Court Information

Court: Ontario Court of Justice

Date: December 6, 2018

Court File No.: Guelph 1486-17

Before: Justice G.F. Hearn

Heard: October 3, 2018 and November 9, 2018

Reasons for Judgment Released: December 6, 2018

Parties and Counsel

Between:

Her Majesty the Queen

— AND —

Shawn Rowland

Counsel:

M. Dolby — counsel for the Crown
W. Thompson — counsel for the defendant Shawn Rowland

HEARN J.:

BACKGROUND

[1] On October 3, 2018 Mr. Rowland entered a plea of not guilty to a count of operating a motor vehicle having consumed alcohol in such a quantity that his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood. Prior to trial the accused had served and filed Notices of Application alleging breaches under sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms and seeking an exclusion of evidence specifically as it relates to the breath test results of samples provided by Mr. Rowland on June 9, 2017.

[2] The defence had originally filed a Notice of Application for a trial date of February 28, 2018 alleging a breach under section 10(b) of the Charter. An amended application returnable the same date, again alleging a breach under section 10(b) setting out additional grounds in support of that application, was served and filed on the Crown. The Crown filed a response to that particular application.

[3] A further Notice of Application, alleging a breach under section 8 of the Charter, was served and filed by the defence in August of 2018. The Crown has not filed a formal response to that particular application but the trial proceeded ultimately on October 3, 2018 without objection in that regard by the defence and on the clear understanding that the Crown's position was similar to the position on section 10(b), namely that none of the accused's rights under the Charter had been breached and, if so, upon a proper analysis under section 24(2) of the Charter no evidence should be excluded.

[4] Evidence was called over the course of two days, October 3 and November 9, 2018, and following the completion of evidence submissions were heard. The matter was then adjourned to today's date for judgment. The matter has proceeded as a blended hearing and the Crown has called two police officers to testify on both the application and trial issues. Mr. Rowland elected to give evidence on his own behalf with respect to the application only. The defence has elected not to call any evidence at trial and reasonably submits that the court's rulings on the Charter applications will be dispositive of the findings to be made ultimately by the court.

EVIDENCE ON THE BLENDED HEARING

(a) Evidence of Constable Richard DeVilliers

[5] Constable DeVilliers is a member of the Ontario Provincial Police and has been since August of 2010. He and other officers were conducting a R.I.D.E. program on June 9, 2017 in the Township of Puslinch. At approximately 9:04 p.m. a black pickup entered the R.I.D.E. program being operated by Mr. Rowland.

[6] Mr. Rowland was the lone occupant of the vehicle and the officer detected an odour of an alcoholic beverage on his breath. The officer also noted Mr. Rowland's face to be flushed and his eyes being red and glossy. There was a brief discussion with Mr. Rowland and Mr. Rowland acknowledged that he had had two beers at a friend's place, with the last beer being approximately 20 minutes prior to being stopped.

[7] At 9:05 p.m. the officer read a breath demand for the approved screening device (properly described). Mr. Rowland indicated he understood the demand and at 9:06 p.m. the officer demonstrated the instrument to him and explained its operation and the possible results. The officer then provided a sample of his own breath into the approved screening device and the officer testified the result was "zero".

[8] Following that, at 9:09 p.m. Mr. Rowland provided a sample which registered a 'Fail' on the device. The officer properly articulated what a fail would mean to him and then placed Mr. Rowland under arrest for over 80 at 9:09 p.m.

[9] At 9:11 p.m. the officer read from a pre-printed card rights to counsel to Mr. Rowland. There is no issue about the wording and following the reading the officer asked Mr. Rowland if he understood. Mr. Rowland's response was "Yes, I understand. Does it have to be this minute?".

[10] The officer then advised Mr. Rowland as follows: "Yes or when we get back to the detachment in private." The officer testified he explained to Mr. Rowland that he could call his lawyer or duty counsel and talk to them in private in the back of his cruiser to which Mr. Rowland responded, "No, back at the detachment."

[11] At 9:14 p.m. the standard caution was read, followed at 9:16 p.m. with the reading of the standard breath demand. Again, there is no issue taken with the wording of either the caution or the demand. Mr. Rowland indicated his understanding of both.

[12] They left the scene at 9:23 p.m. and arrived at the Cambridge O.P.P. detachment at 9:32 p.m.

[13] At the detachment Mr. Rowland was asked if he wished to speak to a lawyer or duty counsel and indicated to the officer that he wanted to "speak to his lawyer". Mr. Rowland provided the name of Darren Hastings and retrieved a contact number from his cell phone and provided it to the officer.

[14] At 9:39 p.m. Mr. Rowland was placed in a cell and the officer advised Mr. Rowland that the area was being "videotaped". The officer made a call to Mr. Hastings' number at 9:40 p.m. There was no answer. A voice mail message was left in which the officer testified he explained the incident details and provided a callback number. At 9:42 p.m. a qualified breath technician, Cst. Wiens, advised that the Intoxilyzer 8000-C was ready for use.

[15] Constable DeVilliers advised Cst. Wiens that he was waiting for a call back from Mr. Rowland's lawyer and at 9:52 p.m. he provided his grounds to Cst. Wiens. Those grounds were comprised of the odour of an alcoholic beverage on Mr. Rowland's breath, the operation of the vehicle, flushed face, red glossy eyes and the failure on the approved screening device.

[16] At 9:55 p.m. the officer advised Mr. Rowland he was still waiting for the "lawyer" to call back and inquired whether or not Mr. Rowland had an alternative number or if he wished to call duty counsel. Mr. Rowland "insisted" that he wanted to speak to his "lawyer".

[17] The officer then placed a second call to the number provided at 10:00 p.m. without response and again asked Mr. Rowland if there was another lawyer he could call or if he wished to call duty counsel. Mr. Rowland asked for his cell phone to see if he had an alternative number and Mr. Rowland's cell phone was provided to him by the officer.

[18] Mr. Rowland then attempted to call Mr. Hastings from his cell phone himself with negative results. Mr. Rowland also left a message to call him back and "at that time he agreed to speak with duty counsel".

[19] When asked how that came about, the officer stated as follows:

"I must have asked him 'Do you still want to wait or do you want to speak to duty counsel?' and he agreed to speak with duty counsel."

[20] At 10:10 p.m. duty counsel was called and a message was left. At 10:21 p.m. the duty counsel returned the call and Mr. Rowland was given an opportunity to speak with duty counsel "in private in the cell area".

[21] At 10:36 p.m. the officer could tell from the video that Mr. Rowland's back was turned and he seemed to be just standing with the phone in his hand. The officer then went to the cell area, could see that Mr. Rowland was not talking to anyone any more and asked him if he was done speaking with duty counsel. Mr. Rowland then stated that he was and also advised the officer that duty counsel had indicated he was to do the tests but not to answer any questions.

[22] At 10:36 p.m. he was removed from the cell and escorted to the breath room where the officer stated he explained to Mr. Rowland that the breath room was "audio and video recorded". As he had done in the cell area, he also pointed out the location of the video camera in the breath room.

[23] A "recap" of Mr. Rowland's rights to counsel was provided to Cst. Wiens, at which time Mr. Rowland advised he was satisfied with his discussion with duty counsel.

[24] At 11:08 p.m. Cst. Wiens advised the breath tests were completed and that two readings had been obtained, one at 10:44 p.m. registering 99 milligrams of alcohol in 100 millilitres of blood and a second reading at 11:06 p.m. with the result of 92 milligrams of alcohol in 100 millilitres of blood.

