Court Information
Ontario Court of Justice
Date: September 13, 2019
Court File No.: Lindsay 180251
Parties
Between:
Her Majesty the Queen
— And —
Daniel Sisson
Before: Justice S. W. Konyer
Heard on: June 25 and July 5, 2019
Reasons for Judgment released on: September 13, 2019
Counsel
Mr. W. Barnes — counsel for the Crown
Mr. B. Starkman — counsel for the defendant Daniel Sisson
KONYER J.:
Introduction
[1] Daniel Sisson is charged with operating a motor vehicle with more than the legal limit of alcohol in his blood on February 8, 2018, contrary to s.253(b) of the Criminal Code. He is also charged with operating his vehicle with an unsealed container of liquor, contrary to s.32(1) of the Liquor Licensing Act. On consent, both charges were tried together. At the end of the trial, he conceded that the Crown had proven the Liquor Licensing Act offence. The balance of these reasons deal with my disposition of the Criminal Code charge.
[2] Mr. Sisson raised a number of Charter issues. First, he claims that the arresting officer did not make a demand for roadside breath samples "forthwith" once he formed a reasonable suspicion that Mr. Sisson had alcohol in his body, as required by s.254(2) of the Criminal Code. The Crown disagrees. The parties do agree, however, that if the demand was not made forthwith, that it was unlawful and would give rise to infringements of Mr. Sisson's s.8 and 9 Charter rights.
[3] If I find that the demand was not made forthwith, Mr. Sisson also claims that the police did not have the authority to suspend his s.10(b) Charter right to be immediately informed of his right to counsel. The Crown argues that even if the demand was not made forthwith, there was no reasonable opportunity for Mr. Sisson to consult counsel at the roadside, and therefore no s.10(b) breach.
[4] Third, Mr. Sisson claims that once he was arrested, the police breached his s.10(b) rights by failing to inform him that he had the right to search for a lawyer to assist him. He argues that his right to counsel of choice was breached because the police presented him with incomplete information: that he could contact a lawyer if he had one, otherwise he could only receive legal advice from duty counsel. He also points out that he complained to the police about his consultation with duty counsel after the fact. This, he argues, ought to have further prompted the police to inform him that he had the right to search for a lawyer of his own choosing. He testified on the Charter voir dire that if he had been provided this information, he would have used his cell phone to conduct an internet search for a specialist in drinking and driving cases.
[5] The Crown argues that the police informed Mr. Sisson at the roadside that he had the right to contact "any lawyer he wished" and that they were under no further obligation to inform him that he could take steps to search for a lawyer other than duty counsel. The Crown says that it was sufficient for the police to only offer duty counsel to Mr. Sisson once he told them that he did not have his own lawyer. Further, though Mr. Sisson may have expressed some general dissatisfaction with duty counsel, he did not complain about the quality of the advice he received, which must be presumed to have been competent. The Crown argues that binding appellate authority exists which supports its position that the conduct of the police did not constitute a breach of Mr. Sisson's s.10(b) rights.
[6] If I find one or more Charter breaches, Mr. Sisson seeks an order excluding the results of the analysis of his breath samples by both the approved screening device and the approved instrument. He argues that the Charter-infringing state conduct was serious, and that the impact of the multiple breaches on his Charter-protected interests was also serious. Although he concedes that an exclusion of the evidence would undermine society's interests in a trial of his case on its merits, the long term repute of the administration of justice requires that the evidence be excluded.
[7] The Crown, on the other hand, argues that any breaches of Mr. Sisson's Charter rights were technical, and had no real impact on his Charter-protected interests. Since exclusion of the evidence would gut the prosecution's case and deprive the public of a trial of a serious criminal charge on its merits, the Crown argues that a proper balancing of the applicable factors must result in an inclusion of the evidence even if I find that one or more breach occurred.
[8] Clearly, if I find that one or more breaches occurred and exclude the evidence, then Mr. Sisson must be found not guilty. Even if I do not exclude the evidence, however, the defence argues that the results of the analysis of Mr. Sisson's breath by an approved instrument have no evidentiary value. This is because the Crown has not satisfied the prerequisites for the presumption of accuracy under s.320.31(1)(a). There are two prongs to this argument: first, that the system blank tests and system calibration checks were not conducted by the technician; second, that the Crown has not proven the target value of the alcohol standard used to conduct the calibration checks was certified by an analyst.
[9] The Crown says that a system calibration check was conducted in compliance with the section, and that I can be satisfied that the target value of the alcohol standard used in the system calibration check was certified by an analyst because the technician testified to this fact.
[10] The defence concedes that if I do not exclude the breath results and I find that the Crown has proven compliance with s.320.31(1)(a), then the charge against Mr. Sisson has been proven.
