Court File and Parties

Date: October 22, 2019

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Anthony Johnson

Before: Justice Chapin

Heard on: September 25 and 26, 2019

Reasons for Judgment released on: October 22, 2019

Counsel

Ms. J. Capozzi — counsel for the Crown

Mr. D. Edwin Boeve — counsel for the accused Anthony Johnson

Judgment

CHAPIN, J.:

Introduction

[1] Mr. Johnson is charged with having care or control of a motor vehicle while having more than the legal limit of alcohol in his blood on September 1, 2017 in the city of Toronto. The crown called 3 witnesses. No evidence was called by Mr. Johnson. The issue is whether the police breached Mr. Johnson's 10(b) Charter right by failing to provide him with access to his counsel of choice.

[2] Both counsel agree that if the Charter application fails the crown has proven the charge beyond a reasonable doubt. The matter proceeded as a blended voir dire and trial.

The Evidence

The Arrest

[3] On September 1, 2017 Officer Taafe and his escort Officer Czarnota were on patrol in downtown Toronto. They came across Mr. Johnson at approximately 9:20 p.m. Mr. Johnson was sitting in the driver's seat of a blue Chevrolet that was parked on Richmond Street at a 45 degree angle to the roadway, completely blocking the bicycle lane. Mr. Johnson was the sole occupant of the vehicle and the engine was running. When Officer Taafe approached Mr. Johnson and spoke with him he detected an odour of an alcoholic beverage on his breath.

[4] Officer Taafe formed a suspicion that Mr. Johnson had alcohol in his body and demanded that Mr. Johnson provide a sample of his breath into an approved screening device. The result was a fail and at 9:22 p.m. Mr. Johnson was arrested for having care or control of a motor vehicle while his blood alcohol level was over the legal limit. Officer Taafe provided him with his rights to counsel at 9:23 p.m. One minute later Officer Taafe made the approved instrument demand.

[5] Mr. Johnson was transported to traffic services division which was the location of the nearest qualified breathalyser technician. They pulled into traffic services division at 9:49 p.m and entered the booking hall at 9:55 p.m.

[6] The following exchange occurred among Officer Taafe, Mr. Johnson and the booking officers after entering the booking hall:

Officer Taafe: I already told you about your rights to counsel but I am going to re-read it okay; I am arresting you right now for care and control over 80, it is my duty to inform you that you have the right to retain counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance, 1-800-265-0451, is a number that will put you in contact with the legal aid duty counsel lawyer for free legal advice right now, do you understand?

Anthony Johnson: I do. Can I use the bathroom?

Officer Taafe: You can address that with the person in charge, do you want to speak to a lawyer, your lawyer, or do you want to speak to duty counsel?

Anthony Johnson: Depends who answers.

Officer Taafe: Do you have your own lawyer?

Anthony Johnson: I do, it's on my phone.

Officer Taafe: So if we can't get a hold of them is duty counsel okay…mmmmm.. it's a free lawyer.

Anthony Johnson: I don't understand, if I say no then what?

Officer Taafe: if you say no, means you don't want legal advice.

Anthony Johnson: no, but I want to speak to my lawyer.

Officer Taafe: Right, but what I am saying..( indiscernible)

Booking Officers: Okay, why don't you guys come in.

Anthony Johnson: So if he doesn't answer can I wait an hour?

Officer Taafe: no, no

Anthony Johnson: I don't have a choice?

Officer Taafe: Let's go inside.

Officer Taafe: He has been read his rights to counsel on the scene and advised just now he would like to speak to a lawyer of his choosing. He has not answered whether he would like to speak to duty counsel should I not be able to provide that phone call

Booking Officer: Do you understand your rights to counsel, your right to speak to a lawyer?

Anthony Johnson: yes

Booking Officer: All right, do you know your lawyer's name?

Anthony Johnson: Yeah, ah it's Edwin, I don't remember his last name

Booking Officer: You say the number is in your phone?

Anthony Johnson: It is.

Booking Officer: Once you're done…

Anthony Johnson: Should be in my phone.

