Court File and Parties

Ontario Court of Justice

Date: 2020-10-09

Court File No.: Brampton 3111 998 19 18747

Between:

Her Majesty the Queen

— and —

Gurtaran Mann

Before: Justice G.P. Renwick

Heard on: 06-07 October 2020

Reasons for Judgment released on: 09 October 2020

Counsel:

• J. Rice, for the Crown
• S.J. Gill, for the Defendant Gurtaran Mann

Section 24(2) Charter Ruling

RENWICK J.:

INTRODUCTION

[1] In the early morning hours, police discovered the Applicant apparently asleep behind the wheel of his Father's car at an intersection controlled by traffic lights. It took some time to rouse the Applicant, and based on his behaviour and characteristics, he was arrested for impaired operation and an evidential breath demand was made.

[2] The Applicant asserts that the Peel Regional Police subverted his s. 10(b) Charter right to speak with counsel of his choice by failing to take appropriate steps to facilitate his right to counsel and by denying him enough information to make an informed decision to speak to duty counsel.

[3] Half-way through the Applicant's blended Charter voir dire, the prosecutor conceded a s. 10(b) Charter violation, no further evidence was received and the parties made submissions on the Application.

[4] The Applicant suggested several Charter violations and relied primarily on the failure of the qualified technician, who, when he repeated the rights to counsel already given by the arresting officer, allegedly failed to provide key information to the Applicant. Moreover, given the seriousness of this constitutional failure, the impact it had upon the Applicant, and the need for the court to denounce the police conduct in this case, the observations of the police leading to the Applicant's arrest as well as the results of his breath analysis should be excluded from the trial.

[5] The prosecutor argues that the police complied with the informational component of the s. 10(b) Charter right but a violation was conceded because the evidence could not establish that the police actually contacted the Applicant's counsel of choice. As well, given the minor nature of the breach, the fact that the Applicant did speak to duty counsel, the minimal intrusion caused by breath sampling, and given the reliability of the breath sampling analysis and its necessity to the prosecution's case, the readings ought to be admitted in this trial. The prosecutor failed to address whether police observations leading up to the arrest ought to be excluded.

[6] These reasons explain why I would not grant an exclusion of evidence in this case.

EVIDENCE AND FINDINGS

[7] It will be helpful to review some of the evidence taken during the Application. Although not all of the evidence will be discussed, I have paid careful attention to all of the evidence and I have reviewed the exhibits, the digital audio recording of the proceedings, and my notes.[1]

[8] Four police constables testified during the application: Kyle Nazareth (the arresting officer), Michael Babore (the qualified technician), Mitchell Gane (an assisting officer), and Avinash Deol (an assisting officer).

The Testimony of Kyle Nazareth

[9] Constable Nazareth testified first. He had only been a police constable at the time of the alleged offence for approximately three months. He rode in a police cruiser with Constable Deol, who was acting as his "coach officer," on a temporary basis that day.

[10] Constable Nazareth testified that he and his coach officer responded to an early morning radio call in response to concern from a passerby who had observed a black Audi vehicle stopped, sitting at an intersection on a green light. He testified that he arrived on the scene along with Constable Gane, and together, with his coach officer, they went to investigate the motorist in the black Audi.

[11] Constable Nazareth described that the driver, who was eventually identified as the Applicant, appeared to be asleep. The officer testified that it took several bangs on the driver's window to wake the driver. Initially when asked to roll the window down there was no response, the driver had watery, bloodshot eyes, and it took several attempts for the driver to lower his window. Once the window came down and the driver opened the door, "we" smelled the odour of alcohol coming from his breath, the driver was stumbling and leaning on his car for support. At this point, Constable Nazareth formed a "suspicion" that the male was under the influence of alcohol, and he arrested the driver for impaired operation. He told the male that both he and Constable Deol could translate the rights, but he noted that the Applicant "spoke English well."

[12] Many times, throughout his evidence, Constable Nazareth spoke in the plural form ("we"), rather than about his own observations and actions. Given his development as a young officer, I took this as an artefact of his inexperience rather than as an attempt to mislead the court. So, although I find that Constable Nazareth was sincerely attempting to relay the events as best as he could recall them, in parts, I had some concerns of his reliability as an historian where it was unclear whose observations he recounted.

