Court File and Parties
Ontario Court of Justice
Date: April 12, 2018
Court File No.: 16-17007
Between:
Her Majesty the Queen
— and —
Gil Coelho
Before: Justice S. Caponecchia
Heard on: February 27 and 28, 2018
Decision: April 9, 2018
Reasons for Judgment released on: April 12, 2018
Counsel
K. Henry — counsel for the Crown
N. Panzica — counsel for the defendant Gil Coelho
CAPONECCHIA J.:
INTRODUCTION
[1] Mr. Coelho is charged on October 28, 2016 with the offence commonly described as "over 80."
[2] The trial took place on February 27 and 28, 2018. The Crown called one civilian witness and a toxicologist on the trial proper. A blended voir dire was held in which the Crown called the two arresting officers, PC Pansieri and Savino and the Qualified Breath Technician. The accused also testified on the voir dire.
FACTS NOT IN ISSUE
[3] PC Pansieri and PC Savino were equipped with body microphones and a car camera that were played in court. Mr. Coelho's subsequent interaction with the breath technician was also videotaped and played in court. Therefore, a good part of what took place at the scene and in the breath room cannot be in dispute. It includes the following facts:
Police received a call at 8:07pm to attend the area of 138 Rosethorn Ave in Toronto.
They arrived at 8:43pm and were met by a small group of people on the street, including Mr. Coelho.
Police observed unoccupied parked cars with damage. They also found an unoccupied pick-up truck with damage stopped on the roadway.
After a very brief exchange of pleasantries about coffee, the first question PC Savino asks was if anyone was hurt, he received a unanimous response of "NO."
Next, with no prompting by police, Mr. Coelho stepped forward and said, "this is my truck." Mr. Coelho was asked by one of the officers if he was driving and he said yes.
He subsequently engaged in a conversation with police about a mechanical explanation for the accident.
While PC Pansieri was talking to Mr. Coelho she noticed the smell of alcohol on his breath.
Between 8:46PM and 8:47PM the two officers turned off their microphones to discuss next steps.
A decision was made to make an Approved Screening Device (ASD) demand and PC Pansieri did so at 8:51PM and Mr. Coelho registered a fail.
He was arrested at 8:55PM and read his rights to counsel, a caution and a breath demand.
When Mr. Coelho was asked if he wanted to call a lawyer now, he said YES. The officer asked him if he had a lawyer and he said YES. He did not specify the name of his lawyer, nor did PC Pansieri ask. However, Mr. Coelho did ask for the opportunity to access his cell phone. PC Pansieri told him she would facilitate the request when they got to the station. Mr. Coelho testified that he asked for his phone to be able to access his lawyer's number and PC Pansieri testified that she understood Mr. Coelho's request for his phone was in order to get his lawyer's details.
PC Pansieri and PC Savino left the scene with Mr. Coelho at 9:08PM and arrived at the police station at 9:29PM. There was a delay at the sally port and they entered the division at 9:44PM.
After being paraded Mr. Coelho was place in a room. At the station PC Pansieri came to realize that Mr. Coelho's phone had no battery left so she placed a call to Duty Counsel at 10:02PM. Mr. Coelho spoke to duty counsel at 10:13PM before he was turned over to the breath technician at 10:19PM.
The breath tech confirmed with Mr. Coelho that he had spoken to duty counsel and when asked if he was satisfied with Duty Counsel, Mr. Coelho said yes.
Mr. Coelho provided two samples of breath, the first sample resulted in a reading of 181mg of alcohol per 100ml of blood at 10:27PM. The second sample taken at 10:50PM and registered 178mg of alcohol per/100ml of blood.
The toxicologist testified that Mr. Coelho's blood alcohol would have been more than 80 if the accident took place any time after 7:00PM.
ISSUES
[4] This case turns on the admissibility of breath readings because Mr. Coelho was not charged with impaired driving. Counsel on behalf of Mr. Coelho alleges breaches of s. 7, 8 and 10(b) of the Charter in this case which warrant the exclusion of the breath readings pursuant to both s. 24(2) and 24(1) of the Charter. More specifically:
1. Defence submits Mr. Coelho was detained upon the arrival of the police and his utterances were made without the benefit of having been advised of his right to silence.
Moreover, his initial admission to being the driver of the pickup when the police arrived at the scene cannot be used as evidence against him substantively, or for grounds, because they were statutorily-compelled statements made pursuant to the requirement to make an accident report in s. 199(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 and violation of s.7.
