, per Spence J., for the Court, and Rothman v. The Queen, [1981] 1 S.C.R. 640, at pp. 670, 674-75, per Martland J., for the majority, and at p. 696, per Lamer J. (as he then was), concurring). Establishing the facts which trigger a presumption with respect to a vital issue relating to innocence or guilt is a step further advanced than the admissibility of evidence and is only reached after crossing the hurdle of admissibility. The effect of the presumption in this case is to provide conclusive proof of the accused's blood alcohol concentration at the critical time, in the absence of evidence to the contrary….
[29] In this case, as in many over 80 prosecutions, the Crown's proof of the preconditions required to gain the benefit of the s. 258(1)(c) presumption depends upon the statements contained in the CQT that was entered into evidence at trial. The evidentiary value of a CQT is governed by a different presumption in s. 258(1); namely, s. 258(1)(g) of the Code. Section 258(1)(g) sets out a separate set of preconditions for triggering its evidentiary effect:
(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating
(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,
(ii) the results of the analyses so made, and
(iii) if the samples were taken by the technician,
(A) [Repealed before coming into force, 2008, c. 20, s. 3]
(B) the time when and place where each sample and any specimen described in clause (A) was taken, and
(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,
is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.
The issue in this case is whether a signature from the qualified breath technician is a necessary precondition for triggering the evidentiary presumption in s. 258(1)(g).
[30] The Crown relies on the decision in R. v. Moonesar, 2017 ONCJ 262, as authority for the proposition that a breath technician's signature is immaterial to whether a CQT satisfies the requirements of s. 258(1)(g). The real question, says the Crown, is whether the statements in the CQT otherwise satisfy the requirements in s. 258(1)(g) since there is nothing in s. 258(1)(g) which expressly requires that the CQT be signed by the breath technician.
[31] To the extent that Moonesar purports to say that a breath technician's signature on a CQT is not required in order for the Crown to rely upon the presumption in s. 258(1)(g), I must respectfully disagree. Although not binding on this Court, other courts in Canada have held that the absence of a signature from the breath technician does deprive a CQT of the benefit of the evidentiary presumption afforded by s. 258(1)(g).
[32] I am also driven to that construction of s. 258(1)(g) as a result of applying the basic principles of statutory interpretation. While it is true that s. 258(1)(g) does not expressly require a breath technician's signature, the plain wording of s. 258(1)(g) makes clear that Parliament expected that a CQT would be signed by the qualified breath technician. The final portion of s. 258(1)(g) – "is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate" – was obviously intended to relieve the Crown from having to prove that anything purporting to be a signature on the CQT is actually a signature and is actually the signature of the breath technician in the case. That relief would have been entirely unnecessary if the breath technician's signature was not required in the first place. Indeed, the last six words of that exemption – "appearing to have signed the certificate" – demonstrates that Parliament expected that CQTs would be signed by breath technicians.
[33] In addition to the plain wording of the legislative provision, other principles of statutory interpretation support reading s. 258(1)(g) to require a signature from the breath technician on the CQT. In R. v. Noble, the Supreme Court expressly rejected an argument that any alleged ambiguity in s. 237(1)(f) – the precursor to s. 258(1)(g) -- could inure to the benefit of the Crown by relaxing the prerequisites for triggering the evidentiary presumption:
The effect of s. 237 both before and after the amendment is to establish the conditions under which the certificate of a qualified technician is admissible, without further evidence, as proof of the proportion of alcohol in the blood of the accused. These provisions are obviously designed to assist the Crown in proving its case, and as they serve to restrict the normal rights of the accused to cross-examination and saddle him with the burden of proving that the certificate does not accurately reflect his blood alcohol content at the time of the alleged offence, they are to be strictly construed and, where ambiguous, interpreted in favour of the accused. [Emphasis added.]
[34] Accordingly, even if one was to say that there was some ambiguity in the wording of s. 258(1)(g) about the need for a breath technician's signature, the Supreme Court of Canada's decision in Noble instructs me to resolve that ambiguity in favour of the accused. Application of that principle of strict construction is particularly appropriate in a case, such as this, when the resulting interpretation will not serve to prevent the Crown from proving its case. Reading s. 258(1)(g) to require a breath technician's signature on a CQT requires only that the Crown make sure that the qualified breath technician has properly attested to the statements in that CQT before seeking to rely upon it as the sole means of proof. Alternatively, of course, the Crown could instead seek to prove its case by calling the breath technician to give viva voce evidence on the issues addressed by the CQT.
[35] In accordance with the principles of statutory interpretation, I have also considered the legislative intent reflected in related or similar legislative provisions. Section 258(1)(f.1), a clear companion to s. 258(1)(g), shows that Parliament does expect a breath technician to sign off on documents produced during the breath test process if those documents are to gain evidentiary value through the operation of the "shortcuts" provided by s. 258(1) of the Code:
258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
(f.1) the document printed out from an approved instrument and signed by a qualified technician who certifies it to be the printout produced by the approved instrument when it made the analysis of a sample of the accused's breath is evidence of the facts alleged in the document without proof of the signature or official character of the person appearing to have signed it; [Emphasis added.]
