Court File and Parties

Ontario Court of Justice

Date: November 20, 2019

Court File No.: Kitchener 18-3266

Between:

Her Majesty the Queen

— and —

Hicham Lebada

Before: Justice C.A. Parry

Heard on: August 7 and November 5, 2019

Reasons for Judgment released on: November 20, 2019

Counsel

R. Iaquinta — counsel for the Crown

B. Cummins — counsel for the defendant Lebada

I. INTRODUCTION

[1] Mr. Lebada alleges that his arresting officer explicitly steered him towards duty counsel after arresting him for an Over 80 offence, thereby breaching his constitutionally guaranteed right to counsel of choice. To remedy this breach, he seeks the exclusion of his breath samples. The Crown concedes that the police officer steered Mr. Lebada to duty counsel but argues that the officer did not thereby breach Mr. Lebada's right to counsel. Alternatively, the Crown argues that the breach was minor and had a minimal impact upon Mr. Lebada.

[2] In my view, the Crown is incorrect when asserting that steering an accused to duty counsel cannot result in a breach of an accused's right to counsel. This contention runs counter to settled law.

[3] I also disagree with the Crown's contention that the breach in this case was relatively minor.

[4] With great power comes great responsibility. In this case, the arresting officer assumed control over the process of the accused's attempt to contact counsel. His unsophisticated, imprecise, and ultimately careless communications caused Mr. Lebada to misunderstand the true nature of his right to counsel of choice. When the first two counsel of choice could not be reached, he assumed without asking that Mr. Lebada would default to choosing duty counsel. The officers' further imprecise and careless communications caused Mr. Lebada to reasonably believe that duty counsel was his only remaining choice. When Mr. Lebada expressed his dissatisfaction with his consultation with duty counsel, the officer failed to provide Mr. Lebada a reasonable opportunity to consult with other counsel. Given the misleading information provided to him, Mr. Lebada can be forgiven for not more aggressively asserting his rights. While the officer did not deliberately infringe Mr. Lebada's rights, his imprecision and lack of care in communicating with Mr. Lebada set the breach in motion. His failure to give due attention to Mr. Lebada's expressed dissatisfaction with duty counsel allowed the breach to continue. Given the control the officer assumed over the process, the officer's shortcomings were relatively serious. Given Lebada's dissatisfaction with the perfunctory advice he received, the impact of the breach on him was significant. Therefore, at the conclusion of these reasons, the breath test results will be excluded.

[5] But first, I turn to a more detailed discussion of the evidence and the governing law.

II. THE RELEVANT EVIDENCE

[6] Being of the view that there existed little difference between the evidence of Mr. Lebada and Constable Forde (the arresting officer), the Crown effectively invited me to decide the case on the basis of Mr. Lebada's account of the events. However, I see some significant differences between the two accounts. Where the two accounts differ, I accept the evidence of Mr. Lebada. I find Mr. Lebada's account of the evening more reliable than that of Constable Forde. He delivered his evidence with more precision and more attention to the minutiae of the evening, lending a verisimilitude to his intrinsically logical narrative. Mr. Lebada had never been charged or investigated before. The details clearly mattered to him. While Constable Forde demonstrated kindness and humanity towards Mr. Lebada, this was still just another day at the office. He could not dispute outright certain aspects of Mr. Lebada's narrative; indeed, he conceded that these aspects were a possibility. Video taped footage from the breath room also tended to corroborate the accused's narrative. Moreover, Constable Forde's note taking at times omitted important details. For these reasons, I agree that it is entirely appropriate to decide the case on the basis of Mr. Lebada's narration of the events.

[7] I propose to now summarize the uncontroversial events of the evening, pausing when appropriate to highlight when and how the two narratives diverge.

[8] Constable Forde was assigned to a RIDE program in Kitchener on the 26th of April 2018. He stopped Mr. Lebada's SUV at around 12:10 a.m. Upon speaking with Mr. Lebada, he purported noted the odour of alcohol coming from Mr. Lebada's breath and from his car. His notes and witness statement did not mention that he specifically perceived an odour of alcohol coming from Mr. Lebada's breath, only that he noted an odour of alcohol. This is one instance that demonstrates Constable Forde's inattention to detail. Despite this inattention to detail, I believe him on this particular point and am satisfied he honestly and reasonably formed the suspicion necessary to make an ASD demand of Mr. Lebada. I have for that reason dismissed Mr. Lebada's claim that the ASD demand and subsequent breath demand violated Mr. Lebada's section 8 and 9 Charter rights.