In the absence of the admission of driving, defence argues a s. 8 breach has been established because the police lacked reasonable grounds to make a breath sample demand pursuant to s. 254(3) of the Code.
The Crown's position is that Mr. Coelho's initial admission to being the driver of the pick-up when police arrived was voluntarily made, he was not detained at the time, nor motivated to speak on account of s. 199(1) of the HTA.
The Crown further argues that Mr. Coelho's subsequent utterances after his admission to being the driver of the pick up and before his arrest, are admissible for grounds, pursuant to the principles derived from a long line of authorities (Orbanski/Milne).
2. There is a second component to the defence s. 8 argument. Defence alleges there was an absence of objective grounds for the s. 254(3) breath demand in this case based on PC Pansieri's failure to turn her mind to when the ASD devise Mr. Coelho blew into had last been checked and calibrated.
The Crown's position is that PC Pansieri's failure to turn her mind to these details is not fatal given she blew into the instrument herself at the beginning of her shift to satisfy herself the devise was working properly.
3. The defence also alleges a breach of 10(b) based on PC Pansieri's efforts, or lack thereof, to put Mr. Coelho in contact with his counsel of choice.
The Crown's position is that there was no 10(b) breach given Mr. Coelho did not express any opposition or dissatisfaction with being put into contact with Duty Counsel.
[5] For the reasons that follow, I would not give effect to the first argument advanced by the defence. That said, having regard to the additional facts that I find below, I would give effect to the second s. 8 argument, as well as the 10(b). I also find that the combination of both breaches in this case warrants the exclusion of the breath readings pursuant to s. 24(2) of the Charter.
ISSUE 1: ADMISSIBILITY OF THE ACCUSED UTTERANCE THAT HE WAS THE DRIVER
[6] Mr. Coelho testified that he remained at the scene for 30 minutes and waited for police to arrive because he thought he was legally required to do so. He said he thought he caused about $7,000 worth of damage to his car. Furthermore, his evidence was that he identified himself as the driver of the unoccupied pickup because he thought he would be in more trouble if he didn't. He also admitted that when he initially came forward to talk to the police, he did so without being prompting or as a result of any question posed by police.
[7] The police testified that Mr. Coelho was not detained until such time as they smelled alcohol on his breath and they decided to make a demand for a sample of his breath into an ASD.
[8] The video and audio in this case do not support a finding that Mr. Coelho was physically detained when he initially stepped forward and identified himself as the owner and driver of the pick-up truck. Therefore the resolution of the first issue raised by the defence rests on whether Mr. Coelho was either psychologically detained or otherwise legally compelled to make the initial utterances he did to police.
The Law:
[9] R. v. Grant, 2009 SCC 32, established that there are two conditions under which a psychological detention can arise:
(i) where the individual has a legal obligation to comply with a restrictive request or demand; or
(ii) where a reasonable person would conclude by reason of the state conduct that he had no choice but to comply.
[10] In Grant, the court also observed:
In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation.
[11] The facts in R. v. Suberu, 2009 SCC 33, illustrate how interactions between an individual and the police move along a spectrum before reaching the point of detention. In Suberu, officers had been called to an LCBO to investigate possible credit card fraud. As an officer entered the LCBO, he was passed by Mr. Suberu leaving the store who said words to the effect of, "[he] did this, not me, so I guess I can go." The officer followed Mr. Suberu to his van, started some questioning, asked for Mr. Suberu's identification and the van's vehicle documentation and, upon seeing some LCBO bags in the van, arrested Mr. Suberu.
[12] The Supreme Court of Canada held that Mr. Suberu was not detained until the moment of his arrest. The court viewed the encounter with the police officer prior to Mr. Suberu's arrest as "of a preliminary or exploratory nature," where the officer was attempting "to orient himself to the situation [that] was unfolding in front of him," was in the "process of sorting out the situation," and was "engaged in a general inquiry and had not yet zeroed in on the individual as someone whose movements must be controlled."
[13] Suberu made clear that not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention within the meaning of the Charter. Even when an encounter clearly results in a detention, such as when a person ultimately is arrested and taken into police custody, it cannot simply be assumed that there was a detention from the beginning of the interaction.
