ONTARIO COURT OF JUSTICE

CITATION: R. v. MacGregor, 2019 ONCJ 80

DATE: 2019 01 25

COURT FILE No.: 170417

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MICHAEL RYAN MacGREGOR

Before Justice Pieter Joubert

Heard on March 1, 2018

Reasons for Judgment released on January 25, 2019

Tara Schuck......................................................................................... counsel for the Crown

Laura Metcalfe.............................. counsel for the defendant Michael Ryan MacGregor

JOUBERT J.:

1. Introduction and Overview

[1] The defendant Michael Ryan MacGregor is charged with one count each of impaired operation of a motor vehicle and operating a motor vehicle with a blood alcohol concentration of over 80 milligrams of alcohol in one hundred milliliters of blood, contrary to sections 253(1)(a) and (b) of the Criminal Code of Canada (hereinafter, “Criminal Code”). The offences are alleged to have occurred in Dryden, Ontario, on May 20, 2017.

[2] The trial proceeded before me on March 1, 2018, at which time the impaired operation count was withdrawn at the request of the Crown. The defence had filed an application alleging violations of Mr. MacGregor’s right to counsel as guaranteed by section 10(b) of the Charter of Rights and Freedoms (hereinafter, “Charter”). The trial proceeded on a blended basis. On consent, the Crown tendered into evidence the Certificate of a Qualified Technician (Exhibit 1). The Crown then called the arresting officer, Police Constable Olson, who was also the breath technician in the case. During the testimony the Crown tendered the breath room video (Exhibit 2). The defence then called its evidence. On consent, defence counsel tendered an affidavit sworn by the defendant’s brother Andrew MacGregor (Exhibit 3) and an affidavit sworn by Ottawa defence counsel Bruce Engel (Exhibit 4). The defendant then took the stand and testified on his own behalf.

[3] It is agreed that if the breath evidence is not excluded then the Crown has proven its case beyond a reasonable doubt. The defence contends, however, that the evidence establishes several violations of the defendant’s right to counsel and that admitting the breath evidence would bring the administration of justice into disrepute. I am asked to exclude that evidence in accordance with s. 24(2) of the Charter and to enter an acquittal. The Crown contends that police did not violate the s. 10(b) right to counsel. Should this Court disagree the Crown submits that the s. 24(2) does not favour exclusion of the evidence. Either way, the evidence ought to be admitted, and the defendant convicted. After receiving the submissions of counsel, I reserved my decision and subsequently provided brief oral reasons with written reasons to follow.

[4] These are my written reasons for decision.

2. Findings of Credibility and Reliability

[5] Before setting out my findings of fact, I shall first address the issues of credibility and reliability that have been raised in this case.

[6] I would note that most of the facts in this case are not strongly contested. In fact, the Crown takes the position that there is little or no conflict in the evidence. In respect of the viva voce evidence, the Crown submits that there are no material discrepancies between PC Olson’s testimony and that of the defendant. The two witnesses should be seen as equally credible. In relation to the defence affidavit evidence, I observe that when the evidence was tendered by the defence the Crown expressed a concern about the relevance of that evidence to the issues before this Court. The Crown did not raise an issue of the admissibility of the affidavit evidence. Neither party required that either Andrew MacGregor or Bruce Engel attend for examination. No issue was raised about the credibility or the reliability of either deponent. As I understand it, the Crown contests not the contents but the relevance of that evidence.

[7] The defence submits that while the testimony of PC Olson and Michael MacGregor is largely not in conflict, discrepancies do exist. Some of these discrepancies pertain to factual issues that are important to decide the issues raised in the Charter application. Defence counsel also submits that material differences exist between the officer’s testimony at the trial and what was recorded in the police notes prepared by him on or about May 20, 2017 and in a Will-State statement that he prepared at the Crown’s request on July 7, 2017. These discrepancies are submitted to raise concern about the credibility and reliability of PC Olson’s evidence. Where the officer’s testimony at trial differs in any material way from the defendant’s version of events, I am asked to accept the defendant’s account and find the facts in his favour.

[8] I observe that neither party raises any concern about the two exhibits filed by the Crown. I have no difficulty accepting that evidence to be credible and reliable. In respect of the defence affidavit evidence, the fact that the evidence was not challenged does not render the contents, per se, reliable. As an example see Zhou v. Canada (Minister of Citizenship and Immigration), 2013 FC 313, [2013] A.C.F. no 350 (F.C.J.) at para. 35. I consider the contents of both defence affidavits in relation to the evidence before me and I find both exhibits to be credible and reliable. I shall take the contents of all four exhibits into account in making my findings of fact.

[9] Turning to the viva voce evidence, I find that discrepancies do exist between the account of PC Olson and the account of the defendant. I also do find there to be discrepancies between the officer’s account and what he acknowledged in testimony he had (and had not) recorded in the police notes and the Will State statement. I find that some of these discrepancies are material. They pertain to factual issues that I must decide. I shall make specific reference to some of those discrepancies when setting out my findings of fact in the next section and when explaining my reasons for decision later on. At this juncture, I make the following general findings of credibility and reliability for each witness beginning with defendant.

[10] I had an opportunity to observe Michael MacGregor in testimony. I find that he presented as a sincere witness and that the evidence he gave was believable. I did not perceive him to testify in any manner that would suggest an attempt to spin the truth or exaggerate. He appeared forthright in his testimony and thoughtful in his responses. I find his evidence to be credible. In terms of the reliability of the evidence, I find that the testimony was largely both internally consistent and consistent with the other evidence including the events as captured on the breath room video, the affidavit evidence of Andrew MacGregor and Bruce Engel and with some exceptions (addressed shortly) the testimony of PC Olson.

[11] There were moments where the specifics were lacking. As an example, Mr. MacGregor was unable to recall the precise words spoken by PC Olson at the roadside. I accept that the defendant is not someone with prior involvement in the criminal justice system. He did not testify in a professional capacity and he was under no duty at the time (nor was he trained) to collect evidence. I do not view the lack of recall in these instances to render the account provided by him to be unreliable. I do perceive, however, that care is merited for those instances in which the recall of the witness is not clear. I shall take this into account in making my findings of fact but generally speaking find that the witness was able to observe, process, interpret, retain and recall the events in issue. His evidence, generally speaking, is considered to be reliable.

[12] I also had an opportunity to observe PC Olson and to consider his testimony. In terms of credibility, I find that his testimony appeared for the most part to be sincere and believable. That being said, I did get the impression that PC Olson was less patient with the applicant on May 20, 2017 than he would have this Court believe. I have taken into consideration the submissions of Crown and defence counsel. I make the general observation that some of the answers provided by the officer, the officer’s tone as captured on the breath room video, the comments he made to the defendant when denying him a drink of water, and the officer’s behavior as described by the defendant in testimony suggest, together, a level of frustration and impatience that goes beyond what is suggested in the officer’s testimony. I also had the impression that, although PC Olson appeared to remember many of the details of May 20, 2017, his memory was at times less clear on the specifics than what his testimony suggested. I did not perceive this to be due to insincerity so much as a struggle, at times, to recall details in circumstances where he had not made a record of particulars in his force issued notebook. As I shall explain, this had an impact on the believability of the evidence. So did some of the responses provided by PC Olson, most notably, his position on the purpose in making police notes which I shall discuss momentarily.

[13] Respecting the reliability of PC Olson’s evidence, I have no difficulty whatsoever in accepting those parts of the officer’s testimony that are consistent with what the evidence reflects had been recorded by the officer in his notes. I also have no difficulty in accepting that PC Olson had an independent recollection of many of the specific events that occurred on May 20, 2017 although, again, the impression that this Court had was that the officer’s memory was, at times, less clear than what was being suggested. But the defence cross-examination established that the notes relied upon by the officer to refresh his memory were far from complete and omitted crucial details of what did, or did not, happen on May 20, 2017. From the answers provided by PC Olson it appears that for critical points in the evening what was recorded may best be described as the bare-bones. It is clear that for this reason the Crown requested the further Will State statement from the officer and that this further record also turned out to omit details that are relevant to the issues that are raised in the defence Charter application.

[14] Such a state of affairs presents a real challenge to this Court. On the one hand, I readily appreciate that a great deal of what the officer describes is not internally inconsistent and is supported by other evidence. On the other hand, care must be taken in deciding whether to accept the version provided by PC Olson at trial where that version differs materially from the accounts provided by other witnesses (Michael MacGregor, Andrew MacGregor, or Bruce Engel) or from the record or records of events made by police in this case. The situation is made all the more difficult by the position that PC Olson took when questioned by defence counsel regarding the duty to make notes. The officer was provided with more than one opportunity to explain what is required of police. He repeatedly testified that for him the purpose in making notes is to refresh memory. He would not agree with the defence that there was any other reason. The position taken by the officer was defended by the Crown in its closing submissions. The Crown submitted that police officers frequently find themselves in dynamic situations and that the notes of PC Olson were sufficient to perform the task of refreshing memory. The Crown submitted that police cannot be expected to anticipate every type of question that will be asked at a trial. As Crown counsel put it, “We are playing Monday night quarterback here in court”.