[13] I place no weight on the fact that Constable Nazareth became the "officer in charge" of this investigation, because it appears that this was simply titular and a part of his development as an officer.

[14] In the end, I am satisfied that Constable Nazareth truly believed that the driver he dealt with was impaired by alcohol and that is why he arrested the Applicant. I am satisfied of this on a balance of probabilities based on his testimony, the totality of evidence available to him that night, and the actions he took.

[15] Constable Nazareth provided the Applicant with his rights to counsel, once he had been secured in the back of his police vehicle. He learned that the Applicant wanted to speak to "Ruby Sahota" of the "Hundal law firm." Constable Nazareth testified that the Staff Sergeant at the police station usually asks questions of arrestees to determine if they require medical attention and after their property is cleared, they go in the breath sampling room.

[16] According to the officer, his coach, Constable Deol, was making telephone calls to counsel. Constable Nazareth testified that he was present throughout. He was unclear whether the telephone number for counsel came from the "directory of lawyers in Canada" or "Google," because his coach officer had done that. Constable Nazareth testified that calls were made to the lawyer's office at 4:10 a.m., 4:13 a.m., 4:31 a.m., and 4:37 a.m. and that voicemail messages were left by Constable Deol each time.

[17] Constable Nazareth told the court, "we didn't want to waste more time" and because "we felt" that numerous attempts had been made to contact the Applicant's counsel, they moved to the breath sampling room at 4:42 a.m.

[18] During cross-examination, Constable Nazareth advised that there was "moderate" damage to the Audi at the front and to the passenger wheel well. He did not see any damage to the passenger side mirror, which other police officers had observed.

[19] This witness was cross-examined at length about a possible injury to the Applicant's head. It was suggested that all of the "symptoms" observed by the police could have been the result of an injury rather than impairment by alcohol. However, the Applicant never challenged his arrest as unlawful.

[20] For the sake of completeness, I accept Constable Nazareth's evidence that there were no observable signs of injury on the Applicant. I also accept the officer's evidence that there was no complaint made of any injury and the damage observed on the Audi was not necessarily indicative of a motor vehicle collision at any time proximate to his investigation. There was no evidence led on the Application to establish that the Applicant was injured that day.

[21] Cross-examination revealed that Constable Nazareth mistakenly wrote 905-457-9100 as the phone number for the Hundal law firm. The actual phone number is: 905-451-9100. Also, on two occasions, Constable Nazareth testified that he had called that number, before correcting himself that it was Constable Deol who had called, while he was present. This witness also admitted that he did not see what phone numbers Constable Deol had dialed when the phone calls were made.

[22] On the basis of the unchallenged evidence, I am satisfied that Constable Nazareth provided the Applicant with the informational component of his rights to counsel initially, moments after his arrest.

The Testimony of Michael Babore

[23] Constable Michael Babore was the qualified technician who dealt with the Applicant and took his breath samples. A portion of the video-recording of the interaction between the qualified technician and the Applicant, leading up to the breath sampling procedure, was made an exhibit on the Application.[2]

[24] During his examination in chief, Constable Babore wanted to correct something in his notes. He testified that the Applicant had flushed cheeks, there was a strong odour of alcohol, the Applicant had red and watery eyes, he was crying, and his speech was slurred. However, in his notes, where he indicated the odour of alcohol, for some reason he had marked the "absent" box rather than the one labelled "present." He also testified that the Applicant stumbled to the right when walking out of the room to speak to duty counsel.

[25] I had the benefit of observing a large portion of the officer's testimony in chief before the video-recording was admitted. I find that the video-recording entirely confirms the evidence of Constable Babore respecting his efforts to facilitate the Applicant's s. 10(b) rights that morning. In considering all of the evidence, I find that Constable Babore was helpful, professional, patient, and truly interested in observing the Applicant's Charter rights.

[26] Constable Babore testified in a compelling way. He answered all questions thoughtfully and with precision. He did not guess and he was clear as to the limits of his evidence. There was no real challenge to the qualified technician's testimony. To be clear, there was no evidence to contradict it. In light of his testimony and the video evidence, I find that Constable Babore's testimony was reliable and accurate.

The Testimony of Mitchell Gane

[27] Constable Mitchell Gane also responded to the radio call answered by Constables Nazareth and Deol. This officer was an impressive witness.