[11] Therefore, the issues I need to decide are as follows:
Did the arresting officer make a demand for roadside samples of Mr. Sisson's breath "forthwith" once he formed a reasonable suspicion that Mr. Sisson had alcohol in his body?
If he did not, was there a reasonable opportunity for Mr. Sisson to consult counsel before the officer made the roadside demand?
Did the police breach Mr. Sisson's right to counsel of choice by failing to inform him that he could take steps to locate counsel other than duty counsel for legal advice?
If any breaches of Mr. Sisson's Charter rights occurred, should the evidence of his breath readings be excluded?
If the readings are not excluded, is the Crown entitled to rely on the presumption of accuracy in s.320.31(1)(a)?
[12] In order to answer these questions, I will first summarize the relevant evidence and make findings of fact. I will then summarize the relevant law that applies to these issues, and apply that law to the facts as I have found them to be.
Summary of the Facts
[13] On February 8, 2018, PC Maki, an OPP officer from Bracebridge, was transferring a prisoner to PC McDonald, an OPP officer from Bancroft. They met at a midway point in Haliburton county. During the prisoner exchange, the officers collectively were approached by a civilian who told them that a pickup truck had collided with a nearby snowbank. The civilian also said that the driver of the pickup may be drunk. By the time the officers got to the snowbank the truck was gone, but they saw a truck matching the description pulling into a nearby parking lot. At 5:24 p.m., PC Maki conducted a traffic stop of the pickup truck.
[14] Mr. Sisson was the driver of this truck. PC Maki spoke to him while PC McDonald approached the passenger side of the pickup truck, spoke to a passenger, and observed several open cans of beer inside the cab of the pickup. He told PC Maki of his observations within a minute or two of the traffic stop.
[15] Up to this point, PC Maki said he had been investigating the matter as a suspected collision, without making any assumption that alcohol was involved. He ensured the driver was not injured, and briefly inspected the vehicle for damage. When he learned of the open alcohol, he questioned the driver. Mr. Sisson told him that the beer belonged to him. He then asked Mr. Sisson for his driver's licence, which he produced. At this point, as he continued speaking to Mr. Sisson, he began to detect an odour of an alcoholic beverage on his breath. PC Maki asked him if he had been drinking, and Mr. Sisson admitted to consuming three beers. PC Maki then noted that his eyes were very glossy and bloodshot, and that his speech was slightly slurred.
[16] After making these observations, PC Maki returned to his cruiser to run queries on Mr. Sisson using the information on his driver's licence, and on the truck's licence plates. Because he was operating outside of his jurisdiction, it took longer than normal for him to receive a response to these queries. Once he received a response, PC Maki returned to Mr. Sisson. He noted that the odour of alcohol from his breath was still present. At this point, he made a demand to Mr. Sisson that he provide a sample of his breath for analysis by an approved instrument. The time was 5:38, or 14 minutes after the traffic stop was commenced. PC Maki said that it was only at this point that he formed a suspicion that Mr. Sisson had alcohol in his body. PC Maki did not make notes of any times in between, such as the time he was told of the open beers in the cab of the truck, the time he first detected an odour of alcohol, the time Mr. Sisson admitted to consumption, or the time he returned to his cruiser to make queries. However, PC Maki denied the suggestion that he must have formed the suspicion earlier given the constellation of factors present pointing to the fact that Mr. Sisson had alcohol in his body.
[17] I cannot accept PC Maki's testimony on this point. Before he returned to his cruiser to conduct queries, he had the following information: that the truck had been involved in an unexplained collision, that a civilian witness suspected the driver was under the influence of alcohol, that open alcohol belonging to the driver was found in the cab of the truck, that the driver admitted to consuming three beers, that the driver had an odour of alcohol on his breath, that his eyes were glossy and bloodshot and his speech slurred. That Mr. Sisson had alcohol in his body was an irresistible inference from this constellation of factors. Nothing more was added by the queries the officer made or from any observations made after the queries were completed. PC Maki's claim that he did not have a suspicion that Mr. Sisson had alcohol in his body until speaking to him again after running the queries is impossible to credit. I find that PC Maki had a reasonable suspicion that Mr. Sisson had alcohol in his body at least by the time he decided to undertake queries of Mr. Sisson and his vehicle.
[18] PC Maki had an approved screening device in his cruiser. Once the demand was made at 5:38, he proceeded promptly to obtain the device, demonstrate its use to Mr. Sisson, and conduct a self-test. There is no dispute that the device was properly calibrated and functioning properly. At 5:41, Mr. Sisson provided a suitable sample of his breath, which produced a fail result. He was arrested immediately for the over 80 offence before the court.