[15] With due respect, I cannot agree. Undoubtedly, police officers can find themselves in situations where it is impractical or even impossible to make a record of the events as they are unfolding. But nowhere did the officer testify that he found himself in such a situation. There is no evidence before me that such was the case. If anything, the evidence before me suggests there was ample time for the officer to comply with the note-taking duty. That duty has been summarized by several courts, most notably in Ontario by the Court of Appeal for Ontario in Schaeffer v. Ontario, 2011 ONCA 716, [2011] O.J. No. 5033 (C.A.) at paras. 66-78, and by the Supreme Court of Canada in Wood v. Schaeffer, 2013 SCC 71, [2013] S.C.J. No. 71 (S.C.C.) at paras. 65-68. I shall not reproduce those paragraphs here but simply note that the duty upon PC Olson went well beyond merely recording whatever he felt might assist him to refresh his own memory at some later date. Police are duty-bound to make a clear, concise and comprehensive record of all particulars material to the investigation.

[16] In recording only what he felt might be needed to refresh his own memory, PC Olson did not comply with the duty as described in Schaeffer and in Wood. As I shall explain in the findings of fact and contrary to what is suggested by the Crown, the failure of PC Olson to comply with the note-taking duty resulted in testimony that calls into question the reliability of the officer’s recollection of crucial moments in the evening. The testimony also calls into question the sincerity of the officer. This is because the duty described in Schaeffer and in Wood is not new. As Moldaver J. put it at para. 68 of Wood: “None of this, of course, comes as news to police officers”. On the date of the trial, PC Olson had a collective fourteen years of experience with the Ontario Provincial Police and the Dryden Police Service. It would be surprising, to say the least, if the officer had never been trained in a manner that would bring home the nature and scope of the note-taking duty. I have had the opportunity to observe the officer in his evidence and I find myself unable to accept that he was not aware at the time of trial that his obligations extended well beyond recording what he felt would be required to refresh his memory. I find that the officer was aware more was required and was not being fully candid with the Court on that point.

[17] In my view, the present case illustrates what the decision in Schaeffer and in Wood concerning police note taking seeks to avoid. The failure to record clearly all particulars on the record before me led the Crown to request further information. It may well be, as the submissions of the Crown appear to suggest, that the officer was at that point engaged in some form of ex post facto guesswork in an effort to determine which details about the incident that had not be included at first instance might be relevant to issues that might be raised by the parties at trial. But the submission that police cannot be expected to anticipate every question respectfully misstates the issue. The role is to collect and preserve all of the relevant particulars, period. As I shall illustrate in the next section, the result at trial was testimony which at many points appeared to be reliable but which at other junctures appeared considerably less so. The trier of fact is in the unenviable position of having to engage in a very careful consideration of what was, and was not, recorded by the officer and of what this means in light of the other evidence. I shall do so in my findings of fact and note at this juncture that while I am certainly prepared to accept much of the officer’s testimony I do not accept all of it. I shall exercise care where the evidence was not clear and where it diverges in material ways from the other evidence before this Court or differs from what the evidence indicates was recorded in the police notes and the Will State statement.

3. Findings of Fact

[18] I make the following findings of fact.

3.1. At the Scene

[19] On the date of the incident, May 20, 2017, the defendant was working in Dryden, Ontario.

[20] At approximately 12:30 AM, PC Olson was on general patrol in a marked police vehicle travelling westbound on Highway 17 in Dryden near the intersection of Airport Road. PC Olson observed a vehicle travelling eastbound at what he perceived to be a high rate of speed. He activated his radar unit which indicated that the subject vehicle was travelling at 115 kilometers per hour in a 90 kilometers per hour zone. The officer turned the police vehicle around and pursued the subject vehicle effecting a traffic stop shortly thereafter in a private driveway off Meadows Road.

[21] PC Olson exited the police vehicle and approached the subject vehicle. The lone occupant and driver, Michael MacGregor, exited the subject vehicle. On the basis of observations conceded by the defence to form the basis for lawful grounds to make an approved screening device demand, PC Olson made a roadside demand at 12:34 AM. The demand made by the officer, reading from the rear of his force issued notebook. The defendant indicated that he understood.

[22] At 12:40 AM, a suitable breath sample was obtained from the defendant which registered a fail. PC Olson showed the results to the defendant at 12:43 AM and arrested him for operating a motor vehicle having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. PC Olson provided the defendant his right to counsel and secondary cautions, reading from the rear of his force issued notebook. The defendant in testimony was not clear as to the words used. I accept the wording that the officer read in Court from the back of his notebook:

It is my duty to inform you that you have the right to retain and instruct 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 the number that will put in contact with a Legal Aid Duty Counsel Lawyer for free legal advice right now.

Do you understand?

Do you wish to call a lawyer now?

[23] The defendant indicated that he understood. He asked to speak with his brother Andrew MacGregor. I find that Andrew MacGregor was not, in fact, a lawyer. The defendant was asked in testimony why he would have asked to speak with his brother and he testified that Andrew MacGregor had studied law in university and that he did not know in what direction to go at that time. I accept the explanation provided by Mr. MacGregor and I also accept the affidavit evidence of Andrew MacGregor that on the date in question he held a Bachelor of Arts degree in Law and Philosophy and had a record of employment that included employment with two criminal law firms. One of those firms was Engel & Associates Professional Corporation, located in the Ottawa area. Andrew MacGregor had worked there in 2013 as a student intern. I also accept the evidence of the defendant that he had no prior experience with the criminal law. The wording from the force issued card (above) includes the words “counsel” and “lawyer”. I find it not unreasonable for the defendant as someone unexperienced with the criminal justice system to name his brother, for the reasons he provided in Court.

[24] I would observe that the explanation provided by the defendant at trial is reflected in the comments that he made in the breath room which PC Olson agreed were as follows: “yeah it turns out he’s not a lawyer, that he’s not able to be my legal counsel” (referring to Andrew MacGregor). I accept the evidence of PC Olson that identifying someone who is not actually a lawyer is not unusual. He testified that it is not uncommon for accused persons to name parents, aunts or uncles when asked if they wish to speak with a lawyer. In all of the circumstances, I find that the defendant, while clearly incorrect in identifying Andrew MacGregor as a lawyer or legal counsel at the scene, was seeking to assert his desire to speak with someone whom he believed could assist him in understanding the legal dilemma that he faced.

[25] The defendant could not recall the telephone number for Andrew MacGregor. He asked PC Olson to obtain his brother’s contact information. He indicated that his brother’s number could be found within his cellular telephone and that the telephone was located in his vehicle. PC Olson retrieved the defendant’s telephone. He then then provided the keys to the defendant’s vehicle to another police officer who had arrived on scene.

3.2. The Telephone Call to Andrew MacGregor

[26] At 12:53 AM, PC Olson transported the defendant to the Dryden Police Services detachment arriving at 1:04 AM. The officer escorted the defendant to an interview room located in the lodging area. He removed the defendant’s handcuffs and permitted him to retrieve his brother’s telephone number from his cellular telephone. PC Olson did not permit the defendant to dial his brother’s number or to retain the telephone. The defendant was also not permitted to place any telephone calls, on his own, using a telephone located within the interview room.

[27] At 1:09 AM, using the interview room telephone PC Olson placed a call to Andrew MacGregor. Mr. MacGregor told the officer that he was not a lawyer but that he wished to speak with the defendant. The officer permitted him to do so and then went on to conduct diagnostic tests in relation to the Breathalyzer which he completed by 1:11 AM. PC Olson then waited for the call with Andrew MacGregor to conclude.

[28] The telephone conversation between the defendant and Andrew MacGregor lasted until 1:38 AM. During that time, Andrew MacGregor told the defendant that he needed to contact counsel, Bruce Engel, and helped him to locate a telephone number for Mr. Engel. I have considered the explanation given by the defendant why the conversation with Andrew MacGregor took the time that it did. I am prepared to accept his explanation, which is that Andrew MacGregor was not at home when he received the telephone call. It was a Friday evening and the defendant’s brother was at a bar. His cellular telephone did not have a data plan. He therefore kept the defendant on the telephone while searching for, and ultimately locating, a friend in a nearby establishment whose cellular telephone he could use to locate a number for Mr. Engel. The Crown does not raise as an issue the veracity of the defendant’s account but has raised the issue of his diligence. I do not find that the time spent on the telephone was due to any intentional delay or to any lack in diligence on the defendant’s part.

[29] I make these findings mindful of the testimony of PC Olson. The officer testified that the length of the defendant’s telephone call to his brother was not typical. He testified that in his experience a conversation with a lawyer in an impaired case generally does not take more than five or ten minutes. He testified that a call as lengthy as the one here would normally suggest a delay tactic. PC Olson acknowledged encountering situations where the conversation between detainees and their lawyers continued beyond five or ten minutes. He testified that in some cases the discussion becomes, in his perception, “a little long-winded”. In those situations, he knocks on the door to let them know it is getting on in time and to conclude their telephone conversation as soon as they can. I do not view the testimony of PC Olson to militate against the simple conclusion that in this case the delay is simply a function of the fact that it took the time that it did for Andrew MacGregor to assist the defendant in the manner described.

