ONTARIO COURT OF JUSTICE

Date: October 3, 2018 Court File No.: 17001247

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

STEVEN KOWALCHUK

Before: Justice C.A. Parry

Heard on: April 20 and September 24, 2018

Reasons for Judgment released on: October 3, 2018

Counsel:

E. Hines Reimer, for the Crown
A. Fiszauf, for the defendant Kowalchuk

PARRY J.:

I. INTRODUCTION

[1] Mr. Kowalchuk is charged with driving while his blood alcohol content was over the legal limit. His breath samples disclosed a BAC of between 100 and 110 mg of alcohol/100ml of blood.

[2] In his defense, he argues that the police violated some rights guaranteed by the Canadian Charter of Rights and Freedoms.

[3] First, he alleges that Officer Coombs breached his right against unreasonable searches and seizures and his right against arbitrary detention when making an approved screening device demand. In short, he alleges that the officer did not possess a reasonable suspicion that he had alcohol in his body when making an approved screening device demand at the roadside.

[4] He also alleges that Officer Coombs violated his right to counsel of choice by steering him towards a consultation with duty counsel.

[5] Finally, he alleges that the police failed to establish that they obtained the breath samples as soon as practicable, which is a requirement of the provision that authorized the taking of his breath samples.

II. FINDINGS OF FACT

[6] Mr. Kowalchuk had recently arrived in Ontario from Alberta. He moved here to start a new job. He had been here for a month. He was arrested by Officer Coombs in the parking lot of University Plaza at around 2 a.m., where he was looking for an all-night restaurant. He wanted to eat before returning to a charity radio-event. Unfortunately for him, he had consumed 3 large glasses of wine at home while taking a break from a 24 hour charity radio-event. He finished his last drink at around 11 pm.

[7] Officer Coombs was a relatively new officer. He had been on the job less than two years and thus very recently trained.

[8] Officer Coombs smelled the odour of alcohol coming from Mr. Kowalchuk's breath when speaking to him in the parking lot. While I accept that it was a windy night, I am not satisfied that the wind necessarily precluded Officer Coombs from smelling the odour of alcohol on Mr. Kowalchuk's breath. I come to this conclusion, in part, because of what happened next. Officer Coombs asked Mr. Kowalchuk if he had been drinking. Mr. Kowalchuk told him that he had been drinking earlier. This admission corroborates Officer Coombs' assertion that he could smell alcohol on the accused's breath. The combination of the odour and the admission caused Officer Coombs to suspect the accused had alcohol in his body. I accept Officer Coombs' account of his subjective observations and belief.

[9] Upon arrest, Officer Coombs read to the accused his right to counsel. He read directly from his notebook. When asked if he wished to speak to a lawyer, the accused replied "yes please".

[10] At the station, Officer Coombs asked Mr. Kowalchuk if he had any particular lawyer in mind. Mr. Kowalchuk told him that he did not have a lawyer in mind and that he was not from around here. Indeed, Mr. Kowalchuk provided a clear indication that he was from out-of-province when he provided an Alberta Driver's Licence to the officer at the roadside. I find that Officer Coombs believed Mr. Kowalchuk to be from Alberta. I also find that Officer Coombs believed Mr. Kowalchuk's assertion that, being from out of province, he did not have a local lawyer in mind.

[11] Officer Coombs, according to his usual practice at the time, believes he then asked Mr. Kowalchuk if he wished to speak to duty counsel. I accept that this was in fact Officer Coombs' response to his conclusion that Mr. Kowalchuk did not come into this situation prepared with a lawyer already in mind. I also accept the evidence of Mr. Kowalchuk and Officer Coombs that Mr. Kowalchuk agreed to Coombs' invitation to speak to duty counsel. Officer Coombs did not provide a legal directory, a phone book, yellow pages, or any other means by which Mr. Kowalchuk might make an informed decision about his counsel of choice. He also did not inform the accused of his right to search for a counsel of his choosing. When faced with the knowledge that the accused was not from the province and did not know a lawyer, he provided the accused with only one viable option: placing a call to duty counsel. Officer Coombs described his failure to provide Mr. Kowalchuk with the means to search for a lawyer — and by implication the right to conduct that search – as an oversight on his part. He blamed that oversight on his inexperience and on the training he had received up to that point in his career (which was less than 2 years old). I conclude from his evidence that, when initially trained, he was not trained to provide detainees phone books or directories when it was clear that they did not already have a lawyer's name and number in mind. I further conclude that he was trained to simply offer a call to duty counsel in these circumstances. Having said that, I accept Officer Coombs' evidence that, since arresting the accused, he has received additional training about the right to counsel. He now knows to offer a detainee the use of directories so that the detainee has the means to select a lawyer of his choosing. I further accept his evidence that, if he could go back in time, he would conduct himself differently.