[19] PC Maki then informed him of his right to counsel by reading from the standard wording contained in his notebook. This included telling Mr. Sisson that "you have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer." When asked if he understood his right to counsel, Mr. Sisson refused to answer. When asked by PC Maki if he wished to "call a lawyer now", Mr. Sisson also refused to answer. PC Maki was concerned because, in his words, Mr. Sisson was not even acknowledging his questions.
[20] PC Maki then proceeded to explain the right to counsel to Mr. Sisson in lay terms. Although he did not record or recall precisely what he told Mr. Sisson, it is clear to me that he told Mr. Sisson that he if he wanted legal advice he could either call a lawyer if he had one, or that he could call duty counsel if he did not have his own lawyer. PC Maki agreed that he never told Mr. Sisson that he had the right to request counsel other than his own lawyer or duty counsel.
[21] After providing this explanation of the right to counsel, PC Maki transported Mr. Sisson to the Haliburton OPP detachment where they were met by PC Johnson, who acted as the qualified technician in this case. Before commencing the breath testing procedure, further conversation occurred between Mr. Sisson and the officers about his right to counsel, which was captured on the breath room video. First, there was a conversation between PC Maki and Mr. Sisson that began with a reference to their roadside discussion.
Maki: You remember right after that I read you a few things in quick succession, right?
Sisson: I remember.
Maki: You had the right to speak to a lawyer if you wanted to, remember that?
Sisson: Mhmm.
Maki: And you didn't want to answer me then.
Sisson: I don't have a lawyer.
Maki: OK, but you understand that if you wanted to, you have the right to speak to a lawyer?
Sisson: And duty counsel as well.
Maki: Right, correct. You did listen to me.
Sisson: I know, I know. [smiles and taps finger to side of head]
Maki: Did you want to talk to a lawyer right now?
Sisson: I don't have a lawyer, so I cannot actually physically call a lawyer.
Maki: OK, we can put you in touch with duty counsel who can give you legal advice.
Sisson: OK.
Maki: Did you want to contact duty counsel?
Sisson: Sure, yes, absolutely, there's no harm in it, right?
Maki: Nope, right, that's the first time you told me that so.
Sisson: No, but you didn't tell me that the first time I was allowed to talk to – to call duty counsel, you just said I was allowed to talk to a lawyer.
Maki: That was in what I read to you right? You can talk to a lawyer.
Sisson: You did not say duty counsel. I can talk to a lawyer not duty counsel. Duty counsel would be provided for me.
Maki: No, no, what I read to you includes duty counsel but that's fine.
Sisson: It's OK, maybe I misheard you, it's no problem.
Maki: And that's what I asked you, right, but you refused to talk to me then.
[22] Following this conversation, the police placed a call to the toll free legal aid number on Mr. Sisson's behalf, and he spoke to the duty counsel who returned this call. After speaking to duty counsel, Mr. Sisson was brought back to PC Johnson, the qualified technician. Before beginning the breath testing procedure, PC Johnson asked questions of Mr. Sisson about his consultation with duty counsel. He said he did so in order to assure himself that Mr. Sisson was satisfied that he had been able to exercise his right to counsel. The following exchange then occurred:
Johnson: All right, then, I guess I'll just recap one more time then. In relation to your counsel of choice and stuff like that, are you satisfied that you have that now then?
Sisson: Not after I talked to him, no [laughs] but yeah, no, I guess so. Yeah. That's all I can do. At this point.
[23] PC Johnson agreed that at this point he had concerns about whether Mr. Sisson was satisfied with his consultation with duty counsel. PC Maki, who was still present in the breath room, then asked a number of questions in an attempt to clarify the issue. Mr. Sisson made a number of different statements, including referring to lawyers as "fucking idiots" and telling PC Maki "They're no good. They didn't tell me anything I didn't already know". The following exchange also occurred:
Maki: If you had a lawyer of choice, you had a lawyer on retainer or one you knew or one you wanted, we'd arrange that for you, but from what I'm getting from you, you don't, so.
Sisson: No, not anymore.
Maki: Duty counsel was your legal counsel of choice, right?
Sisson: Yup, correct.
[24] PC Johnson said in cross-examination that if Mr. Sisson had asked for a list of lawyers, that he would have been obliged to provide one. Since Mr. Sisson never made this request, however, his belief was that the police had fulfilled their s.10(b) obligations by providing access to duty counsel.
[25] Mr. Sisson filed an affidavit in support of the Charter application, and testified on the Charter voir dire. Mr. Sisson claimed that he would have made efforts to locate a lawyer with a specialty in defending drinking and driving cases if he had been given this opportunity by the police.