[30] In the moments preceding 1:38 AM, PC Olson knocked on the interview room door. He pointed to his watch. In response, the defendant told his brother to hurry in helping him to find a telephone number. As the evidence of both witnesses supports, the defendant was not provided a means to note down the telephone number that his brother had located. He therefore motioned to PC Olson, who wrote down the number provided to him verbally by the defendant.

3.3. The Attempt to Reach Counsel of Choice

[31] At 1:39 AM in the presence of the defendant, PC Olson dialed the telephone number that Andrew MacGregor had provided using the interview room telephone. The number dialed was the cellular telephone number of Bruce Engel. The call went to voicemail and PC Olson left a voice message identifying himself and indicating that he had an accused person in custody. I accept the evidence of PC Olson that there was no after-hours or alternative telephone number indicated on the voice messaging system. I accept the affidavit evidence of Mr. Engel that the voice message left by the officer did not indicate the name of the accused.

[32] PC Olson had access to the Internet at the Dryden Police Station and he could doubtless have attempted to search for an alternate telephone number for Bruce Engel using a search provider. I accept the testimony of the officer that he did not do so. I accept the affidavit evidence of Bruce Engel that the search provider Canada 411 at the time in question listed the home telephone number for Mr. Engel and that this is the best way to reach him after hours. I also accept his evidence that the search provider Legacy 411 provides five telephone numbers for Engel and Associates. From the evidence tendered I infer that, had PC Olson chosen to do so, he could have engaged in internet searches which would have yielded other telephone numbers for Mr. Engel and his law firm. I find that one the numbers readily available by such a search was the home telephone number for Mr. Engel. I accept the affidavit evidence of Mr. Engel that, had the officer dialed his home telephone number on the evening in question, he would have either answered immediately or called back shortly thereafter.

[33] I accept the evidence of PC Olson that the Dryden Police Service does not have in place any policies or practices respecting use of the Internet to search for alternate telephone numbers for counsel. I do not accept the officer’s testimony that he chose not to engage in an internet search in this case because he felt the defendant had spent enough time on the telephone with Andrew MacGregor and because he felt that the call to Bruce Engel was sufficient. It did not ring true and the impression that I had in the testimony was that the idea simply did not cross the officer’s mind.

3.4. The Discussion Surrounding and Call to Duty Counsel

[34] The evidence of PC Olson and the defendant diverges as to what happened after the voice message had been left.

[35] PC Olson’s version is as follows. He told the defendant that the lawyer dialed had not answered. He indicated that the time in Ottawa was 2:39 AM. He indicated that it was a Saturday. He then “asked for further direction”. PC Olson testified that he told the defendant that “[he’d] be happy to connect him with Mr. Engel in the event he called back but if he wanted to provide an alternative, to do so”. He testified:

A. I indicate that there’s a phone book and he was told that in the other room too. There’s a phone book, there’s yellow pages that include a lot of names of lawyers, I’ll contact whoever you want.

Q. Okay.

A. So I was just looking for further direction on what he wanted to do.

Q. Okay. And how did Mr. MacGregor reply to that?

A. He requested that I contact duty counsel.

[36] Mr. MacGregor’s version is as follows. PC Olson left the interview room and returned with a telephone book. He placed the telephone book on a desk beside Mr. MacGregor. The officer then told him that his lawyer had not picked up the telephone and he could not get in touch with him. He told the defendant that it was 2:30 AM in Ottawa. He said that he could call a lawyer from the phone book or call duty counsel. Mr. MacGregor testified that he requested duty counsel.

[37] In deciding what the defendant was told I observe that the officer’s notebook entry is of little or no assistance. In cross-examination, PC Olson agreed that he had recorded only the following:

139. Attempt to contact lawyer Bruce, 613-282-6324, left message. And at 0142 [the officer’s next note] is contact duty counsel 1-800-265-0451, Murphy

There is no reference to Bruce Engel, or to a telephone book or its location, or to local lawyers, or to seeking further direction. There is no notation about the nature of the discussion concerning duty counsel. Indeed, there is no record of a conversation at all.

[38] I also observe the following in relation to the testimony as the direct examination continued:

Q. Okay. And when he requested that, did he specify what kind of duty counsel or how did he indicate to you that he wanted duty counsel?

A. That was one of the options that I made him aware. I said you know, the phone book, you can contact any lawyer you want, there’s duty counsel; they’re 24 hours, you know you can talk to somebody right now type deal. He said yeah, contact duty counsel. (emphasis mine)

The answer given is troubling. It is decidedly vague. I had an opportunity to observe and to hear the witness in testimony. The very clear impression that I had was that PC Olson was having difficulty remembering the details. From the cross-examination, it became clear that the Will State statement made no reference to the officer having indicated he would place the defendant in contact with Mr. Engel if counsel of choice were to call back.

[39] The above instance illustrates the challenge that I have encountered as trier of fact in considering the evidence of PC Olson. I need not review each and every instance of vagueness. The point is that I am concerned about the ability of the officer to accurately recall the discussion that took place between him and the defendant between 1:39 AM and 1:42 AM and at other points in his evidence as well. This is as unfortunate as it was avoidable for at least two reasons. First, as I have already indicated PC Olson was in a position where an accurate and complete record could easily have been made by him. All he needed be do was comply with the note-taking duty. I see no pressures that would have prevented him from doing so. Second, PC Olson testified that the interview room in question was outfitted with a surveillance video camera which he indicated would have created a video recording of the discussion. The video recording was not preserved by police and was automatically taped over.

[40] I understand from the evidence adduced in cross-examination of PC Olson that the Dryden Police Service utilizes a system that stores for each surveillance camera a maximum number of incidents. Once the maximum is reached the incidents are recorded over in sequence. The retention period varies per camera. For the interview room surveillance camera the period is short. The video recordings, unlike breath room video recordings, are not automatically disclosed. Police require that a request be made by the defence. The request is forwarded by the Crown to police through the Court officer. The testimony is unclear whether a policy is in place to that effect. When asked, PC Olson responded that the “practice” of the Dryden Police Service is to not request that the administrator obtain the footage beyond the breath room video unless a request is made. Once received, he testified that the police “try to collect the video …. if that additional disclosure came in, we would try and accommodate”. I do not find that the testimony clearly indicates to what extent PC Olson was involved in a search to locate and preserve the video in the present case. The testimony in-chief, “upon receiving the request for that video, it had already been kicked over”, was in the passive voice. In cross-examination when shown a copy of the defence disclosure request dated July 15, 2017, the officer could not recall having previously reviewed the document.

[41] The defence asks that I take the loss of the video into consideration in making my findings of fact respecting the interview room discussion. The defence does not bring a lost evidence application. However, it is submitted that the issues turn on what the officer said to the defendant. Relying on R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197 (S.C.C.), defence counsel argues that video evidence is the most important evidence this Court could have and that the loss of such evidence should be considered when assessing the credibility and reliability of PC Olson. The Crown interprets the defence to argue that the failure of the officer to retrieve the video goes to his credibility. In response, the Crown submits that the date of the Will State statement of July 7, 2017 confirms that the officer was “already looking into the issue” prior to the request for the additional disclosure and that there are reasons that the police in Dryden wait for additional disclosure requests. The Crown also submits that it ought also to be considered “that this was taking place in an interview room, where Mr. MacGregor was mostly speaking with his counsel”. It is submitted that “PC Olson made the right decision in not automatically retrieving that video when it would have been potentially recording the conversation that he’d had in relation to his counsel” (emphasis mine).

[42] If it is the case that the police in Dryden are utilizing a video recording system that automatically records the telephone discussions between detainees and their counsel or duty counsel, then this issue must be addressed immediately. I would refer to the decision of Rose J. in R. v. Gautam, [2017] O.J. No. 4418 (C.J.), in confirming that detainees have a reasonable expectation of privacy when being recorded in custodial settings, and in confirming that “[t] he space in which an arrestee speaks to a lawyer has the highest level of privacy. In that space the state may not intrude”. It would be most impermissible for a surveillance video recording system to be indiscriminately recording everything including solicitor-client privileged conversations.

[43] On the record before me, I cannot determine if this is the case or not. PC Olson testified, “I am the furthest thing from the I.T. guy at the Dryden Police”. No information technology representative was called to give evidence. The evidence is silent on such crucial issues as whether the recording system remains engaged when the room’s telephone system is accessed. The evidence is simply that a video surveillance system of some sort records what occurs in the interview room and then retains it for a comparatively brief period of time before the video record is automatically recorded over. The evidence is that the video surveillance system was engaged on the evening in question and I can infer that it would have made a video record of the interaction between PC Olson and Mr. MacGregor. The evidence is not clear what specifically was done by the officer to preserve a copy of the video but it is clear that a request for it was made by the defence within 60 days of the event and that video record was not preserved.

