Court Information

Ontario Court of Justice

Date: 2018-10-31

Court File No.: Central East Region: Oshawa Courthouse 18-33252

Parties

Between:

Her Majesty the Queen

— AND —

Shaquille Brown

Before the Court

Justice: Peter C. West

Heard: October 31, 2018

Oral Reasons given: October 31, 2018

Counsel

Ms. J. O'Conner — counsel for the Crown

Mr. Y. Obouhov — counsel for the defendant

Decision

WEST J.:

[1] Mr. Brown is charged with operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood on December 30, 2017. The Defence brought a Charter application to exclude the breath readings obtained from Mr. Brown. It was agreed by counsel the Charter application could be heard by way of a blended hearing. The Crown called the investigating officer, P.C. Michelle Love, who became a Durham Regional Police officer in September 2016. The defence called no evidence on the Charter application.

[2] At the commencement of the trial defence, counsel made a number of admissions relating to identity, jurisdiction, date, wording of the approved screening device (ASD) demand, the fact the ASD was functioning properly, the wording of the right to counsel, caution and demand for breath samples into an approved instrument and the fact the Intoxilyzer 8000C was in proper working condition.

[3] In addition, defence counsel abandoned the alleged breaches in the Charter application relating to ss. 8 and 9, respecting the investigating officer waiting between one or two minutes after detecting the odour of alcohol on Mr. Brown's breath before making an ASD demand by asking further questions. The only remaining Charter breach alleged was the fact that P.C. Love after arresting Mr. Brown for exceed 80 mg of alcohol in 100 ml of blood as a result of his Fail on the ASD, went to Mr. Brown's car to secure it and conduct an inventory search as a result of the pending impounding of the car, as well as dealing with the passenger who was in the car. It was the defence position this was a breach of Mr. Brown's s. 10(b) Charter right to counsel, which he was not advised of immediately after his arrest. The fact the delay was for only 3-4 minutes did not change the fact Mr. Brown's Charter right pursuant to s. 10(b) was infringed. He submitted this breach was serious enough to require the exclusion of the two breath samples obtained by the qualified breath technician.

[4] The Crown submitted the officer provided an explanation for the brief delay in providing Mr. Brown his right to counsel and if this amounted to a breach it did not lead to this being one of the cases where the breath samples should be excluded under s. 24(2).

Facts

[5] The facts of this case are quite straightforward.

2:38 am — P.C. Love was operating a mobile RIDE program. She observed driving by Mr. Brown that caused her to decide to effect a traffic stop to determine Mr. Brown's level of sobriety. She approached the driver's window, advised the driver she was conducting a RIDE program and asked the driver if he had consumed any alcohol. He said no. She noted he had bloodshot and watery eyes. She asked for Driver's License, ownership and insurance, which Mr. Brown provided. She asked where he was coming from. The driver said, "The Hop House," which is a drinking establishment where alcohol and food can be purchased. She detected an odour of alcohol coming from his breath as they spoke and advised him she could smell alcohol, and asked when he had consumed his last drink. Mr. Brown told her he had a couple of beers two hours ago at 12 midnight.

2:40 am — P.C. Love formed a reasonable suspicion Mr. Brown had alcohol in his body while in care or control of a motor vehicle and she asked Mr. Brown to step out of his car and then read him an ASD demand.

2:44 am — Mr. Brown provided a good and suitable sample of his breath and registered a Fail on the ASD. Mr. Brown was arrested for exceed 80 mg of alcohol in 100 ml of blood because the Fail signified a breath reading of more than 100 mg of alcohol in 100 ml of blood. A search of Mr. Brown was conducted, where P.C. Love found the keys and a cell phone. She handcuffed Mr. Brown to the rear and placed him in the rear seat of her police cruiser. She contacted dispatch for a qualified breath technician to be available at 18 Division as she had an individual under arrest for over 80 and also requested backup to handle the tow of Mr. Brown's vehicle. She then went to Mr. Brown's car and conducted an inventory search and secured the vehicle. She also explained to the passenger what was occurring and had him get out of the car.

2:49 am — P.C. Love was back in her police cruiser and she read Mr. Brown his right to counsel, which he understood. When asked if he wanted to speak to a lawyer Mr. Brown requested to speak to duty counsel. He was also cautioned (2:50 am) and read the breath demand (2:51 a.m.), which he indicated he understood.

2:55 am — They left the scene for 18 Division.