[9] Constable Forde delayed the administration of the ASD test for 16 minutes because he noticed that the accused was chewing gum. He was concerned that the gum might give rise to mouth alcohol, which in turn could contaminate the ASD test. When attempting to explain the basis for this concern, Constable Forde betrayed a certain unsophistication in his communication skills and a certain ignorance of any scientific basis for his concern. His somewhat crude attempt at explaining himself here is one of several occasions when he revealed himself to be a far less precise and erudite witness than Mr. Lebada. In any event, even though Cst. Forde did not advert his mind to whether the gum contained sugars that might be metabolized by any yeast native to Mr. Lebada's mouth, thereby creating mouth alcohol, I am satisfied that his concern was sufficiently reasonable to justify a 16-minute delay. Constable Forde, possessed with only rudimentary knowledge on the subject, erred on the side of caution to protect – not harm – Mr. Lebada. I therefore reject Mr. Lebada's assertion that this ASD test was not administered forthwith.

[10] Mr. Lebada failed his ASD test. As a result, Constable Forde arrested Mr. Lebada at 12:28 a.m., then read the breath demand to him, and then advised Mr. Lebada of his right to retain and instruct counsel. Mr. Lebada confirmed that he did in fact wish to speak to a lawyer. When Constable Forde gave his evidence in-chief, he testified that Mr. Lebada had in fact named a lawyer at the roadside. In cross, however, it became clear that specific lawyers only got mentioned later. This is another area in which Constable Forde proved to be unreliable.

[11] Constable Forde ultimately agreed with the contention that Mr. Lebada named Mr. Stuart MacKay as his preferred choice of lawyer and Megan Swan as his second choice. According to Mr. Lebada, in response to Mr. Lebada's expressed desire to speak to a counsel of his own choosing, Constable Forde told him to provide a first and second choice. This is what prompted Mr. Lebada to provide Ms. Swan's name in addition to Mr. Mackay's name. I find this level of detail compelling. Unlike Constable Forde's less precise narrative, it provides an explanation as to how and why Constable Forde knew Mr. Lebada's order of preference, and an explanation of why precisely two lawyers were mentioned. Here, I note that Mr. Lebada testified that he had other options available to him as well, but he was only asked to provide his first preference and a backup. I accept his evidence on this point.

[12] As is customary in this Region, Constable Forde then assumed control of the process of contacting counsel, while Mr. Lebada waited locked in his jail cell. Constable Forde got a phone number for each of the two lawyers from Mr. Lebada's phone. He placed a call to Mr. Mackay at 1:18 a.m., 50 minutes after the arrest. He left a message at the number provided. He then called Mr. Mackay a second time at 1:20 a.m., again leaving a message. He then called Ms. Swan at 1:23 a.m., again leaving a message. At about 1:50 a.m., Constable Forde then spoke to Mr. Lebada. He informed Mr. Lebada that he had called both lawyers and left messages for them. He then told Mr. Lebada that in his 13 years experience no lawyer has ever returned a call back at that time of night. He did not seek alternative phone numbers for these lawyers, nor did he ask Mr. Lebada if he had any other choice of counsel. He also did not explain what he said in his messages to both counsel. Instead, the topic turned to duty counsel.

[13] I find as a fact that Constable Forde told Mr. Lebada that duty counsel was his next and, implicitly, only option. This finding is supported by Constable Forde's recounting of the events to the breath technician, a recounting recorded in the breath room video tendered in evidence at this trial. In that recounting, Constable Forde noted to the breath technician that the two lawyers did not call back and that, consequently, he – that is, Constable Forde, called duty counsel. He described a cause and effect. Forde's description of the process suggests that Forde, not the accused, reflexively turned to duty counsel as the next resort. This description thus corroborates Mr. Lebada's assertions about what Forde told him when the two named lawyers were unavailable, which I will now discuss.