It would make little sense for Parliament to expect the qualified technician to sign an instrument print-out, but not a CQT. It is only the CQT which Parliament has said can serve as the evidentiary basis for the Crown to establish the statutory preconditions required to trigger the presumption that the "over 80" element has been proven (i.e., s. 258(1)(c)).
[36] In creating an evidentiary shortcut which serves to allow the Crown to prove an essential element of an offence by way of a certificate of proof, it is only reasonable to conclude that Parliament intended to also create a measure of accountability. The declarant of a testimonial document certifying key facts to be true may only be held accountable if they have actually attested to the accuracy of the statements in that document. A signature on the document shows that the declarant has made that attestation. For example, in s. 657.1 of the Code, the provision allowing the Crown to prove ownership and value of stolen property by way of a testimonial declaration, Parliament employed wording virtually identical to the language used in s. 258(1)(g):
657.1 (1) In any proceedings, an affidavit or a solemn declaration of a person who claims to be the lawful owner of, or the person lawfully entitled to possession of property that was the subject-matter of the offence, or any other person who has specialized knowledge of the property or of that type of property, containing the statements referred to in subsection (2), shall be admissible in evidence and, in the absence of evidence to the contrary, is evidence of the statements contained in the affidavit or solemn declaration without proof of the signature of the person appearing to have signed the affidavit or solemn declaration. [Emphasis added.]
It is difficult (if not impossible) to accept that, in a criminal case, an affidavit would be afforded any evidentiary value towards proving an essential element without a signature showing that the declarant has attested to the truth of that declaration's contents.
[37] In my view, contrary to what is suggested in Moonesar, Parliament intended the presumption of accuracy afforded by s. 258(1)(g) of the Code to apply only in cases where the CQT has apparently been signed by the breath technician. In this case, I find that the absence on Exhibit 1 of anything purporting to be a signature from the breath technician means that the Crown may not rely on the presumption of accuracy in s. 258(1)(g).
[38] If I am wrong about the interpretation of s. 258(1)(g) (and, thus, about a breath technician's signature being statutorily required), I would still reject the Crown's submission that the decision in Moonesar stands for the proposition that the absence of a breath technician's signature is immaterial. The decision in Moonesar does not extend that far. Indeed, such a reading of Moonesar would be inconsistent with the Ontario Court of Appeal's comment in R. v. Walsh that the presence of a breath technician's original signature on a copy of the CQT is a "significant" factor in deciding whether that document is a "certificate" within the meaning of what is now s. 258(1)(g) of the Code.
[39] In Moonesar (at para. 15), the court held that the absence of a signature on the CQT could be material in some cases, but may not be in others. According to Moonesar, the determination of whether the absence of a signature is material must be made having regard to the two purposes of the CQT:
Section 258(1)(g) provides the Crown with an evidentiary shortcut by creating a presumption of accuracy: R. v. Gibson, 2008 SCC 16 (S.C.C.) at para. 15. In my view, the purpose of the prerequisites in s. 258(1)(g) are two-fold. First, they ensure that the presumption of accuracy only applies in circumstances where it is justified, that is, where the tests have been conducted by a qualified technician using an approved instrument which is in proper working order. Second, they ensure that the accused is provided with sufficient information to enable him to challenge the results of the breath tests. The accused cannot do so unless he knows the identity of the technician, the type of approved instrument that was used, and the alcohol standard that was used to ensure that it was in good working order. [Emphasis added.]
In Moonesar, the trial judge ultimately found that the unsigned CQT still managed to satisfy the requirements of s. 258(1)(g) because the other evidence in that case had circumstantially proven that "the tests were conducted by a qualified technician using an approved instrument which [was] in proper working order" and so the s. 258(1)(g) presumption of accuracy was justified.
[40] In this case, unlike in Moonesar, there is precious little evidence from which I could reliably find that the Crown has otherwise proven those key facts and thereby satisfy myself that the s. 258(1)(g) presumption of accuracy is justified notwithstanding the absence of a signature from the breath technician attesting to those facts. Unlike in Moonesar, I was never presented with any print-out from the breath testing instrument used during Mr. Ali's breath tests. That piece of circumstantial evidence was critically important in Moonesar as it allowed the trial judge to verify the accuracy of the statements in the unsigned CQT by comparing them to the corresponding statements on the signed print-out. By virtue of the statements to which the breath technician had attested in that signed print-out, the trial judge in Moonesar was able to determine that "the tests were conducted by a qualified technician using an approved instrument which is in proper working order", just as the unsigned CQT had claimed.