3:05 a.m. — They arrived at 18 Division

3:12 a.m. — P.C. Love paraded Mr. Brown before the Sgt and the parade was completed

3:17 a.m. — There was a call placed to duty counsel and a message was left

3:20 a.m. — P.C. Love provided P.C. Elkington, the qualified breath technician, with her grounds to arrest Mr. Brown

3:27 a.m. — Duty Counsel returned the call and Mr. Brown was placed in a private room in order to speak to duty counsel

3:30 a.m. — The call with duty counsel ended

3:31 a.m. — Mr. Brown was turned over to the qualified breath technician

4:03 a.m. — Mr. Brown returned to P.C. Love, who received the Certificate of Qualified Breath Technician which she served on Mr. Brown. Mr. Brown was released on a Promise to Appear. P.C. Love drove him home upon all paperwork was served on him as he did not have a ride.

[6] P.C. Love agreed after the arrest of an accused the accused should be read his right to counsel. She did not do it immediately in this case because of the passenger in the car and she wanted to secure the car and do an inventory check.

Legal Analysis

Charter Right to Counsel

[7] Mr. Brown bears the onus on the s. 10(b) Charter application, on a balance of probabilities.

[8] This case focuses on the constitutional requirement that police officers advise detainees of their right to counsel immediately upon detention or arrest. (See Her Majesty the Queen v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 (S.C.C.) paras. 40-41.)

[9] That presumptive constitutional obligation is suspended by the operation of s.1 of the Charter during roadside sobriety investigations. See Her Majesty the Queen v. Thomsen, [1988] 1 S.C.R. 640 (S.C.C.); R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3 (S.C.C.).

[10] In effect, the criminal law permits police officers to breach the Charter while investigating drinking and driving offences. This is premised upon a focused and efficient use of police investigative power in aid of preventing the carnage associated with drinking and driving.

[11] Once the detainee is arrested, the rationale for the suspension of rights is gone.

[12] The police are required to provide rights to counsel immediately upon arrest.

[13] It has been many years since the Supreme Court of Canada in Suberu provided clear guidance concerning the timing of the provision of rights to counsel, contemplated by s.10(b) of the Charter.

(40) As with "detention", any interpretation of the phrase "without delay" must be consistent with a purposive understanding of the Charter provision in which it occurs. As this Court noted in R. v. Therens, [1985] 1 S.C.R. 613, at pp.641-42, and in R. v. Bartle, [1994] 3 S.C.R. 173, the purpose of s.10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

(41) A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s.10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s.10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

(42) To allow for a delay between the outset of a detention and the engagement of the police duties under s.10(b) creates an ill-defined and unworkable test of the application of the s.10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s.10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s.1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[14] In my respectful view, this area is well settled and clear.

[15] Police officers should presumptively provide rights to counsel immediately upon detention or arrest. The only basis for failing to provide rights to counsel is "subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s.1 of the Charter." (See Suberu, para. 42)

[16] The officer testified that she was aware of her obligation to provide rights to counsel immediately upon detention or arrest, but given the circumstances of the investigation, she chose to deal with Mr. Brown's car by conducting an inventory check, securing it and then advising the passenger what was occurring and getting him out of the car. These steps in my view related to P.C. Love's obligation and associated with her public duty, public safety and officer safety.

[17] Despite the importance and necessity of P.C. Love engaging in these activities I find this led her to breach Mr. Brown's s. 10(b) Charter rights.

Section 24(2) Analysis

[18] Section 24(2) of the Charter reads as follows:

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

[19] Section 24(2) requires a flexible, purposive, and generous analysis of the nexus between the breach and the impugned evidence permitting the Court to move to the core of the analysis: Whether the application has established on a balance of probabilities that:

(1) the evidence sought to be excluded was obtained in a manner that infringed a Charter right; and,

(2) that the admission of the evidence would bring the administration of justice into disrepute: R. v. Pino, 2016 ONCA 389.

[20] The analysis requires the following considerations outlined by Mr. Justice Laskin in Pino at paragraph 72:

• The approach should be generous, consistent with the purpose of s.24(2).
• The Court should consider the entire "chain of events" between the accused and the police.
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct.
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
• But the connection cannot be either too tenuous or too remote.

[21] Even with due regard to the required purposive and generous approach it is tenuous to suggest that the breath sample readings in this case were "obtained in a manner" that infringed or denied any rights or freedoms.

[22] First, the ASD demand was made by P.C. Love "forthwith" as required.

[23] Second, the breath samples are compelled by statute. In such circumstances, the scope of any legal advice, while I recognize is still important, is limited. See: R. v. Bartle, [1994] 3 S.C.R. 173 at paras. 57-62.

[24] Third, Mr. Brown has not satisfied me that had he received his right to counsel three to four minutes earlier, it would have caused some change in the course of the investigation. Had P.C. Love spent 30-45 seconds immediately after Mr. Brown's arrest to communicate to Mr. Brown his right to counsel, in my view it would not have changed the progress of the investigation on the evidence in this trial.