[25] Mr. Rowland was returned to Cst. DeVilliers and at 11:44 p.m. he was released after the service of a number of documents had been completed.

[26] Constable DeVilliers advised that he never did receive a call back from Darren Hastings and as far as he was aware Mr. Hastings had never called back to the detachment.

[27] The officer also confirmed with respect to the screening device that he is qualified to use it and as well as being a police officer he is also a qualified breath technician.

[28] In cross-examination with respect to his experience, the officer advised that he had been on a number of R.I.D.E. programs throughout the course of his policing career and had probably done "in excess of 50" impaired investigations. The officer candidly acknowledged that during the course of his evidence in-chief he had indicated when he had done something "he must have", e.g. when discussing the issue of a lawyer with Mr. Rowland he agreed that he was "sort of working backwards" as that is what he "normally would do". Still, although he could not recall "100 percent" the exact words he used, he was clear that he had given Mr. Rowland the option of waiting for his lawyer or placing a call to duty counsel.

[29] The officer agreed that when he first had contact with Mr. Rowland, although he could smell the odour of alcohol on his breath, he had made no note of any difficulty with his speech or co-ordination.

[30] With respect to the approved screening device, the officer acknowledged that he had nothing in his notes as to when that instrument had been last calibrated but agreed that that was an "important consideration". The officer testified that the O.P.P. do accuracy checks on these types of devices every 15 days and calibration checks every six months. When asked how he would check this, the officer noted that he could check it on the device and there was also a sheet inside the box that contained the device that shows the date when the last accuracy check and calibration were done.

[31] The officer was asked if he had a note of having so checked. He did not have a note but believed the instrument was functioning properly as he had provided a sample which indicated a zero and, according to the officer, "if it wasn't calibrated it would not allow you to provide a sample".

[32] The officer was asked about the O.P.P. policy for checking the accuracy and calibration. It was put to him as follows:

"Question: And so if you had checked the device and seen that it had not or beyond 15 days for its last accuracy check you wouldn't have used that device, right?

Answer: No.

Question: Because it would be unreasonable to rely on that device, right?

Answer: Yeah. Absolutely, yes."

[33] The officer in cross-examination was then directed to his will-state which had been completed on June 10, 2017, the evening after the R.I.D.E. program where the officer had written "Blowing directly into the approved screening device, a Drager Alcotest 6810, serial number AREV1239, last calibrated on March 26, 2017, last accuracy check on May 22, 2017".

[34] The officer testified that before they take an approved screening device on the road "we have to make sure that it was functioning properly" and, specifically, the timing of the accuracy test and calibration". The officer agreed that based on his will-state the last accuracy test was more than 15 days prior to the June 9, 2017 R.I.D.E. program. The following exchange then took place with counsel:

"Question: Do you agree with me you shouldn't have been using that ASD, right?

Answer: I agree, yes.

Question: It wouldn't be reasonable to rely on the result of that ASD given your O.P.P. policy and training, right?

Answer: That is correct, yes.

Question: And absent the results of the ASD test you didn't have grounds to believe that Mr. Rowland was committing an offence of over 80, right?

Answer: Based on the O.P.P. police, yes. The ASD was still functioning correctly, properly. As I explained, I did a self-breath test, it was functioning correctly but based on O.P.P. policy, yes.

Question: And you agree with me that you wouldn't use an ASD that was outside of that 15 day accuracy check?

Answer: I would not have, no, because it's O.P.P. policy not to."

[35] With respect to the issue of duty counsel, the officer was questioned thoroughly with regard to efforts he made to contact Darren Hastings as requested by Mr. Rowland. The officer also appreciated that someone could call a third party in order to facilitate access to counsel.

[36] It was suggested that Mr. Rowland had not described Mr. Hastings as a "lawyer" when requested but the officer was adamant that he was told Mr. Hastings was a lawyer and he had noted so in his notebook. When it was suggested that Mr. Rowland had used the term 'paralegal', the officer responded that he "didn't recall him telling me that it's a paralegal". He did agree, however, that if Mr. Rowland had made it clear that Mr. Hastings was not a lawyer but could assist him in getting a lawyer, he would have still provided Mr. Rowland an opportunity to speak with Mr. Hastings. The officer also agreed with counsel that throughout detention it was clear to him Mr. Rowland wished to speak to Mr. Hastings. He had allowed Mr. Rowland to check his cell phone but did not provide him with an alternative means to obtain another number for Mr. Hastings. He had contacted Mr. Hastings, received a voice mail message and was satisfied that the message he left was for Mr. Hastings. He had not made a note, nor did he have complete recollection of what the message he left was, but recalled that he gave a brief overview of the incident at 9:40 p.m. He agreed that 15 minutes later, at 9:55 p.m. he had gone to Mr. Rowland again and asked if he had an alternative number. Counsel suggested to the officer that "the clock is ticking" at that point. The officer agreed but also indicated he wanted to give Mr. Rowland an option to speak to duty counsel but was still prepared to wait for Mr. Hastings to call back. At that point Mr. Rowland was clear he did not wish to speak to duty counsel and did not want to speak to anyone other than Mr. Hastings. As a result, the officer tried again to call Mr. Hastings at 10:00 p.m. and left a second message.

[37] Two minutes later the officer returned to the cell area and again asked Mr. Rowland if he wished to call another lawyer or contact duty counsel. Mr. Rowland, as noted, requested his phone to look up an alternative number and it was given to him. Mr. Rowland then made a phone call on his cell phone and left a message for Mr. Hastings. This was done in the presence of the officer. It was after this call that the officer again asked Mr. Rowland if he would like to speak to duty counsel and it was only then Mr. Rowland agreed to do so.

[38] The officer denied that he had given Mr. Rowland a choice to either speak to duty counsel or proceed with the breath tests. The officer denied this was the case and stated again he had asked Mr. Rowland if he wished to wait for his lawyer or give duty counsel a call. As the officer put it, he would never have proceeded with the breath tests if Mr. Rowland did not wish to speak to duty counsel. This conversation occurred at about 10:07 p.m.

[39] At this point in the cross-examination, the officer was shown a video tape showing the interaction of himself and Mr. Rowland, both in the cell area and in the breath room. The interaction in the cell area is shown on the video where Mr. Rowland is provided the cell phone by Cst. DeVilliers and also shows Cst. DeVilliers pointing at his watch and gesturing to a door. It was suggested to the officer that he effectively was telling Mr. Rowland at that point that time is important and he needed to make a decision about calling duty counsel or another lawyer or do the breath tests. The officer indicated, "From what I said, I didn't make a note of it, it's probably we've been waiting 20 minutes. Is it possible do you want to wait for your lawyer or can I just get you duty counsel?"

[40] The officer testified he was not pressuring Mr. Rowland and although he indicated what he might have said, he did not really remember. He did agree that during the conversation he was pointing to his watch but denied he would ever tell Mr. Rowland "his time was up". The officer was unable to recall exactly what Mr. Rowland had said when he apparently decided to call duty counsel. The officer did acknowledge that up to that point Mr. Rowland had been consistently telling him he wished to speak to Mr. Hastings.

[41] Ultimately, the officer was unable to testify exactly what had been said when he pointed to the watch and there appears to be an exchange on the video between himself and Mr. Rowland. Once the cell phone had been provided to Mr. Rowland, he left a message for Mr. Hastings, the phone was taken back by the officer and put in a "bin" outside of the cell area where Mr. Rowland would have had no access to it.