[26] He also said that he was dissatisfied with the advice he received from duty counsel because the lawyer he spoke to did not seem knowledgeable and that the lawyer "hummed and hawed" and did not know the answers to questions posed by him. Mr. Sisson, however, declined to disclose the specifics of this conversation, nor was the duty counsel lawyer who gave him advice called to testify. Further, Mr. Sisson's evidence was generally unreliable. He testified that he was never informed of his right to counsel at the roadside, a claim that his counsel concedes is plainly wrong. He also said that he was never told about duty counsel by PC Maki at the roadside, which is clearly contradicted by his own statements to the police on the breath room video.
[27] PC Johnson acted as the qualified technician in this case. He operated an approved instrument, an Intoxilyzer 8000C, to obtain and analyze samples of Mr. Sisson's breath. Before using the instrument on Mr. Sisson, he conducted diagnostic and calibration checks on it to assure himself that it was in proper working order. One of the checks he conducted was a system calibration check, which requires the instrument to analyze the blood alcohol concentration of a known standard solution. In order to pass this check, the result of this analysis must be within 10% of the known standard.
[28] PC Johnson said that he had been trained that the target value for the known standard was 100mg of alcohol per 100ml of solution, meaning that the result of the calibration check must fall within 90 and 110. In this case, the results of the system calibration checks (which are repeated multiple times through the breath testing sequence) all fell within the acceptable range. He also said that from his training and experience, all known alcohol standard solutions had a target value of 100. Prior to conducting the system calibration check, he confirmed that the alcohol standard had been certified for use by an analyst from the Centre of Forensic Science. He did so by reading the certificate that accompanied the alcohol standard, which certified that the solution was suitable for use with the instrument. Since he had been trained that all known standards contained 100mg of alcohol per 100ml of solution, he believed that the certificate he viewed confirmed that the alcohol standard he used had this concentration.
[29] PC Johnson was notified that his services as a qualified technician would be required in this case at 5:42 p.m., at which time he was already at the detachment. He then went to the breath room and, in accordance with his training, conducted a series of quality assurance checks on the instrument between 5:51 and 5:54. These checks, which he described as "stand-alone" checks, included a system blank test and a system calibration check as those terms are used in s.320.31(1)(a) of the Criminal Code.
[30] He did not receive custody of Mr. Sisson until 6:09, at which point a further discussion about his right to counsel occurred as described earlier. This led to a delay as Mr. Sisson was afforded an opportunity to speak to duty counsel. He then received Mr. Sisson back into his custody at 6:44. Breath samples were received from Mr. Sisson at 6:55 and 7:17, which were analyzed and determined to contain 117 and 103mgs of alcohol per 100ml of blood, respectively.
[31] In addition to what he described as the "stand-alone tests" of the instrument between 5:51 and 5:54, PC Johnson said that the instrument itself conducted a series of calibration and diagnostic tests before receiving each sample. These also included a system blank test and system calibration check.
Analysis of the Legal Issues
i) Was the roadside demand made "forthwith"?
[32] PC Maki made a demand to Mr. Sisson that he provide a sample of his breath for analysis by an approved screening device at 5:38 p.m. This demand was made pursuant to s.254(2)(b) of the Criminal Code, which provides that
(2) If a peace officer has reasonable grounds to suspect that a person has alcohol in their body and that the person has, within the preceding three hours, operated a motor vehicle, the peace officer may, by demand, require the person …
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the officer for that purpose.
[33] The law is clear that an officer making a roadside screening demand must make the demand immediately once he or she forms a reasonable suspicion that the driver under investigation has alcohol in their body: R. v. Quansah, 2012 ONCA 123, at paras. 24-44. Otherwise, the demand is not made in compliance with the section, rendering the search and seizure of the driver's breath unreasonable. The driver's continued detention beyond the point where the officer forms the suspicion but fails to make a demand is also rendered arbitrary.
[34] In this case, I agree with the defence that PC Maki failed to comply with the forthwith requirement of s.254(2)(b). Before deciding to delay the investigation to make background queries of Mr. Sisson and his vehicle, the officer had received a civilian complaint of a drunk driver, had reason to believe the vehicle had been driven into a snowbank, received information from another officer of open alcohol in the cab of the truck, received an admission of consumption from the driver and detected an odour of alcohol from his breath. The inference that Mr. Sisson had alcohol in his body was not only reasonably available to the officer, it was simply irresistible. I reject PC Maki's evidence that he did not form a suspicion until after the background queries had been completed. I find that he failed to make the approved screening device demand forthwith once he had a reasonable suspicion. Mr. Sisson has therefore proven a breach of his s.8 and 9 Charter rights.
ii) Was there a reasonable opportunity for Mr. Sisson to consult counsel at the roadside?
