Court File and Parties

Ontario Court of Justice

Date: 2019-01-16

Court File No.: Kitchener 17-5125 (00)

Between:

Her Majesty the Queen

— and —

Jeffrey Fisk

Before: Justice A.T. McKay

Heard on: November 19 and November 21, 2018

Reasons for Judgment released on: January 16, 2019

Counsel:

• Mr. D. Russell, counsel for the Crown
• Mr. B. Smart, for the defendant Jeffrey Fisk

Judgment

McKAY J.:

Introduction

[1] Mr. Fisk is charged with one count of having a blood-alcohol concentration ("BAC") exceeding the legal limit while operating a motor vehicle, contrary to section 253(1)(b) of the Criminal Code.

[2] At approximately 8 PM on July 22, 2017, Mr. Fisk and his wife left licensed premises located inside a plaza in Kitchener. Approximately 20 minutes earlier, two police officers had set up a mobile RIDE program and were watching from a short distance away. They observed Mr. Fisk and his wife enter a vehicle and exit the parking lot. They followed the vehicle operated by Mr. Fisk a short distance in order to select a good site to stop the vehicle. The vehicle was stopped and, after a short conversation with Mr. Fisk, they demanded a breath sample into an approved screening device ("ASD"). The result was a "fail", which led to the arrest of Mr. Fisk on this charge.

[3] The defence takes no issue with respect to the grounds for the stop of the vehicle, the demand for a sample into an ASD, and the arrest following the fail result on the ASD.

[4] Mr. Fisk ultimately provided breath samples into an approved instrument which indicated that his BAC was above the legal limit. At trial, he filed an application alleging a breach of his rights under the Charter. Specifically, he contended that police did not provide him with the information necessary to assert his right to contact his counsel of choice prior to providing breath samples.

[5] In addition, he took the position that the Crown had not proven the absence of bolus drinking. The Crown did not rely upon the presumption contained in section 258(1)(c) of the Criminal Code. Instead, the Crown relied upon the evidence of a toxicologist to opine as to BAC at the time of driving. The defence argues that the evidence of Mr. Fisk with respect to his alcohol consumption, and the fact that he was stopped by police minutes after leaving licensed premises, undermine the assumptions relied upon by the toxicologist in arriving at her opinion.

Evidence

Constable Miller

[6] Constable Miller became a member of the Waterloo Regional Police Service ("WRPS") in December 2016. On July 22, 2017, she was working with her coach officer, Constable McKenna. This was her first drinking and driving investigation.

[7] The officers were conducting a proactive mobile RIDE program, watching a plaza that contained two licensed premises and a beer store. She observed a male later identified as Mr. Fisk and a female exiting one of the licensed premises. He appeared to be staggering slightly. She lost sight of the couple momentarily, and then observed Mr. Fisk in the driver's seat of a vehicle, exiting the parking lot. The female was in the passenger's seat. They followed the vehicle a short distance and then activated the emergency lights of the police vehicle. Mr. Fisk turned his vehicle into a private driveway and stopped.

[8] After a brief conversation with Mr. Fisk in which she detected the odour of alcohol and made additional observations, she was of the view that she had grounds to make a demand for a breath sample into an ASD. At 8:08 PM, she made the demand. Her evidence is that Mr. Fisk became belligerent and began shouting, demanding to speak to a lawyer prior to providing the sample. After what she described as some "back and forth shouting", Mr. Fisk provided a suitable sample at 8:15 PM which resulted in a "fail" reading. As a result, she arrested Mr. Fisk. She testified that Mr. Fisk was extremely belligerent, yelling about them denying the right to counsel. After being handcuffed and searched, he continued to argue with them about his right to speak to counsel.