Booking Officer: So the officer will take your phone with you, go over your phone to get the number and then place the call to your lawyer. Now being it's a Friday night I don't know how good your lawyer is whether they are going to return this call or not. Your lawyer will be given a reasonable amount of time to callback.

Anthony Johnson: What does that mean?

Booking Officer: I am not setting a specific time, a reasonable opportunity. Are we going to wait 3 hours for your lawyer to callback? No, that is not going to happen okay, but we are going to go through this process. But we are going to make the call, again the lawyer may or may not…. It is their responsibility to them to monitor their call, email or the phone or whatever it is up to them. If we cannot get in touch with your lawyer you can let the officer know if you wish to speak to duty counsel, it is free, okay. Does not mean you use duty counsel, just for the purposes here, just for advice in regard to this situation. If your lawyer calls back after you can speak to your lawyer after that too. OK, it is not that you lose the opportunity to speak to him, you understand that? You want to give the officer the phone. So, the officer will take the phone for the purpose of going through just to get the lawyer's number.

Anthony Johnson: Feel like they are going to be sleeping.

Officer Taafe: So you want me to leave a message?

Booking Officer: Officer going to escort you to a room they are going to get the number out of the phone, they are going to call your lawyer and give him a reasonable opportunity to call back and place a call to duty counsel if you like, all right any questions?

Anthony Johnson: Can I leave tonight?

Booking Officer: Yeah, eventually.

The Call to Counsel of Choice

[7] Mr. Johnson asked if he could have his phone and Officer Taafe provided it to him for the purpose of obtaining his lawyer's telephone number. Mr. Johnson retrieved 2 telephone numbers for his lawyer from email on his cell phone and provided them to Officer Taafe. The numbers were 905-205-1003 and 905-665-9122.

[8] Mr. Johnson advised the Officer that his lawyer's first name is Edwin, but he didn't know how to spell it. Mr. Johnson also advised that he didn't know the last name of his lawyer but thought it started with the letter 'G'.

[9] Mr. Johnson was then taken to an interview room while Officer Taafe attempted to facilitate his call to counsel. Officer Taafe dialed the first number Mr. Johnson had provided and it went straight to voicemail. The voicemail message provided a telephone number to call if the caller was in custody. Officer Taafe left a message with his name, the client name, details of the arrest and the telephone number for traffic services division.

[10] Officer Taafe next called the number identified in the voicemail message for people who were in custody- 416-518-7318. A woman, Ms. Joan McLean, answered the phone and identified herself as an associate of the lawyer. She advised Officer Taafe that the lawyer was not available. Officer Taafe didn't recall if she said why he wasn't available; however, he asked her if she would be willing to speak to Mr. Johnson and she agreed. Mr. Johnson was asked if he would like to speak with Ms. McLean and he said that he would. Officer Taafe did not have a specific recollection of advising Mr. Johnson that his lawyer of choice was not available, but his normal practice would be to keep an individual as informed as possible to ensure the investigation was moving along. He was confident that he must have said something to let Mr. Johnson know what was happening.

[11] Mr. Johnson was brought to a private room for the call with Ms. McLean. The telephone call lasted 18 minutes. Officer Taafe was able to determine when the call ended because there is a glass panel across the private room which allowed him to observe Mr. Johnson hang up the phone at 10:53 p.m. Officer Taafe opened the door and Mr. Johnson came out of the room. Mr. Johnson immediately said that he was not happy with the legal advice he received and asked to speak with duty counsel.

The Call to Duty Counsel

[12] Mr. Johnson did not provide a reason why he was not satisfied with the call and Officer Taafe did not ask him why. Given that Mr. Johnson had asked for duty counsel right after he finished the call with Ms. McLean Officer Taafe facilitated the request.

[13] Officer Taafe brought Mr. Johnson back into the private room and called duty counsel and transferred the call into the private room. The conversation between Mr. Johnson and duty counsel started at approximately 10:54 p.m. Mr. Johnson spoke to duty counsel for approximately 8 minutes and at 11:02 p.m. he was finished with the call. At this time Officer Taafe escorted Mr. Johnson to the breath room which was located immediately across the hall from the privacy booth.