[12] For his part, Mr. Kowalchuk testified that he did not have a lawyer to present to Officer Coombs when informed of his right to counsel. He had never been in this situation before. He was waiting for the officer to present options to him. The officer provided no options other than calling duty counsel. I accept Mr. Kowalchuk's assertion that, in the circumstances, he did not believe he had any other options than to accept the offer to speak to the duty counsel being suggested by Officer Coombs. I further accept that, when he was placed in a small room containing a phone, the phone in question had no dial pad and therefore could not be employed to make outgoing calls. I also accept Mr. Kowalchuk's evidence that the initial call from duty counsel was cut off and that the subsequent call was very brief, about a minute in length. Finally, I accept Mr. Kowalchuk's assertion that he was unhappy with his legal advice but did not believe he had any other options.

[13] I want to pause here to say that I commend Officer Coombs for his honesty, candor, and professionalism. In his testimony, he has represented his police force honourably. The outcome of this case turns largely upon the fact that he followed flawed police training and procedures, not upon any intentional breaches of Mr. Kowalchuk's rights or upon any knowingly malevolent behaviours or testimony.

III. ANALYSIS OF THE ALLEGED BREACHES OF SECTIONS 8 AND 9 OF THE CHARTER

[14] I have found that Officer Coombs did in fact smell alcohol coming from the accused's breath. I have also found that this perception was what in part caused Officer Coombs to ask the accused about his prior alcohol consumption. I have also found that the accused's admission of earlier alcohol consumption and the current odour of alcohol caused Officer Coombs to suspect that accused had alcohol in his body. I conclude that this subjective suspicion was entirely reasonable. I therefore conclude that there existed a lawful basis for making an ASD demand.

IV. ANALYSIS OF THE COMPLAINT THAT THE SAMPLES WERE NOT TAKEN AS SOON AS PRACTICABLE

[15] In submissions, Mr. Fiszauf effectively abandoned this plank of his Charter application. He did so for good reason.

[16] The first Intoxilyzer breath sample was taken about one hour and twenty seven minutes after the initial traffic stop, and a mere one hour and 13 minutes after the breath demand. In my assessment, the Crown called evidence to account for all but about 16 minutes of this very brief drinking and driving investigation. The law does not require breath samples to be taken at the earliest opportunity. Rather, it requires that the police obtain the samples "within a reasonably prompt time under the circumstances." I am more than satisfied that the police obtained the samples within a reasonably prompt time.

V. ANALYSIS OF THE COMPLAINT THAT THE POLICE VIOLATED THE ACCUSED'S RIGHT TO COUNSEL

[17] Arrestees have a right to contact their counsel of choice.[1] Once the accused asserts the right to counsel, the police have a positive obligation to facilitate the accused's ability to choose a lawyer and to assist the accused in making contact with that lawyer.[2]

[18] The Supreme Court has made it clear that the right to counsel includes the right to make meaningful choices about the exercise of that right.[3] It follows that when an accused has asserted his right to counsel, and has also declared that he does not know and has not yet chosen a counsel, the police bear a responsibility to inform the accused about how he might go about fulfilling his desire to consult a counsel of his choosing.[4] This obligation arises because the police are aware of an informational deficit, one which precludes the making of meaningful choices and precludes the making of any informed waiver of the constitutional right.[5] At the very least, this responsibility ought to include informing the accused of the right to access legal directories [for example, the Yellow Pages, Google, or local bar association lists] for the purpose of making that choice. This obligation does not depend upon the accused making a request for this additional information. The accused does not bear an onus to make inquiries as to how he or she might exercise the right to counsel.[6] The court does not expect an accused to know the full extent of his rights until after the accused has consulted counsel. Requiring an accused to know and assert a component of his right to counsel prior to any consultation with his counsel would turn the right on its head, diminishing its utility to those who need it most.

[19] In the case at bar, Officer Coombs knew Mr. Kowalchuk did not have a lawyer. He also believed that Mr. Kowalchuk was not from the jurisdiction. As a result, he knew or ought to have known that Mr. Kowalchuk did not have the means by which to make a meaningful choice in the selection of counsel. Rather than present Mr. Kowalchuk with the means to make a meaningful choice, Officer Coombs provided the accused a menu with one item on it: duty counsel. In doing so, he subverted a fundamental component of the right to counsel: the right to choose an adviser in whom you have trust and confidence.

[20] Some might be tempted to dismiss the importance of choice, arguing that the accused spoke to a lawyer and presumably received competent advice. In answer to that, I repeat what I said in R. v. Sakharevych:

The solicitor-client relationship is as much personal as it is professional. To make informed decisions in the face of a state prosecution, accused people must trust the loyalty, integrity, and wisdom of the person providing the advice. They must also trust the lawyer to maintain their confidence. Each arrestee will have his/her own unique reasons for arriving at that state of trust in his/her chosen lawyer. It is not the place of the court to scrutinize the means by which that trust is obtained. It is the place of the court, however, to safeguard the right of each individual charged with an offence to seek and obtain that relationship of trust between solicitor and client.