[14] Mr. Lebada testified painstakingly about the details omitted in Cst. Forde's abbreviated recounting to the breath technician. According to Mr. Lebada, Cst. Forde told him that he was going to have to put Mr. Lebada in touch with duty counsel, because Mr. Lebada's two chosen lawyers had not called back and because the police needed to obtain the samples within two hours. Constable Forde told him what would be happening, rather than seek Mr. Lebada's direction. As noted, this characterization is effectively supported by Cst. Forde's own recounting of the narrative to the breath technician. It is also corroborated by the fact that Mr. Lebada had, up to that point, been unaware of any two-hour threshold. While Cst. Forde disputes that he specifically mentioned a two-hour threshold, I accept that Mr. Lebada's knowledge of the threshold comes from this particular transaction. I note as well that on the breath room video, in response to the breath technician asking Mr. Lebada to confirm the correctness of Cst. Forde's chronology, Mr. Lebada conveyed his general agreement, but he added "there was a lot said in between". This contemporaneous qualification of Forde's chronology tends to support Mr. Lebada's credibility and reliability.

[15] In summary, according to Mr. Lebada, he did not perceive himself to have any other options. Having been told of the extreme unlikelihood of his lawyers calling back, having been told of the two-hour limit, and having been told of the need to now speak with duty counsel, he acquiesced to the duty counsel option. I accept his evidence on this point, not only for the reasons just mentioned, but also for the fact that this area of his evidence forms part of a larger, extremely detailed, and logically coherent narrative that gains verisimilitude from its detail and internal logic. I therefore reject Cst. Forde's assertion that duty counsel was presented merely as one option. I pause here to say that I do not ascribe any nefarious intent to Cst. Forde. Rather, I accept that his behaviour was the by-product of Constable Forde's honest belief that the two lawyers would not call back, of his rather perfunctory approach to the issue generally, his apparent assumption that duty counsel would be the accused's next choice, and of his apparently unsophisticated and imprecise communication and record keeping skills. I accept that it never occurred to Constable Forde to ask Mr. Lebada if he had alternative contact numbers for the two lawyers in question, or to ask if Mr. Lebada had other lawyers in mind. I likewise accept that it did not occur to him that he might be dissuading Mr. Lebada from waiting to hear back from his chosen lawyers when telling Mr. Lebada about his experience with call-backs over the last 13 years. His failings were more failures of communication and imagination than any failures of conscience. I note as well, that I do accept Constable Forde's evidence that he told Mr. Lebada that if either of the two named lawyers called back at any time, he would allow Mr. Lebada to speak with them. This point is conceded by Mr. Lebada. It demonstrates Constable Forde's good will and decency, and it demonstrates Mr. Lebada's fairness when testifying.

[16] Mr. Lebada spoke with duty counsel at around 1:58 a.m. The call ended at 2:01 a.m. It was, by any measure, a masterclass in brevity.

[17] Following the call, Constable Forde spoke to Mr. Lebada. Forde asked Lebada if he was satisfied with his call. According to Mr. Lebada, he told Forde that he would have rather spoken to his own lawyer. Constable Forde could not recall one way or the other whether this utterance was made. He also agreed that it was a possibility that Mr. Lebada said of duty counsel, "I don't know this guy." He also agreed that it was a possibility that, when pressed to declare whether satisfied or unsatisfied, Mr. Lebada shrugged and said "well, I guess I am satisfied." Mr. Lebada, for his part, testified that after declaring that he would have rather spoken to his own lawyer – a statement that he believed clearly denoted his dissatisfaction – Cst. Forde stated that he had to say he was either satisfied or unsatisfied – and that he could only proceed with the breath tests if he said he was satisfied. Lebada inferred that a failure to do the tests would result in a charge, because he had received a warning of this kind at the roadside during the ASD procedure. According to Lebada, he therefore shrugged, palms facing the sky, and said "well, I guess I am satisfied." Given Cst. Forde's declared inability to challenge these assertions, given Lebada's firm and detailed account of them, and given what both Lebada and Forde said in the breath room video, I accept Mr. Lebada's evidence here.

