Court File and Parties
Ontario Court of Justice
Date: 2018-07-16
Court File No.: Toronto 16-15007936
Between:
Her Majesty the Queen
— and —
Brittany Elizabeth Williams
Before: Justice S. Ray
Heard on: January 5, 2018 and May 1, 2018
Reasons for Judgment released on: July 16, 2018
Counsel:
- B. McCallum, for the Crown
- D. Zbarsky, for the defendant Brittany Williams
Reasons for Judgment
Ray J.:
Introduction
[1] Brittany Elizabeth Williams has been charged with operating a motor vehicle while the quantity of alcohol in her blood was over the legal limit contrary to section 253(1)(b) of the Criminal Code. The Defence has filed a Charter application alleging violations of sections 8, 9, and 10(b).
[2] The Defence says that the arresting officer violated the Applicant's rights under sections 8 and 9 of the Charter by requiring her to exit her vehicle for the purpose of determining whether the cause of the smell of alcohol emanating from the vehicle was the result of her consumption of alcohol. The Defence also submits that the arresting officer failed to provide the Applicant's s. 10(b) rights at the roadside, while awaiting the arrival of the approved screening device (ASD), and again after obtaining a fail and while waiting 15 minutes prior to providing a second test due to concerns that mouth alcohol was present. Not only was the informational component of rights to counsel infringed, implementation requirements were also not satisfied. The s. 10(b) rights of the Applicant were further violated, it is alleged, when she was denied her right to counsel of choice at the police station. Her request to speak to the private counsel of her choice was diverted to duty counsel, when her counsel of choice did not immediately respond to a message left by the officer.
[3] The Defence seeks an order pursuant to s. 24(2) of the Charter that would exclude all evidence obtained by police including evidence of breath samples and all utterances and statements made by the Applicant pursuant to section 254(5) of the Criminal Code as a result of these breaches of her rights under sections 8, 9, and 10(b).
Did the arresting officer violate the Applicant's s. 8 and 9 Charter rights by requiring her to exit her vehicle for the purpose of determining whether the cause of the smell of alcohol emanating from the vehicle was the result of her consumption of alcohol?
[4] The arresting officer testified that while driving on his early morning shift, a stopped vehicle with its four way flashers on caught his attention. The ignition and lights were on, and it may have had two of its wheels on the sidewalk. The Appellant was in the driver's seat, and there was another occupant in the back. The officer was concerned that there may have been a mechanical problem with the vehicle. It was also parked facing oncoming traffic on the wrong side of the road, and it was a very narrow street. The traffic was minimal given the time of day. He spoke to the driver, who said they were waiting for a friend, and the officer did observe that an individual exited from a nearby address and walked towards the vehicle.
[5] The arresting officer testified that his initial concern was the safety of the vehicle occupants. He observed that the two individuals in the vehicle appeared to have been up from the night before. They were dressed in what he described as "evening wear." The occupant in the back appeared to the officer to exhibit signs of impairment. He became concerned about the sobriety of the driver. The smell of an alcoholic beverage was coming directly from the driver's side area of the vehicle, and the driver's speech was a little slow. He was not one hundred percent sure if the driver had actually been drinking, or if the odour came from the individual in the back. The driver may have just woken up, been tired, or simply dressed that way. It was 6:28 a.m., when he first observed the vehicle, and it was now 6:30.
[6] At 6:30 the arresting officer sent for an ASD due to his initial suspicion. He did not have one with him. He expected the device to arrive quickly, because it was coming from less than a kilometre away and the traffic was minimal. During that time, just to confirm whether the odour of alcohol was coming from the driver and not the other occupant of the vehicle, the arresting officer asked the driver to exit the vehicle, so that he could isolate whether or not the odour was coming from the driver's breath itself. Once he spoke to the driver outside the vehicle, he satisfied himself and confirmed that the odour of alcohol was emanating from the driver's breath, rather than solely from inside the vehicle or from the other occupant in the vehicle. At 6:35, the arresting officer made the ASD demand. At 6:40, the ASD arrived. At 6:45, the ASD was administered. Following the first ASD test, a second ASD demand was made, and the second test was administered at 7 a.m.