[35] Where a roadside screening demand is made "forthwith" once the officer forms a reasonable suspicion, the officer need not inform the detainee of his or her right to counsel: R. v. George, at para. 27. Although s.254(2)(b) infringes s.10(b), it is a reasonable limit prescribed by law and justified under s.1, so long as the demand is made forthwith. Where the demand is not made forthwith because an approved screening device is not immediately available, "the demand is not valid and does not justify a failure to provide s.10(b) rights": George, at para. 28. Where the officer making the demand cannot require immediate compliance, it is necessary to consider whether the detainee had a realistic opportunity to consult with counsel before the arrival of the device.
[36] In this case, the defence argues that, because PC Maki did not make an immediate demand upon forming a reasonable suspicion that Mr. Sisson had alcohol in his body, he was required to inform Mr. Sisson of his right to counsel and to afford him an opportunity to exercise that right. I disagree. Although it is true that PC Maki's demand was not a valid s.254(2)(b) demand, the question I must consider is whether there was a realistic opportunity for Mr. Sisson to consult with counsel before the officer was in a position to require compliance with the demand.
[37] I find that PC Maki delayed making the demand for a matter of minutes while he asked the dispatcher to conduct queries of Mr. Sisson and his vehicle. These are investigative steps he would have been lawfully entitled to take during the course of this legitimate traffic stop. PC Maki said that he expected these queries to be answered quickly based on experience, but that there was some added delay because he was outside of his usual jurisdiction. While he ought to have made the demand prior to conducting these queries, I cannot find that there was a realistic opportunity for Mr. Sisson to consult counsel during this brief period. PC Maki was otherwise in a position to require immediate compliance with the demand, as he had an approved screening device in his possession. In these circumstances, Mr. Sisson has failed to prove a breach of his s.10(b) rights.
iii) Was Mr. Sisson's right to counsel of choice infringed?
[38] There is no dispute that the right to counsel includes the right of a detainee to choose the counsel they wish to consult for advice. There is also no real dispute that the right to counsel of choice is not absolute, particularly when an accused has just been arrested and is in need of prompt summary advice. The real issue in this case is whether the police were required to inform Mr. Sisson that he had the right to search for a lawyer, or whether it was sufficient for the police to offer only duty counsel once he told them that he did not have his own lawyer.
[39] The parties agree that had Mr. Sisson expressed a desire to take steps to find his own lawyer, for example by calling a family member or asking to look at a phone directory or use the internet to search for a lawyer, that the police would have been required to facilitate such a request. What they dispute is whether the police were required to inform him that he had the right to take such steps.
[40] The Crown argues that because PC Maki informed him of his right to counsel at the roadside using the standard OPP card which includes the phrase "any lawyer you wish" that the police properly conveyed to Mr. Sisson his right to choose his own counsel for advice in his situation. Since he did not express a desire to choose his own lawyer, the Crown argues that there was no breach of the right to counsel of choice. While it is true that PC Maki spoke these words to Mr. Sisson initially, it is also true that when Mr. Sisson did not respond, the officer effectively conveyed to him that his only option, if he did not have or know a lawyer and wanted legal advice, was to accept advice from duty counsel. This limited option was conveyed to him repeatedly, and reinforced by PC Johnson, who also told Mr. Sisson that unless he had a lawyer "on retainer" that his only option for legal advice was duty counsel.
[41] I find, therefore, that the police effectively conveyed to Mr. Sisson that his only option for legal advice, since he did not have his own lawyer, was duty counsel. Many trial Judges, myself included, have found that conveying this impression to a detainee or arrestee infringes the right to counsel of choice. For example, in R. v. Manuel, [2018] O.J. No. 2955, Burstein J held at para. 37 that "[a]bsent evidence that a detainee knowingly waived his right to access the tools which the police are obliged to provide, the police are not constitutionally permitted to take the shortcut to duty counsel."
[42] Appellate authority on the issue, however, is divided. In R. v. Ghaznavi, 2011 ONSC 5686, the Summary Conviction Appeal Judge found that there was no breach of the right to counsel of choice where the accused expressed a "settled determination" to speak with his own lawyer, and, when that lawyer was unavailable, "expressed no interest in a random search for someone else" [para. 53]. What is unsaid but implicit in this ruling is that the police were not obliged to inform the accused that he could make such a search.
[43] Similarly, in R. v. Ferose, 2019 ONSC 1052, the Summary Conviction Appeal Court Judge held that "it is unlikely that any breach of the detainee's s.10(b) interests will be found" [para. 73] where the detainee does not request a specific lawyer, is only offered duty counsel, and expresses no complaint to the police at the time about the advice received.