[9] At 8:23 PM, she read the standard right to counsel to Mr. Fisk. When asked if he understood, he indicated "I asked for legal advice before you arrested me". When asked if he wanted to speak to a lawyer, Mr. Fisk indicated that he did. He did not know the name of the lawyer but indicated that his wife would. When asked if he understood the police caution, he responded by indicating "I want a lawyer". Mr. Fisk was transported to the nearest police detachment and placed in an interview room. Mr. Fisk asked the officers to contact his wife to obtain the name of his lawyer of choice. Constable McKenna made a telephone call and was provided with the name of a law firm in Guelph. Mr. Fisk confirmed that was the correct law firm. Mr. Fisk was asked which lawyer at the firm should be contacted. He again asked them to contact his wife to obtain the name of the specific lawyer. Officers telephoned Mr. Fisk's wife again and were given the name of a specific lawyer at the firm and the firm's telephone number.

[10] Constable Miller telephoned that number. Given that it was a Saturday evening, there was no answer, and no option provided for after-hours service. She advised Mr. Fisk of that and asked if he had another lawyer of choice. At the same time, the Breathalyzer technician telephoned Guelph police to determine whether they knew an after-hours number for that lawyer. Guelph police were unable to provide one.

[11] In response to the question of whether he had another lawyer choice, Mr. Fisk indicated that his wife knew the name of another law firm. Constable McKenna telephoned Mr. Fisk's wife again. She gave him the name of another individual who had the information about the other law firm. Constable McKenna phoned that individual and obtained the name "Legal Shield", and a toll-free telephone number. Constable Miller called that number and spoke with a woman located in the United States. That woman told her that she had no record of either Mr. Fisk or his wife being a member of Legal Shield. Mr. Fisk was advised of that, and asked whether he wanted to speak to another lawyer or to duty counsel. Mr. Fisk indicated that he would speak with duty counsel.

[12] Duty counsel's office was contacted and a message left. Duty counsel returned the call at 9:46 PM and spoke with Mr. Fisk until 9:54 PM. After completing the call, Mr. Fisk used the washroom and drank some water. At 9:55 PM he was taken to the breath room. At 10:01 PM he provided a suitable sample which resulted in a reading of 100 milligrams of alcohol per 100 millilitres of blood. A second sample provided at 10:24 PM yielded the same result. Constable Miller described Mr. Fisk as very belligerent and uncooperative, most of all at the scene of his arrest.

[13] In cross-examination, she agreed that Mr. Fisk's vehicle was stopped approximately 2.3 kilometres from the licensed premises. She testified that there was no phone or phone directory in the interview room, and that Mr. Fisk had no ability to look up the names of lawyers. She essentially agreed with the proposition that unless Mr. Fisk knew the name of a lawyer or specifically requested a telephone book or directory of lawyers, his only option was to speak with duty counsel. She testified that they attempted to contact the lawyers he had named. If he had asked for a telephone book or directory, she would have provided it, although she had not been trained to provide that material. When asked to describe her training with respect to facilitating access to counsel, she indicated that she has always asked the person if they had a lawyer of choice, and if they did not, they can speak with duty counsel. She agreed with the proposition that if you do not have the name of a lawyer, you speak to duty counsel; or, if you ask for other resources such as a phone book, it can be provided. She agreed that a detained person would have to know that they could ask for other resources, such as a phone book or directory.

[14] Constable Miller testified that she viewed the website for the law firm named by Mr. Fisk. She had no recollection of whether she checked to see if that firm practiced criminal law. She described the directory of lawyers practicing criminal law maintained at the police station as a book. She testified that she has never had a detainee ask her to see the book nor had she ever offered it to anyone, because in her experience, detainees have always known the name of a lawyer or wanted to speak with duty counsel. In this case, Mr. Fisk had, by indirectly consulting with his wife, known the name of a lawyer. They attempted to contact his counsel of choice until he could no longer provide them with a name, at which point he decided to speak with duty counsel. She was not trained to offer the directory to any detainee, but was aware that providing the directory was an option if the detainee requested the directory. The detainee has to ask for the directory in order to receive it. Mr. Fisk ultimately spoke with duty counsel for eight minutes. When that call ended, she did not ask Mr. Fisk whether he was satisfied with the advice that he received from duty counsel. The process for speaking with counsel involves the police making a telephone call on behalf of the detainee, and then putting the call through to the detainee in a room where counsel can be spoken to privately.