[41] Furthermore, unlike in Moonesar, the officer who testified in this case was never in the breath room when the tests were being administered. Accordingly, despite being able to confirm that Cst. Doyle was indeed a qualified breath technician, Cst. McLeod could offer no evidence as to whether "the tests were conducted … using an approved instrument which [was] in proper working order". The only evidence offered by the Crown to circumstantially support the authenticity of the statements in the unsigned CQT was Cst. McLeod's claim that she was satisfied by Cst. Doyle's integrity as a breath technician. Respectfully, I am not so satisfied. Cst. Doyle's failure to sign the CQT in this case – arguably one of the most basic requirements of preparing a document so potentially important to the Crown's case – belies reliance on such blind trust.
[42] Assuming, then, that the absence of a breath technician's signature is only one factor to consider in deciding whether the presumption of accuracy in s. 258(1)(g) is available to the Crown, I am not satisfied that the other evidence in this case proves that "the tests were conducted … using an approved instrument which [was] in proper working order". Accordingly, even on the basis of the reasoning in Moonesar, I find that the Crown in this case is not entitled to rely upon the "presumption of accuracy" afforded by s. 258(1)(g) of the Code. Without the benefit of the s. 258(1)(g) presumption, the Crown has not proven the statutory preconditions necessary to trigger the presumption in s. 258(1)(c) of the Code. There is thus no evidence that Mr. Ali's BAC was "over 80" at the time he was found in the driver's seat of his vehicle.
[43] While this is a sufficient basis for finding Mr. Ali "not guilty" of care or control over 80, I shall go on to consider whether the breath test results would otherwise have been excluded pursuant to s. 24(2) of the Charter as a result of the alleged violation of Mr. Ali's s. 10(b) rights to counsel.
2) Did Cst. McLeod Violate Mr. Ali's s. 10(b) Rights by Failing to Facilitate Contact with Counsel of Choice and, if so, Should the Evidence of the Breath Tests be Excluded Pursuant to s. 24(2) of the Charter?
a. The s. 10(b) "Rights to Counsel" Include the Right to Choose Counsel with Whom to Consult
[44] In this case, the defence rightly focused in on whether the arresting officer, Cst. McLeod, discharged her constitutional obligation to facilitate contact with counsel of choice in light of Mr. Ali's express desire to contact a specific lawyer. It is that specific aspect of Mr. Ali's s. 10(b) rights upon which I will focus.
[45] Section 10(b) of the Charter confers a package of guarantees relating to a detainee's right to consult with counsel. In its most recent decision on the scope of s. 10(b)'s right to counsel of choice, the Supreme Court of Canada in R. v. Willier confirmed that, as part of that package, a detainee has the right to choose the counsel with whom to consult:
...the right to choose counsel is certainly one facet of the guarantee under s. 10(b)....
As a "facet of the guarantee under s. 10(b)", the police have certain obligations to facilitate a detainee's opportunity to choose a lawyer and to then make contact with the lawyer who they have chosen.
[46] The Charter issue in this case revolves around the nature and scope of the police obligations to facilitate a detainee's consultation with his or her counsel of choice. In order to understand the scope of those obligations, it is necessary to first examine the scope of the constitutional obligation to facilitate contact with counsel once a detainee has expressed an interest in doing so.
b. The Constitutional Obligations on the Police to Facilitate Contact with Counsel Once a Detainee Has Indicated a Desire to Consult with Counsel
[47] More than 30 years ago, in R. v. Manninen, the Supreme Court of Canada firmly recognized that s. 10(b)'s duty to facilitate contact with counsel included the duty to offer the detainee the use of a telephone. The accused in Manninen, a suspect in an armed robbery, had been arrested while visiting a business premise in Toronto. Following his arrest, Manninen was informed of his s. 10(b) rights. Rather than afford him an opportunity to use the telephone available "in the small office where [he] was arrested", the police waited until they had returned to the police station to afford him an opportunity to contact counsel. Rejecting the Crown's argument that the accused could be faulted for not having asked to use the telephone available in the office, the Supreme Court held:
... The detainee is in control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so...
... It was not necessary for the [accused] to make an express request to use the telephone. The duty to facilitate contact with counsel included the duty to offer the [accused] the use of the telephone....
[48] In one of its most recent decisions on the implementational duties imposed by s. 10(b) of the Charter, the Supreme Court re-affirmed its pronouncement in Manninen that the duty to facilitate contact with counsel means providing the detainee with access to a real telephone. In R. v. Taylor, the Supreme Court soundly rejected notional concerns about providing a detainee with unrestricted access to a telephone for the purpose of contacting counsel. In Taylor, the accused had been arrested following a motor vehicle accident in which three of his passengers were seriously hurt. Upon being informed of his s. 10(b) rights, the accused had asked to speak to his father and to his lawyer. Following his arrest, the accused was taken to the hospital for a precautionary examination, where he remained for several hours. At no point while at the hospital, did the police offer the accused access to a telephone for the purpose of contacting counsel. Reaffirming its decision in Manninen, the Court held that s. 10(b) "does guarantee that the individual will have access to a phone to exercise his right to counsel".