[7] The second test was administered due to a concern about mouth alcohol, and in order for enough time to elapse for it to dissipate. The arresting officer did not provide a clear reason as to why he had a concern after the first test that there was mouth alcohol. On cross examination he explained that he wanted to give her the benefit of the doubt. Because she failed the first test, the arresting officer thought there might be mouth alcohol, so he administered a second test. He also explained that he lost sight of the Applicant for a short time, and just in case she used mouth wash, or for some reason there was some sort of alcohol, he just wanted to make sure the first test was not a false test. He wanted to give the Applicant every possible benefit. Rights to counsel were read at 7:01 after she failed her second test. They leave the roadside at 7:14 and arrive at the station at 7:22.
[8] The arresting officer agreed, when cross examined very carefully on this point, that it was an oversight on his part not to have given the Applicant her rights to counsel while they were waiting for the ASD, which actually arrived at 6:40. He agreed that he should have read the rights to Counsel at the same time as he read the first ASD. The arresting officer also agreed that there was another opportunity to provide rights to counsel between 6:45 and 7 a.m. The Applicant had been detained, asked to step outside the vehicle, and she "wasn't going anywhere." She also had a cell phone. The arresting officer agreed that she could have made a private call from inside her vehicle.
[9] After a rigorous refreshment of his memory during cross examination through the use of internal police communication records, the arresting officer remembered that he receive information at 6:37 that an ASD was being brought to the roadside. After having been excused in the middle of cross examination at the end of the first day that the court heard evidence, and without leave of the court, the arresting officer took it upon himself to review the police car video. He returned to court on the second day of evidence and told the court that he now remembered that he had a conversation with the Applicant before the ASD arrived, and certainly before she was formally read her rights to counsel at 7:01 a.m. He testified that he had a conversation with the Applicant, "who was told to wait in the car until the machine had arrived, and she was advised that she could seek advice or speak to someone while waiting. She had access to her cell phone." He did not read from the back of his memo book at this time. He "explained to her in plain English while we were waiting that she could call a lawyer or talk to someone and get advice while we're waiting."
[10] While waiting for the ASD and prior to giving the breath demand, the arresting officer was spending time diverting, controlling, and managing traffic. He also had conversations with the Applicant. He waited to hear that the ASD was coming before he actually made the formal ASD demand.
[11] The Crown conceded that the "forthwith" requirement was breached during this investigation for the additional 15 minute delay required to take the second ASD sample. But she did made it clear that she was not conceding that the delay between the time that the officer requested the ASD (6:30 a.m.) and the time that it arrived (6:40 a.m.) offended the "forthwith" requirement, and to support her position she relied on R v Quansah. To be clear, and as the court noted in Quansah, so long as the demand is "validly made," i.e. so long as it is made "forthwith," "for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel." The five criteria articulated in that case before the court can find that the "forthwith" requirement has been met are well known:
[12] First, the analysis of the forthwith or immediacy requirement must always be done contextually. Court must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
[13] Second, the demand must be made promptly once the reasonable suspicion that the driver has alcohol in his or her body has been made. The immediacy requirement commences at the stage of reasonable suspicion.
[14] Third, "Forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable to officer to discharge his or her duty as contemplated by s. 254(2).
[15] Fourth, the immediacy requirement must take into account all the circumstances and must be no longer than is reasonably necessary to enable the officer to properly discharge his or her duty. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns.
[16] And fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.
[17] With respect to this case, then, I would say the first criterion has been met. The reason for delays in this case is that the arresting officer wanted to be sure that his suspicion that there was alcohol in the Applicant's body was correct. He formed the suspicion, because he smelled alcohol coming from the driver's side of the car. He observed that there was an intoxicated occupant in the back, but he was also mindful of the direction from which the smell was coming. So he already had the suspicion. He wanted to confirm his suspicion by having the driver step out of the car, so he could isolate the smell. He administered the ASD test twice, because he wanted to be sure he did not receive a false result the first time. He had lost sight of the Applicant, so he wanted to be sure there was no use of mouthwash or other reason for the test. He was trying his best, over-doing it perhaps, to make sure that he was safeguarding individual Charter rights, and at the same time protecting the public interest in eradicating driver impairment by completing his investigation.
[18] The officer in this case had a suspicion before he asked the Applicant to step out of the car. Within seconds he sent for an ASD, because he did not have one. Then he asked the Applicant to step out of the car, so that he could ensure that his suspicion was reasonable. After he isolated the smell, and became more certain that it came from the Applicant's mouth, I would describe his initial suspicion as having become reasonable. Between the suspicion at 6:30 and the ASD demand at 6:35, his suspicion became reasonable. The ASD demand was read within minutes of his suspicion having become reasonable.