[44] In R. v. Ruscica, 2019 ONSC 2442, the Summary Conviction Appeal Court Judge held, at para. 43, that any "implementational duty to assist a detainee to identify and locate private counsel [….] must be based on a request from the detainee which reasonably requires the police to assist in this regard." The court specifically rejected the argument that the police had an obligation to inform all detainees that they could access phone books or other resources to search for counsel as a matter of course. This holding was, however subject to an important caveat, namely that "the trial judge found that the appellant gave no indication that he was not satisfied with his opportunity to contact counsel" [para. 37]. The court also held that "[t]here may well be cases based on what an accused says to the police which make it mandatory for the police to offer resources such as a phone book to assist someone who is looking for private counsel" [para. 38].
[45] Finally, in R. v. O'Shea, [2019] O.J. No. 1178, the Summary Conviction Appeal Court Judge considered circumstances where a detainee expressed a desire to contact a particular counsel who was unavailable. The court held, at para. 40, that s.10(b) may impose an obligation on the police to advise the detainee that they could contact another lawyer. At para. 41, the court held that where "it was clear that she wished to exercise her right to counsel" who was unavailable, "it should have been apparent to the officers that the respondent may not have understood that she had the right to speak to another lawyer besides duty counsel."
[46] What I take from the appellate authorities is this: while the police may not be required to inform every detainee who does not already know the name of a specific lawyer that they can take steps to search for a lawyer, they may be required to impart this information where it becomes clear that the detainee mistakenly believes that duty counsel is their only option for legal advice. Where the detainee does speak to duty counsel and then expresses dissatisfaction, this obligation is more likely to arise.
[47] Applying that law to the facts of this case, I find that the police were responsible for creating the belief expressed by Mr. Sisson that, since he did not already have a lawyer, his only option for obtaining legal advice was through duty counsel. Not only did the police fail to correct this misapprehension on the part of Mr. Sisson, they failed to take any meaningful steps to remedy the situation once Mr. Sisson expressed dissatisfaction with duty counsel. I agree with the defence that in those circumstances the police were required to inform Mr. Sisson that he had the right to search for a lawyer. I do not accept the argument that this would create an unduly onerous burden on the police. It is a burden that could have been easily satisfied by, for example, allowing Mr. Sisson to conduct a search for a lawyer using his cell phone. I accept Mr. Sisson's testimony that had he been informed of his right to take such steps, he would have made efforts to search for a lawyer experienced in drinking and driving cases, just as he did for his trial.
[48] I find, therefore, that Mr. Sisson has established a breach of his right to counsel of choice under s.10(b) of the Charter.
Should the Intoxilyzer results be excluded as a remedy for the breaches of Mr. Sisson's s.8, 9 and 10(b) rights?
[49] Section 24(2) of the Charter provides that where evidence has been obtained in a manner that infringed any guaranteed right, "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."
[50] The law on s. 24(2) has been settled since the Supreme Court decision in Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1. To decide if admitting the evidence would bring the administration of justice into disrepute, I need to consider and balance three factors:
The seriousness of the Charter-infringing state conduct;
The impact of the infringements on Mr. Sisson's Charter-protected interests; and,
The effect that exclusion of the evidence would have on society's interests in having this case decided on its merits.
[51] I will consider each factor in turn, and then balance my findings.
i) The seriousness of the Charter infringements
[52] Charter infringements can range in seriousness on a "spectrum from mere technical breaches at one end to bad faith violations at the other": see R. v. Jennings, 2018 ONCA 260, at para. 26. Clearly, the more serious the police conduct resulting in the breach or breaches, the more this branch of the test will favour exclusion. Wilful or reckless disregard by the police of Charter standards will also make the conduct more serious.
[53] In this case, the s.8 and 9 breaches were technical and therefore less serious. Objectively speaking, PC Maki had a reasonable suspicion that Mr. Sisson had alcohol in his body while driving. He was entitled to demand that Mr. Sisson provide a sample of his breath for roadside screening. What he failed to do was make that demand promptly once he formed the suspicion. The delay, however, was brief and occurred while the officer took legitimate investigative steps that would have been taken place at the roadside in any event. The brief delay had no discernible impact on the events that occurred once Mr. Sisson failed the roadside test. These breaches were not serious.
[54] The s.10(b) breach is more serious in nature. Together, the arresting officer and qualified technician told Mr. Sisson that his only option for obtaining legal advice was through duty counsel since he did not already have his own lawyer. Further, neither officer appeared to appreciate the need to take further steps once Mr. Sisson expressed dissatisfaction with his consultation with duty counsel. While I accept that both officers believed they were doing everything the law required of them, "ignorance of Charter standards must not be rewarded or encouraged, and negligence or wilful blindness cannot be equated with good faith": see Grant, supra, at para. 75. I find that the officers were negligent in failing to inform Mr. Sisson that he could search for his own lawyer, particularly after he expressed dissatisfaction with his consultation with duty counsel.