[42] The officer testified the phone remained there while Mr. Rowland was in the breath room. It appears that the only individuals in the detachment were Cst. Wiens, the breath technician and Cst. DeVilliers at the time. The officer was questioned on the timing of the call to duty counsel being 30 minutes after a first call had been placed to Mr. Hastings. He, however, denied that he had given Mr. Rowland a 30-minute deadline before he would have to make a decision of calling someone else or duty counsel or taking the breath tests.

[43] With respect to the issue of privacy, the officer acknowledged there was not a privacy booth for a detainee to exercise his rights to counsel at the detachment and that was done in the cell area which, although videotaped, was not audio-taped. When it was suggested the officer had indicated to Mr. Rowland upon arrival at the detachment that everything was video-recorded, the officer indicated he could not recall if that was mentioned as he had not noted it but that was a "pretty standard thing" to say. When it was put to the officer that he never drew any distinction between some areas being audio-recorded and some areas being video-recorded, the officer again stated he had not made a note of that so he could not recall if he advised Mr. Rowland of that at the time of arrival at the detachment. He did testify he told Mr. Rowland that the cell area was videotaped and in the breath room he had advised Mr. Rowland that the breath room was audio and video-recorded.

[44] With respect to the call to duty counsel, the officer acknowledged he had been able to observe Mr. Rowland on the phone talking to duty counsel on the video and at 10:36 p.m. he noted something different about Mr. Rowland's "body language". Mr. Rowland was apparently holding the phone to his ear and although the officer had noted in his notebook he observed Mr. Rowland's lips not moving and that is what led him to open the door to the cell, the officer indicated the sequence in his notes was incorrect and he actually had not noticed the lips not moving until he had entered the cell and observed Mr. Rowland just holding onto the phone. He in fact agreed there was no way he could see whether Mr. Rowland's lips were moving or not by viewing the video as Mr. Rowland had his back to him.

[45] Although the call to duty counsel appears to have been exactly 15 minutes from 10:21 p.m. to 10:36 p.m., the officer denied that he had decided a 15-minute call with duty counsel was long enough. He stated he only entered the cell area because of the "body language" of Mr. Rowland which indicated to him that the call had been completed and the phone was just simply being held. It was put to him that when he went into the cell Mr. Rowland indicated he was not certain whether duty counsel had hung up or had simply placed him on hold. Although the officer did not have any recollection of that, nor had noted that in his notes, it was clear the officer then put the phone to his ear and that is shown on the video. It was suggested he had done so because, as Mr. Rowland indicated, he did not know if duty counsel was gone or simply had put Mr. Rowland on hold. The video then shows the officer hang up the phone at 10:36 p.m.

[46] The officer denied he was angry and upset with Mr. Rowland for "wasting time". He denied Mr. Rowland had told him the call with duty counsel was not helpful and in fact the officer offered that on the video from the breath room where audio was in place it appears that Mr. Rowland indicated he was satisfied with his discussion with duty counsel. The officer did agree that if Mr. Rowland had indicated duty counsel was not helpful nor very responsive he would not have continued with the breath tests.

[47] Again, the video shows interaction visually and then by audio as well once the officer and Mr. Rowland entered the breath room. The officer did agree that the first time he drew any kind of distinction between audio and video-recording was upon entering the breath room.

[48] With respect to being satisfied with duty counsel, the video was played in that particular area and Mr. Rowland seems to respond, "Yeah". The officer agreed Mr. Rowland had stated "Yeah, but", then shrugged his shoulders and was kind of "shaking his head". The video also shows Cst. Wiens intervening at that point and asking if that is what happened, to which Mr. Rowland responded, "Yeah".

Evidence of Constable Robert Wiens

[49] Constable Wiens is a member of the Ontario Provincial Police and is a qualified intoxilyzer technician. On June 9, 2017 at approximately 9:14 p.m. he was advised to return to the detachment for the purposes of breath tests. He arrived at the detachment at 9:30 p.m. and prepared the Intoxilyzer 8000-C. There was no issue taken with the officer's qualifications, nor the steps he took to make sure the instrument was in proper working order. He was ready to receive the samples and in fact took custody of Mr. Rowland at 10:32 p.m.

[50] The officer was led through the testing procedure by the Crown and testified that two samples of Mr. Rowland's breath were obtained, one at 10:44 p.m. with a reading of 99 milligrams of alcohol in 100 millilitres of blood and the second one at 11:06 p.m. with a reading of 92 milligrams of alcohol in 100 millilitres of blood.

[51] Between the two tests the officer had attempted to conduct an interview with respect to the alcohol influence report. Mr. Rowland declined to answer such questions and as a result was placed back in his cell at 10:46 p.m. awaiting the second test. At that time Mr. Rowland asked if he could have his cell phone to see if any messages had been received from his "lawyer". The officer noted there was a voice mail on the phone but no message was left.

[52] The officer was questioned with respect to his familiarity with the approved screening device. Learning how to operate such a device is one of the "first things you learn as a police officer" and part of the duties of a qualified breath technician is also to do accuracy checks and calibrations of the devices.

[53] With respect to the accuracy checks, the officer confirmed that they "needed to be done every 15 days". He stated as follows with respect to that and the calibrations:

"They are calibrated every six months. Calibrations are good for 182 days and the accuracy check is good for 15."

[54] When asked by the Crown what would happen if the "15 days aren't complied with", the officer stated as follows:

"The approved screening device won't let you take, won't let you use it. It won't pass. You turn it on and it will tell you there's an error and it won't let you blow into it."

[55] The officer had no note of Mr. Rowland complaining about not speaking with his lawyer and had no notes other than the fact that Mr. Rowland wished to check his cell phone. He did have noted Mr. Rowland was satisfied with the conversation he had had with duty counsel and acknowledged he was able to speak with counsel.

[56] In cross-examination the officer confirmed that Mr. Rowland was co-operative and polite when he was dealing with him. He indicated he retrieved the cell phone from the property bin, that he had never heard the phone ring while Mr. Rowland was in his company and he had no idea if Cst. DeVilliers was monitoring the cell phone.

[57] With respect to the calibration accuracy checks, the officer testified that if the device was outside the 15-day accuracy check requirement, it would not work. The last accuracy check is printed on the device on the screen and it is part of the menu which you can scroll down to check. There, you also find the last calibration date. According to the officer, the Ontario Provincial Police also place a paper in the approved screening device carrying case with the same information on it.

[58] Finally, the officer was shown the video from the breath room and referred to the area of the video which showed Mr. Rowland being questioned by this officer if he was satisfied with the rights to counsel that had been exercised. The officer agreed that Mr. Rowland stated, "Yeah", but was shaking his head and shrugging his shoulders during that response. The officer candidly noted, "Yeah, he obviously wanted to speak to his own lawyer and didn't get to do that, and he spoke to duty counsel."

[59] That concluded the evidence of the Crown both on the application and on trial issues.

EVIDENCE OF THE DEFENCE

Evidence of Darren Hastings

[60] Mr. Rowland testified on his own behalf and also filed with the consent of the Crown as part of the defence evidence an affidavit of Darren Hastings sworn November 1, 2018. Within that affidavit Mr. Hastings indicates he has known Mr. Rowland for ten years as a friend and a business associate. Mr. Hastings acknowledged he is not a lawyer, nor a licensed paralegal, but his father was a lawyer and he himself has assisted friends with simple legal matters prior to the requirement that paralegals be licensed. Mr. Hastings set out in the affidavit that he had in fact provided legal assistance to Mr. Rowland by referrals to lawyers for his personal matters and also had given some advice to him with respect to Highway Traffic Act matters and a civil suit.