[18] In summary, I accept that Constable Forde's initial recitation of Mr. Lebada's right to counsel was complete and proper. Amongst other things, it clearly conveyed that he had the right to contact any lawyer of his choosing. However, I conclude that Constable Forde, through his subsequent words and actions, misled Mr. Lebada about the scope of his right to counsel of choice. Although he mislead Mr. Lebada, I do not believe he did so intentionally. Instead, his somewhat careless and imprecise communication are to blame. Cst. Forde thereafter assumed control of the process of contacting counsel. He called counsel and left messages for them. Cst. Forde told Lebada of the extreme unlikelihood of his lawyers of choice calling back. I further find that Constable Forde told Mr. Lebada that, because of the two-hour time limit, Mr. Lebada would have to speak to duty counsel. I find as a fact that Mr. Lebada acquiesced to this option, because Cst. Lebada inadvertently caused him to believe that this was the only viable option remaining. I accept that Mr. Lebada expressed his dissatisfaction with his ephemeral call with duty counsel by stating that he would rather have spoken to his own counsel and that he did not know the duty counsel with whom he spoke. I accept that Mr. Lebada had other choices available to him on his phone, but that he did not, as a result of what Cst. Forde had thus far told him, perceive them to be an option. I accept that when told by Mr. Lebada of his continuing desire to speak to his own counsel, Cst. Forde insisted Mr. Lebada either state he was satisfied or unsatisfied. He appears to me to have been unable to process Mr. Lebada's response, because it did not fit neatly into his mental checklist. His adherence to a mental checklist appears to have prevented him from digesting and appropriately responding to the complaint being made to him. I further accept that Mr. Lebada provided a clearly tepid declaration of his satisfaction out of fear of being charged for refusing to provide a breath sample. I am not satisfied that any of these things came to pass as a result of any malicious intent on the part of Cst. Forde. Rather, I conclude that what we have here is a failure to communicate – a failure for which Cst. Forde bears responsibility.

[19] In conclusion, I find as a fact that Constable Forde steered Mr. Lebada to duty counsel and that Mr. Lebada acquiesced to this steering because Constable Forde caused him to reasonably believe he had no other choice.

III. DOES THE STEERING TO DUTY COUNSEL AMOUNT TO A CHARTER BREACH?

[20] When the police arrest or detain an accused, section 10(b) of the Charter provides rights to the accused and imposes duties upon the police.

[21] For their part, the police are required:

(1) To inform the accused of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel;

(2) If the accused has indicated a desire to exercise this right, to provide the accused with a reasonable opportunity to exercise the right; and

(3) To refrain from eliciting evidence from the accused until he or she has had that reasonable opportunity to speak with counsel.

The first duty is informational. The latter two are implementational: See R. v. Bartle.

[22] The implementational obligations are not triggered until the accused asserts a desire to exercise the right to counsel. The degree to which the police are required to comply with their implementational obligations will turn on the degree to which the accused was reasonably diligent in attempting to contact counsel. If the accused is not diligent in contacting counsel, then the police may be relieved of their implementational duties: see R. v. Willier, 2010 SCC 37.

[23] However, an accused cannot be expected to be diligent if the police provide incomplete or incorrect information to the accused about the scope and nature of the right to counsel: see R. v. Bartle, supra; R. v. Devries, 2009 ONCA 477.

[24] The right to counsel includes the right to speak to a counsel of one's own choosing. The failure to allow an accused to speak to their counsel of choice may constitute a violation of that person's Charter right. However, that right is not absolute. If the accused's chosen lawyer is not available, detainees have the right to refuse to speak with other counsel and to wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable amount of time will depend upon the circumstances, including the seriousness of the charge and the urgency of the situation: see R. v. Willier, supra. The existence of a two-hour statutory presumption does not, by itself, constitute such a compelling or urgent circumstance as to categorically deny the accused the right to insist upon his counsel of choice: see R. v. Prosper. Instead, it is merely one factor in assessing the reasonableness of the accused's insistence upon a particular counsel. After the expiration of a reasonable amount of time, the right to counsel of choice expires and the accused must turn to an alternative. Accused persons who fail to do so, risk the court concluding that they have not been reasonably diligent in asserting their right: see R. v. Willier, supra; and also R. v. Richfield. Thus, there exists a tension between the police duty to inform of and facilitate the right to counsel, on the one hand, and the accused's obligation to assert the right of which he/she has been properly informed. The resolution of this tension is largely fact driven.

