Court File and Parties

Court: Ontario Court of Justice

Date: 2018-06-04

Court File No.: Wellington County Information No. 162452

Between:

Her Majesty the Queen

— and —

Trevor Middleton

Before: Justice C.A. Parry

Heard on: January 8 and January 25, 2018

Reasons for Judgment released on: June 4, 2018

Counsel:

• L. Mehkeri, for the Crown
• Alan Gold, for the defendant Trevor Middleton

I. INTRODUCTION

[1] The Crown alleges that on October 19, 2016, Trevor Middleton operated a motor vehicle while his blood alcohol level exceeded the legal limit. Mr. Middleton alleges that the police violated his right to counsel during the course of his arrest. Mr. Middleton therefore seeks the exclusion of the breath samples that prove the offence. The outcome of the trial turns on the success or failure of Mr. Middleton's application to exclude the breath readings.

[2] As is customary, the trial and the Charter application were held concurrently. The Crown called its witnesses during the course of the Charter application with the understanding that, subject to any order to exclude evidence, the evidence called would also apply to the trial proper.

[3] The Crown called 4 witnesses:

1. The arresting officer, Cst. Maclean of the Guelph Police Service;
2. Constable Greg MacArthur, who assisted with the tow of the accused's vehicle and also interacted with the accused at the scene;
3. Sergeant Karavelus, the Administrative Supervisor at the Guelph Police Station on the night of the accused's arrest; and
4. Cst. Oliver, the breath technician.

[4] In addition, the accused's presence at the police station was audio and video recorded. A number of interactions between Mr. Middleton and various police officers were tendered into evidence during the examination and cross-examination of some of the police witnesses.

[5] Mr. Middleton also adduced evidence in support of his Charter application, with the understanding that his evidence applied only to the Charter application and not to the trial proper. In addition to testifying on his own behalf, Mr. Middleton provided an affidavit from his companion for the evening, Derrick Sutherland. That companion resides in Mexico and was not available for the trial. The Crown objects to the admissibility of that affidavit, arguing that the defence failed to establish that reliance upon this hearsay evidence was necessary.

[6] In summary, I have been asked to resolve two main issues:

1. Is the affidavit of Derrick Sutherland admissible in the Charter application?
2. Did the police violate Mr. Middleton's right to counsel? If so, should the breath readings be excluded?

[7] The right to counsel issue is itself really a three part issue:

1. First the defence asks me to decide whether or not Mr. Middleton was denied his right to counsel of choice by being denied access to his cell phone, where he kept the name and number of Mr. Gold.
2. Second the defence asks me to decide whether, upon learning that the accused expressed confusion and an inability to understand his duty counsel advice, the police breached the accused's right to counsel by failing to re-advise him of his right and failing to provide him another reasonable opportunity to contact counsel.
3. Third, the defence argues that the police violated Mr. Middleton's right to counsel by refusing to tell him the results of the first breath sample while waiting to conduct the second breath test.

[8] In addition to objecting to the admissibility of Derrick Sutherland's affidavit, the Crown argues the following:

1. The evidence establishes that Mr. Middleton exercised his right to counsel of choice and chose duty counsel. Any assertion to the contrary should be disbelieved.
2. The declarations of the accused at the police station did not trigger any renewed obligation to re-inform the accused of his right to counsel and to provide a second reasonable opportunity to exercise that right.

[9] Before resolving these issues, a brief summary of the relevant evidence is necessary. As will be seen, there exists conflicts between the evidence called by the defence and the evidence called by the Crown. In order to resolve the Charter issue, I will first need to make factual findings, on a balance of probabilities. I turn now to the material evidence.

II. THE EVIDENCE RELEVANT TO THE CHARTER APPLICATION

[10] At about 1:36 a.m. on October 19, 2016, Cst. Maclean saw two men leave The Manor (a strip club) in the City of Guelph and depart in a car. Mr. Middleton was the driver of that car. Derrick Sutherland was the passenger. Having watched the vehicle attempt to leave the area via a dead-end road, Cst. Maclean decided to follow the vehicle once it turned around and re-passed Cst. Maclean's parked cruiser.

[11] Constable Maclean pulled over the accused at 1:41 a.m. After a brief interaction with the accused, he demanded the accused to provide a breath sample at the scene into an Approved Screening Device. The accused complied. The ASD registered a fail, and so the officer formed reasonable grounds to believe that the accused's blood alcohol content was over the legal limit.

[12] At 1:54 a.m., Constable Maclean arrested the accused. At 1:55 a.m., he read to the accused his right to counsel, from a prepared card the officer kept with him for that purpose. In doing so, Constable Maclean advised of the charge. He then advised the accused that he could call any lawyer he wished. He also advised him that he could call a free legal aid duty counsel lawyer immediately. He also provided the toll free number for that duty counsel service. He then asked the accused if he wished to call a lawyer "now".

[13] According to Constable Maclean, Mr. Middleton responded by indicating that he wished to speak to duty counsel.

[14] Mr. Middleton provides a different account. According to him, he asked the officer he could go to his car to get his cell phone so he could obtain a lawyer's name and number from his contacts list. Mr. Middleton testified that the officer told him that he could call a lawyer when he got to the station. Nevertheless, Mr. Middleton called to Derrick and asked Derrick to retrieve his phone from the car. He then asked Cst. Maclean if he could get his phone from Derrick. Mr. Middleton testified that the officer ignored him. Once in the car, Mr. Middleton asked if he could roll down the window to speak to Derrick. Constable Maclean would not permit this request.