Constable McKenna

[15] Constable McKenna has been a member of WRPS since 2014. On July 22, 2017, he was with Constable Miller in the capacity of coach officer. He was present for the initial observations of Mr. Fisk and his spouse, the subsequent stop of the vehicle, the failed ASD test, and the arrest of Mr. Fisk. He described Mr. Fisk as being agitated and upset after the ASD demand was made. Mr. Fisk wanted to speak to a lawyer prior to the test. To his credit, Constable McKenna contacted his Sergeant to confirm his own understanding that there was no right to counsel before providing a breath sample into the ASD. After being warned about consequences of refusing, Mr. Fisk provided the sample. After the "fail" result, Mr. Fisk was arrested. Mr. Fisk became more agitated, and was yelling about the failure of police to allow him to speak with counsel prior to the test.

[16] After being read the right to counsel, Mr. Fisk indicated that he had counsel of choice, but was unaware of the name. He indicated that his wife would know the name. Constable McKenna spoke with Mr. Fisk's wife, who indicated that she did not know the name. Mr. Fisk was then transported to North Division headquarters. After Mr. Fisk had been lodged in an interview room, Constable McKenna telephoned Mr. Fisk's wife regarding the name of the lawyer. She provided him with the name of a law firm in Guelph. He had a conversation with Constable Miller, and then telephoned Mr. Fisk's wife again in order to obtain the name of a specific lawyer. After he received a specific name, Constable Miller telephoned the number for the law firm. There was no answer.

[17] After being advised that no one was answering the phone at the law firm, Mr. Fisk indicated that he was a member of "Legal Shield", an organization of lawyers. He indicated that a friend had the contact information for that organization. Constable McKenna phoned Mr. Fisk's wife and obtained the name and telephone number of that friend. Constable Miller called that friend, and obtained the telephone number for Legal Shield. She called that organization, but was informed that Mr. Fisk was not a member. He advised Mr. Fisk of that, and asked Mr. Fisk if he wanted to speak with duty counsel. Mr. Fisk indicated that he did.

[18] In cross-examination, he confirmed that Mr. Fisk made it clear at the roadside that he wanted to speak with a lawyer prior to ever being provided with his right to counsel. Mr. Fisk made it clear that duty counsel was not his choice of lawyer. Constable McKenna confirmed that he never provided either a directory of lawyers practicing criminal law or any other reference material to Mr. Fisk to assist him in selecting counsel of choice. He confirmed that WRPS has a list of lawyers practicing criminal law with their after-hours contact information. He indicated that he was trained to do everything possible to assist someone to contact a lawyer, including providing a lawyers directory, calling others on behalf of an accused in order to obtain the name of counsel, or asking the detainee the name of counsel. He confirmed that it was his belief that Mr. Fisk legitimately wanted to speak to counsel of choice.

[19] Constable McKenna agreed that when he advised Mr. Fisk that he was not a member of Legal Shield, he asked Mr. Fisk whether he had another lawyer's name or whether he wanted to speak with duty counsel. He agreed that was the choice that he put to Mr. Fisk, and Mr. Fisk then indicated he would speak with duty counsel. He agreed that he never gave Mr. Fisk the option of viewing the lawyer's directory, despite the fact that he was trained to do so. He could not explain why he did not offer the directory to Mr. Fisk.

Elizabeth Hird

[20] Ms. Hird is a forensic scientist trained in toxicology who has worked at the Centre for Forensic Sciences since January 2012. She reviewed the evidence in this case and performed calculations to arrive at an opinion regarding Mr. Fisk's BAC at the time of driving. Her opinion is based upon the assumptions set out in her letter of opinion, including an assumption that there was "no consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident". Based upon those assumptions, she projected a BAC of between 105 and 150 milligrams of alcohol in 100 millilitres of blood at the time of driving.

Video Recording of Mr. Fisk in the Interview Room

[21] The time that Mr. Fisk spent in the interview room was audio and video recorded. That recording captures the discussions regarding access to counsel during that time frame.