[25] When an officer accurately conveys to an accused the accused's full right to counsel, the officer is entitled to accept at face value the accused's claim that he/she understood this right. A breach does not result where the accused's unexpressed misunderstandings about the right to counsel are the by-product of his or her thought processes: R. v. Zoghaib. Officers are not expected to be mind readers. Thus, an accused who asserts the right to counsel and who claims to understand that right, but nevertheless does not assert a desire to search for and speak to a particular counsel, and who also voices no dissatisfaction with the duty counsel provided, will often be hard pressed to establish a breach of the right to counsel.

[26] However, when an accused asserts a right to speak to a specific counsel, the ball lands back in the officer's court and the court expects a greater degree of implementational diligence from the police. Consequently, where an accused has asserted his right to consult a specific counsel and that counsel does not call back, the police should ask the accused if he would like to consult another lawyer. Alternatively, the police should ask the accused whether he has another number for that lawyer or should give the accused access to a directory to enable the accused to find an alternate number for that lawyer: see R. v. Traicheff, 2010 ONCA 851 at para 2; see also R. v. Vernon, 2015 ONSC 3943; R. v. Wannamaker, [2019] O.J. No. 5732 (S.C.J.); R. v. Lewis, [2019] O.J. No. 5233 (S.C.J.). The failure to do so may result in the court concluding that (1) the police failed to provide sufficient information for the accused to diligently assert his/her right and (2) the police failed therefore to sufficiently facilitate contact with counsel.

[27] Where an accused reasonably and diligently expresses dissatisfaction with his/her consultation with counsel, the police will continue to bear the duty of facilitating the accused's contact alternative counsel or providing a Prosper warning if the accused is contemplating waiving the right altogether: see R. v. Willier supra, at para 42.

[28] In the present case, Constable Forde initially provided an accurate recitation of Mr. Lebada's right to counsel. However, he subsequently, inadvertently and incorrectly conveyed by words and deed to Mr. Lebada that Mr. Lebada's right to counsel of choice was limited to a first and second choice. When neither of those two lawyers called back, the officer should have asked Mr. Lebada if he wished to search his phone or a directory for an alternate number for those chosen counsel. Alternatively, Constable Forde should have asked Mr. Lebada if he wished to speak to a different lawyer. He did not do so. Instead, he told the accused that he needed to speak to duty counsel, because of the impending expiration of two-hour presumption limit. I note that at the time Constable Forde told Mr. Lebada to use duty counsel, only an hour and twenty-two minutes had transpired since Mr. Lebada last occupied the driver's seat of his vehicle [12:28 a.m., when Mr. Lebada failed the ASD test]. The time at which the officer lost the benefit of any statutory presumption was still a considerable period of time away. There was no hurry.

[29] In light of Constable Forde's miscommunications, Mr. Lebada's belief that he was down to his last option was a reasonable belief. Because he had been provided faulty information, his obligation to pursue his right with reasonable diligence had, at the very least, been attenuated – if not entirely eliminated. Nevertheless, Mr. Lebada voiced what he reasonably believed was a clear dissatisfaction with his duty counsel advice. Constable Forde failed to adequately respond to Mr. Lebada's complaint. Mr. Lebada reasonably believed, based upon the information provided to him throughout his dealings with Constable Forde, that he could be charged with a Refusal if Mr. Lebada did not tell Constable Forde, he was satisfied with duty counsel's advice. Forde had told him he could not proceed to obtain a sample until Mr. Lebada indicated his satisfaction. Forde had earlier told him, in respect of the ASD procedure, that failure to provide a sample would result in a charge. In response to this conundrum, Lebada issued what could only reasonably be construed as a disingenuous "I guess" with his palms raised to the sky, when reluctantly voicing a coerced declaration of satisfaction. It would appear Forde had metaphorical boxes to tick off and the situation did not fit neatly into any of those boxes. Rather than conduct any thoughtful inquiry, Forde insisted the accused shoehorn his answer into one of these metaphorical boxes. In my view, the circumstances required Forde to do more to meaningfully implement a right that the accused diligently asserted.

[30] The Crown is therefore correct to concede that steering to duty counsel occurred here.