[15] Mr. Middleton explained to the court why he wanted his cell phone. According to Mr. Middleton, Mr. Sutherland's father, Thomas Sutherland, was a senior corporate lawyer. Mr. Middleton was quite close to the Sutherland family. During one social gathering, they were discussing lawyers and how corporate lawyers like Mr. Sutherland were not useful in criminal matters. During the course of that discussion, Thomas Sutherland provided the contact information for Alan Gold, for use in the event Mr. Middleton ever needed advice on a criminal matter. Mr. Middleton put Mr. Gold's contact information into his contacts list on his phone. According to Mr. Middleton, on the evening of his arrest, he did not have Mr. Gold's name and number on the tip of his tongue, but he did recall having a criminal lawyer's contact information on his phone. That is the reason he requested his phone.

[16] The affidavit of Derrick Sutherland, corroborated Mr. Middleton's explanation for having Mr. Gold's contact information on his phone. It also corroborated Mr. Middleton's account about the events at the roadside, including Mr. Middleton's request for the phone at the roadside for the purpose of calling counsel. Mr. Sutherland also asserted that he retrieved the cell phone and asked Cst. Maclean permission to give Mr. Middleton the cell phone. According to Mr. Sutherland, Cst. Maclean told Mr. Sutherland that he could give the phone to the accused "later."

[17] In cross-examination, Cst. Maclean maintained that Mr. Middleton had requested to speak to duty counsel. However, his notes on the subject were extremely sparse, and he could not recall verbatim the entirety of any conversation relevant to the subject of contacting counsel. Indeed, his initial notes contained only the following information: "Understood. Wants d/c." Cst. Maclean also tentatively acknowledged that Mr. Middleton may have asked for a cell phone at the time the officer and Mr. Middleton were discussing Mr. Middleton's right to counsel. That tentative acknowledgement became concrete as the cross-examination progressed. When testifying about Mr. Middleton's request for his cell phone, Cst. Maclean testified that he did "not recall" Mr. Middleton mentioning that he wanted his cell phone for the purpose of contacting a specific lawyer. By this point in the cross-examination, the request for the cell phone was at least implicitly conceded. I stress that Cst. Maclean did not outright deny the suggestion that Mr. Middleton mentioned a desire to contact counsel when asking about his cell phone. He simply did not recall. Constable Maclean also did not recall whether or not Mr. Middleton's friend [whose name he could not recall] was holding the phone in his hand. He also did not recall if the friend asked if he could give Mr. Middleton the cell phone. He also did not recall whether he told the friend that he could give the cell phone to Mr. Middleton "later." Again, he did not deny these assertions, all of which formed the factual basis of the Charter application, he simply professed a lack of recollection.

[18] By 2:08 a.m. Cst. Maclean had transported the accused to the police station and was placing him into the booking room. According to Cst. Maclean, he very quickly commenced calling duty counsel for the accused upon arrival at the station. He placed the call at 2:10 a.m. He did not offer the accused an opportunity to search a phone book, a lawyers list, the internet, or any other source for the purpose of selecting a lawyer of his choice. A lawyer's list was posted in the booking room, but he did not advise the accused of this fact. Cst. Maclean did not allow the accused to place his own phone call to duty counsel. Instead, Cst. Maclean dialed the number, provided some information to duty counsel, and then had duty counsel call on a secure line. When referring to duty counsel, Cst. Maclean referred to duty counsel as "your lawyer". On Cst. Maclean's own evidence, he exercised complete control of the process by which Mr. Middleton might investigate and assert his right.

[19] According to Mr. Middleton, he had been told by Cst. Maclean at the roadside that Cst. Maclean would contact a lawyer for him once at the station. Mr. Middleton did not realize he had the right to insist upon his own counsel of choice. He had asked about his cell phone [and using it to contact a lawyer] twice and had been rebuffed. As a result, he did not think he was allowed to insist upon a lawyer of his own choosing. In essence, he testified that he went with the flow of a foreign stream.

[20] At about 2:13 a.m., the booking sergeant [Karavelus] entered the booking room to speak with Mr. Middleton. He confirmed that Mr. Middleton knew why he was under arrest. He also confirmed that he was aware of his right to counsel. He told Mr. Middleton that if he did not have a lawyer, the police would call duty free counsel. Of course, Mr. Middleton did not have a lawyer. This was an entirely new situation to him. While he may have had Mr. Gold's number in his phone, he had not hired Mr. Gold. He did not yet have a lawyer. In any event, in response to Karavelus' inquiry, Mr. Middleton advised him that Maclean had already called "one" [free duty counsel]. After brief and standard inquiries about Mr. Middleton's medical well-being, Karavelus left the booking room.

[21] At 2:15 a.m., duty counsel called back and spoke to Mr. Middleton privately.