[22] I make the following observations of Mr. Fisk's conduct during that time frame. Mr. Fisk does not appear to be overly belligerent. He is somewhat argumentative and somewhat hostile, which is hardly surprising given the fact that he had been arrested. He appears extremely frustrated. When alone, he is talking out loud, trying to prompt himself to remember the name of the legal organization that he wants to contact. Mr. Fisk appears to genuinely want to exercise his right to counsel of choice. At the critical moment, after being advised by Legal Shield that Mr. Fisk was not a member, Constable McKenna enters the room to advise Mr. Fisk of that fact. Constable McKenna indicated: "so, since you don't have a lawyer any more, do you want to speak to duty counsel"? Mr. Fisk responds by saying: "well since Legal Shield isn't going to come through, sure, whatever".

Jeffrey Fisk

[23] Mr. Fisk is 53 years old and works as a millwright. He testified that when advised of the right to counsel, he indicated to police that he wanted to speak to counsel of choice. He did not know the name of the individual, but thought that his wife would. The name of the law firm in Guelph that his wife subsequently provided to police was a firm that he had real estate experience with. When told by police that there was no after-hours contact number for that firm, he tried to think of another lawyer. He eventually thought of "Legal Shield", an organization that a friend had told him about a couple of years earlier. He had attended a seminar regarding that organization, and he believed that he had enrolled in the organization. Membership would allow him to speak to a lawyer when he needed to as a result of paying a monthly fee.

[24] Mr. Fisk testified that his efforts to reach Legal Shield were a bona fide attempt to reach a lawyer of his choice. He was not given any other means to contact a lawyer. If he had been offered a directory of lawyers, he would have looked for someone who specialized in criminal law or drinking and driving offences. He ultimately spoke with duty counsel because that was presented as his last option. He was not satisfied with the advice that he received from duty counsel. He was never asked by police if he was satisfied with the advice that he received.

[25] Mr. Fisk indicated that prior to leaving the licensed establishment, he and his wife had eaten. During the time present there, he consumed a glass of wine, which he thought was likely six ounces of wine, and then a draft beer. The beer was five percent alcohol by volume, and may have been a 20 ounce glass. He was uncertain of that. They left the premises immediately after he finished his beer and was stopped by police approximately five minutes later.

[26] In cross-examination, he agreed that when asked by the officer if he had anything to drink that evening, he indicated that he had not. He did so because he did not know what the next question was, but knew if he agreed that he had consumed alcohol, the issue would be pursued further. He agreed that he did not want to be required to provide an ASD sample, notwithstanding the fact that he was certain that his BAC would be below the allowable limit.

[27] He indicated that the law firm in Guelph that he informed the police of was one that his mother had used for her will and real estate transactions. His evidence was that was the only law firm that he knew of. He qualified that by indicating that he had retained a criminal lawyer in Guelph a number of years earlier, but that lawyer is not someone he would retain again. He testified that after his release from custody that evening, he found out that he did not have a membership in Legal Shield.

[28] He also agreed that he has prior convictions for drinking and driving in 1987 and again in 2001. He maintained that he wanted to speak with his lawyer of choice but the police pushed him to come up with a name, something that he was unable to do. He maintained that he did not ask to see a phonebook because he did not know that he could do so. He did not tell the police officer that he was unhappy with the advice that he received from duty counsel because the police officer did not ask him if he was satisfied. He spoke with duty counsel because he had exhausted the names of the lawyers that he knew, and, given his understanding, duty counsel was his only option at that point.

[29] At one point, Crown counsel suggested that in the video recording, Mr. Fisk was "performing for the camera". Mr. Fisk responded by saying "ya". Given the context of the entire cross-examination, I am uncertain as to what to make of that response. Mr. Fisk was obviously frustrated at that point in the cross-examination. I do not view that single syllable response to a proposition put to him in isolation. I do not take that response to suggest that he did not legitimately want to speak to counsel of choice.

Positions of the Parties

The Crown

[30] The Crown maintains that there was no breach of Charter rights. On the contrary, the Crown contends that the police used extraordinary efforts to contact Mr. Fisk's counsel of choice. There was no need to provide Mr. Fisk with a directory or phonebook because Mr. Fisk had two specific lawyers in mind. When he was unable to reach those lawyers, he had an obligation to use the services of duty counsel in order to meet the test for diligence.