[28] Of the three officers who testified about the Applicant's arrest, it was obvious that Constable Gane could recall the most details of the initial investigation and the content of the radio call they had received.

[29] During his examination in chief, Constable Gane provided the court with many details about the Applicant's behaviour and what took place at the roadside:

• When he approached, there was one male party inside the Audi, his head was slouched down, his eyes were closed, and the driver's window was up;

• As the officer banged on the window to get the driver's attention, another officer (Constable Sierra) had boxed in the vehicle by parking in front of it;

• There was a third police vehicle as well;

• Initially, there was no response from the driver;

• After an unknown number of hits on the window, the male lifted his head, his eyes were bloodshot, and he mumbled what sounded like "fuck you";

• Constable Gane kept banging on the window, the driver made clawing attempts to open the window before moving his hand to the button to bring it down;

• Constable Gane then detected what smelled like a "wall" of an alcoholic beverage;

• Because the driver could not open the door when requested, Constable Gane reached inside and opened the driver's door;

• The car was running and he could see the engine's revolutions on the RPM gauge;

• Once the car door was open, Constable Gane told the driver to get out;

• The male needed the officer's help to exit and stand up;

• The driver stumbled back into the car and used the car for balance;

• The driver's hair was unkempt, it was longer than worn by the Applicant in court, his eyes were "really red," and he swayed and used the car to hold himself up;

• Constable Gane saw no signs of injury;

• After the Applicant was arrested, the officer saw that the passenger side mirror was missing and it was likely the mirror resting on the front passenger seat; and

• The front passenger tire was almost "obliterated."

[30] Cross-examination did nothing but support the view that this witness was not only truthful but reliable. Constable Gane re-iterated what he knew, he was careful not to guess, his testimony was at all times plausible, and his testimony was balanced, as he readily admitted suggested possibilities for which there was a complete lack of evidence.

The Testimony of Avinash Deol

[31] Constable Deol was a poor witness. He had a poor recollection of things, his notes were woefully incomplete, and his demeanor while testifying convinced me that he may have been sincere (that is to say truthful), but owing to his poor recollection and incomplete notes, it would be difficult to find that Constable Deol's evidence was reliable.

[32] Part way through the cross-examination of this witness, the prosecutor conceded that he could not establish which telephone number the police had called and would not continue to defend the s. 10(b) Application. Both parties invited the court to find that the Applicant's s. 10(b) Charter right was violated.

THE POSITIONS OF THE PARTIES

[33] The Form 1 filed before the court indicated that the Applicant seeks:

… an Order excluding all evidence obtained in a manner that infringed the Applicant's Charter rights, including but not limited to the collection of the Applicant's breath and the consequent report/analysis of that breath sample, pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms, based upon an infringement of the Applicant's rights under s. 10(b) of the Canadian Charter of Rights and Freedoms.

This was expanded during the hearing of the Application, without opposition from the prosecutor, to include the police observations of the Applicant leading up to the formation of grounds for his arrest.

[34] Similarly, the Form 1 reads at paragraph 8:

In summary, the Applicant identified specific counsel he wanted to contact. The police did not make sufficient efforts to provide the Applicant an opportunity to implement his right to contact counsel with the desired counsel. This was in direct violation if [sic] the Applicant's rights pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms.

During argument, Applicant's counsel also sought a finding that the police conduct demonstrated numerous failures and a pattern of negligence respecting the Applicant's rights; including the police failure to investigate an apparent motor vehicle collision, the negligence in properly recording the telephone number of counsel of choice, Constable Deol's incomplete notes, a failure to explain that a third-party could be contacted to assist the Applicant to find alternative ways to reach his lawyer, and the absence of a Prosper warning[3] to ensure that the Applicant was truly waiving his right to counsel of choice by deciding to speak with duty counsel.

[35] The prosecutor submits that the Applicant chose to avail himself of duty counsel, thus obviating the need for a Prosper warning, and as the Applicant did not indicate why he wanted to call a family member, the police were not obligated to make further inquiries. In the end, because the evidence failed to establish that the police dialed the correct telephone number to reach the Applicant's counsel of choice, s. 10(b) was violated. The nature of the breach is minor and technical, and given the minimal intrusion of breath sampling, the breach had little impact upon the Applicant. Consequently, the breath readings should be admitted into evidence at the trial.