[44] I find that the appropriate treatment of the defence request is to consider whether or not an adverse ought to be drawn. Clearly, the failure or refusal of a party in litigation to provide relevant evidence, or the destruction of that evidence, can be grounds upon which a Court may draw such inference. See R. v. Solomon, 2002 CanLII 8965 (ON SC), [2002] O.J. No. 5128 (S.C.J.), and R. v. Heikel (1990), 110 A.R. 161 (Alta. Q.B.), citing at para. 132 Wigmore on Evidence, Volume II, at p. 228. See also R. v. Tanner, [2010] N.S.J. No. 114 (N.S.S.C.), both decisions. I see no reason why a negative inference cannot be drawn in an appropriate case in which videotape recordings created and maintained by police is lost or destroyed as a consequence of either the actions of individual officers or the policies or practices governing preservation and retention or both.

[45] In deciding whether to draw an adverse inference in the present case, I observe the following. The lost evidence was created by the state while the accused was detained. It was made using a recording system under the exclusive control of police. The defendant had no choice in participation and had no direct means by which to access or preserve the video evidence. I agree with Murray J. in Heikel at para. 130 that if the accused has a right to discover relevant or material evidence (there documents, here a video) then the accused likewise has the right to require that the Crown preserve the information. I also observe that the lost evidence was of obvious importance. It recorded one of the central moments in the events of May 20, 2017. It was also a video record and I agree with the comments of defence counsel on the importance of video evidence as was stressed in Nikolovski. Its loss leaves the party that owes the burden of persuasion without evidence that would be capable of confirming facts central to the Charter application. The only contemporaneous substitute to the information is a notebook entry which fails to meet the standard required by Schaeffer and Wood. From what is before me in evidence, I do not observe that either the Dryden Police Service, through its practices, or the officer in the present case, took sufficient steps to preserve the evidence in question which may have been destroyed as soon as within 60 days of its creation.

[46] This case is in my view an appropriate one in which to draw an adverse inference. I decline to do so, however, because I view it unnecessary in light of my finding that the s. 10(b) Charter right of the defendant was violated. An adverse inference even if it were drawn would simply not affect the outcome of this case. I am faced with testimony from an officer whom I find was attempting reconstruct the events in question from what was undoubtedly a vague recollection of what was said between him and the defendant. In the circumstances, while I am prepared to accept that the time recorded in the notes of the officer accurately reflects the time of the telephone call to Bruce Engel, I am prepared to accept the version of events provided by Mr. MacGregor as to what the officer told him.

[47] I find that PC Olson told the defendant that his lawyer had not picked up the telephone and that PC Olson could not get in touch with him. I am not prepared in all the circumstances to rule out the possibility that the time reported by PC Olson to Mr. MacGregor may have been rounded down (i.e. “0130”) as opposed to precise (i.e. “0139”). Regardless, I find that PC Olson told the defendant that he could call a lawyer from the phone book or call duty counsel and that as a result the defendant opted to have a call placed to duty counsel. I accept the defendant’s evidence that he believed that the only options at the time were to either call a lawyer from the telephone book or speak with duty counsel. This is consistent with his general level of understanding about the legal system. I accept his evidence that he felt hurried and therefore immediately chose to call duty counsel. I accept his testimony that he was not told that he could wait for Mr. Engel to call back and that he would have done so had he been given that opportunity. I accept the reason given by him why he did not ask the officer to wait for Mr. Engel to call back which was that the officer had put the question to him very frankly and that he did not realize he had that option available. I accept that he did not ask to call his brother back for the same reason. I have already found as a fact that PC Olson had gestured to him to end the call with Andrew MacGregor and I find, on the whole of the evidence available to me, that the officer was conveying an air of impatience.

3.5 Events in the Breath Room

[48] The defendant spoke with duty counsel from 1:42 AM until 1:53 AM. He was then escorted by PC Olson to the breath room. PC Olson is a qualified breath technician. A brief discussion ensued on video involving the review that I have already discussed. I accept that the officer

[49] PC Olson then provided instructions and demonstrated how to provide a breath sample into the Intoxilyzer 8000C approved instrument. During the discussion, Mr. MacGregor requested a drink of water. He indicated he had not had an opportunity to do so. PC Olson denied his request. The defendant persisted and PC Olson told him that he had put himself in a position where he now had to take the breath test.

[50] The first breath sample was obtained at 2:07 AM. The result was 118 milligrams of alcohol in 100 milliliters of blood. The defendant asked for the result but PC Olson would not provide it. I accept the evidence of the defendant that he requested the result because he wanted to know what kind of a situation, he was in. He was not sure that he would be over the limit and did not know where he stood and whether he was going to be charged or not. I also accept the evidence of the defendant that, had he learned that was over 80, he “probably would have asked [PC Olson] if there’s any way that I can you know speak to somebody about how I proceed from there”. The defendant did not pursue his request any further and a second suitable sample was obtained at 2:30 AM. The result was 107 milligrams of alcohol in 100 milliliters of blood. Following the second sample, the defendant was provided the results of both samples. He was subsequently charged and released on a Promise to Appear.

[51] At approximately 4:45 AM, Bruce Engel telephoned police seeking to speak with the defendant. I find that Mr. Engel was told that the defendant had provided two suitable samples and was in the process of being released, and that he no longer needed to speak with Mr. Engel. I find that the defendant was not released until 5:15 AM.

4. The Issues and the Positions of the Parties

[52] As I have already indicated, the issues in this case are whether the evidence in establishes that the defendant’s right to counsel under section 10(b) of the Charter was violated and, if so, whether admitting the breath evidence would bring the administration of justice into disrepute thereby warranting exclusion under s. 24(2) of the Charter.

[53] The defence submits that the section 10(b) Charter right was violated in four ways. First, PC Olson failed to properly inform the defendant of the obligations of police including the obligation to wait a reasonable period of time following an unsuccessful attempt to contact choice of counsel. The defence submits that the right to counsel was not waived. Second, the officer failed to wait a reasonable period of time (here, only three minutes) before contacting duty counsel. Third, PC Olson did not do enough to facilitate contact with counsel of choice, Bruce Engel (here, leaving only one voicemail). Lastly, the officer failed to provide the defendant with his breath result after the first sample was taken. The defence submits that the test set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.), favours exclusion of the breath evidence. While conceding that the breath evidence is reliable, the defence submits that the Charter-infringing state conduct here was serious, that the impact on the Charter-protected interests of the defendant is significant, and that the samples ought therefore to be excluded.

[54] The Crown submits that the defendant’s s. 10(b) Charter right was not violated and that the breath sample should not be excluded. The Crown submits that the defendant was provided with his rights to counsel at the roadside and again in the breath room. I understand the Crown’s position to be that this was sufficient to discharge the s. 10(b) Charter right. The Crown also submits that police only need to wait a reasonable period of time before contacting duty counsel and that they only need to do so when the detainee is being reasonably diligent in exercising the right to counsel. It is the Crown’s position that the defendant here did not exercise reasonable diligence. The Crown also submits that in facilitating contact with a detainee’s lawyer of choice police only need to exercise reasonable diligence. In its submission, PC Olson acted diligently. Lastly, the Crown submits that the officer was obligated to provide the result of the first breath sample to the defendant. The Crown submits that if this Court should disagree then on a balancing of the factors in Grant the breath evidence should not be excluded pursuant to s. 24(2) of the Charter. It is submitted that the state conduct were not serious, that the impact on the Charter-protected interests of the defendant are not serious, and that society’s interest in adjudication on the merits support inclusion.

5. Did Police Violate the S. 10(b) Charter Right of the Defendant?

5.1. Did Police Properly Inform the Defendant of the Right to Counsel?

[55] The defence submits that PC Olson failed to sufficiently inform the defendant of the obligations placed upon police. By naming Bruce Engel in the interview room the defendant invoked counsel of choice at which point the officer was obligated not only to try to contact Mr. Engel. Having been unsuccessful, the officer was obligated to inform the defendant of the obligation imposed upon police to wait a reasonable time before continuing. Defence counsel acknowledges that the right to counsel may be waived by the defendant but submits that the evidence here cannot support a finding of waiver. In failing to inform the defendant of the police obligation to wait, a violation of the s. 10(b) right is said to have occurred.

[56] The Crown submits that PC Olson discharged his duty when he read the defendant his rights at the roadside from the force-issued police notebook. Those rights were later repeated by PC Olson in the breath room. It is submitted that police are only obligated to act in good faith and in a diligent manner and the officer acted in a way that adequately discharged his obligations. The Crown did not directly address the issue of waiver nor was it specifically addressed whether the officer, having been unable to reach Mr. Engel, was duty-bound to inform the defendant of the police obligation to wait. But the Crown’s submissions are clear in advancing that the officer acting diligently and acting in good faith and that his actions were sufficient. The Crown also submits that detainees must exercise the right to counsel with reasonable diligence and that the defendant failed to do so and that, if anything, he is responsible in that he told PC Olson that he understood the right at the roadside and he did not communicate any confusion or lack of understanding that he may have had.

[57] What underlies the disagreement is a question of who is responsible for informing whom about what.

[58] A proper starting point is the decision of the Supreme Court of Canada in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 (S.C.C.). I would refer to paras. 17-20. Lamer C.J.C. describes the duties that are imposed upon state authorities in relation to s. 10(b) of the Charter. They include an informational duty, to inform detainees promptly of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel.