[31] With respect to the issue of BAC at time of driving, Mr. Fisk was uncertain of the specific amounts of alcohol that he consumed and the timeframe in which it was consumed. Vague evidence of drinking prior to being stopped by police cannot raise a reasonable doubt. The defence did not present any expert evidence regarding the pattern of drinking and the resulting BAC.

The Defence

[32] With respect to the counsel of choice issue, the defence takes the position that there is a clear violation. In this scenario, the police exercise complete control over the ability of the accused to contact counsel of choice. The police essentially control all information, offer no information, and challenge the detainee to provide the name of counsel of choice. If the detainee fails to provide a name, he or she is essentially channeled away from counsel of choice to duty counsel. The defence contends that this is a breach, and that evidence of the breath tests should be excluded.

[33] With respect to the evidence related to the BAC, the Crown must prove the assumptions underlying the expert opinion. The evidence that Mr. Fisk was stopped minutes after leaving the licensed premises and Mr. Fisk's evidence that he left immediately after finishing his beer raises an issue as to whether the Crown has proven the assumptions underlying the opinion of the toxicologist. The defence contends that the failure of the Crown to prove the assumptions should result in an acquittal.

Applicable Legal Principles

[34] Where the lack of bolus drinking is part of the foundation of an expert's opinion, the Crown must prove the lack of bolus drinking by an accused. That puts the Crown in the difficult position of having to prove a negative. However, courts have consistently ruled that the triers of fact may resort to common sense inferences in such circumstances. Specifically, an available inference is that people do not normally consume large amounts of alcohol just prior to driving. It is therefore largely a matter of common knowledge and common sense about how people behave. An available common sense inference is that people drink at a normal pace. Where there is no evidence to show unusual or bolus drinking, the court is entitled to infer that the accused drank at a normal pace.

[35] When a detainee opts to exercise the right to counsel by speaking with a specific lawyer, section 10(b) of the Charter gives them a reasonable opportunity to contact their chosen lawyer prior to police questioning, or in this case, the provision of breath samples. If the chosen lawyer is not immediately available, a detainee has the right to wait a reasonable amount of time for the lawyer of choice to respond. What is reasonable depends upon the circumstances as a whole. If the chosen lawyer is not available within a reasonable period of time, detainees are expected to exercise the right to counsel by calling another lawyer or the police duty to hold off is suspended. The police must be diligent in ensuring that an accused has a reasonable opportunity to exercise their rights. An accused must be reasonably diligent in exercising the right. There is no absolute right to counsel of choice. The existence of the 24-hour duty counsel service is a critical factor to be considered in determining whether an accused has been given a reasonable opportunity to exercise the right to counsel.

[36] Where a person has asked to speak with counsel, and is frustrated in that effort and then gives up, there is a duty on police to advise the accused that his or her right is not exhausted and to ensure that any choice to give up that right does not derive from that misconception. In what is referred to as a Prosper warning, the police must remind the person that they have the right to speak with a lawyer and that the officer will refrain from eliciting evidence until the right is implemented. That ensures that the detainee understands the consequences of the waiver. The burden of establishing an unequivocal waiver is on the Crown. The duty arises when a detained person initially asserts the right to counsel, is diligent in exercising it, and after having been afforded a reasonable opportunity to exercise it, has a change of mind and no longer wants to consult with counsel.

[37] Burstein, J, conducted a detailed review of the issues surrounding the right to counsel in R. v. Manuel, 2018 ONCJ 381. That case involved a police officer whose practice was to ask a detainee if they had "a lawyer in mind". When the detainee indicated that he did not, the officer indicated "so there is duty counsel…free legal advice for you". The court concluded that if a detainee asks to speak with counsel, the police have certain obligations to facilitate the detainee's ability to choose a lawyer and to contact the lawyer that they have chosen. The court further held that the failure to inform Mr. Manuel that a telephone book would be available to him left a residual misunderstanding of the options available to Mr. Manuel and constituted a failure to meet the informational obligation of the police. The result was an unconstitutional channeling of Mr. Manuel to duty counsel as a result of this misinformation and a lack of information provided to Mr. Manuel regarding his rights.