ANALYSIS

[36] The submission that the police were negligent in failing to investigate an apparent motor vehicle collision is without merit. Other than the observation that the Applicant's car had some damage, there was no information respecting the involvement of any other motorist, when the damage occurred, where the damage occurred, whether any damage occurred to any other property, or if anyone, including the Applicant, was injured.

[37] Likewise, there is no merit to the submission that the error in recording the telephone number of the Applicant's counsel of choice was anything other than inadvertence or a simple typographical mistake. I reject the notion that this occurred because Constable Nazareth was negligent in the performance of his duties. On the contrary, by the care with which this witness delivered his testimony, I find that he was entirely honest and careful in his dealings with the Applicant. The error in recording the telephone number dialed by Constable Deol was momentary, accidental, and unlikely to have taken on much significance, but for the inability of Constable Deol to properly record his attempts to contact the Applicant's counsel.

[38] While I agree that it is unfortunate that Constable Deol was not a good record-keeper, I did not find a pattern of carelessness or a deliberate intention to thwart the Applicant's right to counsel. Rather, I found that all of the officers involved in this investigation, appeared to have performed their duties conscientiously (save for Constable Deol with respect to proper note-taking), they all believed that the Applicant was cooperative and polite, and they appeared at all times to have acted in good faith.

[39] Constable Deol's shortcomings as a witness led the prosecutor to abandon the defence of this Application. It was discovered during the officer's testimony that he had refreshed his memory from the prisoner management records created by the booking officer, perhaps to supplement his poor note-taking. This was unfortunate, and unusual, but I do not find that this was calculated to mislead.

[40] Indeed, the law permits witnesses to use almost anything to refresh their memory:

There is also no doubt that the officer was entitled to refresh his memory by any means that would rekindle his recollection, whether or not the stimulus itself constituted admissible evidence. This is because it is his recollection, not the stimulus, that becomes evidence. The stimulus may be hearsay, it may itself be largely inaccurate, it may be nothing more than the sight of someone who had been present or hearing some music that had played in the background. If the recollection here had been stimulated by hearing a tape of his conversation with the accused, even if the tape was made without valid authorization, the officer's recollection -- not the tape -- would be admissible.[4]

[41] There was no evidence respecting why Constable Deol thought it necessary to testify while using a record he had not created, nor disclosed. Nor, was there any evidence to explain why he did not seek the court's permission to use the record he had. On the evidence before the court, I am unable to conclude that there was unacceptable negligence, blatant disregard, or an attempt on the part of the officer to deprive the Applicant of his constitutional rights or to mislead the court.

[42] The Applicant's strongest arguments concerned the s. 10(b) Charter violation.

[43] The right to consult counsel of choice, like all rights, is subject to reasonable limitations. A detainee has to be reasonably diligent in pursuing their right. While waiting for counsel to call back, the police must hold off their investigation until the detainee has had a reasonable opportunity to exercise their right.[5]

[44] In this case, the Applicant did not assert what would have been an appropriate amount of time to have had a reasonable opportunity to reach his chosen counsel.

[45] Momentarily leaving aside that the police may have inadvertently called the wrong number four times, the police had waited from 4:10 a.m., the time when the first voicemail message for counsel was left, until 4:43 a.m., when the Applicant was turned over to the custody of the qualified technician for the breath sampling procedure. In addition, because Constable Babore took some basic information and then repeated the Applicant's s. 10(b) rights, two more minutes had elapsed before the discussion about duty counsel arose, starting at 4:45:30 a.m. on the video-recording.

[46] I find that 35 minutes was a reasonable amount of time for the police to hold off their investigation while they waited for the Applicant's counsel to call, in the circumstances. Given that business hours had not yet begun for the day, it was unlikely that counsel was occupied with another client, or otherwise temporarily unavailable. It was appropriate after more than half an hour to assume that counsel would not be available until the start of the business day, hours later. It would not have been reasonable for the police to have waited more than they did for counsel to call back, given the time of day.