[55] I find that the Charter-infringing state conduct in Mr. Sisson's was serious. This factors weighs significantly in favour of the exclusion of the evidence.
ii) The significance of the impact of the infringements
[56] This line of inquiry calls for an assessment of how much the infringements actually undermined Mr. Sisson's Charter-protected interests. Again, there is a spectrum: "[t]he impact of a Charter breach may range from fleeting and technical to profoundly serious": Grant, supra, at para. 76. As the seriousness of the incursion into the protected interest increases, so does the risk that the admission of the evidence will bring the administration of justice into disrepute.
[57] Section 8 of the Charter protects Mr. Sisson's interest in not being subject to an unreasonable search. Here, the search was unreasonable for technical reasons only, not because the police lacked sufficient grounds to conduct the search in question. Further, breath testing is a minimally intrusive procedure: R. v. Jennings, 2018 ONCA 260, at paras. 27-32. I find that the impact on Mr. Sisson's s.8 interests was negligible due to the technical nature of the breach and the minimally intrusive nature of the search.
[58] Section 9 of the Charter protects Mr. Sisson's right not to be detained arbitrarily. Overall, I find that his detention by the police in this case was amply justified. The detention was only arbitrary for a brief period of a few minutes because of the arresting officer's failure to make an immediate breath demand. The impact of this breach on Mr. Sisson's s.9 interests was therefore negligible due to the fleeting nature of the breach.
[59] Section 10(b) protects citizens' interest in having prompt access to legal advice when they are put in a position of disadvantage relative to the state, so that, in part, detained or arrested persons can make informed choices about whether and how to cooperate with the state investigation: see R. v. Willier, 2010 SCC 37, at para. 38.
[60] Despite the complaints made by Mr. Sisson following his call to duty counsel, what I must assess is the impact of the failure of the police to inform him of his right to search for another lawyer in his situation of relative disadvantage to the state at the time of his detention. In doing so, in the absence of evidence to the contrary, I am entitled to "presume that duty counsel was competent and was aware of and imparted […] the basic information about his rights": R. v. Neziol, [2001] O.J. No. 4372, at para. 15.
[61] In R. v. Winterfield, 2010 ONSC 1288, the Summary Conviction Appeal Court Judge upheld the trial Judge's finding that the police had not breached the accused's s.10(b) rights by failing to take sufficient steps to locate counsel of choice. In the end, Mr. Winterfield spoke to duty counsel, and then claimed at trial that the advice he received from duty counsel was deficient. The court applied the presumption that he received competent legal advice, stating that "[w]here a detainee is dissatisfied with the advice received, it is appropriate to examine the bases of that dissatisfaction in determining if there was a breach and, if so, the seriousness of the breach": para. 73.
[62] In that case, like the case before me, the accused testified that he was displeased with the advice he received from duty counsel, but "did not say, nor was he ever asked, what it was about the advice that led to his displeasure with it": para. 72. On a s.24(2) analysis, the fact that the accused did not disclose any basis for his professed dissatisfaction with the advice received from duty counsel is relevant to an assessment of the impact of the breach on his Charter-protected interests.
[63] In Mr. Sisson's case, I do not know if he was unhappy with the advice he received from duty counsel because of the nature of that advice (for example, that he was required to provide breath samples), or because of the quality of that advice. Mr. Sisson did not articulate the basis of his dissatisfaction to the police, nor did he do so when he testified before me on the voir dire. I therefore must presume that he received competent legal advice that addressed his needs in the situation of disadvantage he found himself in relative to the state. Despite the fact that he may have chosen to receive advice from a different source had he be given the choice, Mr. Sisson received competent legal advice in the circumstances. I find, therefore, that the impact of the breach on Mr. Sisson's s.10(b) interests was also minimal.
[64] This branch of the Grant test favours admission of the evidence due to the minor impact of the collective breaches on Mr. Sisson's Charter-protected interests.
iii) The societal interest in a trial on the merits
[65] Both counsel agree, as do I, that this branch of the Grant tests favours admission of the breath readings, which are reliable evidence. Exclusion of the breath readings would gut the Crown's case and deny the public of a trial on the merits on a serious criminal offence. This branch of the Grant test pulls strongly towards inclusion of the evidence.
iv) Balancing the factors
[66] Balancing the three branches of the Grant test for exclusion of evidence is not a mathematical formula. However, in circumstances where the evidence is reliable and critical to the prosecution case, the Ontario Court of Appeal has held that "if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence": R. v. McGuffie, 2016 ONCA 365, [2016] O.J. No. 2504, para. 63. That is precisely the situation in Mr. Sisson's case. On balance, it has not been established that admission of the breath readings would bring the administration of justice into disrepute. The readings are admitted.