[22] The consultation with duty counsel ended by about 2:29 a.m. Maclean then brought the accused back to the booking room. Shortly afterwards, Cst. McArthur entered the booking room too. McArthur was the officer who attended the scene of the arrest and watched the accused's car until the tow truck arrived. He told the accused that Derrick had taken a cab home. He also offered to call Mr. Middleton's wife to advise her of the situation. Around that time [2:30 a.m.] Maclean departed the booking room. McArthur then asked Mr. Middleton, "Do you have any questions about what is going on or did he [duty counsel] explain it all." Mr. Middleton responded by saying, "No, I think I'm good, but it's just convoluted and didn't make a lot of sense." In effect, he explicitly declared that he did not understand his duty counsel's advice. Cst. McArthur did not re-advise Mr. Middleton of his right to counsel at this point. Nor did he extend an opportunity to speak again to that duty counsel or to speak to a new counsel. Instead, he simply outlined the upcoming breath testing procedure.

[23] At 2:37 a.m., Maclean brought Mr. Middleton to the breath room for his first breath sample.

[24] Before giving his first sample, the breath technician [Cst. Oliver] had a brief conversation with the accused about his consultation with counsel. It went as follows:

Cst. Oliver: You've spoken to a lawyer?

Mr. Middleton: Yeah. Someone called me.

Cst. Oliver: You're good with that? Satisfied?

Mr. Middleton: [while shrugging] I guess… I don't know what my options are.

Cst. Oliver: Your option is that we have to offer you a lawyer and if you want to speak to one that's your choice….

Mr. Middleton: Someone talked to me already… a lawyer….

Soon after this conversation, at 2:38 a.m., Mr. Middleton provided his first breath sample. The test revealed a blood alcohol concentration of 155 mg of alcohol in 100 ml of blood.

[25] After the completion of the first breath sample, Maclean brought Mr. Middleton back to the booking room. Mr. Middleton then told Maclean, "So my lawyer says to ask you how that last one [breath sample] went. I don't know what the hell that means." The two then had a brief conversation to confirm that the lawyer was seeking the results of the first Intoxilyzer sample. Mr. Middleton then said, "That's why he asked me to ask you about the first one. I don't know what the hell that means." Maclean then informed Mr. Middleton that he would get both results at the same time, after the completion of the second test. Maclean did not respond to Mr. Middleton's assertion that he did "not know what the hell" his duty counsel's advice meant.

[26] In his testimony, Mr. Middleton explained that duty counsel had told him to call back with the results of the first test and obtain further advice at that point. In other words, duty counsel had not yet finished giving advice to Mr. Middleton.

[27] Not only did Mr. Middleton inform Cst. Maclean that he did not "know what the hell" some of his duty counsel's advice meant, he also disclosed a lack of appreciation that his duty counsel was in fact a lawyer.

[28] Mr. Middleton asked about obtaining the first test results for a third time. For a third time, Mr. Middleton explicitly declared that he did not understand his lawyer's advice. That third exchange went as follows:

Mr. Middleton: So the lawyer said to ask you for the first test. I can't ask you about the first test?

Cst. Maclean: I don't know anything about the first test. You can ask him when you go for your second test.

Mr. Middleton: Because he asked me to ask you about … I just assumed that was you… I don't know what I'm supposed to do.

Again, Cst. Maclean simply told Mr. Middleton that he would not be provided the results of the first breath test until he had completed both breath tests. Cst. Maclean did not address the obvious reality that Mr. Middleton did not understand the legal advice provided to him.

[29] Ultimately, at about 3:03 a.m., Mr. Middleton provided a second sample. The test revealed a blood alcohol concentration of 132 mg of alcohol in 100 ml of blood.

[30] Interestingly, at about 3:16 a.m., after he received the breath test results from Cst. Oliver, Cst. Maclean re-informed Mr. Middleton of his right to counsel and asked if Mr. Middleton once again wished to speak to counsel. The horse had left the barn. Constable Maclean was closing the door.

[31] Mr. Middleton accepted the invitation to speak with duty counsel, but he spoke to a different duty counsel than the one with whom he spoke previously.

III. THE EVIDENCE RELEVANT TO THE HEARSAY APPLICATION

[32] In deciding the hearsay issue, I propose to take notice of certain legislative facts that pertain to applications. In particular, I take notice of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) and the Criminal Rules of the Ontario Court of Justice, both of which have provisions pertaining the permitted evidence in applications like the one before me.

[33] Rule 1.04 of the Superior Court rules provides guidance on the interpretation of the rules. It reads as follows:

These rules are intended to provide for the just determination of every criminal proceeding, and shall be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustified expense and delay.

[34] Rule 6.05 of the Superior Court rules prescribes the "Material for Use on Applications". Subsection 2 of this rule specifically permits the use of affidavits on applications.

[35] Perhaps somewhat redundantly, Rule 6.07 of the Superior Court Rules also expressly indicates that evidence on an application may be given by affidavit. Subsection 4 of Rule 6.07 permits the cross-examination of affiants prior to the hearing date, unless otherwise ordered by a judge of the court.

[36] The Rules of the Ontario Court of Justice also permit the applicant to rely upon affidavit evidence in support of an application: see Rule 2.3(2).

[37] Mr. Middleton and Mr. Sutherland are long-time friends. According to Mr. Middleton, Mr. Sutherland lives in Mexico for six months of the year and spends the remaining six months on a catamaran. He has two houses in Mexico. According to Mr. Middleton, Mr. Sutherland also visits Canada twice per year. He also has internet access. Having said that, Mr. Middleton has never used Skype with Mr. Sutherland. The court did not hear about whether or not Mr. Middleton was willing or able to provide evidence via video or audio link.