[47] I have also reached this conclusion in light of the type of investigation involved. The police were required to take samples of the Applicant's breath "as soon as practicable." Though the exigencies of an investigation can never override the reasonable opportunity that must be given to a detainee to exercise their s. 10(b) right, I am entitled to consider the entire context of the investigation in coming to a conclusion about the reasonableness of the opportunity given to the Applicant to exercise his right to counsel.[6]

[48] During the hearing of the Application, the Charter violation was then alleged to have occurred in respect of the informational component of the Applicant's right to counsel. Accordingly, I will consider whether the police ought to have made further inquiries or provided the Applicant with more information about how the Applicant might have exercised his s. 10(b) right.

[49] It will be helpful to consider the video evidence of the discussion between the Applicant and the qualified technician:

i. Babore: So, it is my duty to inform you that you have the right to retain and instruct counsel without delay, do you understand?

ii. Applicant: Yes, I do.

iii. B: You have the right to telephone any lawyer you wish and have a conversation in private with that lawyer. Do you understand?

iv. A: [pause] Yes, yeah.

v. B: You also have the right to free advice from a Legal Aid lawyer, and have a conversation in private with that lawyer. Do you understand that?

vi. A: Yeah.

vii. B: If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for legal assistance. Do you understand that? Like, legal assistance.

viii. A: What's legal assistance?

ix. B: So like, they can help pay for stuff if you…

x. A: If I'm guilty?

xi. B: If you're charged.

xii. A: You're charged. Oh, yeah, so you're charged.

xiii. B: So, you understand that?

xiv. A: Yeah, I do.

xv. B: If you don't understand, just let me know. I'll explain it in a way that you can understand it. Um, 1-800-265-0451, is the toll-free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice, right now. Do you understand that? That was the duty counsel.

xvi. A: Ya so. To be honest, it's kind of over, overwhelm, overwhelming for me, right now.

xvii. B: Okay, so, yeah, we can slow it down.

xviii. A: I wanted to speak to a lawyer, right.

xix. B: Right.

xx. A: And, uh, you guys already, you guys did try calling my lawyer, right.

xxi. B: Right.

xxii. A: But my lawyer didn't pick up.

xxiii. B: He didn't pick up?

xxiv. A: He didn't pick up at all. And what do you, at that point, like what are you really supposed to do, right? And I wanted to call a family member, but I know, I can't call a family member, right. Because I can only call a lawyer. So you know what, might as well try calling one of these guys, see if it…

xxv. B: Okay. So, just let me finish reading this. Uh, so, do you understand you can call a duty counsel lawyer? You understand that. Right?

xxvi. A: Yeah, I'm going to call them right now.

xxvii. B: Okay. So you wish to call a lawyer, yep?

xxviii. A: Yeah.

xxix. B: [pause] Okay, so, we're gonna st.., wait right now. We're going to leave the room, we're going to call duty counsel.

xxx. A: Yeah.

xxxi. B: We're going to have you in contact with them, okay?

xxxii. A: Thank you. Appreciate it.

xxxiii. B: No problem.

[50] Initially, counsel argued that it was implicit in the exchange at xxiv. above that the Applicant was seeking to call a family member to arrange contact with counsel.

[51] I advised both parties that the Summary Conviction Appeal Court had overturned my decision in [R. v. Mumtaz][7] in part, on a similar misunderstanding of the law.

[52] Alternatively, the Applicant submits that the exchange beginning at xxiv. above distinguishes the facts at bar from the decision in Mumtaz, because the Applicant's comments triggered an obligation on the police to clarify that he had the right to contact a third-party for the purpose of assisting him in trying to contact his counsel of choice and the police were obligated to facilitate third-party contact for that purpose.

[53] I reject this submission. I am bound to follow the law as re-iterated by Justice Woollcombe in Mumtaz:

The law is clear that when a detainee makes a request to contact a third party in order to facilitate contact with counsel, the police must facilitate this.

But, when a detainee does not indicate to the police the reason why he or she wishes to contact a third person, there is no legal obligation on the police to permit contact with that third party or to make further inquiries as to the reason the detainee wishes to make contact. No authority was provided suggesting that a request to speak to a third party that is made in the context of a discussion about the right to counsel requires an officer to facilitate contact. Nor was any authority provided to support a position that the police are required to ask why the detainee wants to speak to the third party.