[49] As Stribopoulos J. recently noted in R. v. Maciel, law enforcement agencies in other provinces have long accepted the Supreme Court's early Charter prescription that facilitating contact with counsel means providing access to a telephone and telephone books. For example, in R. v. Wolbeck, the Alberta Court of Appeal recently reaffirmed that compliance with s. 10(b) requires, at a minimum, that the police offer detainees the use of a telephone and current versions of telephone books. Hence, the standard s. 10(b) Charter warning read by police in Alberta states:
You have the right to retain and instruct your lawyer without delay. This means that before we proceed with our investigation you may call any lawyer you wish or a lawyer from a free legal advice service immediately. If you want to call a lawyer from a free legal advice service, we will provide you with a telephone and you can call a toll free number for immediate legal advice. If you wish to contact any other lawyer, a telephone and telephone books will be provided to you. If you are charged with an offence you may apply to Legal Aid for assistance.
[50] A survey of lower court decisions in Ontario suggests that, for some reason, detainees in many parts of the Province are provided with only a handset to join on to a call which the police have already made on their behalf from another telephone at the station. Moreover, law enforcement agencies in those jurisdictions also withhold access to a "yellow pages" telephone book. In other words, unlike in provinces such as Alberta, Nova Scotia and B.C., many Ontario detainees are denied access to the basic tools required to facilitate contact with their counsel of choice. According to the evidence presented before me, that also appears to be the institutional practice of the Durham Regional Police Service.
[51] The institutional practices of those Ontario law enforcement agencies are at odds with the very wording of the informational component of the "rights to counsel warning" provided to Ontario detainees:
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 advice from a legal aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for legal assistance. 1-800-265-0451 is a toll free number that will put you in contact with a legal aid duty counsel lawyer for free legal advice. [Emphasis added.]
Rather than allowing the detainee to "telephone any lawyer [they] wish", it seems that police agencies in Ontario merely afford the detainee the right to receive a telephone call from someone who the police have called on the detainee's behalf. The practice currently in place in Ontario seems constitutionally suspect.
[52] That is not to say, however, that in every case where a detainee has asked to consult counsel and the police fail to provide access to a real telephone (and telephone books) a s. 10(b) violation will necessarily have occurred. There are obvious situations where providing a detainee private access to a real telephone could risk compromising an ongoing investigation or causing harm to others. While such cases are easy to imagine, the experience of other provinces in which detainees are routinely provided with access to a telephone shows that the need to restrict access will arise infrequently. The police are no more justified in adopting a routine policy of denying all detainees their constitutional right to access a telephone on the off chance that some might use the telephone for an improper purpose any more than a practice of strip searching all detainees on the basis that some of them might possess contraband or weapons. The exception cannot define the rule.
[53] Although restrictions on access to a telephone may be permitted in some cases, the Supreme Court in Taylor made clear that any such restrictions must be justified by the state. Abella J. wrote:
Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel.
While a Charter applicant bears the burden of demonstrating a violation has occurred, in cases where a detainee has expressed a desire to consult with counsel, Taylor requires that the burden then shift to the Crown to show why a denial of access to a real telephone was constitutionally justified.
[54] Leaving aside the clear constitutional pronouncement in Taylor, there is nothing in the reported cases capable of supporting an assumption that a blanket denial of access to a telephone is necessary. None of the Ontario cases surveyed make mention of any putative justification for denying all detainees access to an actual telephone. Any such justification would have to be compelling. The Supreme Court in Manninen did not hesitate in saying that the police should have allowed Manninen, arrested for armed robbery, to use the telephone in the office where he was arrested to contact counsel. More than 25 years later, in Taylor, the Supreme Court remained unconcerned that providing the detainee with "access to a phone" would have meant allowing him to use one of the hospital's telephones (and which would have included the ability to dial a number). In the absence of any previous demonstrable concerns, it would be wrong for courts to simply assume the impracticality of allowing detainees access to a real telephone to contact counsel.
c. The Constitutional Obligations on the Police to Facilitate Contact with a Detainee's Counsel of Choice
[55] In the context of cases involving a detainee who has expressed a desire to speak with a particular lawyer, the s. 10(b) issues have commonly been framed as (1) whether the police made reasonable efforts to facilitate contact with that lawyer and (2) whether the detainee acted diligently in exercising the right to contact counsel. While I appreciate that is how the Supreme Court has previously framed the issue, it did so in cases where a detainee who had asked to consult counsel had been provided with access to a telephone and telephone books. By contrast, in a case where the police have chosen to withhold those basic tools for accessing counsel, asking those questions fails to recognize the fundamental premise that s. 10(b) of the Charter requires that the police provide access to those tools if a detainee has expressed a desire to consult counsel. In other words, the analysis must begin with a recognition that by choosing to withhold those basic tools of access from a detainee, the police create additional s. 10(b) implementational obligations for themselves.