[21] A similar point was made by Justice Doherty in R. v. Rover, 2018 ONCA 745:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. (para. 45)

[22] As I say, it is not for the court to question how an arrestee comes to have trust and confidence in a particular lawyer: some will just like the look of the yellow pages ad; some will just like the lawyer's name; some will be moved by the specific representations in the body of the ad. What matters is providing the accused, who is isolated and in the control of the state, the opportunity to seek advice s/he can trust. Constable Coombs deprived the accused that opportunity. Once aware that the accused did not know a lawyer and did not have the means to choose one, Officer Coombs steered Mr. Kowalchuk to a single choice. In doing so, he breached the accused's right to his counsel of choice.

VI. THE REQUEST TO EXCLUDE THE EVIDENCE, PURSUANT TO SECTION 24(2) OF THE CHARTER

[23] Mr. Kowalchuk bears the burden on a balance of probabilities of establishing that:

The evidence the defence seeks to exclude was obtained in a manner that infringed the Charter protected right; and
The admission of the evidence in this case would bring the administration of justice into further disrepute.

[24] The Crown has tacitly acknowledged that the evidence was obtained in a manner that infringed a Charter protected right: compliance with the breath demand was done before consultation with a counsel of the accused's choosing. This criterion of section 24(2) of the Charter is easily satisfied.

[25] In answering whether the admission of the evidence [the breath tests] will bring the administration of justice into further disrepute, the Supreme Court instructs me to consider the seriousness of the state infringing conduct [admission may send the message that the justice system condones serious state misconduct], the significance of the impact of the breach on the accused's Charter protected right [admission may send the message that individual rights count for little], and society's interest in having the case adjudicated on its merits.

[26] In considering the seriousness of the state infringing conduct, I have come to the conclusion that the breach is a serious one. I do not do so because I believe the breach was motivated by malice or bad faith. Ironically, it is Constable Coombs' candour, humility, and professionalism that provides the evidence that supports this conclusion. Constable Coombs readily admitted that in committing the breach he was following his training, the initial training he received less than two years before arresting Mr. Kowalchuk. Unfortunately, this training was inadequate and this inadequacy is not justifiable. It is not justifiable, because the issue is so readily foreseeable. By that, I mean that it is readily foreseeable that many arrestees, particularly in drinking and driving cases, will have had no prior experience with the criminal justice system and thus no prior knowledge of the full scope of their right to counsel. In that regard, I cannot help but observe that a significant proportion of the people that appear before me in drinking and driving trials have little to no prior experience in the criminal justice system. The courts have long observed that many otherwise law abiding people nevertheless continue to drink and drive – this reality serves as a significant basis for the emphasis on general deterrence and denunciation in the sentencing of drinking and driving offences. Police should know many arrestees will not have the knowledge necessary to meaningfully exercise their right to counsel. If they are not training their officers to fill that knowledge gap, then they are, by this omission, encouraging systemic violation of a Charter right. The omission in the training may have been inadvertent, but that might just make the harms occasioned by the inadequate training more insidious. This branch of the analysis therefore favours the exclusion of the evidence.

[27] I pause here to note that Officer Coombs suggests he has since received additional training and he now knows to inform accused people of the availability of phone directories. If his evidence stands as proof that police practices in the jurisdiction have changed, this is very encouraging news. It is a sign that the police are being responsive to court decisions on Charter issues. It is a sign that the Charter is performing its function of preserving the long term repute of the administration of justice. Admission of evidence obtained as a result of inadequate training would remove the incentive to correct the training. For this reason, it will be difficult for post-breach correction of police practices to cure pre-breach police practices.

[28] I turn now to the impact of the breach on the Charter protected rights of the accused. Mr. Kowalchuk lost the opportunity to contact his counsel of choice. He instead spoke very briefly with a duty counsel, whose advice he found to be unsatisfactory. As I noted in R. v. Middleton:

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. ... 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 both the 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 [an accused]… may have received had he been afforded the right to consult [with his counsel]. The violation was complete when [the accused]… lost the opportunity to consult his counsel of choice. I therefore view the impact on [the accused's]… Charter protected right to be very grave.

Having concluded that the impact upon the accused's Charter protected rights is serious, I find that this aspect of the analysis favours exclusion of evidence.

[29] With regard to society's interests in having the charges determined on their merits, I agree that the evidence in question here is reliable and crucial to the Crown's prospect of a conviction. I also agree that the charge here is a serious one. For this reason, I conclude that this branch of the analysis favours admission of the evidence.

[30] Having considered the above noted factors, I have come to the conclusion that the combination of the seriousness of the police conduct and the impact of the breach on the Charter protected right of the accused outweighs society's interest in a trial on the merits. In my view the long term repute of the administration of justice is best served by the exclusion of the evidence.

Released: October 3, 2018

Signed: Justice C.A. Parry