To the contrary, even when requests to speak to third parties were made in the same context as occurred here, as took place in the cases of Cheema, Adams and Zoghaib, courts have not imposed on the police an obligation to ask why the detainee wishes to speak to the third party. Nor have they imposed on the police an obligation to facilitate contact with the third party. Rather, in keeping with the requirement that it is for the detainee to assert a desire to speak with counsel of choice before the police are required to facilitate the implementation of that right, the obligation has been, consistently, on the detainee to explain to police why he or she wishes to speak to a third party.[8]

[54] In the circumstances of this case, I find that there is a complete absence of evidence to suggest that Constable Babore knew or suspected that the Applicant wanted to call a family member to facilitate contact with his lawyer.

[55] Throughout his dealings with the Applicant, this officer was calm, respectful, and friendly. He told the Applicant he could call him by his first name. I have no hesitation in finding that if the officer had any inkling that the Applicant had referenced calling a family member because he wanted to find additional means to contact his lawyer, the officer would have halted everything to do so.

[56] Counsel submits that the Applicant's comments reveal a misunderstanding of his rights. Respectfully, I disagree. The passage above makes it clear that the Applicant at all times indicated that he understood his right to call a lawyer, he was comfortable to ask what "legal assistance" meant when he did not understand, and given his predicament after waiting a reasonable period of time for his lawyer to call back, he simply changed his mind and decided to speak with duty counsel.

[57] The Applicant also argued that when he returned from speaking with duty counsel, the qualified technician asked him if he understood the discussion with counsel, instead of asking if the Applicant was satisfied with the legal advice he had received. Counsel suggested that Constable Babore likely knew the answer and chose to ask a more innocuous question.

[58] Counsel produced no jurisprudence to support the proposition that the law requires the police to ascertain that a detainee is content with the legal advice they have received. Certainly, care must be taken in this regard, because it is inappropriate for the police to elicit the content of privileged communications. Perhaps the less asked of a detainee about their communications with counsel, the better.

[59] This is not to suggest that a detainee must suffer in silence if they are not satisfied that they have exercised their right to counsel. But clearly, the onus remains on the detainee to act diligently to preserve their s. 10(b) right. In keeping with the reasonable diligence expected in the pursuit of one's s. 10(b) Charter right, "unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview."[9]

[60] The Applicant's final argument in favour of finding fault with the conduct of the police was that there was a failure to provide a Prosper warning once the Applicant had changed his mind, abandoned the desire to consult with his counsel of choice, and sought duty counsel.

[61] I can do no better in responding to this argument than to quote our Supreme Court:

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.[10]

Pre-Arrest Evidence was not "Obtained in a Manner"

[62] The Applicant seeks the exclusion of the police observations of the Applicant prior to his arrest because the admission of this evidence at trial, he submits, would diminish public confidence in the administration of justice.[11] Again, the Applicant provided no jurisprudence to support the granting of the relief sought, in a similar case.

[63] In [R. v. Pino][12], the Ontario Court of Appeal confirmed that evidence gathered prior to a serious Charter violation is subject to exclusion if the evidence is linked either temporally or contextually to the Charter violation and the connection is neither too tenuous nor too remote.

[64] The Court of Appeal offered the following to guide a court's approach to the "evidence obtained in a manner" requirement of s. 24(2):

• The approach should be generous, consistent with the purpose of s. 24(2);

• The court should consider the entire "chain of events" between the accused and the police;

• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;

• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections;

• But the connection cannot be either too tenuous or too remote.[13]

[65] In R. v. Pino, the Charter violations occurred when, without justification, the police arrested Ms. Pino at gunpoint, they failed to immediately provide her with the informational component of her s. 10(b) Charter right, they searched her car before misinforming her of the right to counsel, and then they detained her for over five hours before providing her an opportunity to speak with her lawyer.

[66] The court concluded that the breaches were linked temporally and contextually to the evidence discovered during the search of Ms. Pino's car, because they straddled her arrest and the search incident to arrest.[14] The arrest was the "common link" between the evidence and the Charter violations. The breaches were also found not to be too remote or tenuous to the discovery of marihuana in the trunk of Ms. Pino's car.

[67] In this case, the police observations, which the Applicant seeks to exclude, took place before his arrest, and with very little involvement on the part of the police. Unlike the conduct of the police in the armed take-down and the search of Ms. Pino's car, and the failure to provide the informational component of her s. 10(b) right in a timely and complete way, the police officers in this case made mostly passive observations of the Applicant, save for knocking on his driver's side window, opening the car door, and asking the Applicant to step out of the car. Indeed, many of the observations of the Applicant were made independently of any involvement of the police who dealt with him.