[56] In Bartle, the Supreme Court recognized that "when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state". That "position of disadvantage" exists not only in relation to the investigation itself, but also with respect to the detainee's ability to contact counsel. For example, upon his arrest in this case, Mr. Ali was searched, handcuffed and then placed in the back of the police cruiser. During that initial search, his cell phone was seized. He was then taken directly to the police station without having had a chance to speak with anyone, despite having been arrested in front of his family's home. Once at the police station, he was entirely within the control of the police. He was only allowed to access his cell phone when permitted to do so by Cst. McLeod. He was only permitted to examine the Ontario Lawyers' Directory because Cst. McLeod chose to hand it to him. Finally, he was only allowed to go into the privacy booth and speak on the handset when escorted there by the police. Because of the "position of disadvantage" created when someone is arrested or detained, the Supreme Court has held that a detainee who says "yes" to the s. 10(b) offer of counsel need not also ask the police for an opportunity to access a telephone and telephone book.
[57] The police may not then further that "position of disadvantage" by withholding the basic tools required for a detainee to locate counsel of their choosing for the purpose of immediate consultation. As other judges of this Court have repeatedly held, where the police choose to maintain exclusive control over the means by which a detainee can locate counsel of choice, the police will be expected to act as diligently as a detainee who is anxious to find and contact a lawyer. In Panigas, Horkins J. held that:
When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply...
[58] In Maciel, referring to the above passage from Panigas, Stribopoulos J. reasoned that the efforts by the police to contact a detainee's counsel of choice should be measured according to a standard of "reasonable diligence":
If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing.
While I am in full agreement with Stribopoulos J.'s analysis in Maciel, I am worried that using a "reasonable diligence" test to assess the constitutional adequacy of the police efforts to facilitate contact risks undermining the s. 10(b) right to counsel of choice. The requirement that a detainee act with "reasonable diligence" in trying to contact counsel originated from the case of R. v. Tremblay. In Tremblay, the Supreme Court expressed a concern that the accused had seemed to use his own lack of effort in making contact with counsel as a way to obstruct the investigation. The "reasonable diligence" test has developed as a way for courts to decide if a detainee's efforts to contact counsel seemed genuine. Indeed, application of the "reasonable diligence" test has sometimes led courts to consider whether the detainee could have, or should have, opted to speak with duty counsel. Whether or not the police contacted duty counsel should have no bearing on the reasonableness of their efforts to facilitate contact with the detainee's counsel of choice.
[59] Notwithstanding my concerns about how best to phrase the legal test, I fully agree with the proposition that when the police choose to maintain control over the tools necessary for a detainee to exercise their s. 10(b) rights, the police thereby assume constitutional responsibility for using those tools in the same manner as any reasonable detainee facing an urgent need to contact counsel. In my view, the issue of whether the police discharged their duty to facilitate contact with a detainee's counsel of choice should be determined by what a reasonable detainee would likely have done to contact counsel had the police provided them with the tools for doing so. That is exactly how Stribopoulos J. approached his assessment of the constitutional adequacy of the police efforts to contact counsel of choice in Maciel:
…[W]here the police have assumed the responsibility to contact counsel of choice, I think it sensible to outline the sort of steps that should be undertaken to obtain counsel's contact details in order to satisfy the reasonable diligence standard. In my view, common sense suggests that at a minimum this should include:
Asking the person in custody if they have a telephone number, or know anyone who has a telephone number, for the lawyer they want to contact;
Giving the person in custody access to their cellular phone or smart phone, where they advise that they have the lawyer's number stored on such a device;
Conducting an Internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or e-mail address for the lawyer, and calling, texting, and/or e-mailing these;
Using the Internet to search any available online directories, for example Canada 411, CanadianLawList, or the Law Society of Upper Canada's Paralegal and Lawyer Directory.
Using any available conventional paper based directories, both for lawyers and for phone numbers more generally (i.e. The White or Yellow Pages).
In my view, in this day and age, these are the sorts of very basic steps that any reasonably diligent individual who was attempting to contact a lawyer would undertake. These are entirely in keeping with the Supreme Court's direction that the police are required to take proactive steps to turn the right to counsel into access to counsel…. [Emphasis added.]
In deciding what efforts are "reasonable", a court must not lose sight of the fact that the methods available today for locating counsel of choice are undoubtedly different today than what was available to a detainee in the past. Accordingly, the standard of care required of the police today must not be defined by what may have seemed reasonable ten years ago.