[38] Similarly, in R. v. Kowalchuk, 2018 ONCJ 688, Parry, J. pointed out that the Supreme Court has made it clear that the right to counsel includes the right to make meaningful choices about the exercise of that right. The court also pointed out that the solicitor-client relationship is as much personal as it is professional. In order to make informed decisions, accused people must trust the person providing the advice.

Analysis

[39] With respect to the issue related to BAC, the evidence is that Mr. Fisk left the licensed premises immediately after finishing his beer. He had eaten there, and consumed two drinks. His evidence was vague regarding the size of each drink, and the timeframe in which it was consumed. However, there is nothing in his evidence to suggest that he consumed alcohol at anything other than a normal pace. In my view, the only logical inference available to the court is that he drank at a normal pace, and accordingly did not consume large quantities of alcohol within 15 minutes of the incident with police. Accordingly, the Crown has proven the underlying assumptions relied upon by the toxicologist in reaching her opinion. The Crown has proven that, at the time of driving, Mr. Fisk had a BAC of between 105 and 150 milligrams of alcohol in 100 millilitres of blood.

[40] With respect to the right to counsel issue, Mr. Fisk clearly and consistently indicated that he wished to speak to counsel. He also made it clear that duty counsel was not counsel of choice. Faced with that situation, the police, in good faith, made a number of telephone calls to Mr. Fisk's wife, a friend of Mr. Fisk, a law firm in Guelph and Legal Shield. All of those efforts were fruitless. Given the fact that Mr. Fisk clearly wanted to speak with counsel of choice, and that police were unable to connect him with either of his two choices, the court's focus is on the strange decision by both officers not to make Mr. Fisk aware of the lawyers directory in police possession, or any other resources such as a telephone book.

[41] In reviewing the video of the interview room, the critical point is when Constable McKenna enters the room to advise Mr. Fisk that he is not a member of Legal Shield. As indicated, Constable McKenna said: "so, since you do not have a lawyer any more, do you want to speak with duty counsel"? Mr. Fisk's response is: "well, since Legal Shield isn't going to come through, sure, whatever". I find that the exchange between Constable McKenna and Mr. Fisk was understandably interpreted by Mr. Fisk as an indication that duty counsel was the last resort if he wanted to speak to a lawyer. I find that in presenting the choice in that fashion, Mr. Fisk's right to make meaningful choices about the exercise of his right to counsel was breached.

[42] In coming to that conclusion, I note that Constable Miller's evidence that she was never trained to provide a detainee with what she referred to as the lawyer's book, or a telephone book, unless the person specifically requested it. The attitude seemed to be that those resources should remain a secret unless the detainee raised the possibility of their existence. I also note Constable McKenna's evidence that he was trained to provide a detainee with the lawyer's directory, but in this case, inexplicably did not. In spite of good faith efforts on the part of the police to put Mr. Fisk in touch with any lawyer that he could name, there appears to be a lack of understanding of the nature of the right to counsel and the significance of counsel of choice on the part of the police officers. It would not have been onerous at all for the police to simply make Mr. Fisk aware of the fact that there was a directory of lawyers who practiced criminal law complete with after-hours contact numbers available should he wish to review it if they were unable to reach the lawyers he named. Indeed, Constable McKenna was trained to do so.

[43] I find that Mr. Fisk was channeled to the advice of duty counsel in an unconstitutional fashion.

Section 24(2) Analysis

[44] Section 24(2) of the Charter is to be given a broad and purposive interpretation. Its focus is societal, aimed at systemic concerns as opposed to punishing the police or providing compensation to an accused. The focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[45] In R. v. Grant, 2009 SCC 32, the Supreme Court of Canada confirmed that section 24(2) of the Charter mandated a balancing exercise "to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Disassociation of the justice system from police misconduct 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".