[14] Officer Taafe did not have a notation in his notebook as to whether he called the second telephone number provided by Mr. Johnson; however, he believes he would have done so given all the efforts he made to try to locate a number for Mr Johnson's counsel of choice. Officer Taafe thought that it was highly unlikely that he did not call that number.

[15] A document was entered into evidence of an email conversation between another Assistant Crown Attorney, Ms. Fineberg, and Officer Taafe where he referred to the second telephone number provided by Mr. Johnson as a minor detail. In the email he explained that, although he was confident that he would have called the second number, it was possible that he did not call it after calling the number identified on the voicemail for callers in custody.

[16] Officer Taafe noted in the email that he was able to connect Mr. Johnson with his lawyer's co-worker who was available and willing to speak with Mr. Johnson. In re-examination he explained that when he referred to it as a minor detail, he meant that he assumed he had dialed the number and then just went on to conduct other searches for telephone numbers.

[17] After the call to duty counsel Mr. Johnson was escorted to the breath room at 11:02 p.m. Once Mr. Johnson was in the breath room Officer McConnell, the qualified breathalyser technician asked Mr Johnson whether he was satisfied with his calls to Ms. McLean and duty counsel. Mr. Johnson said he was not, and Officer McConnell stopped the breath room process and told him they would make efforts to try to locate the number for his counsel of choice.

Further Attempts to Reach Counsel of Choice

[18] At this point Officer Taafe along with his escort and the qualified breathalyser technician proceeded to the main report room to locate the lawyer Mr. Johnson wanted to speak with.

[19] Officer Taafe looked at the Law Society of Ontario website and searched for the name Edwin and did not enter anything for the last name. He didn't come up with any results, so he conducted another search using Google Maps to try to find a lawyer with the name Edwin in the area of the intersection of Markham Rd and Hwy 7. Mr. Johnson had advised Officer Taafe that this was the location of his lawyer's office. Officer Taafe searched for the lawyer's number for approximately 9 minutes before returning Mr. Johnson to the breath room at 11:19 p.m. where 2 suitable samples of his breath were obtained.

[20] In cross-examination Officer Taafe agreed that he did not consider letting Mr. Johnson use the computer or consider bringing him to the computer to let him observe the searches he was doing. Officer Taafe explained that there is a lot of secure data on the police computers, and although he wasn't sure, he thought it was likely that the police policy was that persons in custody would not be permitted to use them.

[21] Officer Taafe did not conduct any further searches because he didn't have anything else to go on. Prior to providing the breath samples Mr. Johnson did not ask Officer Taafe or the other officers to make any further efforts. Officer Taafe did not recall whether Mr Johnson had said why he was not satisfied with his call to duty counsel or with the lawyer.

[22] Officer Taafe conducted a search of the Law Society of Ontario website while he was testifying using the name Edwin and there were 81 separate results. He agreed in cross-examination that Edwin Boeve was at number seven on the list; however, it was clarified in re-examination that the first name was Dirk and Edwin was listed as the middle name. The location for that lawyer was Whitby and Officer Taafe explained that he likely would not have clicked on that search result because the location Mr. Johnson had provided for his lawyer's office was highway 7 and Markham Road and the first name was incorrect.

[23] Officer Czarnato was assisting Officer Taafe and Officer McConnell in the report room to locate the telephone number for Mr Johnson's counsel of choice. Officer Czarnato was aware that Mr Johnson had spoken to a lawyer as well as duty counsel prior to him becoming involved. However, he was not sure of the exact sequence.

[24] Officer Czarnato was also aware that Mr. Johnson did not know the last name of his lawyer but had provided a first name of Edwin. Officer Czarnato conducted a search of the Law Society of Ontario website and located several lawyers with the name Edwin. Four were retired and three were in the Toronto area. One was an employment lawyer, one was a civil counsel and one was a real estate lawyer.

[25] Officer Czarnato recalled that there had been some conversation between one of the officers and Mr. Johnson to get further information as it was very difficult to locate a lawyer without a last name. Officer Czarnato also conducted a google search of the intersection of Markham Rd and Hwy 7 for a lawyer with the first name Edwin as he received information that the lawyer's office was near that intersection. He did not find a lawyer with the first name of Edwin near that intersection.