[19] Given what I have explained above, I conclude that the five minutes that elapsed between the time the initial suspicion was formed, and the minutes that elapsed between the time the reasonable suspicion was formed, and the time that the ASD demand was read was no more than was reasonably necessary to enable to officer to discharge his or her duty as contemplated by s. 254(2).
[20] The ASD was not immediately available. Ten minutes was not an unreasonable amount of time to allow for the ASD to be brought to the roadside. It arrived five minutes following the ASD demand. I do not find the short periods of time that elapsed to be unreasonable. While the arresting officer was waiting for the ASD, he attested to directing traffic and having a conversation with the Applicant. He may also have told her informally that she could use her cell phone while waiting in the car, consult a lawyer, or call for help. Since he had to wait for the ASD anyway, it was not unreasonable for him to use the time to attend to other duties. He should have read rights to counsel at the time he read the breath demand. The Applicant in this was cooperative and certainly not difficult to control.
[21] The ASD arrived ten minutes following the arresting officer having formed an initial suspicion that there was alcohol in the body of the Applicant. It arrived five minutes following his having formed a reasonable suspicion. The distinction drawn by the Ontario Court of Appeal in R v Torsney between a detainee having "a chance to call counsel" and a detainee being able to "consult with" counsel is instructive. The question that the judge of original instance should have asked in that case was whether "there was a realistic opportunity for the appellant…to contact, seek and receive advice from counsel." The right to call a lawyer "now" does not mean the right to call one instantly: It is a fact driven inquiry.
[22] It is my view that there would have no more than "a chance to call counsel" within the five minutes between the arresting officer's reasonable suspicion and the arrival of the ASD at the roadside. During that five minutes the arresting officer would have had to read rights to counsel or informally explain it, as he suggested he might have, and this may have been the conversation with the Applicant that he attested to having during that time, along with directing traffic. Then she would have had to look up the contact information, dial the number, and her counsel of choice may have picked up the phone. Assuming that he would have picked up the phone between 6:35 a.m. and 6:40 a.m., there would not even have been enough time to explain the problem, let alone obtain legal advice.
[23] Even if I give it ten minutes and take it as a given that rights to counsel may have been given immediately after the suspicion was formed, rather than the reasonable suspicion, there would still not have been time for a realistic opportunity to consult counsel. We know from our experience in these courts, and the countless drinking and driving cases we hear, that it can take 6 to 20 minutes for an actual consultation with counsel. The shortest call at the station that I have ever heard of is one that lasted 4 minutes. That is just the length of the call. It does not include locating contact information and dialing. If the actual lawyer does not answer the phone personally, time is also needed to locate the lawyer.
[24] Even if I take it as a given that the Applicant was detained from when a suspicion rather than a reasonable suspicion was formed, and ten minutes were available during which rights to counsel could be given, contact information obtained, the Applicant could dial the number on her cell phone, and her counsel of choice would actually pick up the phone, so a conversation would begin immediately, rather than more time elapse locating counsel should someone else answer (not to mention that one might get a recording and be obligated to leave a message) – even if I take all this as a given, I do not believe that there would have been a realistic opportunity to consult counsel of choice at the roadside.
[25] The case before me is not a case like R v George, where the officer knew that there would likely be a delay of fifteen to twenty minutes before the screening device would arrive. In that case there was a realistic prospect of reaching and consulting counsel, and it would be reasonable to expect the police to facilitate contact with counsel. This is not a case like R v Steele, where the arresting officer took her time sending for the ASD, and it was agreed that the Applicant had two cellphones with him, one containing a pre-programmed number of a criminal lawyer, who was available at the time and would have answered his phone had he received a call. It is not a case where there is evidence that there were seven to eight minutes available to speak to counsel at the roadside, and when the Applicant eventually spoke to counsel at the station, it only two six minutes. The matter before me is entirely distinguishable from the Steele case, relied upon by counsel. And this is not a case like R v Deja David, where there was an expected 15 to 20 minute wait, upon which counsel relies, and which is also distinguishable.
[26] For all of these reasons, I am satisfied that the five criteria articulated in Quansah, above, have been met, and the ASD demand was made forthwith but for the delay caused by the second ASD demand and test. There was no need to administer the test twice. The arresting officer's belief that there should be a mouth alcohol concern is not supported by the evidence nor was it reasonable given the information available to him at the time, but he acted in good faith and with the best of intentions. As such there has been no more than a technical breach of s. 8.