[14] In R. v. White, the Supreme Court of Canada considered the application of the principle against self-incrimination under s. 7 of the Charter to accident reports made under the compulsion of a provision similar to s. 199(1) of the Highway Traffic Act. The court held that such statements could not be used to incriminate the declarant in subsequent criminal proceedings. The onus is on the accused to establish, on the balance of probabilities, that the statements he seeks to exclude were compelled. In White the court held that if a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant's statements.
[15] Subsequently in R. v. Soules, 2011 ONCA 429, it was held that that police were prohibited from relying on statutorily compelled statements from the accused for any purpose, including to establish grounds for further investigative steps.
[16] The decision in Soules is at odds with the previous decisions in Milne/Orbankski. In R. v. Orbanski, 2005 SCC 37, it was held that police may rely, for the limited purpose of forming grounds for an approved screening device demand, upon answers given at roadside by drivers in response to questions about alcohol consumption. Such evidence entails, "compelled direct participation" by the driver which would be inadmissible at trial to prove impairment.
[17] The conflict between the Soules decision and Milne/Orbanski line of authorities was the subject of comment by the Supreme Court recently in R. v. Paterson, 2017 SCC 15, where the court observed, albeit in a footnote, that "without commenting on the correctness of Soules, I observe that Orbanski's direction that the police may rely upon roadside statements for the purpose I have described was categorical."
Conclusion Issue #1
a) Detention?
[18] Having considered the evidence, including the audio and video from the scene, I find as a fact that Mr. Coelho was both neither physically nor psychologically detained when police arrived at 8:43PM and Mr. Coelho stepped forward and identified himself as the driver. In the present case, the encounter between Mr. Coelho and the police took place during the first two minutes of an accident investigation by officers who had just arrived on the scene and were trying to sort things out. I find as a fact that detention did not crystalize until after police detected the odour of alcohol coming from Mr. Coelho's breath and they commenced a criminal investigation by initiating an ASD demand.
[19] This was a fluid situation where the events transpired over a very short period. The encounter between the two officers at the scene and Mr. Coelho resembles the sequence of events in R. v. Guenter, [2016] OJ No. 3857 (C.A.). In Guenter the appellant's discussion with an officer at an accident scene occurred when the officer was attempting to orient himself to the accident scene when he had just arrived, was trying to sort things out, and was engaged in a general inquiry. The initial select statements made by the appellant in Guenter were found to have been made when he was not legally detained and were admitted into evidence.
[20] Mr. Coelho's situation also resembles the case of Mr. Suberu. The interaction between Mr. Suberu and the police officer prior to his arrest was more in the nature of "preliminary questioning" than a detention.
b) Statutory Compulsion?
[21] I also conclude that Mr. Coelho has not satisfied me on a balance of probabilities that when he admitted he was the driver he did so because he felt he was under a statutory compulsion to do so.
[22] Again, having had the benefit of considering the evidence, including the audio and video from the scene, I find that Mr. Coelho's admission to being the driver and his subsequently self-serving explanation as to the mechanical cause of the accident was equally consistent with someone who was speaking out of a sense of legal compulsion as it was of someone who was speaking freely, without being compelled to do so by law.
[23] In coming to this conclusion, I take into consideration Mr. Coelho's demeanour and comportment on the video, what he did and did not do and say at the scene and certain common-sense inferences available on the evidence. For example:
There is no reference at the scene to an accident report by Mr. Coelho or the police. In fact, PC Pansieri testified that she did not believe an accident report was required in this case because no one was injured.
There was no evidence that after he collided with three parked cars Mr. Coelho made any calls himself to report the accident. Something one would have expected if in fact he was operating under a sense of legal obligation to file a report.
If he was preoccupied with his obligation under the HTA, one would have expected to hear evidence of attempts on his part to ascertain who the owners of the cars were that he struck and attempt to exchange licence and insurance information with them. There was no evidence of any such efforts on his part in the 30 minutes that he waited for police to arrive.
When Mr. Coelho spoke to police upon their arrival, it would not have been lost on him that the resident who saw him exit his truck was present and could have easily identified him.
It would also not have been lost on Mr. Coelho that it was in his best interest to appear co-operative with police and provide them with a self-serving mechanical explanation for the accident that had nothing to do with alcohol consumption. In other words, he not only admitted what would have been quickly ascertained by police, but also gave a non-criminal explanation for the cause of the collisions that was in is interest.