[26] Any information Officer Czarnato came up with was provided to Officer Taafe. Officer Czarnato estimated that he spent between 5- and 15-minutes conducting searches to find a number for Mr. Johnson's counsel of choice.

[27] Officer McConnell was also in the report room looking for the telephone number of Mr. Johnson's counsel of choice.

[28] Officer McConnell was looking for a lawyer with the first name of Edwin and a surname that started with the letter 'V'. Officer McConnell's understanding from his conversation with Mr. Johnson in the breath room was that his lawyer's last name started with the letter 'V'. In cross-examination the video of that part of the conversation in the breath room was played for Officer McConnell. Counsel for Mr. Johnson suggested that what Mr. Johnson said was that the surname started with a 'B' and that Mr. Johnson said the name "Boeve". Officer McConnell's listened carefully and once more advised that it sounded like Mr. Johnson used the letter 'V'.

[29] Officer McConnell began his search by looking at a hardcopy of a legal directory alongside Officer Taafe. They were looking for a lawyer with the first name of Edwin and a surname that began with the letter 'V' and did not come up with a result. They also conducted a search using the name Edwin as a surname.

[30] The next step they took was to conduct a search of the Law Society website. They did not find a listing for a lawyer with a first name Edwin with a surname that started with a 'V' in the breath room.

[31] While they were conducting the searches Officer McConnell said that he and Officer Taafe were going back and forth to the interview room to see if they could get further information from Mr Johnson that would assist in the search for a number for his counsel of choice.

[32] Officer McConnell asked Mr. Johnson if it was possible that there was another address but as far as he could recall he did not get any further information from Mr. Johnson. If he had received any further information from Mr. Johnson, he would have done a further Google search or consulted the hard copy of the legal directory again.

[33] Officer McConnell could not recall how many results came back when he searched with the first name Edwin nor could he recall how many results came back when he searched the location of Markham Rd and Hwy 7. He explained that 2 years had passed since these searches were conducted.

[34] While Officer McConnell was conducting these searches, he was providing Mr. Johnson with updates as to the problems they were having in finding a telephone number for his counsel of choice. Officer McConnell advised that there was a printer available in the report room and agreed in cross-examination that he did not print out the results of the searches to show Mr. Johnson and did not make a notation as to the search terms he used on the computer. Officer McConnell also agreed that he did not make notes of his conversations with Mr. Johnson while he was attempting to elicit further details from him to find counsel of choice.

[35] Officer McConnell was asked why Mr. Johnson wasn't invited to the report room. He responded that it is not the practice at the station to allow that because of concerns for officer safety and there had been an incident in the past where a person in custody escaped from the report room.

[36] Mr. Johnson did not make any further requests of him and at 11:19 p.m. Mr. Johnson was brought back into the breath room for the first breath tests because the officers were not able to find contact information for Mr. Johnson's counsel of choice and had no new information to assist them.

[37] The first breath test was at 11:24 p.m. and the reading was 128 milligrams of alcohol in 100 millilitres of blood. The second breath test was at 11:48 p.m. and the result was 121 milligrams of alcohol in 100 millilitres of blood. Mr. Johnson was subsequently charged and then was released on a promise to appear in court.

Position of the Parties

Position of Mr. Johnson

[38] Mr. Boeve, counsel for Mr. Johnson, takes the position that the police breached Mr. Johnson's section 10(b) right to counsel of choice because they failed in their informational and implementation duties.

[39] Counsel argues that the police did not provide Mr. Johnson with the third option of calling another lawyer after they failed to connect him with his counsel of choice. Counsel submits that there was misinformation from Officer Taafe at the outset when the officer responded to Mr. Johnson's question saying that if he said no to duty counsel it meant that he didn't want legal advice.

[40] Counsel further argues that the police did not do enough to implement Mr. Johnson's right to counsel of choice. Mr. Boeve submits that when the police take control of the process for searching for a specific lawyer, they must do everything possible to locate and contact that lawyer. Counsel further submits that there were a number of things that the police could have done such as have Mr. Johnson stand next to them while they were conducting the computer searches which might have allowed him to recognize something in one of the listings, locate a charger for Mr. Johnson's phone and allow him to use the phone to get further information that would assist in making contact with his counsel of choice or print out the listings from the computer searches and provide them to Mr. Johnson.