[67] Having determined that the results of the analysis of Mr. Sisson's breath samples are admissible, I now turn to the substantive issues raised by the defence.
Can the Crown rely on the presumption of accuracy?
[68] There are two issues I need to decide here. First, whether the Crown has proven that the qualified technician conducted a system blank test and a system calibration check before each sample was taken from Mr. Sisson. Second, whether the Crown has proven that the result of each system calibration check was "within 10% of the target value of an alcohol standard that is certified by an analyst": s.320.31(1)(a). Unless these prerequisites are proven, the Crown is not entitled to rely on the presumption that the results of the analysis of Mr. Sisson's breath samples are the same as his blood alcohol concentration. I will consider each in turn.
i) Did the qualified technician conduct the necessary tests?
[69] It is not disputed that the Intoxilyzer 8000C, the approved instrument used to analyze Mr. Sisson's breath samples, conducts a system blank test and a system calibration check as part of its internal controls before it will receive a sample of breath from anyone. The issue is whether s.320.31(1)(a) also requires the technician to conduct another set of the same tests himself or herself. The defence argues that since the section requires the technician to conduct these tests, that it is not sufficient that the instrument does so. According to the defence, Parliament must have known that the approved instrument always conducts these tests itself, and must have intended that qualified technicians duplicate the process.
[70] I disagree. In my view, what the section requires is proof that the approved instrument was working properly immediately before each sample was analyzed by evidence that a system blank test and system calibration check was conducted. When an approved instrument, like the one used in this case, is operated by a qualified technician, I am satisfied that the system blank test and system calibration check are conducted by the technician even if they occur as a result of the instrument's internal process. To require qualified technician's to duplicate these tests themselves, which in any event would simply mean having the instrument run the same tests again, would serve no purpose. Indeed, it would be absurd. I decline to interpret the section in a manner that would lead to an absurd result.
ii) Was the alcohol standard certified by an analyst?
[71] Section 320.31(1)(a) provides that the presumption of accuracy will only apply if the result of the system calibration check was "within 10% of the target value of an alcohol standard that is certified by an analyst". Section 320.32 provides a mechanism for the Crown to file a certificate of an analyst. In Mr. Sisson's case, no such certificate was filed. The Crown argues that the evidence of the qualified technician is sufficient to satisfy me that the alcohol standard used for the system calibration check in Mr. Sisson's case was certified by an analyst.
[72] The qualified technician in this case, PC Johnson, testified that he knows from his training that the target value for the system calibration check is 100mg of alcohol per 100ml of solution. He was trained that the instrument must produce a result of between 90 and 110mg of alcohol per 100ml of solution in order to pass the system calibration check. In Mr. Sisson's case, the system calibration checks produced results in this range.
[73] Further, PC Johnson said the alcohol standard was designed to simulate a person with 100mg of alcohol in 100ml of blood. He also said that the alcohol standard used in Mr. Sisson's case was certified by an analyst from the Centre of Forensic Science for use in a simulator. He knows this because he checked the certificate of an analyst before conducting the system calibration check. This document certified that the alcohol standard was suitable for use. To PC Johnson, based on his training and experience as a qualified technician, this meant that the alcohol standard had been certified by an analyst to contain 100mg of alcohol per 100ml of solution. PC Johnson also completed a Certificate of a Qualified Technician, which was filed as an exhibit at trial. This document states in part that PC Johnson determined the instrument "to be in proper working order by means of an alcohol standard that was suitable for use with the said instrument".
[74] The real objection of the defence is that this testimony from PC Johnson is hearsay. Since the officer did not himself determine that the alcohol standard contained 100mg of alcohol per 100ml of solution, he was only able to testify as to what he was told by the analyst through the certificate that he read. I would dispose of this argument in the same manner as Rose J in R. v. Porchetta, [2019] O.J. No. 1985, at paras. 42-49. I am satisfied that the target value of the alcohol standard used to conduct the system calibration checks in Mr. Sisson's case was certified by an analyst. In my view, this requirement can be proven through viva voce evidence of a technician who has viewed the certificate. I accept PC Johnson's testimony on this point.
[75] The Crown has proven compliance with s.320.31(1), and is therefore entitled to rely on the presumption of accuracy.
Conclusion
[76] Although I found breaches of Mr. Sisson's rights under sections 8, 9 and 10(b) of the Charter, I nevertheless determined that the results of the analyses of his breath samples are admissible. The Crown has proven compliance with s.320.31(1), from which I can conclude that Mr. Sisson's blood alcohol concentration at the time of testing was 103mg of alcohol per 100ml of blood. Since the remaining elements of the offence were conceded, he is found guilty on the single Criminal Code charge before me.
Released: September 13, 2019
Signed: "Justice S. W. Konyer"