[24] In short, Mr. Coelho has not satisfied the burden necessary to attract the s. 7 protection he claims pursuant to the decisions in White and Soules. I am not satisfied on balance either way as to whether when Mr. Coelho identified himself as the driver he acted out of altruism, generalized compliance with police authority, a sense of moral obligation or civic duty, self-interest or as the Charter jurisprudence commands, a legal compulsion to report the accident.
[25] I also agree with J. Green's observations in PITA (2013) ONCJ 716. Namely, the fact that a defendant felt s/he had to stay at the scene and felt obliged to talk to the police is insufficient to place the individual's statements outside the reach of the state. An abstract sense of duty, or misapprehension of one's obligations in the face of an officer's questions, does not establish a s. 7 claim in those circumstances in the absence of nexus between a personal sense of obligation to the police and the appropriate external legal requirement of a driver so as to come within the White doctrine.
[26] In the result, the defendant's roadside admission that he was the driver of the unoccupied pick-up at the time of the collision is admissible in the trial. It also affords an objective basis for both officers belief of the same proposition. Put otherwise, there were grounds to believe that Mr. Coelho was the driver of a motor vehicle for the purpose of demanding a breath sample into the ASD and a s. 254(3) demand.
[27] Given my findings that Mr. Coelho was not physically or psychologically detained at the time he admitted to driving and that he has not established on a balance of probabilities that he spoke out of a statutory compulsion to do so, I need not resolve the conflict in the decisions of White, Soules, Orbanski/Milne and Paterson.
ISSUE 2: OBJECTIVE GROUNDS FOR A S. 254(3) DEMAND
[28] In this case the defence does not suggest PC Pansieri lacked subjective grounds for a 254(3) demand after Mr. Coelho produced a FAIL result when blowing into the ASD. The issue is whether the belief was objectively reasonable because in this case there is no evidence as to when the last accuracy or calibration check was conducted on the ASD, or that the officer even turned her mind to it.
The Law
[29] 254(3) of the Criminal Code authorizes a police officer to demand breath samples from a suspected impaired driver where the officer has "reasonable grounds to believe" that the suspect has, within the preceding three hours, has committed an offence under s. 253 as a result of the consumption of alcohol.
[30] The section bestows a significant power upon a peace officer to interfere with the liberty of the citizen. It requires, however, as preconditions to the lawful exercise of the grant of power, the officer must form a particular belief, and the belief must be based on reasonable and probable grounds.
[31] The determination of whether there are reasonable and probable grounds to demand a breath sample under s. 254(3) of the Criminal Code has a subjective and an objective component:
(i) the officer must have an honest belief that the suspect committed an offence; and
(ii) there must be reasonable grounds for that belief.
[32] A lawful demand is a statutory and constitutional prerequisite to any breath test results that follow. BAC readings secured absent compliance with s. 254(3) are not authorized my law and violate of a defendant's s. 8 rights to be secure against unreasonable search and seizure.
[33] Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom.
[34] The test of reasonable grounds is, ultimately, one of credibly based probability -- a well-recognized standard for arbitrating the intersection of law enforcement and individual interests.
[35] The leading judgment on the question of reasonable and probable grounds to make a 254(3) demand where the officer relies upon the results from an approved screening device is that of R. v. Bernshaw. This case relates primarily to a discussion regarding an officer's subjective grounds. The court held that where the officer is aware that the results of the approved screening device are unreliable because of the circumstances in which the test was administered, then the officer cannot have the requisite subjective belief. The court also held that where the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary.
[36] The determination of whether the constable's belief was objectively reasonable largely turns on whether it was reasonable for him or her to believe that the ASD was functioning properly. An officer is "entitled to rely on [the accuracy of an ASD] unless there is credible evidence to the contrary". However, if an officer cannot rely on the accuracy of the ASD test results, those results cannot assist the officer in determining whether there were reasonable and probable grounds to arrest a driver and demand a subsequent breath test.
[37] Failure to follow policy or practice manual directions does not automatically render reliance on test results unreasonable. What matters is whether the officer had a reasonable belief that the device was calibrated properly and in good working order, and whether the test was properly administered. A failure to follow a practice manual direction can serve as some evidence undermining the reasonableness of an officer's belief. But the fact that an officer failed to follow a practice manual direction is not itself dispositive. Not every failure to follow a direction is necessarily fatal to reasonableness of belief. Not all practice manual directions will bear equally, or perhaps at all, on the reasonableness of an officer's belief that the ASD is properly functioning. It is necessary to take the further step and determine how or whether each of the specific failures identified undermine the reasonableness of the officer's belief that the ASD was functioning properly.