[41] Counsel also argued that the officers were negligent with respect to their notetaking responsibilities and submits that the appropriate remedy would be to exclude the evidence of the breath readings.

Position of the Crown

[42] The Crown submits that in this case the police went to great lengths to accommodate Mr. Johnson's request for his counsel of choice and that those steps were not only reasonable but went above and beyond what was required of them.

[43] The crown further submits that even if I find that there was a s. 10(b) breach the evidence should not be excluded as it was minor and all three branches of the test in R. v. Grant, 2009 SCC 32 favour inclusion of the evidence.

Analysis

The Charter Application

The Law on s. 10(b) of the Charter – Counsel of Choice

[44] Section 10 of the Charter of Rights and Freedoms provides that everyone has the right on arrest or detention: to retain and instruct counsel without delay and to be informed of that right. Mr. Johnson must establish an infringement on his Charter right on a balance of probabilities: R. v. Oickle, 2000 SCC 38 and para. 30.

[45] The Supreme Court of Canada set out the informational and implementational duties of the police when they have detained or arrested an individual in R. v. Bartle, [1994] 3 S.C.R. 173 at p. 192. The police must inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel. Where a detainee has expressed a desire to exercise this right the police must provide him or her with a reasonable opportunity to exercise the right and refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity.

[46] The Ontario Court of Appeal has limited the informational component of the s. 10(b) right to the obligation to inform the detainee of his right to retain and instruct counsel without delay and the existence and availability of duty counsel and legal aid: R. v. Devries (2009), 2009 ONCA 477, 95 OR (3d) 721 at paras. 21-24.

[47] Several recent Ontario Court of Justice decisions have set out persuasive arguments suggesting that police should be provide detainees with tools such as telephone books, internet access and use of their own cell phone while in custody when the police take over the control of contacting counsel on behalf of an accused: R. v. Maciel, 2016 ONCJ 563, R. v. Ali, 2018 ONCJ 203 and R. v. Sivalingam, 2019 ONCJ. However, as Justice McKelvey noted in R. v. Ruscica, [2019] OJ No. 2021 (SCJ) at paras. 41-47, the Ontario Court of Appeal does not require any list of steps that must be taken before the informational and implementation duties can be satisfied. Justice McKelvey at para. 44 concludes that the approach taken in these cases would be a significant expansion of the s. 10(b) Charter right.

[48] The police must also provide the detained individual with a reasonable opportunity to consult with counsel: R. v. Manninen, [1987] SCJ. And, a detainee has the right to counsel of choice: R. v. McCallen, [1999] OJ No. 202 paras. 32-37. The detainee also has the right to a reasonable opportunity to contact that counsel and to refuse to speak with other lawyers while waiting for their own to respond: R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402 at para. 17, and R. v. Willer, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 24 and 35.

[49] The jeopardy facing a detainee is a relevant factor in assessing the reasonableness of the time police allow for counsel of choice to call: R. v. Barrientos, 2014 ONSC 2862 at para. 65. The police are not required to hold off indefinitely in "Over 80" cases where counsel cannot be reached; R. v. Vernon, 2015 ONSC 3943 at para. 48, R. v. Panjwani, [2017] OJ No. 4062 (OCJ), R. v. Cabading, [2011] OJ No. 5960 (OCJ) at para. 42, and R. v. Blackett, [2006] OJ No. 2999 (SCJ) at para. 63.

[50] In assessing whether the police did enough to satisfy the informational and implementation requirements under s. 10(b) the circumstances of each individual case must be considered: Ruscica at para. 38. While police must be diligent in assisting detainees exercise their right they are not required to exhaust every possible avenue to locating a specific lawyer: R. v. Winterfield, 2010 ONSC 1288, [2010] OJ No. 952 (SCJ) at para. 46-67; R. v. Sharma, [2004] OJ No. 2991 (SCJ).