[25] Fourth, while it should be clear that the Court should not and cannot countenance a Charter breach of this kind, P.C. Love did not engage in evidence gathering or otherwise, which prejudiced the interests of the applicant during that three to four minute delay. P.C. Love, as I have already indicated, would have been responsible for securing Mr. Brown's vehicle, doing an inventory search and dealing with the passenger.

[26] Fifth, I am satisfied that there was an intervening "fresh start" event between the Charter breach and the acquisition of breath samples -- the provision of rights to counsel three to four minutes after the s. 10(b) Charter breach.

[27] In R. v. Hunter, [2017] O.J. No. 3065, at para. 50, a decision from my colleague, Felix J., he makes the following observations in a very similar factual scenario to Mr. Brown's case, which I adopt:

(50) The provision of rights to counsel ten minutes after the Charter breach and access to counsel back at the station prior to the acquisition of breath samples, provided an intervening "antidote" inoculating the breath samples obtained at the station. (See R. v. Simon, 2008 ONCA 578, [2008] O.J. No. 3072 para. 70.) This "fresh start" involved the provision of rights to counsel and the exercise of those rights, prior to the breath samples. In my respectful view, the subsequent conduct of the officer clearly severed the 10(b) breach from the acquisition of breath samples. The officer cured his earlier breach. (See R. v. Manchulencho, 2013 ONCA 543 paras. 68-70, and the authorities cited therein, including R. v. Wittwer, 2008 SCC 33; R. v. Simon, supra.)

(51) As the Ontario Court of Appeal has observed, there is no reason to confine the "fresh start" jurisprudence to statement cases. (See R. v. Manchulencho, supra, para. 70.)

(52) In the end, the Charter breach produced one result -- a 10 minute delay.

(53) This delay did not prejudice the applicant. No evidence was gathered, no incriminating statements recorded.

(54) The delay was largely due to the officer's failure to prioritize rights to counsel over facilitating the return of the applicant's car keys, cell phone and addressing the passengers in her vehicle.

(55) It is doubtful that the breath sample evidence sought to be excluded in this case, was "obtained in a manner" that infringed the rights of the applicant.

(56) Having regard to all of the circumstances, the admission of the evidence in this case, on this record, would not bring the administration of justice into disrepute.

(57) The applicant has not met the onus with respect to the 24(2) remedy and I would end the analysis here.

[28] As I indicated I adopt the reasoning of Justice Felix to the facts of this case. However if I am incorrect in this assessment I turn to the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353:

Grant Factors Analysis

Seriousness of the Charter-Infringing State Conduct

[29] P.C. Love knew of her obligation to advise Mr. Brown of his right to counsel immediately upon his arrest.

[30] Despite knowing of her obligation she prioritized other considerations, namely conducting a vehicle inventory because of the requirement to impound Mr. Brown's car, securing the vehicle and dealing with the passenger. While this may have been well-meaning it still had the effect of subjugating Mr. Brown's right to counsel. While the good repute of the criminal justice system does not need to distance itself from the conduct of P.C. Love, her approach to the provision of rights to counsel cannot be supported.

[31] As a result, in my view, this factor favours exclusion, although just barely.

Impact on the Charter-Protected Interests of Mr. Brown

[32] The failure to provide the right to counsel immediately after Mr. Brown's arrest meant he had to sit in the back of P.C. Love's police cruiser, handcuffed, for three to four minutes while the officer dealt with other responsibilities. This meant a delay in the right to counsel of three to four minutes.

[33] As indicated above, no evidence was obtained that was used in this trial and the case was not advanced in any way during that three or four minute delay. P.C. Love did not display a disregard for Mr. Brown's right to counsel as she implemented access to duty counsel, Mr. Brown's choice, immediately after the booking was completed. No breath samples were attempted to be taken from Mr. Brown until after he had spoken to duty counsel and received advice. No complaint at the time or here on this trial was made respecting duty counsel's advice. It is my view, on the evidence led during this trial, the impact of this Charter breach on Mr. Brown's Charter-protected interests was minimal.

[34] In my view, this factor favours admission.

Society's Interest in Adjudication on the Merits

[35] Highly reliable breath samples were obtained and societies' interest in an adjudication on its merits in drinking and driving cases is high. This factor favours inclusion.

Balancing

[36] The balance needed is outlined in Her Majesty the Queen v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 36:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. Disassociation of the justice system from police conduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[37] In the result, it is my view, examining and considering the totality of the evidence, the circumstances of this case favours admission of the two breath samples.

Released: October 31, 2018

Signed: Justice Peter C. West