[59] At the heart of Bartle is the concern that detainees are given sufficient information to ensure that an informed decision can be made by them about whether to exercise that right. This was recently underscored by Burstein J. in R. v. Manuel, [2018] O.J. No. 2955 (C.J.). At para. 25, Burstein J. held as follows:

[a]lthough the focus of Lamer C.J.C.'s decision in Bartle was the information constitutionally required for a detainee to decide if they even want to call a lawyer, the broader purpose of s. 10(b)'s informational component was also discussed at length. In determining what information must be provided to detainees about their s. 10(b) rights, Lamer C.J.C. (for the majority) emphasized that the informational requirements of s. 10(b) are intended to ensure that detainees can "make informed choices and decisions" about whether to exercise any facet of the guarantee under s. 10(b) (citing Bartle, para. 19). (Emphasis mine.)

[60] Ensuring that the “broader purpose of s. 10(b)’s informational component” is met is vital. As Bartle makes clear, the right to counsel is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it the correlative duty upon police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended. Lamer C.J.C. held at para. 19 in Bartle:

Under these circumstances, it is critical that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in a "timely and comprehensible" manner: R. v. Dubois, 1990 CanLII 3298 (QC CA), [1990] R.J.Q. 681 (C.A.), (1990), 54 C.C.C. (3d) 166, at pp. 697 and 196 respectively. Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence: Hebert. Moreover, in light of the rule that, absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible: R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537, at p. 540, and Evans, at p. 891. (Emphasis mine.)

[61] Referring to the decision in R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869 (S.C.C.), Lamer C.J.C. continued at para. 20 of Bartle:

Indeed, the pivotal function of the initial information component under s. 10(b) has already been recognized by this Court. For instance, in Evans, McLachlin J., for the majority, stated at p. 891 that a "person who does not understand his or her right cannot be expected to assert it". In that case, it was held that, in circumstances which suggest that a particular detainee may not understand the information being communicated to him or her by state authorities, a mere recitation of the right to counsel will not suffice. Authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(b) rights. (Emphasis mine.)

[62] Not surprisingly, the concept of “waiver” was approached in a similar way in Bartle. At para. 18, Lamer C.J.C. held that “the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit”. At para. 20, he held:

[T]his Court has stressed on previous occasions that, before an accused can be said to have waived his or her right to counsel, he or she must be possessed of sufficient information to allow him or her to make an informed choice as regards exercising the right: R. v. Smith (Norman MacPherson), 1991 CanLII 91 (SCC), [1991] 1 S.C.R. 714, at pp. 724-29, and Brydges, at p. 205. (Emphasis mine.)

[63] Bartle was heard by the Supreme Court of Canada together with four other cases: R. v. Matheson, 1994 CanLII 67 (SCC), [1994] 3 S.C.R. 328 (S.C.C.), R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236 (S.C.C.), R. v. Pozniak, 1994 CanLII 66 (SCC), [1994] 3 S.C.R. 310 (S.C.C.), and R. v. Harper, 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343 (S.C.C.). Each case raised questions about the scope of the state’s obligations with respect to duty counsel services under section 10(b) of the Charter. In my view, the companion cases reinforce the importance placed by the Supreme Court of Canada upon the broader purpose of the informational component. The point is illustrated with reference to Prosper. At para. 43, Lamer C.J.C. held as follows:

In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up. (Emphasis mine.)

At para. 44, Lamer C.J. held:

Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Ross, at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high: Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, Manninen, and Evans. As I said in Bartle, at pp. 192-94 and 206, a person who waives a right must know what he or she is giving up if the waiver is to be valid. That being said, it stands to reason that the right to counsel guaranteed under s. 10(b) must not be turned into an obligation on detainees to seek the advice of a lawyer. (Emphasis mine.)

[64] In the present case, the Crown submits that police are only obligated to act in good faith and with reasonable diligence, and that they are only required to do so to the extent that the detainee is reasonably diligent in exercising the right to counsel. For support, the Crown refers to the decision of the Supreme Court of Canada in R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37 (S.C.C.) at para. 35:

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; and Black. As Lamer J. emphasized in Ross, diligence must also accompany a detainee's exercise of the right to counsel of choice (pp. 10-11):

Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, the correlative duties imposed on the police and set out in Manninen ( 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233) are suspended. […] [Emphasis: Crown.]

[65] I do not agree. The authorities that I have referred to make it clear that as a condition precedent to the expectations placed upon detainees (at whichever stage in the detention process that may be under scrutiny) police must discharge the informational duty in a way that ensures that the detainee has sufficient information to permit a meaningful choice to be made about whether to exercise the s. 10(b) right. To interpret s. 10(b) in the manner that is being proposed by the Crown would be to permit the right to counsel to be reversed in those cases where the “good faith” and “diligence” of police may fall short of meeting the informational duty. The same point is made in Manuel where Burstein J. highlights in bold and underline font the phrases “meaningful choices” and “a detainee should be fully advised of available services” in the following passage from the Bartle decision (para. 21, cited in Manuel, para. 25):

To conclude, because the purpose of the right to counsel under s. 10(b) is about providing detainees with meaningful choices, it follows that a detainee should be fully advised of available services before being expected to assert that right, particularly given that subsequent duties on the state are not triggered unless and until a detainee expresses a desire to contact counsel ... [Emphasis Burstein J.]

[66] That the right to counsel was read at the roadside (or later in the breath room) does not, in this case, discharge the informational duty. Not when the officer, clearly, became alive to the fact that the person named was not a lawyer or counsel within the meaning of s. 10(b). PC Olson in testimony was clear that Andrew MacGregor told him this. Further, the officer testified:

“I’ve had people in the past who identified their parents and aunts and uncles as their lawyer and if that’s who they want to be their lawyer, then that’s not for me to decide”.

I am concerned by the position taken by PC Olson. It dismisses a real possibility that (here manifest) that the detainee might not understand what is meant by concepts such as counsel of choice. Nor can it be appropriate for police to rely upon the conversation between a detainee and someone who identifies themselves as a non-lawyer to clarify for the detainee the nature of the s. 10(b) right. I find that the defendant cannot be taken to have understood the nature of the right to counsel and that PC Olson cannot be taken to have been diligent in discharging the informational duty by assuming that the non-lawyer would fill in the defendant about what the right to counsel entails. That the defendant had a right to choose which lawyer to use did not absolve the officer, in circumstances which suggest that the defendant may well not have understood an essential component of the information being communicated to him, to go beyond the mere recitation at the roadside and take additional steps. In any event, I do not find that the Crown has met the very high test for waiver and find that PC Olson, having been unable to reach Bruce Engel by telephone, was duty-bound to inform him of the obligation of police wait a reasonable period before proceeding further.

[67] I refer in this regard to the decision in R. v. Vernon, 2015 ONSC 3943, 2015 O.J. No. 4157 (S.C.J.). The accused was arrested at 6:45 pm on a Sunday evening. He was advised of his right to retain and instruct counsel including the right to telephone any lawyer that he wished, as well as the right to free advice from a Legal Aid lawyer. He indicated he wished to do so and indicated his lawyer was John Carruthers. The accused was brought to the station arriving at 7:23 pm. At 7:30 pm, the police officer called Mr. Carruthers’ office and left a message on the answering service. A minute later, at 7:31 pm, the officer called duty counsel and left a message. Duty counsel called back at 7:45 pm. The accused was then advised by the officer that his lawyer had not called back and was offered an opportunity to speak with duty counsel, who was on the phone. The respondent accepted the offer and spoke with duty counsel from 7:45 pm to 7:57 pm. The accused expressed no concerns following his conversation with duty counsel, and breath samples were provided at 8:01 and 8:30 pm.

[68] At trial, the accused testified that he would have liked to have spoken to his own lawyer. Relying on the decisions in R. v. Vizzari, 2012 ONCJ 394 (C.J.), and R. v. Ho, [2011] O.J. No. 3524 (C.J.), the trial judge held at paras. 67-69 (cited at para. 10 of the appellate decision):

What is very similar [in] these two decisions of the Ontario Court of Justice, which obviously I'm not bound by, to our case at bar is the fact that the informational component of section 10(b) of the [Charter] has not been met. It is unrealistic to expect that someone who has had no prior involvement in the criminal justice system to know [sic] that he must express some dissatisfaction about the advice he received from duty counsel or to know that he can insist on waiting to speak to a lawyer of his choice.

In the case at bar, I find that ... Constable Catcher failed to properly inform Mr. Vernon that he had a right to wait a reasonable amount of time for his counsel of choice to call before providing the breath sample. He further failed to wait a reasonable amount of time for counsel of choice to call back before contacting duty counsel. Finally, the police did not take all reasonable steps necessary to attempt to contact the counsel of choice. Constable Catcher specifically said that he was not expecting a reply from his message at the lawyer of choice's office as this was Sunday night of a long weekend. The police did not attempt to find or provide Mr. Vernon the opportunity to try to find the lawyer['s] residential phone number or to find other ways of contacting the lawyer of his choice.