[38] The police officer who administered the approved screening device in the case of Topaltsis, testified that before doing so, he noticed that the device had last been calibrated 26 days earlier, outside his police department's current practice of calibrating approved screening devices every two weeks. However, the police officer also stated that his department's practice concerning frequency of calibration was far in excess of the manufacturer's standard which was once every six months. The Court of Appeal found that it was an error for the trial judge to have embarked on a consideration of whether the evidence established that the device was in good working order, rather than simply assessing whether, on an objective basis, the officer had reasonable grounds for believing that the approved screening device was in good working order.
[39] In the most recent decision in R. v. Jennings, 2018 ONCA 260, the Court of Appeal found an officer's grounds were both subjectively and objectively reasonable when the officer relied on a ASD FAIL result and he had not followed all the steps set out in the police policy manual before using the ASD.
Conclusion Issue #2
[40] In this case there is no dispute that PC Pansieri had a subjective belief that the respondent had been driving with a blood/alcohol level of over .80. The issue here is whether her belief was objectively reasonable.
[41] In this case a Toxicologist was called to testify on the trial proper, not the voir dire. She read back the accused's BAC level starting from 7PM. She was also cross-examined on the reliability of the ASD. I accept that the Centre of Forensic Science recommends accuracy checks be conducted on the ASD used in this case every 15 days. She could not say when she would start to question the reliability of ASD results taken from devices that had not had the recommended accuracy and calibration tests conducted on them.
[42] The Qualified Breath Technician testified on the blended voir dire. He was not specifically asked about the maintenance practices for ASDs by Toronto Police Service. He did however testify that there is a sticker on each ASD that sets out when the last calibration and accuracy check was conducted. He also testified that it was his understanding that if the tests had not been performed within the last 30 days one will not be able to operate the machine.
[43] In this case the Crown relies on the evidence of the self-test conducted by PC Pansieri at the beginning of her shift to support both the subjective and objective reasonableness of the officer's belief for making a 254(3) demand following the FAIL result obtained from Mr. Coelho. I accept PC Pansieri conducted a self-test on the same ASD Mr. Coelho used and when she tested it, she obtained a ZERO reading, consistent with her having no alcohol in her system. However PC Pansieri did not turn her mind to when the device last had accuracy and calibration checks conducted on it. She testified she did know and presented as disinterested in these details. She had no notes to support the suggestion that she had checked for this information but just forgot to note the details down. Nor was it her evidence that it is her practice to check the sticker on the side of the ASD before she uses it. Her evidence was that she was content to proceed on the basis of the self-test only. What is more, she had no explanation as to why that was sufficient in her mind. She did not take the position that she relied on her understanding as to how frequently TPS maintains their ASD machines. Nor did she testify that she relied on her belief that the machine would not work if the checks had not been done in the last 30 days. She was trained on how to the use an ASD in January 2016.
[44] Her lack of knowledge and appreciation for these details is of concern to this court given her evidence was also lacking when it came to her overall understanding as to the possible results that an ASD could yield. When asked what the significance of a PASS result was, she indicated she was unfamiliar with the range of BAC that would yield a PASS. When asked what a WARN result meant, she testified that she was not entirely sure. When questioned as to the significance of a FAIL result, she responded that she could not recall the exact BAC number that would produce a FAIL result.
[45] The sum total of the officer's evidence was that a FAIL gave her grounds to believe the accused had over the legal limit of alcohol in his body and that she was satisfied the ASD was working properly for one reason only, because she conducted a self-test on herself at the beginning of her shift.
[46] On the facts of this case, I am not satisfied PC Pansieri's subjective belief was objectively reasonable and provided grounds for a 254(3) demand. Accordingly, I find a s. 8 breach has been made out in this case.
[47] In so doing I would distinguish the recent Jennings case from Mr. Coelho's case for two reasons:
The officer in Jennings did not record the calibration particulars for the ASD, however he did testify that he checked them.
In Mr. Coelho's case I have no confidence that PC Pansieri checked the accuracy and calibration of the device she was using or appreciated the significance of doing so.
There was evidence before the court in Jennings that the officer using the ASD was aware that it had a fail-safe feature that would cause the device would shut down and not operate if it was not properly calibrated.