[27] Furthermore, I do not find that the arresting officer violated the Applicant's s. 8 and 9 Charter rights by requiring her to exit her vehicle for the purpose of determining whether the cause of the smell of alcohol emanating from the vehicle was the result of her consumption of alcohol. I am guided in this regard by the words of Sopinka J. in R v Evans:
I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence. I do, however, affirm that…the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning.
[28] At the time that the Applicant was asked by the arresting officer to step out of the vehicle, there was not a fundamental and discrete change in the purpose of the investigation in this case, one involving a different and unrelated offence or a significantly more serious offence than the one that had already begun. No warning had yet been given, because the officer did not yet have a reasonable suspicion. The detention had barely begun. Other than the fifteen minute delay caused by the second ASD test, I do not find a Charter contravention. The breach that I do find is very minor. The officer acted in good faith. There was minimal impact on the Applicant's Charter rights. It did not result in any additional detention, as she had to wait for the ASD in any case. The impact of having to step out of her car only caused a momentary and minimal impact on her security of the person.
[29] This breach alone would not bring the administration of justice into disrepute should the court not exclude all evidence obtained by police including evidence of breath samples and all utterances and statements made by the Applicant pursuant to section 254(5) of the Criminal Code. Precisely the opposite would be the case. If the Courts were to exclude the very reliable evidence of breath test result and any utterances and statements of the Applicant that would otherwise be admissible, this would reduce the confidence of the public in the administration of justice, and thereby bring the administration of justice into disrepute.
Have section 10(b) rights to counsel been breached?
[30] Section 10(b) of the Charter protects the right to counsel. It declares that, "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right." As summarized by Sopinka J in R v Evans:
The jurisprudence establishes that the duty on the police to inform a detained person of his or her right to counsel encompasses three subsidiary duties: (1) the duty to inform the detainee of his right to counsel; (2) the duty to give the detainee who so wishes a reasonable opportunity to exercise the right to retain and instruct counsel without delay; and (3) the duty to refrain from eliciting evidence from the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel…the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so, otherwise the correlative duty on the police to refrain from questioning him is suspended.
[31] A detainee who asserts his right to a particular counsel or counsel of choice must exercise that right diligently.
Whether legal advice has been sought diligently by the detained persons depends on the context of the situation. The element of reasonableness in furnishing a detainee with the opportunity to retain and instruct counsel necessarily excludes the concept of an absolute right to counsel of choice.
[32] The earlier cases found that within the context of the situation in drinking and driving cases, "the existence of 24 hour duty counsel services is a crucial factor that must be considered." In R v Richfield, the Ontario Court of Appeal found that the trial judge "failed to appreciate the significance of the availability of duty counsel as a factor in determining whether the appellant exercised his right to counsel with reasonable diligence." The Court went so far as to say, "It may be that initially the police were not as diligent as they could have been in facilitating the appellant's access to counsel of his choice after calling the lawyer's number and getting the answering service." The Appeal Court listed some of the other things the police could have done, including that they could have called more than once. The Ontario Court of Appeal concluded that it was enough that when the first counsel of choice did not call back, that the police offered the convenient 1-800 duty counsel service. When the detainee did not wish to speak to duty counsel, he was apparently "not diligent." The option of speaking to another lawyer other than duty counsel was not even considered.
[33] In R v Willier, the Supreme Court of Canada dealt with the situation of a detainee opting to exercise the right to counsel by speaking with a specific lawyer:
If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation…If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended …
[34] In Willier, the Court found that police did not interfere with the right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of duty counsel after his unsuccessful attempt to call a particular lawyer. The difference between the older cases and newer ones from lower courts is that in the newer cases, it is suggested that there is a police practice in the Ontario Regions of Toronto and Peel of channelling detainees to duty counsel, when their chosen lawyer is not immediately available. They are not merely reminding detainees of the immediately available duty counsel option, after unsuccessful attempts to call a particular lawyer. They are channelling them. Furthermore, the detainees are not given the means to exercise due diligence with respect to their right to counsel. Ideally, detainees should be permitted to make phone calls to counsel themselves, and be provided with the resources to do so – phone books containing white and yellow pages, lawyers' and paralegal directories and law lists, on-line directories, and access for detainees to their own cell phones and electronic directories. In Toronto and Peel, this ideal system is not used. As Horkins J has explained, "the obligation to facilitate access to counsel of choice" is placed "on the shoulders of the front-line officer":
In Toronto, the system appears to dictate that the accused is never allowed to actually dial a phone, let alone search the Internet, or be given a directory to look up contact information on their own. The approach of the Toronto police is that they control the process of gaining access to counsel and will seek to fulfill their duty of facilitating access to counsel, by making a call for the accused. They will make a call to private counsel and will "page" the on call duty counselor.