In reviewing the totality of the circumstances of this case and by applying the ratios of the jurisprudence noted above, I am satisfied that the defendant, Matthew Vernon, was not given a reasonable time to consult his counsel choice and that the defence has established a breach of section 10(b) of the [Charter] on a balance of probabilities.

[69] The Crown appealed the decision arguing in part that trial judge was wrong to conclude that the officer had failed to properly inform Mr. Vernon of the right to wait for counsel of choice to call back. The Crown relied on Willier. Ellies J. disagreed. At para. 25, Ellies J. held:

In my view, Willier is not applicable in this case. The court in Willier distinguished Prosper on the basis that there was no issue of waiver in Willier, as there was in Prosper. This is entirely understandable, given the facts in Willier. In that case, following his arrest, the police informed the accused of his right to counsel and facilitated a brief telephone conversation with duty counsel. The next day, the accused was offered another opportunity to contact counsel and left a message on the lawyer's answering machine. Afterwards, the police offered him an opportunity to contact another lawyer, which he declined. The police then advised the accused that it was unlikely his lawyer would be available until the next day and offered to contact Legal Aid, which offer the accused accepted. The police waited approximately 50 minutes after the accused spoke with the Legal Aid lawyer before initiating an investigative interview. At the beginning of the interview, the police confirmed Mr. Willier's prior consultations with Legal Aid, re-informed him of his right to retain and instruct counsel, and offered him another opportunity to contact a lawyer before continuing with the interview, which he declined.

[70] Ellies J. observed that the Court in Willier recognized the facts before it to differ considerably from those in Prosper. Ellies J. wrote as follows at para. 26:

After referring to the decision in Prosper, McLachlin C.J.C. and Charron J., on behalf of the majority in Willier wrote, at para. 39:

The circumstances of this case are not analogous. The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10(b) right. Instead, unsuccessful in contacting Mr. Royal, he exercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with a Prosper warning, and its absence fails to establish a Charter breach. [Emphasis added.]

At para. 32, Ellies J. held:

This is a very different case than Willier. Here, immediately after leaving a message for the respondent's lawyer, the arresting officer contacted duty counsel. Within 15 minutes of leaving that message, the respondent was provided with what seemed to him to be the only reasonable chance that he would get to speak to a lawyer. Although the officer testified that he would have allowed the respondent to speak to his lawyer of choice, had he called, the trial judge held that it was not clear whether this was explained to the respondent (para. 64).

[71] The Crown subsequently sought leave to appeal arguing that the case raised questions about a detainee's obligation of diligence in a s. 10(b) Charter application. The application was dismissed. The three member panel held as follows:

In our view, this case does not raise those questions. On the findings of the trial judge -- ratified by the summary conviction appeal judge -- the police officer failed to satisfy his obligations to afford Mr. Vernon (the detainee) not only a reasonable opportunity to contact counsel of his choice but also to facilitate that contact: see Traicheff, 2010 ONCA 851, at paras. 2-3.

The decision of Ellies J. in Vernon, as it relates to the informational component, has since been followed in R. v. Duong, [2016] O.J. No. 5266 (C.J.) at para. 28 and in Manuel, and it may be noted that a similar conclusion was reached without reference being made to Vernon in R. v. Gopalapillai, [2017] O.J. No. 1846 (C.J.) at para. 17.

[72] I find the facts in Vernon to be similar to the present case. I follow the decision at trial in finding it unrealistic to expect someone with no prior involvement in the criminal justice system to know that he or she can insist on waiting to speak to counsel of his or her choice. I find it equally unrealistic to expect that a non-lawyer with whom the detainee is permitted to speak can somehow be expected to advise him of that right. I find as in the Vernon decision that the officer failed to properly inform the defendant of that right. I follow the appellate decision in Vernon before Ellies J. in finding that the facts in this case are safely distinguished from the facts in Willier. Here, almost immediately after leaving a message for Mr. Engel, the officer presented the defendant with options that effectively focused the defendant away from the option of waiting for Mr. Engel to return the call. Within minutes, duty counsel was contacted. I do not accept the testimony that the officer told the defendant that if his lawyer were to call back, he would be permitted to speak with the defendant. I accept the testimony of the defendant that, had he been told that he could wait for Mr. Engel to call back, he would have waited. I also accept his testimony that, had he been given the opportunity, he would have called his brother back for a different lawyer.

[73] In reaching this conclusion I have considered all of the evidence including the context which includes, among other things, the knocking on the glass by PC Olson, his pointing to his watch, his reference to the time of morning and that it was a Saturday, and other behavior which in my view cannot but reasonably have been perceived, especially by someone unfamiliar with the criminal process, to mean that the detainee must move along. I have also considered whether the defendant exercised reasonable diligence or waived the right. I find again that to the extent that he understood the right to counsel, the defendant did as best he knew how and within the parameters of freedom that he had to obtain what assistance he could. He did so promptly at the roadside and in the interview room for the reasons previously given. He did not waive the right to counsel. The informational component is breached.

5.2. Did Police Fail to Wait a Reasonable Period of Time?

[74] The next two complaints advanced by the defence raise a question of whether PC Olson breached duties relating to the implementation of the right to counsel. Those duties are the duty to cease questioning or otherwise attempting to elicit evidence until the detainee has been given that opportunity to wait for counsel to call back – in other words a duty to wait – and duty to provide the detainee with a reasonable opportunity to exercise the right to speak to a lawyer – in other words a duty to facilitate. I would refer to the decision of Ellies J. in Vernon at paras. 35-36, referring to R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233 (S.C.C.) at pp. 1241-1243 and Willier at paras. 29-30 and 35.

[75] Turning first to the duty to wait a reasonable period of time, the disagreement between the parties is whether the officer needed to wait longer than the three minutes that elapsed between the voice message he left for Mr. Engel and the telephone call he placed to duty counsel. The Crown grounds its position that the officer did not need to wait any longer than this in its submission that the defendant sufficient information to understand the right to counsel and that the defendant had a positive obligation to continue to express that right. The Crown contends that instead of doing so, the defendant made the free choice to speak with duty counsel. I note that the position of the Crown is based on the view that Mr. MacGregor was not exercising reasonable diligence. I understand the submission to be that Mr. MacGregor was making an informed decision and in particular that he did not communicate to the officer any confusion that he may have had about his right to counsel.

[76] In considering whether the duty to wait was breached, I observe that a similar submission was advanced by the Crown in Vernon. The Crown relied upon Willier in submitting that the trial judge had erred in finding a breach. It was argued that the defendant had chosen to speak to duty counsel rather than to wait for his lawyer to call back. Ellies J. disagreed and held at para. 44:

In summary, I conclude that there is no positive obligation on a detainee to express dissatisfaction with the advice of duty counsel or to continue to request an opportunity to speak with counsel of choice in order to establish a breach of that right under s. 10(b). Indeed, in my view, it would be improper to impose such an obligation where, as here, the validity of any waiver of the right is in issue. Absent the type of circumstances that were present in Willier, where it was held that the detainee had simply chosen to speak to another lawyer rather than waive his right to counsel of choice, the onus is on the Crown to establish a valid waiver. To impose the obligation urged upon the court by the Crown would be to reverse that onus. Instead, evidence that a detainee failed to complain, seemed satisfied or no longer asked to speak to counsel of choice after speaking with duty counsel is simply evidence to be considered on the issue of waiver, where that issue arises.

[77] I would apply Vernon to the facts before me. I have already found that the informational duty was breached and that a valid waiver has not been established. I find that Mr. MacGregor did not make a free and informed choice in deciding whether to speak with duty counsel or to continue to request an opportunity to speak with counsel of choice. The evidence must be considered in context. The defendant was not informed police are obligated to wait a reasonable period of time. The comments and gestures made strongly suggested that he needed to move on. The options provided to him left him feeling that there was no choice but to move forward. The PC Olson, within three minutes of placing the call to Bruce Engel, placed a call to duty counsel. I cannot find in these circumstances that there was choice any more than I can find that there was valid waiver. And to place the obligation upon the defendant would be to reverse the onus to establish waiver.

[78] In reaching such a conclusion, I have considered decision of several Courts in Ontario where police waited only a brief period of time before channeling the accused away from counsel of choice. These include the decisions in Duong and Manuel, referred to earlier, as well as the decision in R. v. Maciel, 2016 ONCJ 563, [2016] O.J. No. 4789 (C.J.). In my view, these decisions all support the conclusion reached here, and it may be observed that some of those decisions cite Vernon in support. I have also considered whether the present case is one in which there was any urgency required in taking the breath sample. I find on the evidence before me that there was no urgency and I rely in this regard on the discussion in Vernon at para. 46, in Duong at para. 31, and in Maciel at paras. 37-38 and 49. I find that the duty to wait was violated.

5.3. Did Police Fail to Facilitate Contact With Counsel of Choice?

[79] I turn next to the duty to facilitate which the Crown argues does not require police to take all reasonable steps. I agree. The duty is discussed by Ellies J. at paras. 47-48 in Vernon, a decision in which the Crown also argued that facilitation does not require that all reasonable steps be taken. Ellies J. held at para. 48:

It is true that the police do not need to exhaust all reasonable possibilities in fulfilment of the duty to facilitate contact with counsel: see R. v. Winterfield, 2010 ONSC 1288, 93 M.V.R. (5th) 34, at para. 62. However, I share the trial judge's view that they must do more than they did in this case. The police did nothing apart from leaving a message on the voice mail of the respondent's counsel of choice. In essence, they "defaulted to duty counsel". That is not enough.