IV. FINDINGS OF FACT ON THE HEARSAY ISSUE

[38] I infer from Mr. Middleton's evidence that Mr. Sutherland is a man of means. I also infer from his willingness to attend at the Canadian Consulate in Mexico to provide a commissioned affidavit that Mr. Sutherland has been prepared to go to some effort to assist Mr. Middleton in his defence of the case before me. I therefore infer on a balance of probabilities that, if asked, Mr. Sutherland would have been prepared to provide his evidence remotely on a date arranged by the parties. Having said that, I am also satisfied that, on the dates set for trial, Mr. Sutherland was unavailable to testify, because the parties had not taken steps in advance to arrange for Mr. Sutherland to give his evidence from a remote location. I am also satisfied that the question of giving evidence remotely was first raised during the course of the Crown's objection to the admissibility of Mr. Sutherland's affidavit.

V. ANALYSIS AND RULING ON THE HEARSAY ISSUE

[39] The recent Supreme Court of Canada decision in the case of R. v. Bradshaw, 2017 SCC 35, provided a synthesis and restatement of the law pertaining to the admissibility of hearsay statements. In doing so, the majority made what might arguably be considered refinements of the law, particularly as it pertains to the identification of sufficient corroboration of hearsay statements. What follows is a summary of the law of the admissibility of hearsay evidence as articulated in the majority decision in the Bradshaw decision.

[40] The identification of hearsay is determined by the identification of the purpose for which the evidence is tendered. Hearsay is the out-of-court utterance of a person, tendered by a party to prove the truth of the assertions made in the utterance. An out-of-court statement does not constitute hearsay if it is not tendered for the purpose of proving the truth of the contents of the statement.

[41] Hearsay statements are presumptively inadmissible, because the opposing party is deprived of the opportunity to test the reliability and credibility of the evidence through contemporaneous cross-examination in the presence of the trier of fact. The trier of fact is therefore deprived of the opportunity to ascertain the presence or absence of potential frailties in the evidence. Those frailties or dangers have been summarized as follows:

1. The declarant may have misperceived the facts to which the declaration pertains [the hearsay danger of faulty perception];
2. The declarant, despite correctly perceiving the facts to which the declaration pertains, may have wrongly remembered those facts [the hearsay danger of faulty memory];
3. The declarant may have narrated the facts in an unintentionally misleading fashion [the hearsay danger of faulty narration];
4. The declarant may have intentionally attempted to present the facts in a misleading manner [the hearsay danger of insincerity].

[42] The presence of the dangers associated with hearsay evidence, coupled with the lack of an ability to test the evidence, gave rise to the presumption of the inadmissibility of this type of evidence. However, some hearsay evidence presents minimal dangers and, accordingly, its exclusion inhibits the truth-finding function of the court more than its admission would.

[43] Over time, courts developed a flexible and principled approach to the determination of the admissibility of hearsay. The principled approach concerns itself with an assessment of the necessity of the receipt of the evidence and the threshold reliability of the evidence.

[44] Necessity may be established by establishing the unavailability of the witness in the trial.

[45] In addition to establishing necessity, the party seeking to tender an out-of-court statement must establish that the statement passes a certain threshold of reliability. Threshold reliability is established when the hearsay "is sufficiently reliable to overcome the dangers arising from the difficulty of testing it [without the benefit of contemporaneous cross-examination of the declarant at trial]". Once this threshold is passed, the trier of fact may invoke the discretion to consider the evidence in the fact-finding process. The assessment of the ultimate reliability of the truth and accuracy of the hearsay utterance is, of course, not determined until the trier of fact considers all of the evidence and applies the appropriate standard and burden of proof.

[46] In my view, the Rules of Court suggest that the court has the discretion to employ a somewhat relaxed approach to the principle of necessity. The rules specifically contemplate the parties on an application relying upon affidavit evidence. Having said that, the court retains the discretion to grant leave to the opposing party to cross-examine any affiant in an application. In addition, the court always retains the discretion to exclude evidence when the prejudicial effect of the evidence outweighs its probative value. In my view, when an opposing party is deprived of the opportunity to test evidence on a core issue in an application, that party will be greatly prejudiced by the admission of that evidence. Accordingly, I am of the view that the court should usually grant leave to the opposing party to cross-examine an affiant on any application. Similarly, I conclude that the court should not overly relax the principle of necessity when determining the admissibility of affidavits when the party tendering the affidavit asserts that the affiant is unavailable for cross-examination.

[47] In the case before me, the evidence establishes on a balance of probabilities that Mr. Sutherland is a willing participant in Mr. Middleton's defence. It also establishes on a balance of probabilities that Mr. Sutherland would be able to provide evidence remotely, if asked. Clearly, though, he has not been asked to provide his evidence in this manner. I am therefore not satisfied on a balance of probabilities that Mr. Middleton has established that his reliance upon Mr. Sutherland's affidavit to prove the truth of its contents is necessary.

[48] As we shall now see, I am also of the view that the defence has no need for any reliance upon Mr. Sutherland's affidavit.

VI. FINDINGS OF FACT ON THE CHARTER ISSUE

[49] Mr. Middleton presented his evidence in a forthright, logical, and sincere fashion. Constable Maclean, on the other hand was a poor historian. For the reasons that follow, I accept Mr. Middleton's evidence on a balance of probabilities.