[61] On June 9, 2017 Mr. Hastings was out for dinner. He acknowledged that some time after 10:00 p.m. he had received a cell phone call from Mr. Rowland's cell phone. He missed the call but when he noticed the missed call he called Mr. Rowland back. There was no answer at that time. He believes he tried calling him back on the cell phone twice within five to ten minutes. He does not believe he left a message as he rarely does so.

[62] He did not check the contents of any voice mail messages until the next day at which time he listened to Mr. Rowland's voice mail message and at least one voice mail message from a police officer. He indicates if he had been able to make contact with Mr. Rowland on the evening of June 9, 2017 he would have given him assistance in contacting a criminal lawyer that he knows and to whom he has made referrals previously for others. He has contact information for that lawyer and would have provided it to Mr. Rowland if he had had that opportunity.

[63] That completed the evidence of Darren Hastings.

Evidence of Shawn Rowland

[64] Shawn Rowland has been employed for the past 30 years as a lineman and does not appear to have a criminal record.

[65] He acknowledged being arrested on June 9, 2017 and being provided his rights to counsel by Cst. DeVilliers. He offered that the officer, when he advised he wished to speak with a lawyer, told him that he could make the call from the scene or at the detachment. Mr. Rowland chose to make the call at the detachment.

[66] He spoke of his relationship with Darren Hastings. They have known each other for some time and apparently have done business together. In addition, Mr. Hastings' father was a lawyer and although Mr. Rowland would seem to be aware that Darren Hastings was not a lawyer, they had had business dealings previously and he had received legal advice from Mr. Hastings with respect to a minor civil matter and a commercial vehicle issue. Further, Mr. Hastings had provided the name of counsel to Mr. Rowland for some personal matters. It is clear Mr. Rowland considered Mr. Hastings to be knowledgeable in some legal areas and also in possession of contacts with respect to other legal issues.

[67] Mr. Rowland was questioned as to whether or not he understood the difference between a paralegal and a lawyer and his response was that a paralegal was "not quite a lawyer" but "almost". His purpose in requesting the call to Mr. Hastings was to get legal advice or to get information from Mr. Hastings that would put him in touch with someone who could. He was a little hesitant in his evidence as to exactly what he told the police as to the status of Mr. Hastings. He believed he said "lawyer" but he also may have used the term "paralegal".

[68] In any event, his evidence is clear that he would have followed the advice of Mr. Hastings and if that advice was not forthcoming he would have contacted the referral if Mr. Hastings had been able to provide one.

[69] He acknowledges he himself tried to call Mr. Hastings from his cell phone. His phone had been provided by Cst. DeVilliers and he used the same number he had provided to Cst. DeVilliers who had made a similar effort. Mr. Hastings was still not available and he left a message for him to call back "as soon as possible". He had no contact information for the O.P.P. and anticipated that the call would be returned on his cell phone. He also testified this attempt took place before the breath samples had been provided and before he had had his conversation with duty counsel.

[70] Mr. Rowland was played the same video clips that had been shown to Cst. DeVilliers and to Cst. Wiens during the course of their evidence. The portion of the clip that was initially shown to Mr. Rowland shows, and he confirmed, that Cst. DeVilliers had provided him with a phone. There had been some interaction shown on the clip when the phone was returned and Mr. Rowland indicates at that time Cst. DeVilliers had pointed to his watch and indicated "the time was up" and that he needed to give a breath sample. Constable DeVilliers is seen pointing in a direction which Mr. Rowland says was down the hall to the breath room.

[71] Mr. Rowland indicated Cst. DeVilliers advised him he had left a message for Mr. Hastings but he had not called back and the only other option was now duty counsel. Mr. Rowland told the officer he only wished to speak with Mr. Hastings and at that point the officer indicated his only other option was duty counsel. The timing of this interaction as indicated on the video is important in the overall timing of events since this interaction appears to have taken place at the cell area sometime between 10:02 p.m. and 10:10 p.m., with the interaction concerning the watch and the pointing to be at about 10:07 p.m. to 10:09 p.m. Duty counsel was in fact called by Cst. DeVilliers at 10:10 p.m.

[72] Mr. Rowland testified in-chief that while he was being transported to and upon arrival at the detachment Cst. DeVilliers indicated everything he said and did would be recorded once they had arrived in the detachment. The officer had pointed out where the cameras were, confirmed that everything was being recorded and also drew Mr. Rowland's attention to a sign on the wall, the exact wording of which he could not recall, but the gist of which was an indication that cameras were being used.

[73] It was Mr. Rowland's understanding from all of that that everything he said and did was being recorded by video. At no time had Cst. DeVilliers indicated otherwise or drawn any distinction and Mr. Rowland's understanding was that everything was being recorded verbally and visually while at the detachment, in his cell and specifically while he was on the phone with duty counsel.

[74] Mr. Rowland testified he understood while he was on the phone with duty counsel that "they could hear me" and he did not feel comfortable. He based this on what he had been told about everything being recorded by Cst. DeVilliers. He did acknowledge that he did not complain in any way at that time as it did not seem to matter to Cst. DeVilliers, although it certainly did matter to him.

[75] He was on the phone he estimated to duty counsel for about 15 minutes. While speaking with duty counsel, duty counsel mumbled something and then stopped talking quickly. Mr. Rowland thought he had been put on hold by counsel and was still holding the phone when Cst. DeVilliers entered the cell and asked what was going on. He told the officer that he believed he might have been put on hold. The officer took the phone, then hung it up and told him it was time to provide a breath sample. They then went to the breath room and while going there, when asked by Cst. DeVilliers if he was satisfied with the call to duty counsel, Mr. Rowland indicated that counsel was "pretty short".

[76] Again, the video was played with respect to the interaction both in the cell area and in the breath room. Mr. Rowland was shown the video where he seems to shrug his shoulders and say "Yeah" when asked if he was satisfied with counsel. Mr. Rowland indicated that was simply his way of saying he was not happy with the call. He still maintained his desire to speak with Mr. Hastings, although he did not convey that to the officers in the breath room at that time.

[77] However, after the first sample had been taken Mr. Rowland asked if "my lawyer" had called. Constable Wiens retrieved the phone and showed Mr. Rowland there had been a return call from Mr. Hastings but no message left. He ultimately then was returned to the breath room for the second sample and was not given an opportunity to call Mr. Hastings back.

[78] In cross-examination Mr. Rowland acknowledged he did not believe Mr. Hastings was a lawyer but he thought he was a "paralegal". He stated he had had some discussions with police about a "paralegal" in the context of the police officer inquiring who he wished to get a hold of, but that does not seem to be an area that was put to either officer.

[79] In cross-examination Mr. Rowland was asked why he did not call someone else and he candidly responded that he had no one else to call with respect to legal advice. He acknowledged and agreed that he had not asked for a phone book or a lawyers' list to call someone else. With respect to his call with duty counsel, he repeated his evidence in-chief that he had not been happy with that call, although he again agreed that he had not told Cst. DeVilliers that, nor Cst. Wiens, "in so many words".