[31] However, I respectfully conclude that the Crown is wrong to categorically indicate that steering of an accused to duty counsel cannot result in a Charter breach. Similarly, I disagree with the Crown's contention that steering in this case did not result in a Charter breach.

[32] The Crown relies upon the case of R. v. Ferose, 2019 ONSC 2401. That reliance is misplaced. The Ferose decision addresses the correctness of a 24(2) decision to admit evidence obtained after the accused had been streamed to duty counsel in contravention of his 10(b) rights. The Crown did not cross-appeal the trial judge's finding of a 10(b) breach. The summary conviction appeal court did not therefore need to address correctness of the 10(b) ruling. This issue was not litigated on appeal. Any comments on the 10(b) issue were non-binding obiter dicta and cannot be construed as overturning well established legal principles from higher appellate courts, nor as resolving tensions between different decisions from higher appellate courts. Indeed, the case did not address the guidance provided by the ONCA decision in Traicheff and the subsequent appellate decisions in Vernon, Lewis, and Wannamaker, which dealt with a fact pattern germane to the case at bar, but not to the Ferose case – a case which would also appear to be in tension with earlier ONCA decisions, like R. v. Zoghaib. Moreover, the court in Ferose indicated "no appeal of the finding that a s. 10(b) breach occurred was filed by the Crown nor properly sought on the materials before me [emphasis mine]." This comment suggests an opinion that the 10(b) ruling in that case was entitled to deference. Therefore, any obiter comments about whether the appellate judge may not have reached the same 10(b) conclusion as the trial judge and any obiter attempt to synthesize in a single paragraph a large body of complex 10(b) jurisprudence from higher appellate courts cannot be construed as having any binding effect in the case before me.

[33] The Crown's contention that no breach arose from the streaming in this case runs contrary to the principles delineated in the above noted jurisprudence from the Supreme Court of Canada and Court of Appeal for Ontario. Having regard to the authorities and principles discussed above, I conclude that Constable Forde violated Mr. Lebada's right to counsel of choice by inadvertently misleading Mr. Lebada about his constitutionally protected options. Given the misleading information presented to Mr. Lebada and given the control exercised by Constable Forde over Mr. Lebada's access to counsel, I conclude that Mr. Lebada exercised more than ample diligence in asserting his right. Finally, I conclude that Constable Forde violated Mr. Lebada's right to counsel by failing to properly facilitate the right reasonably asserted by Mr. Lebada.

IV. THE APPLICATION OF SECTION 24(2) OF THE CHARTER

[34] An applicant who establishes a breach of his or her Charter rights, seeks redress under subsection 24(1) of the Charter. In a hearing conducted pursuant to subsection 24(1), the applicant may seek the exclusion of evidence obtained during the course of a Charter breach.

[35] Subsection 24(2) of the Charter articulates the test to be applied in the determination of the request to exclude evidence. Subsection 24(2) reads as follows:

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

[36] This subsection reveals that the party seeking exclusion must establish two things:

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

(2) the admission of the evidence would bring the administration of justice into disrepute.

The applicant must establish these two things on a balance of probabilities: See R. v. Pino, 2016 ONCA 389.

[37] The Supreme Court's decision in R. v. Grant, 2009 SCC 32, is now the leading authority on the interpretation and application of subsection 24(2).

[38] In Grant, McLachlan C.J.C. and Charron J.A. noted that the subsection is concerned with the maintenance with the rule of law and with the defence of Charter rights in the justice system as a whole. The court noted that a Charter breach in and of itself brings the administration of justice into disrepute. However, in their view, subsection 24(2) was concerned with the future impact of the admission/exclusion of the evidence on the repute of the administration of justice. In other words, the court was concerned with whether admission/exclusion would do further damage to the repute of the justice system. In doing so, the court noted that the analysis required a long-term view, one aimed at preserving the integrity of our justice system and our democracy.

[39] Interpreting subsection 24(2) from this perspective, the majority in Grant held that a trial court must assess and balance the effect of the admission of 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 that 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.

[40] The seriousness of Charter-infringing state conduct may require a court to disassociate itself from the police conduct. However, the presence of good faith during the course of the breach may lessen this need. Trial courts must keep in mind, though, that ignorance of Charter standards, negligence, and wilful blindness cannot be equated with "good faith" and should not be encouraged or rewarded through the admission of evidence. Systemic police misconduct will be considered more serious and will be more likely to require a court to disassociate itself from the conduct.