[80] In deciding how much needs to be done by police to facilitate contact with counsel of choice, I would follow the decision in R. v. Panigas, 2014 ONCJ 797, [2014] O.J. 1244 (O.C.J.). Horkins J. writes at para. 52:

When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply. That did not occur in this case.

[81] Panigas was followed on precisely this point in Maciel. Stribopoulos J. held at para. 43:

If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. In that regard, I completely agree with the comments of Justice Horkins, who noted:

When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.

I believe this standard is in keeping with the duty upon the police to facilitate contact with a detainee's counsel of choice. I therefore intend to apply it in assessing the adequacy of the police efforts in this case.

[82] In applying that standard to the immediate case Stribopoulos J. held as follows at paras. 44-45:

I turn next to an assessment of the adequacy of police efforts in this case to put Mr. Maciel in touch with counsel of his choosing. It would appear that Constable Darcy used the Internet to look up Mr. Locke's office number on the Law Society of Upper Canada's website. In addition, he conducted what he described as a "Google search" and managed to locate a second number for Mr. Locke (which turned out to be a home phone number). Messages were left at both of these phone numbers, first at around 3:10 p.m., and then again about twenty minutes later. Unfortunately, Constable Darcy did not actually look at the website maintained by Mr. Locke's law firm. He had no explanation for failing to do so. If he had, he would have noted that like most business websites, it includes a "Contact Us" link. Had he clicked on that link, he would have obtained both Mr. Locke's e-mail address and his cell phone number.

In my view, in an era when practically every lawyer and law firm has a website, that would be the most sensible starting point for anyone trying to get in touch with a particular lawyer. This is where a lawyer is most likely to share information with prospective clients about how to go about contacting them. As is the case with Mr. Locke, a criminal lawyer's website will often note his or her cell phone number or e-mail address, which are both ideal ways to get a hold of a criminal lawyer, especially outside of ordinary business hours.

[83] Both Panigas and Maciel were followed in R. v. Tyndall, [2017] O.J. No. 6857 (C.J.). Monahan J. held at paras. 35 and 48:

Where the police take control over the accused's means of accessing counsel of choice, at least two of my colleagues in this Court have stated that when the right to counsel is invoked, the police must implement the right to counsel with the same effort and diligence the accused himself would apply: see Panigas at para 52 and Maciel at para 43). I agree with this proposition.

As noted above and as stated in Panigas and Maciel where the police take control of how counsel will be contacted, as was the case here, they must exercise the same diligence and effort that the accused person would himself or herself exercise were they to have been provided the resources directly.

[84] I agree with the standard articulated in Panigas and I apply it to this case because, very clearly, police took control over how counsel could be contacted. PC Olson testified that it is a practice of the Dryden Police Service not to permit detainees to have cellular telephones within the detachment or to dial using their cellular telephones. Nor are detainees given a means to independently dial out using the telephone that is located inside the interview room. Control over the process of dialing any telephone number is assumed by the police. PC Olson also testified that the Dryden Police Service does not have policies in place to permit access by detainees to the Internet, to enable them directly or indirectly through police assistance to facilitate access to counsel of choice. Detainees have made available to them a telephone book, and whatever assistance they can obtain through the arresting officer acting as an intermediary.

[85] In assessing the adequacy of police efforts in this case, I fully accept that PC Olson permitted the defendant, with assistance, to retrieve a telephone number for Andrew MacGregor whom PC Olson understood at the time to be counsel of choice. I also accept that when the officer was told by Andrew MacGregor that he was not his brother’s lawyer, PC Olson provided him an opportunity to speak with the defendant. This resulted in a limited form of a search for the name of a lawyer of choice and the contact information for that person. It was conducted through Andrew MacGregor who had no data service plan and had to find someone he knew upon whom he could rely for assistance because he was out for the evening. Andrew MacGregor located one number by the time that PC Olson knocked and signaled to the defendant that it was time to move along. At 1:39 AM, the number was dialed and a voice message was left on a voice messaging service that did not identify an after-hours number. PC Olson, who had access to the Internet, could have attempted to search for an alternate telephone number online. As I have already indicated in the findings of fact, had PC Olson chosen to do so his searches would have yielded other telephone numbers. Among those numbers readily available by such a search was the home telephone number of the defendant’s counsel of choice who was home and would, in all likelihood, have been reached.

[86] I have already indicated that I am not prepared to accept the evidence of PC Olson that he thought to utilize the internet but then decided against doing so because he felt the defendant had spent enough time on the telephone with Andrew MacGregor and felt the call to Bruce Engel was sufficient. In my view, it matters little whether I do believe him or not. Having assumed control over how counsel could be contacted, police were required to exert the same diligence and effort that the accused person would himself or herself exercise were they to have been provided the resources directly. It is very clearly not the case had Mr. MacGregor been provided with direct access to a telephone and to the internet he would have not completed a search online, both when he spoke with his brother, and thereafter. And, as I have already noted, with a little bit of diligence online the means of reaching counsel of choice would have been achieved. I find that the duty to facilitate was breached.

5.4 Was There a Further Breach in Failing to Provide the Breath Result After the First Sample was Taken?

[87] I turn lastly to the allegation by the defence that the refusal on the part of PC Olson to communicate to the defendant the result of his first breath sample prior to proceeding in taking the second breath sample amounted to a further violation of the right to counsel. The Crown disagrees arguing that the jeopardy of the defendant did not change even when after the defendant provided the first sample. It is submitted that the defendant had already been informed that he would be charged with “over 80” and that he had already been provided an opportunity to speak with counsel before providing the breath samples. It is also submitted that the defendant had not told the officer at the time that he did not know what his rights were.

[88] I have already made findings that resolve some of the issues raised by the Crown in its submissions. While I do accept that at the time of breath reading the defendant had already been informed that he would be charged with “over 80”, I have found that the defendant did act diligently in asserting the right to counsel nor that he was provided with an opportunity to speak with counsel of choice in a manner that complies with s. 10(b). Moreover, after the defendant had concluded the discussion with duty counsel, no effort was made on the part of PC Olson to ensure whether he was satisfied with the right to counsel. PC Olson was asked why this would have been and he testified as follows:

Q. Is there a reason that you wouldn’t ask him, does he have any other questions or is he satisfied with his call?

A. Well he had already spoken with his brother, who he identified as his lawyer. I had left a message for the lawyer that his brother provided to him. And he spoke with a member of duty counsel. He had spent the better part of 45 minutes with, on this lawyer issue. I would hope that he would have resolved any issues he had with that, in that time period.

From the testimony that followed, it is clear that PC Olson viewed it to be up to the defendant//applicant to raise any concerns he may have had. I disagree and find such view to amount to a reversal of the informational component of the s. 10(b) right. It fails to appreciate that a person who does not understand his or her right cannot be expected to assert it, and it fails to appreciate why follow-up questions are asked of detainees by police as a standard practice.

[89] In my view, the concept of a change in the jeopardy must also be approached with a view to what the s. 10(b) right guarantees as it has been interpreted in such decisions as Bartle. A fair consideration of jeopardy must include a consideration of whether the defendant can reasonably be expected to change his or her mind on the question of whether to exercise the right to counsel if he or she is made aware of the additional or change in the information, in this case the results of the first breath reading. In reaching such a conclusion, I have relied on the decisions in Taylor and in R. v. Peterson, [2009] O.J. No. 671 (C.J.) but note that in cases where a breach of the informational duty has been found to have occurred it would obviously be appropriate for the Court to take that fact into account to the extent necessary.

[90] In Taylor, the defendant believing himself not to be “over 80” decided against calling a lawyer. Harris J. held at para. 75:

Mr. Taylor had not spoken to a lawyer because he did not think there was any reason for him to do so when he was not "over 80". Following the first test, he asked for the result so that he could discover whether his assumptions were correct.

At paras. 78-9, Harris J. held:

I have no doubt in my mind that Constable Wentzell knew that Mr. Taylor had blown "over 80" on the first test and that accordingly Mr. Taylor's assumptions were incorrect. Constable Wentzell also knew that in those circumstances, Mr. Taylor would probably change his mind and ask to speak to a lawyer if he were made aware of that fact.

Knowing this, Constable Wentzell did not tell Mr. Taylor what the result was. He did not provide Mr. Taylor with the information needed for Mr. Taylor to make an informed decis3 ion with respect to his right to counsel. Instead, he suggested falsely that he could not provide that information to Mr. Taylor.