[51] Where a detainee wishes to speak to counsel of choice there is a corresponding duty for her or him to provide logistical information to the police to assist in locating counsel: R. v. Littleford, [2001] OJ No. 2437 (CA), R. v. Clarke, [2005] OJ No. 1825 (CA), and R. v. Van Binnendyk, [2007] OJ No. 2899 (CA). The defendant is not obligated to testify, but without that evidence the court has no direct evidence of how she or he understood the right: Littleford at para. 8 and R. v. Ibrahim, [2016] OJ No. 1199 (SCJ).

[52] If a detainee expresses a wish to speak to counsel of choice the police are not precluded from asking her or him if they would like to speak to duty counsel if counsel of choice can't be reached: R. v. Ruscica, 2017 ONCJ 864, [2017] OJ No. 6615 (OCJ) at par 64, aff'd Ruscica, [2019] OJ No. 2021 (SCJ). The holding off requirement relates to investigation not providing information about duty counsel. However, police are not permitted to use duty counsel as a short cut where an accused has expressed an interest in speaking with a specific lawyer but didn't have a telephone number readily available: R. v. Kumarasamy, [2002] OJ No. 303 at para. 29.

Application of the Law to this Case

[53] In determining whether the steps taken by the police to facilitate access to counsel of choice were reasonable the circumstances of each case are important. Mr. Johnson was observed in his vehicle at 9:20 p.m. and by 9:55 he was at Toronto Traffic Services Division where he indicated that he had a lawyer that he wanted to speak with and that the information was in his cell phone. At the booking desk he asked if he could wait if his lawyer didn't answer and he was advised by the booking officer that he would have a reasonable opportunity to wait for his lawyer to call back. He was also asked by Officer Taafe if he wanted to speak to duty counsel if his lawyer wasn't available. Mr. Johnson made it clear that he wanted to speak to his own lawyer.

[54] In my view the fact that Officer Taafe told Mr. Johnson early on in that conversation that if he didn't speak to duty counsel it meant that he didn't want to speak to a lawyer had no impact on Mr. Johnson because he made it clear soon after that he wanted to speak to his own lawyer. He wasn't confused at that time.

[55] It was late on a Friday night and Mr. Johnson was aware of that when he told the booking officer towards the end of that conversation that he felt that his lawyer was probably going to be sleeping. Officer Taafe provided Mr. Johnson with access to his phone and Mr. Johnson identified two phone numbers from an email message and gave them to the officer. The first number was correct and gave a number identified for detained persons to call. Officer Taafe left a detailed voicemail message then called the number for people in custody.

[56] Officer Taafe reached a lawyer he believed to be associated with Mr. Johnson's counsel of choice who advised him that Edwin was not available. Once Officer Taafe received that information he, reasonably in my view, asked her if she would be willing to speak to Mr. Johnson. Once Mr. Johnson agreed to speak with another lawyer associated with his counsel of choice Officer Taafe facilitated the private call which lasted 18 minutes.

[57] After Mr. Johnson expressed dissatisfaction with the call and specifically requested another call with duty counsel Officer Taafe facilitated that as well. That call was 8 minutes in length. By this time, it was 11:02 p.m., just 18 minutes away from the 2 hour time period from the observed time of care or control of the vehicle.

[58] Once in the breath room Mr. Johnson made it clear that he wasn't satisfied with his calls to legal counsel and duty counsel. As a result Officer McConnell stopped the process. Counsel for Mr. Johnson argued that it was clear on the video that Mr. Johnson had said that his lawyer's last name started with a "B" and also that the last name was "Boeve". I listened to the video several times and I heard what Officer McConnell heard. That is that the lawyer's name started with a "V". In my view what is important is that Officer McConnell heard the letter "V". And, he and two other officers began searching for Mr. Johnson's counsel of choice with the information that had been provided to them by Mr. Johnson.

[59] Searches were conducted on the Law Society of Ontario website, Google and a hard copy of the legal directory. They were creative and searched Edwin as a first and last name and looked at the geographical region Mr. Johnson identified as the location of his lawyer's office. They also went back and forth to ask Mr. Johnson for further information to assist in their search. It was only after they had nothing further to go on that they continued with the breath tests.