[80] He stated he had asked Cst. Wiens if his "lawyer" had called and it was at that point that Cst. Wiens had retrieved his cell phone and observed that there in fact had been a call back but no message left. Finally, in cross-examination Mr. Rowland testified he did not feel that he had been able to have a private conversation with duty counsel as he thought everything was being audio and video-recorded and he found the circumstances "not very private". However, he did agree that he had not indicated such to the police officers.

[81] For the first time, in cross-examination Mr. Rowland also indicated in addition to telling Cst. DeVilliers that duty counsel was "very short", he also told Cst. DeVilliers that duty counsel had not answered a lot of his questions. Apparently, Cst. DeVilliers had no response to that. It is again of note that that particular statement by Mr. Rowland was not put to Cst. DeVilliers.

[82] Finally, with respect to the issue of privacy, in cross-examination Mr. Rowland indicated he had at some point told Cst. DeVilliers that the cell area was not very "private". He could not recall when that took place or the context, but did testify when he said that Cst. DeVilliers simply stated something to the effect that "that's the way it is".

[83] That concluded the evidence for the defence on the application. The defence elected to call no evidence on the trial issues.

ISSUES TO BE DETERMINED

[84] The issues to be determined in this case are:

(1) Did Cst. DeVilliers have the necessary reasonable and probable grounds to arrest Mr. Rowland given the fact that the approved screening device had not been subjected to the required accuracy testing as dictated by O.P.P. policy and, if not, and section 8 of the Charter was breached what relief, if any, should be afforded the accused pursuant to section 24(2) of the Charter?

(2) Were Mr. Rowland's section 10(b) rights under the Charter breached by the failure of the police to provide Mr. Rowland with a reasonable opportunity to contact counsel of choice, by interrupting the phone call with duty counsel and by the alleged failure to provide Mr. Rowland with the ability to consult with duty counsel in private?

ANALYSIS AND RULINGS

1. THE SECTION 8 ISSUE

[85] Defence counsel submits that the main component of Cst. DeVilliers' reasonable and probable grounds to arrest Mr. Rowland was the failure noted on the approved screening device. Defence argues that as the device had not been properly tested for accuracy within the guidelines of the O.P.P. the result of such testing was unreliable and undermines the validity of Cst. DeVilliers' grounds to arrest Mr. Rowland. As a result, the defence argues that Mr. Rowland's section 8 Charter rights were infringed.

[86] The Crown submits that whether or not the instrument was properly tested for calibration and accuracy is not relevant in the circumstances of this particular case. The Crown submits that what is important is whether at the time Cst. DeVilliers administered the test he had a reasonable belief the device was in good working order and that the test was properly administered.

[87] Both counsel have submitted various cases in support of their respective positions and I have reviewed those cases as well as others. [See attached Schedule of Cases].

[88] When the police utilize an approved screening device the case law is quite clear that the officer need only have a reasonable belief that the device is properly calibrated and in proper working condition before relying on a fail test as a basis for reasonable and probable grounds to proceed further. The case law, however, does not go as far as requiring the police to know the calibration setting of the device, when it was last calibrated or whether the device was in fact working properly. See R. v. Mastromartino et al. What is important, however, is that the officer's belief is reasonable. That belief must be honest and reasonably based on the facts understood by the officer at the time the demand was made. See R. v. Topaltsis and R. v. Weese, [2005] O.J. No. 749.

[89] In R. v. Beharriell, [2004] O.J. No. 882, Justice Durno, as he has done in a number of cases, sets out various principles that can be derived where a police officer uses an ASD to confirm his or her suspicions the driver has driven while impaired or having consumed excess alcohol and the accused alleges his or her section 8 Charter rights were infringed. At paragraph 56 of that case the court notes such principles as follows:

i) the determination is made on a case-specific basis;

ii) breath samples taken pursuant to an Intoxilyzer demand, involve a warrantless search and the onus is on the Crown to establish, on a balance of probabilities, that the search was reasonable;

iii) police officers may, but are not required to, rely on 'fail' readings obtained on an ASD as the basis or one of the bases upon which they conclude they have reasonable and probable grounds to make an Intoxilyzer breath demand;

iv) police officers using an ASD are entitled to rely on its accuracy unless there is credible evidence to the contrary;

v) in doing so, the officer must have a reasonable belief the ASD was calibrated properly and in working order before relying on the 'fail' reading as a component of their reasonable and probable grounds to make an Intoxilyzer demand;

vi) a relevant consideration is whether the record discloses that because of his or her training the officer knows that in the circumstances in which the ASD is being used the results will be unreliable;

vii) whether an officer had that reasonable belief can be established by direct or circumstantial evidence;

viii) there is no requirement that the Crown prove the instrument's calibration or that the ASD was working properly; and

ix) there is a heavy onus on the accused to establish a high degree of unreliability in the specific facts of the case. That evidence may arise in the Crown's case or through defence expert evidence.

[90] The case law also establishes that absent evidence of a high degree of unreliability of the screening device a police officer is entitled to rely on its results as reasonable and probable grounds. Justice Durno noted that cases in which a high degree of unreliability has been established are the ones in which the calibration and/or working condition of the ASD were "on the table".

[91] In R. v. Storrey, 1991 SCR 241, the Supreme Court defined reasonable and probable grounds as follows:

"In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest."

[92] With respect to the objective criteria, case law establishes that the "reasonable person" standing in the shoes of the officer must possess the same information as the officer. That knowledge includes anything that might affect the reliability of the test. If it is part of the officer's knowledge it is also part of the reasonable person's knowledge. (See R. v. Mastermartino, supra).

[93] In this case, looking at all of the circumstances and considering the principles to be applied I find that the issues of calibration/accuracy and the working condition of the ASD are "on the table" as the court put it in R. v. Beharriell, supra. When I look at the evidence I am satisfied the defendant has established a section 8 breach and I find that, although Cst. DeVilliers may very well have had the subjective belief necessary to form his grounds for the arrest of Mr. Rowland, I find ultimately that that belief was objectively unreasonable.

[94] In coming to that conclusion I have considered the following:

(1) Constable DeVilliers was an experienced police officer and a qualified breath technician who has been involved with at least "in excess of 50" impaired investigations in the past. As part of his duties on the day in question he was asked to take part in a R.I.D.E. program, a program specifically designed to deter drinking and driving and which program could and would reasonably be expected to involve the use of an approved screening device to conduct further investigations of drivers suspected of having alcohol in their body while operating motor vehicles and entering such a program.

(2) Constable DeVilliers was fully aware of the Ontario Provincial Police policy with respect to the calibration and accuracy checks involved with the use of such an instrument. Yet, there is absolutely nothing in the evidence of Cst. DeVilliers to indicate that he took any steps before, during or prior to the release of Mr. Rowland to determine when the last calibration and/or accuracy check may have been conducted, although the evidence would indicate that such information is clearly on the machine itself in some form and also on the piece of paper that is in the carrying case of the very instrument used.

(3) The officer agreed that such checks were "important considerations" and according to Cst. Wiens learning how to operate such a device is one of the "first things you learn as a police officer".

(4) The uncontradicted evidence clearly shows that the ASD used by Cst. DeVilliers in this case was not tested for accuracy as required by Ontario Provincial Police policy, a policy that Cst. DeVilliers was very familiar with. The date for the accuracy check was discovered by Cst. DeVilliers apparently after the arrest and release of Mr. Rowland and was duly recorded in his will-state which was completed the following day.