[60] When analyzing the adequacy of police efforts to contact counsel of choice, a court must always keep in mind that the standard of care imposed upon the police when they choose to maintain control over the means for access does not require the police to do anything and everything which a reasonable detainee might do for themselves. It may be that some steps which a reasonable detainee might take on their own to locate counsel are, for good reason, not available to the police. Though, as with any other restriction on the right to access counsel, the Crown would bear the burden of showing why the police were unable to facilitate one of the reasonable means for contacting counsel which a detainee would have otherwise undertaken on their own behalf.
d. Did the Police Violate Mr. Ali's s. 10(b) Right to Contact His Counsel of Choice
[61] The evidence in this case clearly shows that, when asked upon arrest if he wished to speak with a lawyer, Mr. Ali said "yes". When asked if he had a lawyer in mind, Mr. Ali told Cst. McLeod that he had a lawyer and that the lawyer's number was in his cell phone. Regrettably, once Mr. Ali had been transported to the police station, he was never offered the use of a telephone to dial the number for his lawyer which he had stored in his cell phone. Instead, Cst. McLeod retrieved the lawyer's number from Mr. Ali's cell phone and placed the call.
[62] Based on all of the evidence, I find as a fact that the number which was stored in Mr. Ali's phone for "David Health" back on February 11, 2017 was "41699433 80" and not the "41699433 08" number which Cst. McLeod both noted down and dialed. While I have some reservations about the reliability of Exhibit 3 (given that it purports to be a print-out of the electronic entry rather than a screen shot of the actual phone with that entry on the screen), in light of Mr. Ali's testimony that the print-out represents what was in his phone, I am prepared to find that Cst. McLeod mistakenly switched the last two digits of the lawyer's telephone number when she wrote it in to her notebook. That conclusion is fortified by the fact that, after learning from the man who answered her call that the number had nothing to do with Mr. Ali's lawyer, Cst. McLeod did not even go back to Mr. Ali's cell phone to check whether she had written the number down correctly. Indeed, Cst. McLeod conceded that it was possible she had written the number down incorrectly – a fact she ought to have considered back on February 11, 2017.
[63] Having denied Mr. Ali access to a telephone to contact his lawyer, the police assumed a constitutional obligation to make reasonable efforts to facilitate that contact. Cst. McLeod's failure to check and double-check that she had transcribed the number for Mr. Ali's lawyer correctly was not reasonable. Faced with someone who answered a call and declared that the number did not belong to the lawyer, a reasonable detainee would take steps to confirm that they were calling the correct number. The fact that Cst. McLeod thought it enough to only check with the person on the other end whether she had dialed the number which she had (erroneously) written down in her notebook highlights her reckless disregard for her duty to facilitate contact with Mr. Ali's counsel of choice. Her mistake was never made known to Mr. Ali because he was not allowed to witness Cst. McLeod making the telephone call to his lawyer of choice. In other words, not only was Mr. Ali denied the opportunity to make the call himself and thereby avoid Cst. McLeod mistakenly calling someone other than his lawyer, Mr. Ali was denied the opportunity to watch Cst. McLeod make the call in order to ensure that she did not make that mistake.
[64] In the circumstances of this case, Cst McLeod's efforts to facilitate contact with Mr. Ali's chosen counsel were grossly inadequate. Her single call to the number she had transcribed from Mr. Ali's cell phone, followed by an examination of the Ontario Lawyers' Directory for that lawyer's name, fell short of what Mr. Ali would reasonably have done to facilitate contact if he had been provided with the necessary tools. Absent some evidence that all lawyers in Ontario must have their name and number listed in that Directory, there is no basis to find that an examination of that book alone was enough to satisfy Cst. McLeod's constitutional obligations. As other judges have found, a reasonable detainee would conduct an internet search to locate a lawyer's contact information. Alternatively, a reasonable detainee would also contact a close friend or family member and ask them to conduct that search for them. In this case, Cst. McLeod did not undertake any additional steps to search for Mr. Heath's contact information nor did she offer Mr. Ali the option of doing so himself. I find that Cst. McLeod's efforts to facilitate Mr. Ali's contact with counsel of his choice were constitutionally unreasonable and, therefore, violated his s. 10(b) right to consult with counsel of choice.
[65] The Crown points out that Mr. Ali did ultimately speak with duty counsel, twice. On both occasions, Mr. Ali accepted the "option" offered to him by the police; that is, he never initiated a request to speak with duty counsel. The first time that Mr. Ali accepted the offer of duty counsel came after Cst. McLeod told him that she had been unable to reach David Heath, Mr. Ali's lawyer of choice. Mr. Ali was never presented with any other option, such as using the telephone to call someone who might have Mr. Heath's number or using the internet to search for Mr. Heath's number. The second time that Mr. Ali accepted the police offer to speak with duty counsel came after he had complained to the breath technician about his first consultation with duty counsel. Once again, Mr. Ali was not presented with any option other than speaking again to duty counsel. In the circumstances of this case, I find that Mr. Ali never chose to speak with duty counsel. Rather, the evidence makes clear that the police presented Mr. Ali with no other choice in terms of him consulting with counsel. For Mr. Ali, it was duty counsel or nothing. Having made clear from the outset that he wanted to consult with counsel, it is not surprising that he agreed to speak with duty counsel as a last resort. I am satisfied that Mr. Ali would have chosen to first make other efforts to contact his own lawyer before resorting to speaking with duty counsel. Regrettably, despite their constitutional obligations, the police never offered that option to him. I reject any suggestion that by agreeing to speak with duty counsel, Mr. Ali somehow waived his s. 10(b) right to consult with counsel of choice. In constitutional terms, I find that Mr. Ali's decision to speak with duty counsel was both uninformed and involuntary.