[41] The third branch of the Grant analysis places emphasis on the truth-seeking function of the trial process. This portion of the analysis requires the court to balance concerns about the integrity of the justice system with the interests of seeking the truth. Admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the Crown's case. Conversely, the exclusion of highly reliable evidence may have a more negative impact upon the repute of the justice system, if exclusion proves fatal to the prosecutions ability to prove its case.

[42] There is no doubt in this case that the evidence of Mr. Lebada's breath tests were obtained during the course of a violation of his right to counsel. Indeed, the breath tests were the very subject about which Mr. Lebada most needed legal advice.

[43] I therefore move on to the three-part test referred to in the Grant decision.

[44] When I examine the facts of the case at bar, I find Constable Forde's shortcomings to be relatively serious, though not at the most egregious end of the spectrum. I note here that he took control over the process of contacting counsel and took control over the means by which Mr. Lebada could search for and assert his counsel of choice. With the assumption of great power comes great responsibility. Unfortunately, Constable Forde did not completely live up to that responsibility. Instead, he carelessly, albeit inadvertently, mislead Mr. Lebada about the scope of his right. Constable Forde therefore cannot rely upon claims of good faith or the absence of malice to absolve his shortcomings. Imprecise communication and unwarranted assumptions – in short, deeds of carelessness – are the cause of the breach. To exacerbate matters, Constable Forde failed to register and properly respond to what I conclude was a clear expression of dissatisfaction with duty counsel. While he certainly did not intentionally violate Mr. Lebada's right, he nevertheless appears to have been operating more mechanically than thoughtfully. Put simply, he needs to be more mindful and more careful in the future. I therefore conclude that this factor favours the exclusion of the evidence.

[45] I should pause here to note that Constable Forde presented as being a man of integrity and good-will. Despite finding that his conduct fell short here, I have confidence he will learn from this case.

[46] Moving on to the impact of the breach, I conclude that the breach had a significant impact upon Mr. Lebada's Charter-protected interests. The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, precisely because of their detention. The arrest of Mr. Lebada and the corresponding breath demand raised urgent legal issues about the lawfulness of the arrest, the obligation to submit to that arrest, the lawfulness of the breath demand, and any corresponding obligation to comply with that demand. An informed assessment of those issues could be useful in preventing an unjustified detention and search, before they happened. This same assessment also raises questions of immediate importance to the accused's right against self-incrimination. A person's choice of counsel is as much personal as it is professional. A lawyer is a lifeline for a detainee and occupies a position of trust. The value of the advice depends in part upon the trust with which it is received by the accused. To make informed decisions in the face of a state prosecution, accused people must trust the loyalty, integrity, and wisdom of the person providing the advice: see R. v. Noel, 2019 ONCA 860; R. v. Rover, [2018] ONCA 745; and R. v. Sakharevych, [2017] OJ No 5209. I have accepted that Mr. Lebada was not satisfied with the duty counsel advice provided. I have further accepted that he could and would have taken steps to contact alternative counsel of choice had he not been misled about the scope of his right. In these circumstances I must therefore conclude that the impact upon Mr. Lebada's right to counsel was significant. This factor therefore favours the exclusion of the evidence.

[47] With regard to society's interest in the adjudication of the charges on their merits, I conclude that this factor favours the admission of the evidence. While this was a fairly routine Over 80 case, one that did not lead to a corresponding charge of Impaired Driving but still involved truncated readings of 160mg/100ml and 150mg/100ml, I am nevertheless mindful of the ongoing and significant societal menace created by impaired drivers across the province. I am also mindful that the evidence against Mr. Lebada is compelling. This factor therefore favours admission of the evidence.

[48] Nevertheless, given the relative seriousness of the breach and given the significant impact upon Mr. Lebada's Charter-protected interests, I conclude that the long-term repute of the administration of justice is best preserved by the exclusion of Mr. Lebada's breath tests.

[49] I therefore exclude the breath-test evidence from Mr. Lebada's trial. An acquittal must inevitably ensue when the matter resumes on November 28, 2019.

Released: November 20, 2019

Signed: Justice C.A. Parry