(5) The officer could not have been clearer in his evidence that if he had checked the device and had seen that the accuracy check had not been performed within the appropriate time period, he would have not used the device at all. He acknowledged that and said it would be unreasonable to rely on such a device. In fact, when suggested by counsel that to rely on the device would be unreasonable, he indicated, "Yeah. Absolutely, yes." The officer was quite clear in his evidence that he would not have used and should not have used the device on the evening in question as it would be unreasonable to rely on the result given his training and the policy of the O.P.P.

(6) I fully appreciate the officer took the position that the machine was functioning properly as both he and Cst. Wiens indicate the machine would not receive a sample at all if such checks were not properly done. However, the evidence itself belies that position as the officer indicated he self-tested the machine and found that it was functioning properly as it indicated a zero reading for his test. I have considered the fact that the officer simply miswrote or misunderstood the accuracy date but he recorded it in his will-state and the date which he recorded was clearly outside of the O.P.P. policy for such checks. The officer never indicated he simply might have miswrote it. The evidence is uncontradicted that the accuracy check was taken outside of the timeframe and Cst. DeVilliers himself was of the view that the results would be unreliable.

(7) I am also aware that Cst. DeVilliers felt the machine was functioning properly because it self-tested. However, the fact that it self-tested at a zero reading does not indicate to the court that the machine was functioning properly and would have assessed an individual with some alcohol in their system. At its highest, the self-test simply indicates no alcohol, but Cst. DeVilliers' evidence could not have been more consistent that he would not have used the instrument if he had known the timing of the accuracy test.

[95] The evidence was presented and the Crown has not taken any steps to clarify or explain the issues that became apparent during the course of the officer's evidence. A reasonable person standing in the shoes of the officer would have known of the O.P.P. policy and would have followed that policy to ensure the reliability of the tests. Clearly, it was within Cst. DeVilliers' knowledge and experience to consider that policy and it is also therefore a part of a reasonable person's knowledge at the time the test was administered. Objectively it cannot be concluded that the officer acted reasonably in all the circumstances.

[96] As a result, I find there has been a breach established of Mr. Rowland's section 8 rights under the Charter. The court must now consider whether the results of the breath tests should be excluded pursuant to section 24(2).

[97] In dealing with the issue of exclusion I am guided by the principles set out in R. v. Grant, 2009 SCC 32, as well as the recent decision of the Ontario Court of Appeal in R. v. Jennings, 2018 ONCA 260.

[98] In Grant the Supreme Court set out the analytical framework to be utilized when dealing with the exclusion of evidence under section 24(2) of the Charter. This effectively involves the balancing of assessments under three lines of inquiry and determining in all of the circumstances whether the admission of evidence would bring the administration of justice into disrepute.

[99] At the first stage the court must consider the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the violation of the Charter, the greater the need for the court to dissociate itself from that conduct by excluding evidence linked to that conduct in order to preserve the public confidence in and ensure state adherence to the rule of law.

[100] The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the inclusion of those interests, the greater risk that the admission of the evidence would bring the administration of justice into disrepute.

[101] At the third stage the court asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion. Factors such as the reliability of the evidence and its importance to the Crown's case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the courts in each case.

[102] As noted in Grant, the purpose of section 24(2), as is clear from its wording, is to maintain the good repute of the administration of justice. This embraces the maintaining of the rule of law and upholding Charter rights and upholding Charter rights in the justice system as a whole. The term "bring the administration of justice into disrepute" as set out in section 24(2) means an understanding in the long term sense of maintaining the integrity of and public confidence in the justice system. While exclusion of evidence resulting in an acquittal may provoke immediate criticism, section 24(2) does not focus on an immediate reaction to the individual case, but rather it looks at whether the whole overall repute of the justice system viewed in the long term will be adversely affected by the admission of evidence. The inquiry is an objective one and it asks whether a reasonable person informed of all relevant circumstances and the values underlying the Charter would conclude that the admission of the evidence would bring the administration of justice into disrepute. The section 24(2) focus then is not only long term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice and section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns.

[103] So the role of the court under s. 24(2) is to balance the various assessments made under the analytical approach set out in Grant and determine whether in all of the circumstances admission of the evidence would bring the administration of justice into disrepute. The balancing is not a mathematical exercise as noted in Grant, it is qualitative. A trial judge must be careful not to give undue emphasis to one line of inquiry or to neglect the importance of any of the three lines of inquiry and the section 24(2) analysis should not simply be boiled down to a contest between the degree of police misconduct and the seriousness of the offence.

[104] Grant sets out that a flexible multi-factored approach to the admissibility of bodily evidence is required under section 24(2) due to the wide variation in its kinds. The first step involves the consideration of the police conduct and their reasons for it. The second line of inquiry requires the court to consider the degree to which the violation intruded upon the privacy, bodily integrity and the human dignity of the accused and the third line of inquiry generally supports admission because bodily evidence is usually reliable.

[105] In general where an intrusion is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded notwithstanding its relevance and reliability. On the other hand, as noted in Grant, where the violation is less egregious and the intrusion on privacy, bodily integrity and dignity is less severe, bodily evidence may be admitted. In Grant it was specifically indicated that this would usually be the case with the breath sample evidence where the method of collection is relatively unintrusive.

[106] Recently in R. v. Jennings, supra, the Ontario Court of Appeal dealt with an appeal from a summary convictions appeal court which had upheld the trial judge following an acquittal of the accused at trial. Briefly the facts there indicate that the accused presented in such a fashion that there was a reasonable suspicion on the part of the investigating officer to enable him to make a demand for an approved screening device. The accused registered a fail and ultimately was arrested and provided samples of his breath that exceeded the legal limit. The basis for the trial judge's decision with respect to a breach of section 8 was that the investigating officer could not have objectively had the grounds to arrest the accused since he had not followed a certain procedure set out in the police manual for using the approved screening device. The trial judge had excluded the breath samples and the summary conviction appeal court upheld that decision.

[107] The Court of Appeal allowed the appeal, entered a conviction and remitted the matter to the trial judge for sentencing concluding that the trial judge had erred in finding that there was a section 8 breach. Even though the Court of Appeal found there was no breach they went on to consider the exclusion under section 24(2) since the court was of the view there was a "divergence in the lower courts on how to approach a section 24(2) analysis and breath sample cases".

[108] At paragraphs 25 through 32, inclusive, in Jennings the court stated as follows:

[25] The trial judge excluded the breath samples from evidence, a decision that was upheld by the SCAJ. The SCAJ's reasons on this issue were brief, simply stating that "the trial judge correctly considered the factors articulated by the Supreme Court of Canada in R. v. Grant." The trial judge's application of the Grant test, however, was problematic in two respects.

[26] On the first branch of the Grant test, although the trial judge concluded that the s. 8 breach was serious and favoured exclusion of the evidence, he did not explain how he arrived at this conclusion. He appears to have taken it as axiomatic that a "warrantless roadside search which formed the basis of the reasonable and probable grounds" of the arresting officer was per se a serious breach. But Grant requires more: there must be some examination of the police conduct and a determination of where it fits on a spectrum from mere technical breaches at one end to bad faith violations at the other. As the Crown argues, the circumstances of this case are notably different from those in Au-Yeung, where the officer administering the roadside test did not perform a self-test at all, did not check when the device was last calibrated, did not know how to read the device, had last received training on the use of ASDs 22 years earlier, and was unsure if he had used the device properly. The SCAJ in that case held that the officer had not acted in good faith, and that his actions "bordered on wilful blindness": Au-Yeung, at paras. 39-40, 52-56. As explained above, the actions of the constable in the present case are radically different. Although the constable did not abide by the strict letter of the policy manual, he subjectively believed that the ASD reading was accurate, took steps to ensure that it was, and acted in good faith. The trial judge fell into the error identified by Leach J. in R. v. Molakandov, [2013] O.J. No. 2482, (S.C.) at para. 59, of finding any breach of s. 254(3) of the Criminal Code sufficient reason to favour exclusion of evidence under the first Grant factor. The first Grant factor favours admission of the evidence.