[68] In this case, the breach is tenuously connected to the Charter violation, only in the sense that all police interactions leading to an arrest are connected to the provision of the right to counsel. If this connection was all that was required, very few prosecutions of impaired driving could ever be completed where a Charter violation involving the subsequent taking of breath samples was proven.

[69] I am not satisfied that the observations of the Applicant, made before the police formed any intention to arrest him, were in any real sense a part of the transaction that led to the breach of the Applicant's s. 10(b) right.

[70] Other than knocking and opening the driver's door, the police did very little but make observations of the Applicant, before coming to the belief that he had committed a criminal offence. Their passive interaction prior to the Applicant's arrest is completely divorced from the error made in breaching the Applicant's s. 10(b) right (the mis-recording of chosen counsel's telephone number and the failure to prove the correct telephone number was ever dialled). The observations gathered to form the grounds to arrest are too tenuous and too remote to be considered contextually alongside the s. 10(b) violation.

Section 24(2) of the Charter

[71] Having dealt with the Applicant's arguments concerning the nature of the s. 10(b) violation and the police conduct leading up to it, I will now turn to whether or not the admissibility of the breath sample results in the Applicant's trial would bring the administration of justice into disrepute.

[72] The parties agree that the three-prong test from [R. v. Grant][15] governs the exclusion of evidence under s. 24(2) of the Charter.

[73] Section 24(2) recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct by requiring a qualitative analysis of the long-term effect tainted evidence has upon public confidence in the criminal justice system.

[74] To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breach(es) on the Charter-protected interests of the Applicant; and

iii. Society's interest in the adjudication of the case on its merits.

[75] The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is great. The third factor "pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case."[16]

Seriousness of the Charter-Infringing State Conduct

[76] This case involves a violation of a significant Charter right. The evidence could not establish that the police exercised the required degree of diligence in facilitating the Applicant's s. 10(b) right with his chosen counsel. Though I do not conclude that the violation of the right was deliberate, Constable Deol's failure to adequately memorialize his efforts to contact the Applicant's counsel compound the breach by making it impossible to determine which telephone number(s) he found, which he contacted, what messages he heard (on the other end), and what messages he left for counsel.

[77] The violation in this case is of more than modest seriousness. The seriousness of this breach may have been magnified if not for the efforts of Constable Babore. The seriousness was only mitigated because the qualified technician re-iterated the informational component of the Applicant's s. 10(b) right and once the Applicant sought contact with duty counsel, the qualified technician facilitated it.

[78] In these circumstances, I find that this factor nudges slightly toward exclusion of the breath analysis results.

The Impact of the Breach Upon the Applicant's Charter-Protected Interests

[79] In this case, the Charter violation was unique. Contrary to the allegations made by the Applicant, the behaviour of the police did not establish a cavalier attitude regarding constitutional rights. I found that the police were professional and acted respectfully toward the Applicant. The Charter breach was found only because there are gaps in the evidence which made it difficult (if not impossible) to prove that the police acted reasonably in assisting the Applicant to exercise his s. 10(b) right.

[80] I have not rejected the evidence contained within the lawyer's affidavit that the law firm could not find any record that the police had left several messages on either the office or cellular telephone lines. However, the affiant was never cross-examined. I have no way of assessing the manner in which the lawyer's phone messages are ordinarily retrieved and stored, nor when the lawyer became aware that the police had claimed to have called in relation to this Applicant, and when he investigated that claim before preparing the affidavit that was filed. Accordingly, I have given the lawyer's affidavit little weight.

[81] It bears observing that:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.[17]

[82] The breach in this case was not trivial, and it was easily avoidable. The effect of not being able to speak with his chosen counsel impacted upon the Applicant's sense of security and psychological well-being. Fortunately, the effects of the breach were short-lived and ameliorated when the Applicant chose to speak to duty counsel. Though this would likely have reduced the negative impact of the breach, it could not have removed the Applicant's concerns (his desire to speak to a familiar voice during an unfamiliar and stressful encounter with police) completely.