[91] In Peterson, the defendant was provided with the breath readings resulting in a request to speak with counsel that was denied. Green J. writes at paras. 23-24:

Contrary to the position advanced by the Crown, I find the defendant acted with reasonable diligence in asserting his right to counsel during the second test procedure. I find further that his assertion was sincerely expressed. The circumstances had changed materially between the time the defendant first waived his s. 10(b) rights and his re-assertion of those rights during the second test. Once informed that he had "blown over" on the first test, he was in a situation of substantially enhanced jeopardy. He responded by requesting a fresh opportunity to contact his lawyer. His subsequent reluctance to provide a suitable sample reflects, I find, not a conscious effort to delay or impede the process so much as an expression of his frustration with the denial of his request to access counsel. He readily complied with the police demand to provide a second sample once cautioned about the legal consequences of a refusal to properly exhale.

Once the defendant had indicated his desire to exercise his right to counsel the police obligations, as set out in Bartle, supra, at p. 301, are clear:

• to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

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

(See, also, R. v. Prosper (1994), 1994 CanLII 65 (SCC), 92 C.C.C. (3d) 353, at 375 (S.C.C.).) The circumstances presented to the officers dealing with the defendant were not dangerous. Nor was there any urgency: the defendant had completed the first test well within the time-frame prescribed by the Criminal Code and his request to speak with counsel was made only 20 minutes or so after providing that first and suitable sample. Thompson's refusal to facilitate a further attempt to contact the defendant's counsel infringed the defendant's s. 10(b) rights. He ought to have afforded the defendant another chance to call his lawyer and "held off" until he had a reasonable opportunity to effect such contact. Unlike the case of R. v. Ritchfield (2003), 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.), and others relied on by the Crown, that reasonable opportunity was never here provided.

[92] Applying the law to the case before me, I cannot agree that the jeopardy of the defendant did not change after PC Olson had obtained the results of the first breath reading. The readings of Mr. MacGregor while over the legal limit were on the lower end and there were no obvious indicia of impairment. Mr. MacGregor was unfamiliar with the criminal justice system. In circumstances such as these, it is entirely believable that the defendant would have been uncertain as to whether he was in fact over the legal limit and whether he could reasonably expect to be charged with a criminal offence. The testimony of the defendant, that had he learned he was over the legal limit he would in all likelihood have asked PC Olson if there was any way for him to speak with somebody about how to proceed, is also believable. I have accepted the evidence of the defendant in this case.

[93] I find that in all the circumstances the request triggered a duty on the part of PC Olson not only provide the result the defendant, but to also re-inform him of the right to counsel. In the event that the right to counsel were exercised, then PC Olson would have been obligated to provide the defendant an opportunity to call his lawyer or duty counsel and hold off until he had been given a chance to do so. Not doing so infringed the right to counsel of the defendant. In reaching this conclusion, I accept that the defendant did not persist in the request. But I also note that this was a case where the informational right was breached, and where repeating the request for a drink of water had led nowhere. The right to counsel was breached.

6. Should the Breath Sample be Excluded?

[94] Section 24(2) of the Charter mandates that evidence found to have been obtained in a manner that infringed or denied any rights or freedoms as guaranteed by the Charter 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. Para. 71 of R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C.) provides as follows:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

Having found that the breath evidence in this case was obtained in a way that infringed the s. 10(b) right to counsel of Mr. MacGregor, I must consider whether or not the test in Grant mandates exclusion of that evidence.

6.1. Seriousness of the Conduct

[95] In considering the first factor, I would refer to paras. 54-55 in Maciel:

I begin by assessing the seriousness of the Charter infringing state conduct. In this case, there is no basis to conclude that the police deliberately violated Mr. Maciel's right to counsel of choice. Far more likely, in my view, is that neither Constable Tingle nor Constable Darcy appreciated the full extent of their Charter obligations as they relate to their duty to facilitate the exercise, by detained persons, of the right to consult with counsel of their choosing. This does not however substantially mitigate the seriousness of the resulting Charter violation. As the Supreme Court made clear in Grant, “ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith.” This is because the police "are rightly expected to know what the law is”.

Also aggravating, in my view, is that this case would appear to be reflective of a pattern in this jurisdiction of police officers being insufficiently aware of the extent of their duty to facilitate contact between those in their custody and counsel of choice. As the Supreme Court has made clear, "evidence of a systemic problem can properly aggravate the seriousness of the breach and weigh in favour of exclusion."

[96] The above passage is helpful in considering the present case. In the present case, I do not perceive that PC Olson deliberately tried to violate the defendant’s section 10(b) right. As in Maciel, the officer likely did not appreciate the full extent of his obligations. But this does not mitigate the seriousness of what amount to not one but four violations of the right to counsel. Nor does it diminish that the approach by PC Olson was at times casual and even cavalier. It is reflected in the officer’s approach to preserving an accurate record through his notetaking; his approach in trying to move the defendant along and, in the process, failing to consider or use such resources as the Internet; his refusal to grant the defendant’s request for a drink of water; and his refusal to share the results of the first breath sample. It is also reflected in the response of PC Olson when Mr. MacGregor persisted in requesting water. PC Olson acknowledged in cross-examination his response: “you put yourself in a position where you have to take the test”. I am troubled by the officer’s comment. It is decidedly at odds with the following passage from R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103 (S.C.C.) at para. 29:

The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding members of the community until proven otherwise.

[97] I am also concerned that the Dryden Police Service does not have any policies or practices in place to guide its officers in their use of the Internet to facilitate in locating and contacting counsel of choice in appropriate cases. I doubtless appreciate that the situation in Dryden is different than it is in such locations as the Greater Toronto Area. I have not heard evidence on the point but suspect that the lawyers who tend to be requested by detainees in Dryden tend to be those who advertise in the local telephone directory. Yet, the comments at para. 45 of Maciel are in all likelihood no less applicable in Dryden and detainees are not restricted in their choice of counsel to local lawyers, or those who advertise in the telephone directory as the present case makes all too clear. It is unreasonable for the Dryden Police Service in this day and age to establish a system that takes control of the detainee and have no provision for access to the internet in any way whatsoever. In my view this is a systemic problem that aggravates the seriousness of the breach in the present case and weighs in favour of exclusion.

6.2. Impact on the Accused

[98] I also find that the impact of the breach upon the Charter-protected interests of the accused was serious. I agree with the reference by counsel for the defendant to R. v. McGuffie, 2016 ONCA 365 (C.A.) at para. 80:

Detained persons are constitutionally entitled to know of their right to that advice, and to a reasonable opportunity to access that advice. Access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law.

[99] In R. v. Clayton, [2017] O.J. No. 1522 (OCJ), Harris J. held at para. 46:

In terms of the breach's impact on protected interests -- it must be said that the protected interests under section 10(b) of the Charter are the rights against self-incrimination and ultimately the protected interests of security of the person, privacy and human dignity as a result of being taken to a police detachment in handcuffs. The taking of a breath sample constitutes a conscriptive search of the body in respect to which the defendant enjoys a constitutional protection against self-incrimination. Consequently, any breach of an accused's s. 10(b) rights followed by the obtaining of incriminating evidence is deemed more serious than another type of intrusion upon protected interests because of the impact of a violation on the defendant's fair trial interests. The right to counsel "information and implementation" duties prevent the police from compelling the detainee to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until the person has had a reasonable opportunity to exercise the right to counsel: R. v. Ross, supra. It could be argued that these type of violations favour exclusion in order that the court is not seen to condone or associate itself with trial unfairness.

6.3. Society’s Interest in Adjudication on the Merits

[100] The third factor clearly favours admission. As indicated by Watt J.A. in R. v. Manchulenko, 2013 ONCA 543, [2013] O.J. No. 3977 (C.A.) at para. 92:

The third line of inquiry reflects society's expectation that criminal allegations will be adjudicated according to their merits. The public interest in truth-seeking is relevant under s. 24(2). The reliability of the evidence obtained by Charter infringement is an important factor. So too, is the significance of the evidence to the case for the Crown: Grant, at paras. 79-81 and 83.

The societal expectation is clearly high given the nature of the offence in question. I would refer to R. v. Du, 2009 CanLII 39783 (ON SC), [2009] O.J. No. 3194 (S.C.J.) where Murray J. writes at para. 24:

The public has a strong interest in having cases such as this adjudicated on their merits. Numerous cases have commented on the death and destruction caused by drinking and driving and in the public's interest in curbing such criminal conduct. (See R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23 (O.C.A.).)

The decision was upheld on a further appeal: [2010] O.J. No. 4494 (C.A.).

6.4. Balancing the Grant Factors

[101] Balancing these three factors, and in particular balancing the interests of truth seeking with the need long-term integrity and interests of the justice system, I conclude that the evidence must be excluded.

[102] In reaching this conclusion I rely in part upon McGuffie at para. 63, where Doherty J.A. writes as follows:

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: see e.g. R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 81-89; R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at paras. 98-112. Similarly, 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: see e.g. Grant, at para. 140.the balance is not tipped in favour of admissibility. This is particularly the case where, as noted above, there appear to be systemic concerns, in respect of the implementational component of s. 10(b), in respect to the gathering of evidence in the interview room, and in respect to the taking of police notes.

7.0 Conclusion

[103] According, the breath sample evidence will be excluded pursuant to section 24(2) of the Charter. The evidence falling short, Mr. MacGregor is accordingly acquitted.

Released: January 25, 2019

Signed: “Justice P. Joubert”