[66] For the reasons set out above, I find that Mr. Ali has proven on a balance of probabilities that the police violated his s. 10(b) Charter rights.
e. Should the Breath Test Evidence be Excluded Pursuant to s. 24(2)?
[67] In R. v. Grant, the Supreme Court of Canada set out the analytical framework which now governs whether evidence obtained in a manner which violated Charter ought to be excluded pursuant to s. 24(2) of the Charter. The three sets of factors to be considered in the balance are:
The seriousness of the Charter violation;
The significance of the impact of the Charter violation; and
The societal interest in having the case adjudicated on its merits.
1) Seriousness of the Violation
[68] There are two ways by which the seriousness of the Charter violation may increase. First, the individual actions of the police officers actually responsible for the constitutional misconduct may be considered more serious because they evidence a wilful or reckless disregard for the Charter. Second, institutional failings which contributed to the officers' constitutional misconduct may also render the Charter violation more serious.
[69] I accept that the violation of Mr. Ali's s. 10(b) rights was not the product of any wilful or flagrant disregard by Cst. McLeod. Simply put, she honestly believed that she was doing what was required of her. At the same time, however, "ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith". As already explained above, Cst. McLeod's efforts to facilitate Mr. Ali's contact with his counsel of choice fell well below the reasonable standard of care expected of an officer in those circumstances. Cst. McLeod was grossly negligent in failing to confirm that she had called the correct number once she was told by the respondent that the number did not belong to Mr. Ali's lawyer. When she could not locate the name of Mr. Ali's lawyer in the Ontario Lawyers' Directory, her efforts to facilitate contact with counsel of choice came to a grinding halt. Despite being in complete control of any other means for locating a number for Mr. Ali's counsel, Cst. McLeod did nothing else. She continued to do nothing even after Mr. Ali had accepted her offer to find another lawyer (other than duty counsel). Her testimony about her efforts to facilitate contact with Mr. Ali's counsel of choice demonstrated a complete indifference to the importance of her constitutional obligations in that regard.
[70] The seriousness of Cst. McLeod's gross negligence in facilitating contact with Mr. Ali's counsel of choice is aggravated by the institutional practice adopted by the DRPS; namely, the blanket denial of telephone access to detainees who have expressed a desire to contact counsel. I am satisfied that had Mr. Ali been allowed to dial Mr. Heath's telephone number himself, he would have made sure that he was dialing the correct number, that is, the cell phone number attributable to his lawyer. The only reason that Cst. McLeod's gross negligence was able to prevent Mr. Ali from contacting his counsel was because the DRPS insists on having its officers maintain control over the telephone used to make the calls. So long as the DRPS chooses to continue withholding actual telephones from detainees who have expressed a desire to contact counsel, these sort of implementational breaches of s. 10(b) must be characterized as more serious given that they are inherently avoidable. As the Supreme Court has made clear, "evidence of a systemic problem can properly aggravate the seriousness of the breach and weigh in favour of exclusion".
[71] The s. 10(b) violation in this case was on the serious end of the spectrum and therefore weighs strongly in favour of exclusion.
2) Significance of the Impact on Mr. Ali's Charter Rights
[72] At the second stage of the Grant analysis a court must assess the seriousness of the infringement from the perspective of the accused. Did the breach seriously compromise the interests underlying the rights infringed? Or was the breach merely transient or trivial in its impact?
[73] The Crown argues that the impact of any alleged breach of Mr. Ali's s. 10(b) right to counsel of choice is lessened because Mr. Ali was able to consult with duty counsel. The second time Mr. Ali spoke with duty counsel, it was for 25 minutes. Unlike after his first consultation with duty counsel, Mr. Ali raised no complaint the second time. Accordingly, says the Crown, it is safe to infer that Mr. Ali was satisfied with that second consultation with duty counsel.
[74] Upon arrest, Mr. Ali expressed a clear desire to contact a particular lawyer, a lawyer known to him as a specialist in criminal law. Mr. Ali had that lawyer's number stored in his cell phone. The stored entry included a reference to the lawyer's name and the fact that he was a lawyer. When efforts to locate that lawyer failed, Mr. Ali initially declined the offer to speak with duty counsel and, instead, accepted Cst. McLeod's offer for him to contact another lawyer. It was only when Mr. Ali was unable to figure out how to choose a lawyer from the Ontario Lawyers' Directory that he accepted Cst. McLeod's offer of duty counsel. However, within minutes of completing his first call with duty counsel, Mr. Ali again complained to the breath technician about that consultation. That complaint resulted in the police placing another call to duty counsel. In those circumstances, I am not prepared to find that, merely because Mr. Ali spoke with duty counsel on two occasions, the impact of him being denied access to counsel of choice was mitigated. The evidence establishes that Mr. Ali only accepted the opportunity to speak with duty counsel because the police had denied him access to counsel of his choosing. The fact that Mr. Ali raised no complaint after his second consultation with duty counsel falls short of discharging the Crown's burden of proving that Mr. Ali would have done nothing different had he been able to consult with counsel of choice.