In Mr. Coelho's case there was no evidence from PC Pansieri that she was aware of this feature and considered it when she decided to use it.
ISSUE 3: 10(B) – COUNSEL OF CHOICE
[48] The defence also asserts that the implementation component of s. 10(b) of the Charter fell short of constitutional standards. I agree.
The Law:
[49] The Supreme Court of Canada has interpreted the right to retain and instruct counsel, guaranteed by section 10(b) of the Charter, as including a right to consult a lawyer of one's choosing.
[50] Individuals are only expected to call another lawyer if their chosen lawyer "cannot be available within a reasonable time." The duration of this period might be shortened by circumstances of "urgency" or some other "compelling reason."
[51] In R. v. Willier, [2010] S.C.R. 429, the court made clear that section 10(b) requires not only that the police afford those detained a reasonable opportunity to contact a lawyer of their choosing but also imposes a positive duty on the police "to facilitate that contact." In Willier, the Court also elaborated on what will qualify as a reasonable period of time to wait for counsel of choice, explaining that this will depend "on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation".
[52] The Supreme Court has also explained that urgency capable of displacing the right to consult counsel does not arise in drinking and driving cases simply because the passage of time may jeopardize the Crown's reliance on the two-hour statutory presumption found in subsection 258(1)(c)(ii) of the Code. This is because even where delay in contacting counsel forecloses reliance on the presumption, the Crown will still be able to adduce expert evidence to relate lower test results back to the blood-alcohol level at the time of the offence.
[53] In assessing how long the police can be expected to wait for a detainee to contact counsel of their choosing, the Supreme Court has suggested that the availability of free and immediate advice from duty counsel is a relevant consideration. At a certain point, after efforts to contact counsel of choice have proven unsuccessful, the detainee will be expected to contact duty counsel or risk a finding that they were not reasonably diligent in the circumstances.
Conclusion Issue #3
[54] Applying the governing legal principles to the facts I find in this case, I find that PC Pansieri failed to implement Mr. Coelho's right to his counsel of choice.
[55] It is clear from the record before me that when PC Pansieri first informed Mr. Coelho of his right to a lawyer Mr. Coelho asserted his wish to speak to a lawyer of his choosing, not Duty Counsel. PC Pansieri acknowledged in evidence that she understood Mr. Coelho wished to access his phone to speak to a specific lawyer. Both PC Pansieri and Mr. Coelho agreed that it was PC Pansieri's intention to help facilitate his access to a lawyer of his choice once at the station when she would access his phone.
[56] However back at the station, PC Pansieri did nothing to facilitate access to Mr. Coelho's counsel of choice after learning Mr. Coelho's phone had no power. Instead, she made a decision to call Duty Counsel.
[57] I accept Mr. Coelho's evidence that PC Pansieri never informed him that his phone was without power or ask him for the name of the lawyer. Nor did she offer to look up anyone's phone number for him. Nor did she give him a legal directory or phone book to look up his lawyer's number.
[58] PC Pansieri's evidence did not contradict Mr. Coelho's evidence in any material way. She testified that she did not recall ever asking Mr. Coelho for his lawyer's name. She said if she had, she would have put it in her notes. She had no such note. She acknowledged never offering him access to the internet or a phone book to look up his lawyer's number. Nor did she use a directory or the internet herself. She never offered to contact someone on Mr. Coelho's behalf to get his lawyer's contact details. The only thing she did was present him the phone when Duty Counsel called back.
[59] The right to counsel of choice belongs to the accused, it is not the state's choice to choose for an individual, as occurred in this case. PC Pansieri effectively funnelled the defendant to duty counsel without any input or further discussion with Mr. Coelho after she learned his phone to be without power.
[60] Accordingly, I find a breach of 10(b) in this case.
ISSUE 4: REMEDY S. 24(2) OF THE CHARTER
[61] Counsel for the accused seeks exclusion of the breath tests as a result of the s. 8 and 10(b) violations. In my view, the first two factors outlined in R. v. Grant, 2009 SCC 32 favour the exclusion of the breath results in this case.
1. The Seriousness of the Breach
[62] The first Grant factor concerns the seriousness of the breach.
[63] The question is whether the admission of the evidence would bring the administration of justice into disrepute by suggesting that the courts will condone breaches of the Charter and the need for the courts to dissociate themselves from unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct so as to preserve public confidence in the rule of law.