[35] As Horkins J has observed, there are problems with the approach used in Toronto:
The police will not usually have the contact information for private counsel, are not equipped with the means of obtaining that contact information, and may not be particularly motivated to extend themselves in search for it when the handy "1-800" duty counsel service option is so easily available.
[36] In R v Maciel, Stribopoulos J has remarked:
For reasons that went unexplained before me, the evidence at trial made clear that the Peel Regional Police have assumed the responsibility of contacting counsel on behalf of those who are in police custody. This is in contrast to the practice elsewhere in the country, where the police discharge their duty to provide persons in custody with a reasonable opportunity to contact counsel by providing them with the means to do so. For example, it would appear that in Alberta, those who assert their right to counsel are given access to a telephone, a lawyer's directory, phone books and are even provided with access to the Internet. In contrast, the Peel Regional Police have assumed the responsibility of consulting such resources on behalf of persons in their custody who assert their right to consult a lawyer of their choosing.
Quite obviously it is not my role to second-guess police operational procedures. And, to be clear, I do not believe there is anything constitutionally objectionable with the police assuming the responsibility of contacting counsel on behalf of those in their custody. That said, it is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts. Of course, this begs the question as to what standard should be used in evaluating the adequacy of police efforts.
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 of lawyer of their choosing.
[37] Horkins J, cited with approval by Stribopoulos J, applied the same standard:
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.
[38] I have found the judgments of my colleagues above to be instructive and persuasive, and I shall be applying the same standard.
[39] It was conceded by the arresting officer in his testimony in this case that it was an oversight on his part not to have given the Applicant her rights to counsel while they were waiting for the ASD, which actually arrived at 6:40. He agreed that he should have read the rights to Counsel at the same time as he read the first ASD demand. The arresting officer also agreed that there was another opportunity to provide rights to counsel between 6:45 and 7 a.m. The Applicant had been detained, asked to step outside the vehicle, and she "wasn't going anywhere." I am in agreement that there was a breach of the informational component of rights to counsel in this case.
[40] The arresting officer testified that he believed it was the practice for the police to make the call to counsel of choice at the police station, and that he would be making the call. The Applicant provided him with the name and phone number of her lawyer at 7:01a.m., which is when rights to counsel were read. I am sceptical about the arresting officer's evidence that he told the Applicant that she could "call a lawyer or someone for advice." The evidence is vague and internally inconsistent on this, and he did not record it in his notes. When questioned about why it was not recorded in his notes, he said that he would have recorded it if he was formally advising her of her rights to counsel. But because it was an informal conversation, he did not record it.
[41] The arresting officer testified that when they arrived at the station, the Applicant told him again that she has a lawyer and would like to speak to him. He obtained the phone number from her. He phoned the number. He did not know if it was an office number or a cell phone number. He reached a recording that said it was the office of Bernie Shier, the lawyer whose name the Applicant had given him, and he left a message. He called a second time 27 minutes later. Later in his testimony he said he thought it was a cell phone number, and he did not try and find an office number, because he did not expect a lawyer to be at his office on a Sunday. He made three attempts to contact Mr Shier at the same number, at 7:40, 8:07, and 8:19. At 8:19 he advised the Applicant that her lawyer had not called back, and he offered the services of duty counsel.
[42] The arresting officer testified that he was not aware that a detainee has three options, their own counsel, private counsel or legal aid duty counsel. They did not have phone books at the station. He did not allow her the option of using her cell phone, so she could make a call to her lawyer, or another private lawyer. It was his job to facilitate access to counsel, and he believed that phoning the same number three times, leaving three messages, and then offering duty counsel were sufficient efforts to facilitate counsel of choice.