[50] First, Constable Maclean was unable to contradict Mr. Middleton on the material issues. On the most crucial points, the most he could really say was "I cannot recall". Having heard him testify about his conduct that evening and having heard his evidence about his note-taking practices, I have come to the conclusion that he approached his duties with somewhat of a bureaucratic indifference – he was going through the motions, attempting to follow the rules without paying particular attention to the purpose of the rules.

[51] On one key point – whether Mr. Middleton asked for his cell phone – Constable Maclean eventually corroborated Mr. Middleton's account. Initially, Constable Maclean testified that he did not recall whether Mr. Middleton asked for his cell phone. However, as the cross-examination continued, he conceded that ground, but asserted he did not recall if Mr. Middleton indicated why he wished to have his cell phone. He also indicated that he did not care to know why Mr. Middleton wanted his cell phone. Given the context in which the request for the cell phone was made, Cst. Maclean's evidence is concerning. Remember, Maclean had arrested Middleton. He had advised him of his right to counsel. And had asked Mr. Middleton if he wished to call a lawyer now. I stress that last word: NOW. Having heard Mr. Middleton's evidence and Constable Maclean's evidence, I conclude that it is this context that Mr. Middleton asked for his phone. If the officer was paying attention at all to his constitutional duty to provide access to counsel at the first reasonable opportunity, the request for a cell phone immediately after an assertion by the arrestee of his right to counsel ought to have spurred Constable Maclean into action. He had just told the accused he could call a lawyer. The accused responded by saying he wanted to speak to a lawyer and by requesting his phone. Only a person blinded by bureaucratic indifference could fail to conclude that accused's request for his phone was related to the subject matter at hand. What emerges from this evidence is a picture of an officer going through the motions of his duties, choosing the path of least resistance towards the completion of a mundane task about which he has little interest. In doing so, he ignored the request for a phone, paid no attention for the reason for that request, and defaulted to duty counsel because his arrestee had no record and did not currently have a lawyer – because no neophyte would.

[52] As noted, Constable Maclean was unable to offer evidence to refute some key claims made by Mr. Middleton. He could not recall whether Mr. Sutherland had procured Mr. Middleton's phone and was holding it in his hand. He could not recall whether Mr. Sutherland had asked to give Mr. Middleton the cell phone. He could also not recall whether he told Mr. Sutherland that he could give Mr. Middleton the cell phone later. Indeed, he could not even remember Mr. Sutherland's name and had made no note of it in his notebook. However, Constable McArthur's evidence, coupled with the utterances McArthur made at the station about the identity of the passenger, clearly establish that the passenger was in fact Mr. Sutherland.

[53] Constable Maclean also had sparse notes and recollection about his roadside conversation with the accused about his right to counsel. I therefore find his evidence on the subject to be unreliable. I note that he repeatedly suggested that the accused uttered a mere two words in response to the inquiry about immediately calling counsel: "duty counsel". However, at times he suggested that more information may have been exchanged, only to retreat to his earlier position that he only read directly from the card in his note book and that Middleton only uttered two words in reply.

[54] I specifically reject a claim made by Maclean later in cross examination, wherein he suggested that Mr. Middleton advised him that he did not have a lawyer and so would speak to duty counsel instead. This claim was not recorded in his notes. It was not made during his evidence in-chief. And it flatly contradicted his repeated claim that the accused only provided a two word response to the RTC inquiry. Given that s. 10(b) was the only issue on this trial and that the Crown had received ample notice of this issue, I would have expected that this claim be disclosed prior to trial and to have been provided in Maclean's evidence in-chief, if it was something other than a claim made-up on the spot when Maclean was under pressure in cross-examination.

[55] While I reject Maclean's belated claims about the accused declaring he did not have counsel, I also I consider highly unlikely that this rather talkative arrestee tersely uttered only two words in response to the inquiry. The police station video discloses that Mr. Middleton was affable, talkative, and cooperative with the police. A terse two word answer was not his style. Indeed, except for the cagiest and guarded arrestee, the purported response seems entirely unnatural.

[56] With no viable contradiction to Middleton's evidence, and having regard to the internal logic and sincerity of his evidence, I accept Mr. Middleton's evidence on the following points:

1. He had never been in trouble with the law before.
2. He asserted his right to counsel at the roadside.
3. He asked Derek Sutherland to get his phone from the car, which had been left on the console after Mr. Middleton had retrieved his identification from the cell phone case.
4. Mr. Middleton asked the officer if he could obtain his phone from Mr. Sutherland.
5. This request was made after the arrest and after the subject of contacting counsel had been raised by Constable Maclean.
6. Mr. Middleton mentioned his desire to consult his contact list.
7. He asked about obtaining his phone twice.
8. Constable Maclean ignored Mr. Middleton and was indifferent to his requests.
9. Constable Maclean told Mr. Middleton that he could contact a lawyer at the station.
10. Given his lack of prior conflict with the law, Mr. Middleton did not realize that he could insist upon calling a lawyer of his choosing.
11. Given the circumstances, his acquiescence to duty counsel was a natural and predictable reaction.