[46] The purpose of section 24(2) of the Charter is to guard against the admission of evidence obtained by a breach of Charter rights where admitting that evidence would bring the administration of justice into disrepute. The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of and public confidence in the justice system. Section 24(2) does not focus on the immediate reaction to an individual case. Instead, it focuses on whether the overall repute of the justice system, viewed in the long term, will be adversely affected by the admission of the evidence. The inquiry is objective and 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.

[47] Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means that damage has already been done to the administration of justice. Section 24(2) seeks to ensure that evidence obtained as a result of that breach does not do further damage to the repute of the justice system. The focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused. It is focused on systemic concerns, and on the broad impact of admission of the evidence on the long-term repute of the justice system.

[48] In answering the question of whether evidence should be excluded, the court must assess and balance the effect of admitting the evidence upon society's confidence in the criminal justice system. The Grant decision requires the court to consider all of the circumstances in assessing and balancing:

1. The seriousness of the Charter infringing state conduct;
2. The impact of the breach on the Charter protected interests of the accused; and
3. The societal interest in adjudication on the merits.

The Seriousness of the State Conduct in Violating the Charter

[49] In examining the seriousness of the state conduct, including the nature of the police conduct which led to the discovery of the evidence, the court must consider the need to preserve public confidence in the justice system and the need to ensure conformity to the rule of law. Would the admission of the evidence send a message that the court effectively condones breaches of citizens' rights by failing to dissociate itself from the fruits of the unlawful conduct? As part of that analysis, the more severe, deliberate or reckless the state conduct is, the greater the need will be for the court to dissociate itself from that conduct. If the state conduct involves inadvertent or trivial violations of the rights of an accused, the existence of good faith on the part of the police, or exigent circumstances such as the need to prevent the destruction of evidence, those factors will favour admission of the evidence.

Impact of the Charter Violations

[50] This heading calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right which was infringed. The impact of the breach may range on a spectrum from technical and fleeting to profoundly intrusive. The more serious the impact on the protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual protection to citizens, encouraging public cynicism and thereby bringing the administration of justice into disrepute.

The Societal Interest in Adjudication on the Merits

[51] This aspect of the inquiry reflects society's collective interest in ensuring that those who break the law are brought to trial and dealt with according to the law. Society generally expects that a criminal trial will be adjudicated on its merits. This aspect of the analysis examines whether the truth-seeking function of the trial process would be better served by the admission of the evidence, or by its exclusion. The reliability of the evidence obtained by the Charter breach is a factor, as is the significance of the evidence to the case for the Crown. The seriousness of the offence is also part of the considerations.

[52] The fact that evidence obtained in breach of the Charter may facilitate the discovery of the truth in the adjudication of the case on its merits is weighed against factors pointing to exclusion in order to balance the interests of truth with the integrity of the justice system. In other words, does the vindication of the specific Charter violation by excluding the evidence extract too great a toll on the truth-seeking goal of a criminal trial?

Conclusions

[53] The Charter breach in this case is serious. Given the vulnerability of any detainee, the right to counsel is a fundamental protection. The importance of that protection should be known to all police officers. While the officers made good faith attempts to contact the lawyers named by Mr. Fisk, their failure to understand their informational obligations is a serious breach of a basic right which cannot be condoned by the court.

[54] In my view, the fact that Mr. Fisk ultimately had an eight-minute conversation with duty counsel as a result of the failure of police to inform him of the right to access the information that he needed to choose counsel does not mitigate the breach of his right to counsel. As pointed out in Manuel, supra, for the right to counsel to have value, the recipient of the advice must believe that they can trust the person giving the advice and the advice given. The ability to choose counsel fosters trust in the advice received. To be deprived of the right to choose is a significant deprivation of the right to counsel. This factor therefore also favours exclusion of the evidence.

[55] Given the societal costs of drinking and driving, the reliability of the BAC readings, and the fact that the Crown's case rests upon that evidence, this factor favours admission of the evidence and adjudication on the merits. However, in the final balancing of the factors, including the need to deter police practices which risk consistently undermining the scope of the Charter right, the case for excluding the evidence is compelling.

[56] The evidence obtained in contravention of Mr. Fisk's right to counsel is excluded, and there will be a finding of not guilty.

Released: January 16, 2019

Signed: Justice A.T. McKay