[27] The second Grant factor addresses the impact of the breach on the interests of the accused. The trial judge discerned two competing lines of authority setting out the methodology for assessing the seriousness of the impact of the accused in breath sample cases. In the line followed by the trial judge, led by Au-Yeung, the trial judge is to consider not just the impact of the administration of the breath sample procedure, which is itself minimally intrusive, but the entirety of the procedure faced by the accused after arrest. In this case, it would include the initial detention, the respondent's being placed in the back of a police cruiser and transported to a police station, and detention at the police station for a substantial period of time. The trial judge, in keeping with the Au-Yeung line of authority, viewed the entirety of procedures as constituting a serious impact on the respondent, and strongly indicating exclusion of the evidence.

[28] The second line of authority rejects the Au-Yeung approach and would limit the second Grant factor to addressing the intrusiveness of the breath sample procedure itself: for example, Molakandov; R. v. Ramsammy, 2013 ONSC 7374; R. v. Marchi, 2016 ONCJ 757; R. v. Ho, 2014 ONSC 5034, rev'd on other grounds 2015 ONCA 559.

[29] Much of the debate between these two lines of cases focuses on the significance of statements in Grant, in which the Supreme Court identifies breath samples as a central or paradigmatic example of a minimally intrusive search: see paras. 106-111. Although, as the respondent argued, the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.

[30] This reading of Grant is consistent with other judgments of this court, such as R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, where Watt J.A. refers to "the general rule with respect to the admissibility of breath samples due to their non-obtrusiveness" (at para. 100) and, citing Grant at para. 111, says that "as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted."

[31] Similarly, in R. v. Guenter, 2016 ONCA 572, 350 O.A.C. 318, Brown J.A. notes, at para. 98, that "[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant's privacy, bodily integrity and human dignity: Grant, at para. 111."

[32] To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission.

[109] Jennings dealt with an alleged section 8 breach that the Court of Appeal concluded was not well founded. In dealing with the 24(2) analysis under the first branch of the Grant inquiry the court specifically reaffirmed that analysis requires an examination of the offending conduct which the court in Jennings found to be more technical in nature. The court spoke of conduct rendering from "mere technical breaches at one end of the spectrum to bad faith violations at the other".

[110] In consideration of the second branch and the intrusiveness of the breath sample procedure I do not read Jennings as stating breath tests will always be included given their apparent "minimal intrusion on an individual's privacy, bodily integrity and human dignity". I read the case as simply stating, when dealing with steps two and three of the Grant inquiry, breath evidence is reliable and necessary evidence and involves a minimally intrusive search. There is not an automatic exclusion as a result of Jennings and it seems to me that the section 24(2) analysis in breath sample cases will be largely determined by the court's analysis under the first line of inquiry set out in Grant. That is the nature and extent of the conduct leading to the breach of a Charter right or rights of individuals. Ultimately it is still a balancing of the three factors that is important, not simply an analysis of whether the providing of a breath sample is intrusive minimally or otherwise.

[111] Under the first stage the court considers police conduct leading to the breach. One cannot, in my view, consider classifying the breach here as a trivial breach. Constable DeVilliers is an experienced police officer who was involved in an organized R.I.D.E. program on the night in question, a program designed specifically to deal with drinking and driving.

[112] It could and would have been reasonably expected by Cst. DeVilliers that the approved screening device he had in his possession would be employed that very evening. Nothing, however, in the evidence indicates he checked the device to see that it was properly calibrated and tested for accuracy. He is quite clear in his evidence that if he had discovered the accuracy test was outside the limits prescribed by the Ontario Provincial Police policy, a policy which he was very familiar with, he would "absolutely" not have used the device as its results may have been "unreliable".

[113] Constable DeVilliers was candid in acknowledging that in very specific responses to direct questions put to him with regard to that issue. The fact that he self-tested and was of the belief, as was Cst. Wiens, that the device would not accept a sample if not properly tested, is undermined by his own evidence concerning the reliability of such a device. Indeed, as noted, he would not have used the device if he had been aware of the information that he received the following day and noted in his will-state.

[114] Although the officer cannot be said to have acted in bad faith, and I do not make such a finding, I note the court's comments in R. v. Au-Yeung, 2010 ONSC 2292, at paragraph 55 where the court stated:

"The reputation of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct. Police officers who stop and detain motorists in order to perform ASD tests must execute their duties efficiently, competently, and accurately. There is no question that the need to combat drinking and driving is a pressing social concern. The public therefore accepts the use of breath samples both for roadside screening and ultimately for the determination of blood alcohol levels. Nonetheless the administration of justice would inevitably fall into disrepute if such shoddy police conduct were permitted to form the basis for the arrest, detention, and subsequent testing of drivers."

[115] I find that this inquiry favours the exclusion of the evidence.

[116] With respect to the second stage of the inquiry and the impact of the breach on the protected interests of Mr. Rowland, granted the impact at the roadside would have been minimal, however what happened thereafter as a result of his arrest can hardly be so classified. Mr. Rowland was arrested, placed in a cruiser, handcuffed, taken to a detachment, subjected to further breath tests and detained for a period of time. In my view, the second line favours exclusion of the evidence as well.

[117] With respect to the third line of inquiry, there is no issue taken with the reliability of the breath tests ultimately conducted at the detachment and the results are an important essential element of the Crown's case. The type of offence as before the court is a serious matter for the public and the third line of inquiry in this particular case favours the inclusion of the evidence.

[118] Balancing the interests as set out in Grant and Jennings and fully appreciating that both the seizure of breath samples is to be treated as minimally intrusive and important to the Crown's case, I am still of the view that the conduct of Cst. DeVilliers in this matter is a section 8 violation serious enough that the evidence of the results on the Intoxilyzer 8000-C should be excluded. To do otherwise, in my view, would bring the administration of justice into disrepute given the facts of this particular case.

[119] The Crown therefore being unable to establish an essential element of the offence before the court, the application with respect to section 8 having been granted, the charge is marked dismissed.

[120] For the sake of thoroughness I would briefly address the issue of the allegations concerning the breach under section 10(b) of the Charter.

2. THE SECTION 10(b) ISSUE

[121] Section 10(b) of the Charter states as follows:

"Everyone has the right on arrest or detention,

(b) to retain and instruct counsel without delay and to be informed of that right."

[122] As set out in R. v. Bartle, 92 C.C.C. (3d) 289, S.C.C. by Justice Lamer, there are three duties imposed on the police upon arresting or detaining an accused:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise his right to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and,

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[123] As noted in R. v. Devries, 2009 ONCA 477, section 10(b) contains two distinct rights. First, it obligates the police to inform a detainee of his or her right to speak with a lawyer without delay. Second, it guarantees the right of a detainee to retain and instruct counsel. If a detainee chooses to exercise that right, the police must provide the detainee with a reasonable opportunity to do so and must refrain from questioning the detainee or otherwise eliciting evidence from the detainee until he or she has had a reasonable opportunity to consult with counsel.