[57] I also accept Mr. Middleton's evidence about the reason he had Mr. Gold's phone number on his phone prior to the arrest. His friend's father was a prominent civil lawyer. They had been talking about lawyers during a dinner party. During that conversation, Thomas Sutherland provided Mr. Middleton the name of a criminal lawyer in the event he ever found himself in trouble. According to Mr. Middleton, he used that contact information the very next day after his arrest to contact Mr. Gold. The ability to make that call appears on balance to be a by-product of the fact that Mr. Middleton already had Mr. Gold on his contacts list.

[58] Mr. Middleton's utterances at the police station disclose his state of mind regarding the advice he received from duty counsel. Having watched him speak to Constable Maclean, I have concluded that three times he made it clear to Constable Maclean that he did not understand the advice provided by duty counsel. Constable Maclean was indifferent to Mr. Middleton's claims that "I don't know what the hell that means". It never occurred to Constable Maclean to offer to Mr. Middleton the opportunity to re-contact duty counsel to seek clarification. Similarly, when speaking to Constable McArthur, he declared that the duty counsel advice was "convoluted" and "didn't make a lot of sense." In doing so, he declared what I accept to be his genuine state of mind, namely that he was having trouble comprehending the legal advice given to him – advice that, by the way, the Crown now asserts was incorrect in law. Furthermore, I conclude from Mr. Middleton's inquiries of Constable Maclean after the first breath test that Mr. Middleton did not appreciate that the duty counsel he had just spoken to was in fact a lawyer. Finally, I accept that Mr. Middleton was sincerely expressing his state of mind when he declared to Constable Oliver that he did not know what his options were regarding his right to counsel. Put bluntly, Mr. Middleton was operating in a state of confusion, even after speaking to duty counsel.

[59] Finally, I conclude that the evidence establishes that the police controlled the means by which Mr. Middleton chose counsel and contacted counsel. They did not offer the use of a phone book, a lawyer's list, the internet, or legal directory. They did not allow him to use his own cell phone at the roadside. They did not allow him to place his own call to counsel. When the topic of consulting counsel was raised by the officers, they all used language that suggested a choice between two options: speaking to a lawyer he already has or speaking to duty counsel. The notion of accessing directories so that Mr. Middleton would have the opportunity of contacting a lawyer of his choosing was never presented to Mr. Middleton.

VII. ANALYSIS AND RULING ON CHARTER ISSUES

A. Denial of Mr. Middleton's Right to Counsel of Choice by Denying Access to his Cell Phone

[60] An arrestee has the right to contact his counsel of choice. The police have a positive duty to facilitate that contact. Importantly, the police have a duty to facilitate the right at the first reasonable opportunity. The duty to facilitate the access to counsel includes the duty to offer the detainee the use of a telephone. [See for example, R. v. Brydges, R. v. Manninen, [1987] 1 S.C.R. 173; R. v. Taylor, 2014 SCC 50; R. v. Mitchell, 2018 ONCJ 121; R. v. Sakharevych, [2017] O.J. No. 5209; and R. v. Ali, 2018 ONCJ 203]

[61] In facilitating the accused's right, the police are obliged to allow an accused person to access secondary sources for the purpose of contacting counsel; for example, access to phone books, address lists in cell phones, or access to third parties who can provide a lawyer's name and contact information. [See for example, R. v. Maciel, 2016 ONCJ 563; R. v. Sakharevych, 2017 O.J. No. 5209].

[62] In the case at bar, the accused specifically asked for access to his phone. He specifically asked to do so for the purpose of accessing his contact list. He asked for his phone twice. He was ignored. I find that Mr. Middleton was reasonably diligent in asserting his right to counsel. I find that his acquiescence after being ignored was a reasonable response, given his lack of experience in the criminal justice system. In contrast, I find that Constable Maclean did not facilitate Mr. Middleton's access to his counsel of choice. He ignored the request for the phone and he ignored the reason given for that request. I doubt he did so out of malice. Rather, as I have already noted, he appears to have been bureaucratically indifferent to the animating principles of Mr. Middleton's right to counsel as he went through the motions of processing a routine Over 80 investigation.

B. The Steering of the Accused to Duty Counsel and The Failure to Address the Accused's Inability to Understand his Legal Advice

[63] In addition to the initial denial of the right to counsel of choice, I am concerned about the approach taken by Maclean and his colleagues at the police station. I am concerned for two reasons: first, collectively, the officers appear to have presented an incomplete set of choices to Mr. Middleton [a false dichotomy]; second, they ignored repeated statements that Mr. Middleton did not understand his legal advice.