[43] My view of the efforts made by the arresting officer to facilitate access to counsel of choice is that he made honest efforts, but they were not sufficient efforts. The standard I am applying is that of the diligence I would expect of an accused person, if they were permitted the means to access counsel themselves, i.e. phone books, the internet, lawyers' directories, the material that is routinely made available to detainees in Alberta, so they can make diligent efforts to reach and consult counsel, and use their own fingers to dial the phone. I would expect an accused person to do more than simply make three phone calls to one phone number and sit and wait. Such would not be enough for any jurist to say that an Accused had complied with the diligence required by the Richfield case, above, and its progeny. I would expect a diligent accused to try and locate other phone numbers, and call the other numbers. I would expect them to try and phone other private counsel, if they wished to. I would also expect, if the Applicant had been read her rights to counsel at the time that the ASD demand was made, that she would start fiddling with her cell phone immediately and find out the contact information for her lawyer of choice, while she was waiting for the ASD to arrive. If she were permitted to do so, she could phone her lawyer from the police station at a private location immediately after being paraded. If she had internet access on her cell phone, she could look for her lawyer's website, and access electronic white and yellow pages, and lawyers' directories. If her phone did not provide her with internet access, such access could be provided at the police station. And I cannot understand why they do not have any phone books at the police station. And if the police wished to remind a detainee, who was diligently pursuing the option of contacting counsel of choice – if they wished to remind such a detainee of the immediate option of phoning duty counsel, then this would be a case like Willier, above, and there would be nothing wrong with that.
[44] The implementation component of rights to counsel has been breached. This breach is aggravated by the informational component breach, without which implementation could have begun sooner than it did. Clearly, in this case the Toronto police approach to facilitating access to counsel of choice caused delay and impeded success, and fell short of the diligence that I would expect of a detainee, and what was possible for this detainee, had she not been hamstrung, and had she not been stripped of control by a system-wide police policy, which creates systemic resistance to all detainees who seek to access their counsel of choice.
Application of Section 24(2) of the Charter
[45] I must now decide whether the evidence should be excluded having regard to whether in all the circumstances, the admission of it in these proceedings would bring the administration of justice into disrepute. In considering the foregoing, I must apply the well-known framework for analysis, which was enunciated by the Supreme Court of Canada in R v Grant: the seriousness of the Charter infringing state conduct, the impact of the breach on the Applicant's Charter protected interests, and society's interest in the adjudication of the case on its merits.
[46] The Charter infringing conduct in this case was serious. I do not find that the arresting officer acted in bad faith. He simply carried out his duties in the manner in which he was trained. Lack of training is a systemic problem. As in R v Maciel and R v O'Shea, he was simply unaware of the extent of his duty to facilitate contact between those in their custody and counsel of choice. As in R v Panigas, the Accused Williams in this case was simply channelled to duty counsel, and not advised that she had the option of speaking to another lawyer other than duty counsel, when Bernie Shier did not return the calls. The police went into the automatic pilot bred by a systemic approach of steering suspects in a direction that is easy for them. The Charter infringing conduct was serious in this case, because it was systemic. There was not only a violation of the implementation component of rights to counsel. There was also a violation of the informational component, which was not only a violation in itself, but it aggravated the infringement of the implementation component by delaying implementation.
[47] The impact of the violation of the Applicant's Charter protected interests was medium to high. Had efforts to reach her counsel of choice begun sooner, had other numbers been tried, and had his website been found, he may have been reached. The Accused was impeded from having access to her own cell phone, and from trying to reach her lawyer, or another private lawyer herself. She was not even told she had the option of trying to reach another private lawyer, rather than speaking to duty counsel. If the police take control over facilitating access and making the phone calls, they must be at least as diligent as an accused doing it for themselves, at least as diligent as I would have expected the Accused Williams in this case to be, had she not been impeded from doing so. The lack of diligence by the police in this case with facilitating access to counsel of choice impacted the Applicant's Charter protected right to counsel, delayed the breath tests at the station, and extended the period of time that she was detained, which also impacted her Charter protected right to liberty. She was handcuffed, which impacted her security of the person. Right to counsel is a Charter right that has a high value according to the basic tenets of our justice system. I would rate the impact on the Applicant's Charter protected rights in this case as ranging from medium to high.
[48] The strong societal interest in truth seeking and the adjudication of criminal prosecutions on their merits general favours inclusion. But I am required to weigh all three factors in my determination as to whether the evidence should be excluded. When the infringement is serious, and the impact is medium to high, this must be evaluated by weighing in the third factor, which generally favours inclusion. I need also take into account that systemically induced routine violations of rights create disrespect and lack of confidence in the administration of justice. There was also a minor violation of s. 8, which I have weighed into my analysis.
[49] The balance tips in favour of excluding the evidence.
Released: July 16, 2018
Signed: Justice Sheila Ray