[75] While there may be less of a need to consult with a particular lawyer at the time of arrest, the reasoning of the Court of Appeal in R. v. McCallen speaks to the importance of a detainee being able to at least choose a type of lawyer with whom to consult at the time of arrest:
There are sound reasons why this right was considered to be a fundamental component of the criminal justice system well before the enactment of the Charter and why it was recognized as a right deserving of constitutional protection in the Charter. The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests. Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence and will be used or not used, within the boundaries of counsels' ethical constraints, in the clients' best interests. The law recognizes the uniqueness of this confidential relationship by providing special protection from compelled disclosure of information that is exchanged between clients and their counsel.
[76] As the Court of Appeal's comments in McCallen make clear, a detainee seeking legal advice when under arrest must believe that they can trust that legal assistance for it to have any value. For example, it would not be unreasonable for a detainee to lack trust in the free advice offered by a lawyer who had only ever practiced admiralty law or in the free advice offered by a lawyer working in the prosecutor's office. The opportunity to control the choice of legal advisor fosters trust in the advice received by the detainee. If a detainee lacks trust in the lawyer with whom they were allowed to consult, that detainee may not trust what that lawyer tells them about their rights and obligations, the very purpose of the rights enshrined in s. 10(b) of the Charter. It is not unreasonable that some drinking and driving detainees may be suspicious of the "duty counsel" lawyer suggested by the police who then tells the detainee that they must cooperate with the police. In the context of a drinking and driving investigation, a detainee's misperception of the scope of their right against self-incrimination could lead to a criminal charge should the detainee mistakenly believe that they have a right to refuse the breath demand.
[77] In this case, Mr. Ali clearly wanted to consult with his own lawyer prior to being compelled to participate in the investigation. For someone like Mr. Ali who has never before been under arrest, the denial of an opportunity to consult with a lawyer he trusted was a significant deprivation of the rights to counsel enshrined in s. 10(b). The second set of factors also favours exclusion.
3) Societal Interest in Adjudication on the Merits
[78] At the third stage, a court is to consider factors such as the reliability of the evidence and its importance to the Crown's case. The truth seeking function of a trial is an important consideration. The seriousness of the charge is also relevant, although it must never overwhelm the s. 24(2) analysis. While the public has a heightened interest in adjudicating serious cases on their merits, there is also a vital interest in maintaining a justice system that is beyond reproach.
[79] There is no doubt that the prosecution of motorists accused of drinking and driving engages a hefty public interest. Deciding such cases on the basis of the evidence collected by the police promotes that public interest and helps to maintain respect for the administration of justice. Breath test results are highly reliable evidence. Allowing a criminal prosecution for drinking and driving to proceed to trial on the basis of such reliable evidence is very much in the public interest.
[80] At the risk of repeating what has been said so many times before, the third set of Grant factors weighs against the exclusion of Mr. Ali's breath test results.
4) The Final Balancing
[81] In R. v. Harrison, the companion case to Grant, that Supreme Court cautioned courts that "[t]he balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision". Nevertheless, in its more recent decision in R. v. McGuffie, the Ontario Court of Appeal provided some guidelines for the qualitative balancing required by s. 24(2):
The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34.
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence: see e.g. Grant, at para. 140.
[82] In this case, although the breath test results are reliable evidence, given that the s. 10(b) violation was serious and that it had a significant impact on Mr. Ali's Charter-protected interests, I must exclude the CQT.
[83] I cannot reward Cst. McLeod's gross negligence and apparent indifference to her constitutional obligations. More importantly, the court must distance itself from institutional practices which are constitutionally suspect and which helped to facilitate a breach of Mr. Ali's s. 10(b) rights. But for the institutional practice of denying detainees access to an actual telephone, Cst. McLeod's negligence in misdialing the number for Mr. Ali's lawyer could never have occurred. Considering the importance to Mr. Ali of contacting his lawyer of choice for immediate advice, he had an interest in making sure that he would have dialed the correct number. Excusing the constitutional violations in this case by admitting the evidence risks being perceived as judicial acceptance of the status quo as being "good enough". It is not good enough, not by a long shot. The police must understand the importance of their constitutional obligations to facilitate contact with counsel of choice. For their part, courts must promote compliance with, not defiance of, the 30-year old Charter obligation to provide detainees with access to a telephone.
[84] The evidence of Mr. Ali's breath test results – namely, the CQT – will be excluded.
Conclusion
[85] For the above reasons, Mr. Ali will be found not guilty on both counts.
Released: March 28, 2018
Signed: Justice Paul Burstein