[64] As Mr. Middleton bounced from officer to officer, they collectively presented Mr. Middleton with a false dichotomy of choices: (1) if you have a lawyer, you can call that one; and (2) if you do not have a lawyer, you can call duty counsel. This approach is evident in the evidence of Sgt. Karavelus, Constable Maclean, and Constable Oliver. Sgt. Karavelus told Mr. Middleton that if he did not have a lawyer, the police would call duty counsel. Similarly, Constable Maclean indicated that if an arrestee tells him that he does not have a lawyer, he puts the arrestee in touch with duty counsel. Constable Oliver told Mr. Middleton: "your option is that we have to offer you a lawyer and if you want to speak to one that's your choice…." At the time of his arrest, Mr. Middleton did not have a lawyer. He had never been in trouble with the law before. He had no reason to "have" a criminal lawyer. This did not mean, however, that he was required automatically to resort to duty counsel. Mr. Middleton, had the right to the opportunity to search for and choose a lawyer. Sergeant Karavelus recognized this principle, but he did not communicate it to Mr. Middleton. The police in this case controlled completely the means by which Mr. Middleton exercised his right to counsel. They separated the accused from his phone. They did not present him with a lawyers list, a phone book, access to the internet, or any means by which to search for and find a lawyer of his choosing. They also did not advise him of his right use any of these resources to choose a lawyer. In addition, they did not allow him to place the call himself. They simply allowed him to receive a call from someone they had called on his behalf. They acted as the exclusive conduit to legal advice, without providing the necessary information and tools to Mr. Middleton to empower him to assert his rights. Consequently, Mr. Middleton was inexorably steered toward duty counsel. This practice is constitutionally suspect. Unfortunately, a growing body of case law suggests, it is not a practice unique to the Guelph Police Service. [see for example, R. v. Ali, 2018 ONCJ 203; R. v. McFadden, [2016] O.J. No. 6932; R. v. Vlasic, [2016] O.J. No. 6892; R. v. Panigas, [2014] O.J. No. 2058; R. v. Pita, [2013] O.J. No. 5974]

[65] The steering of Mr. Middleton to duty counsel was exacerbated by the police indifference to numerous clear indications that Mr. Middleton did not understand his legal advice and/or did not understand his options. Mr. Middleton repeatedly told Cst. Maclean that he did not know "what the hell" duty counsel meant when giving advice to seek the results of the first breath test. Mr. Middleton also told Constable McArthur that duty counsel's advice was "convoluted and didn't make a lot of sense." When a detainee informs the police that he did not understand his legal advice, he in effect informs the police that he has not yet fully exercised his right to counsel. I appreciate that Mr. Middleton told Cst. McArthur, "I'm good," but that declaration did not relieve constables McArthur or Maclean of their duty. In my view, once a detainee expresses a lack of understanding of the advice received it is incumbent upon the police to re-inform the detainee of his right to consult counsel and provide the detainee of a further opportunity to consult counsel. Only then can the declaration "I'm good" constitute an informed waiver of the right to counsel. [See R. v. Sinclair, 2010 SCC 35; R. v. Prosper; R. v. Evans; R. v. Sakharevych [2017] O.J. No. 5209].

[66] The exchange between Constable Oliver and Mr. Middleton does not cure Maclean and McArthur's failure to address Mr. Middleton's apparent inability to understand his legal advice, because it does not address that issue. In the exchange between Oliver and Middleton, Mr. Middleton raises a different issue: that he does not know what his constitutional options are. When Middleton raises this separate issue, Constable Oliver addresses it incompletely. Rather than informing Mr. Middleton that he has the right to telephone any lawyer he wishes, including a free Legal Aid duty counsel, he simply stated, "your option is that we have to offer you a lawyer and if you want to speak to one that's your choice." This information was inadequate from a constitutional perspective.

C. The Alleged Failure to Disclose the First Breath Reading

[67] The defence also complains that the police breached Mr. Middleton's right to counsel by failing to provide him the results of his first sample. With respect I do not agree with this submission. There does not exist a constitutional right to disclosure at the pre-charge stage of an investigation. In addition, I cannot accept the assertion that Mr. Middleton's jeopardy had changed after the first breath sample. Unlike the cases provided to me by counsel, this is not a case where the accused initially waived his right to counsel then subsequently revoked that waiver. Once reasonable and probable grounds existed for the arrest and the breath demand, Mr. Middleton faced the prospect of blowing over the legal limit if he complied with the breath demand. His legal jeopardy remained constant throughout the continuing demand and the resulting collection of evidence.

D. One Final Point

[68] I should note that I have no way of knowing whether Mr. Gold would have answered the phone had Mr. Middleton been afforded the opportunity to call him. To my mind, it is unnecessary to answer this question. To pursue that question would be to make a wrong turn in the constitutional inquiry. The violation was complete when Mr. Middleton was deprived of the opportunity to try to contact a counsel of his choosing, and in lieu of actual contact with that counsel, the opportunity to contact any other lawyer of his choosing.

VIII. THE APPLICATION OF SECTION 24 OF THE CHARTER

[69] An applicant who establishes a breach of his or her Charter rights, seeks redress under subsection 24(1) of the Charter. In a hearing conducted pursuant to subsection 24(1), the applicant may seek the exclusion of evidence obtained during the course of a Charter breach.

[70] Subsection 24(2) of the Charter articulates the test to be applied in the determination of the request to exclude evidence. Subsection 24(2) reads as follows:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[71] The subsection reveals that the party seeking exclusion must establish two things:

1. The evidence sought to be excluded was obtained in a manner that infringed a Charter right; and
2. The admission of the evidence would bring the administration of justice into disrepute.

The applicant must establish these two things on a balance of probabilities. [See R. v. Pino, 2016 ONCA 389]

[72] In determining whether or not the evidence was "obtained in a manner that infringed or denied any rights or freedoms" of the applicant, the court should be guided by the following considerations:

1. The approach should be generous, consistent with the purpose of s. 24(2);
2. The court should consider the entire "chain of events" between the accused and the police;
3. The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
4. The connection between the evidence and the breach may be causal, temporal or contextual, or any combination of these three connections;
5. But the connection cannot be either too tenuous or too remote. [See R. v. Pino, supra, at para 72]

[73] R. v. Grant, [2009] S.C.R. 353, is now the leading authority on the interpretation and application of subsection 24(2).