[64] Conduct ranges from conduct which is inadvertent and minor, to conduct which is wilful or reckless. Good faith may mitigate the seriousness of a breach; however, negligence or wilful blindness cannot constitute good faith.
[65] In this case the combination of the both the s. 8 and 10(b) violations make the breaches in this case serious.
[66] In this case PC Pansieri acknowledged that she was aware of her duty to make reasonable efforts to facilitate access to Mr. Coelho's lawyer of choice, yet she could point to no good reason as to why she did not take the most basic of steps. PC Pansieri deliberately made zero efforts to implement Mr. Coelho's right to counsel of choice. She did not make even token efforts to do so. She failed to take basic and reasonable steps such asking him the name of his lawyer and looking it up. Nor did she provide him access to a phone book or offer to contact someone who would have his lawyer's contact details. PC Pansieri's casual attitude toward the exercise of an important constitutional right was egregious and not merely technical.
[67] Contacting Duty Counsel was not the officer's decision to unilaterally make, it was Mr. Coelho's. Her failure to provide any reasonable explanation for why she did so for Mr. Coelho is troubling and does not mitigate the breach.
[68] Good faith does not apply in this case. Given there was flagrant disregard for implementing contact with Mr. Coelho's counsel of choice, I don't find the fact that Mr. Coelho told the breath technician that he was satisfied with duty counsel as lessening the seriousness of the 10(b) breach.
[69] PC Pansieri's lack of due care and attention for Mr. Coelho's right to counsel is consistent with her casual causal approach towards the use of the ASD where she presented having only a superficial understanding of how the ASD worked.
2. Impact on the Applicant's Charter-Protected Interests
[70] The second Grant factor concerns the impact of the breach on the applicant's Charter-protected interests. Under this line of inquiry, a court must look at the interests engaged by the right infringed and evaluate the extent to which the violation impacted those interests. The impact must be considered on a spectrum that ranges from "fleeting and technical, to profoundly intrusive."
[71] In order to consider the impact on the Charter-protected rights of the defendant, it is necessary to consider, among other things, the discoverability question.
[72] In this case the impact of the s. 10(b) breach had little impact on the obtaining of the breath samples by the Qualified Breath Technician.
[73] However the s. 8 breach was causally and temporally connected to the collection of the breath samples that would not have otherwise been discovered but for the breach. The s. 8 breach was neither fleeting nor technical. I find that the impact on the applicant's s. 8 Charter-protected interests in this case was serious.
[74] In so finding I recognize that appellate courts have repeatedly held that "[t]he collection of the breath samples amounts to no more than a minimal intrusion upon the appellant's privacy, bodily integrity and human dignity."
[75] I find that the facts in this case warrant an exception to the general rule that has developed with respect to the admissibly of breath samples due to their non-obtrusiveness and second branch of the 24(2) test favours exclusion.
3. Society's Interest in an Adjudication on the Merits
[76] The third step of the Grant analysis concerns society's interest in adjudication on the merits. This third inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. Under this step, a court examines the reliability of the evidence and its importance to the Crown's case. This inquiry pulls towards inclusion of the evidence when the evidence is reliable and crucial to the case for the Crown.
[77] In this case the breath samples are highly reliable evidence. Without this evidence, the Crown has no case on the "over 80" charge. As the Supreme Court observed in Grant, the third branch of the 24(2) inquiry will rarely favour exclusion of breath samples.
[78] In this case the third branch in Grant favours inclusion.
Conclusion on s. 24(2)
[79] Under s. 24(2) I am to balance the interests of truth seeking with the need to maintain the long-term integrity of the administration of justice.
[80] I have considered the three lines of inquiry contemplated by the Supreme Court in Grant and have found that the first and second factors favour exclusion of the breath samples. In R. v. McGuffie, 2016 ONCA 365, the court held that where the first two Grant factors favour exclusion, the third step "will seldom, if ever tip the balance in favour of admissibility."
[81] If I am found to have erred with respect to my conclusion regarding the s. 8 breach, or the second factor of the Grant test, I find that the first factor, the seriousness of the s. 10(b) breach, weighs so heavily in favour of exclusion so as not to be outweighed by the other two factors. That is, in this case I find it in the best interests of justice to exclude the evidence in order to protect the rule of law and the integrity of the justice system in the long run by not countenancing the actions, or inaction, of officers that fall below a basic standards for implementing rights to counsel.
Released: April 12, 2018
Signed: Justice S. Caponecchia