[124] What constitutes a reasonable opportunity to retain and instruct counsel or reasonable diligence in contacting counsel depends on the circumstances of an individual case. The right to counsel is not an absolute right and unless an accused when exercising that right is reasonably diligent in doing so the duty imposed on the police to provide a reasonable opportunity and refrain from eliciting evidence does not arise at all or will be suspended.

[125] In R. v. Blackett, [2006] O.J. No. 2999, the test to be applied in determining if there has been a section 10(b) violation was set out as follows:

(1) Did the police fulfill their duty to act diligently in facilitating the rights of the accused to consult with counsel of choice? If so, then there is no 10(b) breach.

(2) If the police did not fulfill their duty then there are two possibilities:

(i) if the police breach their duty because they took no step to facilitate the right to counsel then the breach is established;

(ii) if the police breached their duty because they have made some effort but it is found not to constitute reasonable diligence the trial judge must decide whether the accused failed in his or her duty to act diligently to exercise the right to counsel. If the answer is yes, then there is a 10(b) breach made out. If no, then this trumps the breach of duty by the police and there is no breach of section 10(b); and,

(iii) if there is a breach established that section 24(2) will come into play and the areas of concern set out in R. v. Grant will be balanced.

[126] In dealing with this matter, the case law establishes that when considering a reasonable opportunity to consult with counsel of choice, an accused has a right to call a third party if the reason for calling the third party is to obtain contact information concerning contacting counsel of choice. In this case, a number of issues arise and one of those issues involves whether or not it has any impact on the breach analysis given the fact that there seems to be a discrepancy in the evidence as to whether or not Mr. Rowland when requesting contact with Mr. Hastings referred to him as a "lawyer" or a "paralegal". The police seem to refer constantly to him as a lawyer, although Mr. Rowland appears to refer to him periodically as a lawyer, then a paralegal. In my view, it really makes no difference given Cst. DeVilliers' evidence that if he had been aware Mr. Hastings was a third party who Mr. Rowland wished to contact simply to get contact information concerning a lawyer, he would have permitted that to take place. The fact of whether or not he was a lawyer or a paralegal, in my view, is somewhat of a red herring here.

[127] The real issue is whether or not the officer provided a reasonable opportunity for Mr. Rowland's to make that contact and, if he did, whether or not Mr. Rowland was reasonably diligent in exercising his right to counsel.

[128] In that regard I consider the following:

(1) The evidence indicates that Mr. Rowland was persistent and continually requesting contact with Mr. Hastings. Constable DeVilliers attempted to comply with that request on a couple of occasions. He even allowed Mr. Rowland an opportunity to attempt to contact Mr. Hastings on his cell phone on his own. Messages were left and were not returned. The officer waited what he considered to be a reasonable period of time. Mr. Rowland's position was that at some point he was given an ultimatum to either go to the breath room or consult with duty counsel.

The officer, of course, denies there was any ultimatum, but the facts are concerning to the court surrounding the call to Mr. Hastings. It seems to the court that there in fact was some pressure exerted on Mr. Rowland by the officer to move the matter along. I note the observations made on the video from the cell area where the officer had been unsuccessful, it appears on two occasions, in contacting Mr. Hastings but gave Mr. Rowland an opportunity to use a cell phone which was passed into the cell to allow him to do that. The officer points to his watch and in the direction of what Mr. Rowland said is the breath room. After the message was left by Mr. Rowland, within a very short period of time, a matter of one or two minutes it would appear, Mr. Rowland is speaking with duty counsel.

(2) The call to duty counsel itself presents problems. Constable DeVilliers interrupts by entering the room, which is a cell, where Mr. Rowland is supposed to be exercising his rights to consult with counsel in privacy, and takes the phone to make sure counsel is on the line. Why he did this is of concern because he certainly did not do so because he could see on the video that the call was not being processed as Mr. Rowland had the phone to his ear. It is only when the officer intervenes and sees lips not moving that he feels duty counsel is not on the line. The officer takes the phone, there is nothing on the other end and he hangs it up. I accept the evidence that indicates to the officer it appeared duty counsel was on hold or had hung up, but the officer did not really explore either explanation and simply hung up the phone which terminated the call and took Mr. Rowland to the breath room.

(3) Another concern is the area where the call with duty counsel was conducted. Appreciating that the detachment is small and it appears there is no privacy room, it would seem to me that if the police are going to afford an accused an opportunity to speak with counsel in a cell area that is videotaped they should clearly explain to an accused that the cell area is in fact only video-recorded, not video and audio-recorded. It is not unreasonable for someone to assume if they are video-recorded that likely they are also being audio-recorded.

Mr. Rowland is clear in his evidence that the officer advised him upon arriving at the detachment that everything he "did" would be recorded. That would include visually as well as audibly, and the only time there was a real clarification of that on the officer's evidence was when Mr. Rowland was taken to the breath room where in fact there is audio and visual-recording. No distinction had been made up to that point and I do not think it is unreasonable for Mr. Rowland to assume that he was being audio-recorded as well as visually recorded.

[129] In addition to the above, the Crown argues that Mr. Rowland did not make any complaints with respect to duty counsel and effectively waived his right to counsel. However, Mr. Rowland's reaction in the breath room as seen on the video where he shrugs his shoulders and says, "Yeah" not very convincingly and Cst. Wiens' own evidence that it appears Mr. Rowland was still wishing to contact Mr. Hastings as evidenced by him giving the phone to Mr. Rowland between the two tests, leaves it unclear whether in fact Mr. Rowland had waived his right to contact Mr. Hastings. The lack of waiver is also evidenced in some way by the evidence of Cst. DeVilliers who continues to offer the opportunity to Mr. Rowland to make contact with Mr. Hastings, and also providing him with his own cell phone.

[130] In addition, the evidence is not really clear, but I am led to believe that only two officers were in the detachment that night, Cst. DeVilliers and Cst. Wiens. Mr. Hastings' cell phone had been presented to him on two occasions and Cst. DeVilliers allowed him to leave a message. However, the phone was not kept with Mr. Rowland, nor indeed Cst. DeVilliers, and was deposited in a "bin" without accessibility to either. In fact, it appears Mr. Hastings did call back during the course of the first test being conducted and there does not appear to be any ability of Mr. Rowland to access his phone to take that call. Constable DeVilliers had effectively invited Mr. Rowland to try to contact Mr. Hastings on the phone and a message was left. Constable DeVilliers was aware of that and it is only reasonable that at the very least he should have allowed Mr. Rowland to continue to have access to his cell phone in case Mr. Hastings did call. Indeed, Mr. Hastings did call back in response to Mr. Rowland's message, but Mr. Rowland's phone was unavailable and was in a "bin".

[131] Ultimately, I find that Mr. Rowland's rights under section 10(b) have also been breached in a number of respects. Given my finding with respect to section 8, it is not necessary to consider the appropriate lines of inquiry under Grant, but I would state that, if that had been necessary, I would have excluded the evidence of the breath tests as a result of the section 10(b) breaches.

[132] In summary then, the evidence of the breath tests having been excluded as a result of the finding under section 8 and as well as a consideration of the section 10(b) breaches, the Crown is not in a position to prove the essential elements of the charge and the charge will be marked dismissed.

Released: December 6, 2018

"Justice G.F. Hearn"

R. v. Rowland, 2018 ONCJ 868

Case Summary