[74] In Grant, McLachlan C.J.C. and Charron J.A. noted that the subsection is concerned with the maintenance with the rule of law and with the defence of Charter rights in the justice system as a whole. The court noted that a Charter breach in and of itself brings the administration of justice into disrepute. However, in their view, subsection 24(2) was concerned with the future impact of the admission/exclusion of the evidence on the repute of the administration of justice. In other words, the court was concerned with whether admission/exclusion would do further damage to the repute of the justice system. In doing so, the court noted that the analysis required a long-term view, one aimed at preserving the integrity of our justice system and our democracy.

[75] Interpreting subsection 24(2) from this perspective, the majority in Grant held that a trial court must assess and balance the effect of the admission of the evidence on society's confidence in the justice system having regard to:

1. The seriousness of the Charter-infringing state conduct [admission may send the message that the justice system condones serious state misconduct];
2. The impact of the breach on the Charter-protected interests of the accused [admission may send the message that individual rights count for little]; and
3. Society's interest in the adjudication of the case on its merits.

[76] The seriousness of Charter-infringing state conduct may require a court to disassociate itself from the police conduct. However, the presence of good faith during the course of the breach may lessen this need. Trial courts must keep in mind, though, that ignorance of Charter standards, negligence, and wilful blindness cannot be equated with "good faith", and should not be encouraged or rewarded through the admission of evidence. Systemic police misconduct will be considered more serious and will be more likely to require a court to disassociate itself from the conduct.

[77] The third branch of the Grant analysis places emphasis on the truth seeking function of the trial process. This portion of the analysis requires the court to balance concerns about the integrity of the justice system with the interests of seeking the truth. Admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the Crown's case. Conversely, the exclusion of highly reliable evidence may have a more negative impact upon the repute of the justice system, if exclusion proves fatal to the prosecutions ability to prove its case.

[78] In Mr. Middleton's case, I find the Charter infringing state conduct to be extremely serious. Mr. Middleton's request for a cell phone for the purpose of facilitating his right to counsel was ignored, as was his implicit assertion of his right to contact counsel at the first reasonable opportunity. Thereafter the police conduct effectively steered Mr. Middleton to duty counsel. To exacerbate matters, the police repeatedly ignored statements that suggested Mr. Middleton did not understand his legal advice. Adding insult to injury, when it became apparent that Mr. Middleton did not understand his constitutional options the police provide an incomplete recitation of the options. I do not find that the police acted in bad faith, but the police nevertheless repeatedly displayed a bureaucratic indifference to Mr. Middleton's rights and the animating principles that underpinned those rights. This is the kind of police conduct from which the court must distance itself. This aspect of the Grant analysis favours exclusion.

[79] With regard to the impact of the breach upon the Charter protected rights of the accused, I find the impact to be substantial. I recognize that in the recent case of R. v. Jennings, 2018 ONCA 260, the Court of Appeal considered the application of section 24(2) to breath readings obtained in violation of section 8 of the Charter. In doing so, the Court of Appeal noted that breath samples were a minimal intrusion on the privacy interests of the accused. However, reliance upon the Jennings decision in the context of a right to counsel violation would be misplaced. In Jennings the court was asked to assess the impact of a section 8 violation on the accused's privacy interest. In Mr. Middleton's case, there has been no complaint about an infringement upon Mr. Middleton's privacy interest. Instead Mr. Middleton complains about the infringement upon his constitutionally protected right to counsel – an entirely different issue.

[80] The impact of the breaches upon Mr. Middleton's right to counsel was significant. He clearly had trouble understanding his legal advice. In my view, some of the advice he reportedly received was incorrect. The right to counsel is of paramount importance. It is one of the cornerstones of a free and democratic society. Through counsel, an accused obtains advice as to whether or not to partake in his own incrimination, or to assert his right against self-incrimination. It is no secret that in the post-Grant and post-Jennings era, the exclusion of unlawfully obtained breath samples has become a more difficult exercise. Legal advice about the lawfulness of the demand, and thus the lawfulness of any possible refusal to comply with a demand has never been more crucial to an arrestee. Similarly, defence counsel face an increased obligation to thoroughly explore the factual and legal circumstances of the arrest, through the both arrestee and police involved in the investigation, so that proper advice about the lawfulness of the demand might be given. Having said that, the law does not permit speculation as to what advice Mr. Middleton may have received had he been afforded the right to consult Mr. Gold. The violation was complete when Mr. Middleton lost the opportunity to consult his counsel of choice. I therefore view the impact on Mr. Middleton's Charter protected right to be very grave. This aspect of the Grant analysis therefore favours exclusion.

[81] Having said all of this, I view society's interest in the trial of the case on its merits to be strong. The breath samples were obtained using an approved instrument, which when working properly, provides highly reliable evidence of the accused's blood alcohol content.

[82] Nevertheless, when I consider the seriousness of the state infringing conduct and the impact of that conduct on the Charter protected rights of the accused, I come to the conclusion that the long term interests of the administration of justice require the exclusion of the breath readings.

Released: June 4, 2018