[83] Situating the impact of the Charter violation also involves a consideration of the effect of the breach. In this case, the Applicant was required to submit to breath sampling for analysis. This process has repeatedly been found to be "minimally intrusive," despite the attendant costs to the detainee's liberty, security of the person, and psychological well-being.[18] Moreover, in the end, the Applicant did receive legal advice, although it was not his first choice.

[84] Constable Deol failed to discharge his duty in a fundamental way. The extent of the s. 10(b) violation is not fully known because of the officer's poor note-keeping. This violation although not deliberate, does not evince good faith.[19] The Applicant felt alone and overwhelmed even though his detention and breath sampling were minimally intrusive. This had an appreciable impact upon the Applicant. Contrary to the Summary Conviction Appeal Court's decision in a recent, similar case,[20] I find in the Applicant's circumstances, this factor also slightly favours exclusion of the breath testing results.

Society's Interest in the Adjudication of the Case on its Merits

[85] In McGuffie, the Ontario Court of Appeal court spoke about the tension between the three considerations:

The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.

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. 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. 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.[21]

[86] The breath testing results are reliable and necessary to prove one of the two counts before the court. This militates in favour of admitting the breath analysis.

[87] The failure to properly record the efforts to facilitate a detainee's exercise of a fundamental right is inexcusable. The failure is magnified when the extent of the failure is indeterminate. It is impossible on the record before the court to known whether or not the police ever dialed the correct telephone number for the Applicant's lawyer.

[88] The prosecutor submits that the breach in this case is minor and technical. I disagree. I have assessed this breach as moderately serious. While it was not intended, it was foreseeable and preventable. The court must denounce police conduct which is incompatible with the protection and enjoyment of fundamental constitutional rights. The right to contact counsel of one's choosing without delay is at the core of protecting the autonomy, liberty, and security of our residents from the authority of the state.

[89] There is no evidence that the failure of Constable Deol is long-standing, widespread, or systemic within the Peel Regional Police. I tend to the view that disapprobation of this behaviour by the court is commensurate with the misbehaviour occasioned.

[90] I do not find that the long-term effect of admitting the breath readings in the circumstances of this case would bring the administration of justice into disrepute. To the contrary, the exclusion of reliable, crucial evidence that was ultimately discoverable and unrelated to the violation of the Applicant's Charter right would undermine confidence in the justice system.

CONCLUSION

[91] I am not satisfied on a balance of probabilities that any evidence ought to be excluded in this trial, despite having found that the police abrogated the Applicant's s. 10(b) Charter right.

[92] The Application is dismissed.

Released: 09 October 2020

Justice G. Paul Renwick

Footnotes

[1] Despite having engaged counsel at various points during the Application and submissions, I have come to no conclusions about the matter until all of the submissions were made and the caselaw was considered.

[2] I did not watch the entirety of the breath sampling video, only the portion played in open court.

[3] See R. v. Prosper, [1994] 3 S.C.R. 236.

[4] R. v. Fliss, 2002 SCC 16, [2002] S.C.J. No. 15 at para. 45.

[5] R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 at paras. 33-35.

[6] R. v. Wijesuriya, [2020] O.J. No. 855 (S.C.) at para. 89.

[7] R. v. Mumtaz, [2019] O.J. No. 229 (S.C.J.), reversed [2018] O.J. No. 1191 (C.J.).

[8] Mumtaz, supra, at paras. 37-39.

[9] R. v. Willier, supra, at para. 42.

[10] Ibid., at para. 39.

[11] Interestingly, the Applicant took no issue with the observations made by the police of the Applicant after his arrest leading up to the Applicant's breath sampling.

[12] R. v. Pino, 2016 ONCA 389, [2016] O.J. No. 2656 (C.A.).

[13] Pino, supra, at para. 72.

[14] Ibid., at para. 73.

[15] R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32.

[16] R. v. McGuffie, 2016 ONCA 365 at para. 62.

[17] R. v. Rover, 2018 ONCA 745 at para. 45.

[18] For a list of authorities, see R. v. Jennings, 2018 ONCA 260 at paras. 27-32.

[19] R. v. Singh, [2020] O.J. No. 985 (S.C.) at paras. 24-25.

[20] Ibid., at para. 27.

[21] R. v. McGuffie, supra, at paras. 62-63.