[60] In my view the officers were not rushing the search process and neither were they overly concerned with the 2-hour time frame given that the first breath test was not taken until 11:24 p.m. – after the 2 hours had passed.

[61] I had the opportunity to observe all three officers in the courtroom and on video. They were, in my opinion, respectful, patient and polite to Mr. Johnson at all times. They made extensive efforts over 2 hours to assist Mr. Johnson in finding more information that could lead to another number for his counsel of choice even though the first lawyer, Ms. McLean had advised that he was not available. Mr. Johnson was able to speak to 2 lawyers that evening prior to providing breath samples. In my view the police made reasonable efforts to connect Mr. Johnson with his counsel of choice.

[62] With respect to argument that the police did not provide Mr. Johnson with a "third" option of speaking with a different lawyer I note that Mr. Johnson did speak with another lawyer. I am not convinced that this "third" option is required and agree with Justice Duncan's comments in R. v. Shariq, [2018] OJ No. 2691 at para 16. He noted that this argument arose after the SCC decision in R. v. Prosper but commented that that was before the duty counsel system became available everywhere. In any event he did have the opportunity to consult with another lawyer who was not duty counsel.

[63] In my view there was no breach of Mr. Johnson's Charter right. However, if I am wrong I will go on to consider s. 24(2) of the Charter.

Analysis under s. 24(2) of the Charter

[64] If I am wrong and there was a breach of Johnson's 10(b) Charter right it is my view that, as in R. v. Wilding, 2007 ONCA 853, [2007] OJ No. 4776 (CA), it was a minimal breach that would not result in the exclusion of the breath readings after balancing the factors in Grant.

The Seriousness of the Breach

[65] Under the first branch of the test if there was a breach it was not serious. I have found that Officer Taafe acted in good faith throughout the evening and made continual efforts to assist Mr. Johnson. In my opinion it is likely that Officer Taafe called the second telephone number Mr. Johnson retrieved from his cell phone despite not having a note of it or a specific recollection of it. I found him to be a credible witness and given the extensive lengths he went to in attempting to get a contact number for counsel of choice it would be very unlikely that he would not have tried that number.

[66] The police had already provided Mr. Johnson with the opportunity to speak with another lawyer, Ms. McLean, for 18 minutes as well as duty counsel for 8 minutes.

[67] The computer search was not perfunctory. Three officers were trying to find the information Mr. Johnson was requesting and the search was made more difficult by the lack of a surname and the fact that the name Edwin was a middle name and not Mr. Boeve's first name. The evidence of the officers was that they didn't have anything further to go on to continue the search and that is why they stopped and conducted the breath tests.

[68] This situation was unlike the situation in R. v. Kiritpal, [2019] OJ No. 3353, where my colleague found a breach because in that case the detainee had advised the police that he could locate his lawyer's cell phone number. The accused testified that he thought it was likely that he would reach his lawyer and expected he could be reach if he had been allowed to access cell phone. The officer did not allow him access to his cell phone. Mr. Johnson did have access to his cell phone and was able to retrieve two numbers from it. However, in the breath room he advised the officers that he thought his lawyer was likely sleeping.

[69] This first branch of the test favours inclusion of the evidence.

The Significance of the Impact of the Charter Violation

[70] Although Mr. Johnson was not required to testify on a Charter application, I do not have the benefit of his evidence regarding the impact upon him. In terms of the impact of the breach on the accused regarding the taking of samples the Court of Appeal has held that the taking of breath tests is minimally intrusive: R. v. Jennings, 2018 ONCA 260. And, the impact of his inability to speak to counsel of choice is attenuated by the fact that he was able to speak to two lawyers.

[71] The second branch favours inclusion of the evidence.

The Societal Interest in having the Case Adjudicated on its Merits

[72] Both parties agree that this branch of the test favours inclusion of the evidence given that an adjudication on the merits is in society's interest in drinking and driving cases and the evidence is essential to the case for the prosecution.

Conclusion

[73] In the result the application is dismissed, and a conviction will be registered.

Released: October 22, 2019

L. A. P. CHAPIN J.