DATE: May 18, 2021 COURT FILE No.: 0611-998-20-122 ONTARIO COURT OF JUSTICE Central West Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

dylan cummins

Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on April 13 & 14, 2021 Reasons released on May 18, 2021

Counsel: Mr. Chris Presswood ........................................................................................... for the Crown Mr. Justin Yuen............................................................................................... for the Defendant

SCHWARZL, J.:

REASONS FOR JUDGMENT

1.0: INTRODUCTION

[1] The Defendant, Mr. Dylan Cummins, was stopped by PC Mulligan on January 19, 2020 due to some unusual driving. During his dealings with the Defendant, the officer made a screening demand. After several opportunities the officer terminated the screening procedure having judged that the Defendant had failed to provide a suitable sample. He then arrested the Defendant.

[2] Following his arrest for failing to provide a suitable sample into the approved screening device, further information caused the police to arrest the Defendant for several other charges including two drug offences, a breach of probation, and impaired driving. Prior to arraignment Crown counsel withdrew all charges except the fail to provide and the impaired driving. At the end of the Crown’s case, I dismissed the impaired driving count upon hearing submissions from both lawyers. I am therefore left with the single count of failing to provide a breath sample, contrary to section 320.15 of the Criminal Code.

[3] There are two issues for me to consider. The first is whether the prosecution has proven each element of the offence to the criminal standard. The second is whether the Defendant’s right to counsel as guaranteed by section 10(b) of the Canadian Charter of Rights and Freedoms was violated and, if so, whether there should be a remedy.

2.0: THE FAIL TO PROVIDE BREATH SAMPLE CHARGE

[4] Section 320.15 requires the crown to prove three elements beyond a reasonable doubt, namely (a) that the police made a lawful demand, (b) that the Defendant knew that a lawful demand had been made, and (c) that the Defendant did not comply with that lawful demand. If the prosecution proves these elements, the Defendant can avoid a finding of guilt by showing on a balance of probabilities that he had a reasonable excuse for non-compliance.

[5] Here, the Defendant admits that the Crown has proven the first two elements beyond a reasonable doubt. He submits, however, that I ought to have a reasonable doubt that he did not comply because of his personal circumstances and because he says the police officer prematurely terminated his real efforts to comply with the demand.

[6] For reasons I will explain, I find that the Crown has proven beyond a reasonable doubt that the Defendant did not comply. I will also explain why I find the Defendant has not shown he probably had a reasonable excuse for that non-compliance.

2.1: Failing to Comply

[7] P.C. Mulligan gave clear instructions to the Defendant. He told the Defendant to make a tight seal on the mouthpiece with his lips and to provide a long, steady, continuous blow until told to stop, or 5 to 10 seconds. He told the Defendant that if he did not follow these instructions, he would tell the Defendant what needed correcting. The Defendant understood these instructions.

[8] P.C. Mulligan terminated the first blow, telling the Defendant it was because he was not blowing hard enough or with consistent pressure. He told him to blow harder and steadily. The same thing happened on each of the second and third opportunities.

[9] After the third opportunity, the officer told the Defendant about the criminal consequences of not providing a suitable sample. The Defendant understood the warning and was given more chances to provide a suitable sample.

[10] On the fourth opportunity, the Defendant continued to blow too lightly and inconsistently. The officer terminated the test and again explained to the Defendant what he was doing wrong. After the fourth test, P.C. Mulligan said he would give the Defendant one more, or a fifth, chance to do it right.

[11] On the fifth opportunity, the Defendant repeated the same errors as with all the others: he blew too softly and with inconsistent pressure, causing the officer to terminate this test as well. As a result, the officer told the Defendant, “This is it.” meaning that he was going to charge the Defendant. The Defendant begged for another chance and P.C. Mulligan agreed.

[12] On the sixth opportunity, the Defendant once again blew with too little, and inconsistent, pressure. The officer ended the test and arrested the Defendant.

[13] The Defendant testified that after each test the officer told him that he wasn’t blowing hard enough.

[14] In his submissions, counsel for the Defendant relied on the admission by P.C. Mulligan that the screening device never showed an error message and that it was him, not the device, that decided the samples were unsuitable. Counsel urges me to find that since there was no error message, there ought to be a reasonable doubt that the Defendant was not complying. I reject this submission for several reasons. First, the law gives authority to the officer, not the device, to decide what is, or is not, a suitable sample. Second, there was no error message because the Defendant never exhaled strongly or consistently enough to activate the device. P.C. Mulligan said that if the subject is blowing properly then a tone will emit but no such tone ever happened. Lastly, on each occasion the Defendant said he was told what he was doing wrong but he never corrected it. In these circumstances I am satisfied beyond a reasonable doubt that the Defendant failed to comply with the lawful demand of which he was fully aware.

2.2: Reasonable Excuse

[15] Having found that the Defendant failed to comply, I must consider whether he has demonstrated that he probably had a reasonable excuse for not complying. A reasonable excuse is some circumstance that makes compliance either extremely difficult or likely to involve a substantial risk to the health of the detainee.

[16] The Defendant testified that at the time, he was suffering from severe anxiety, confusion and shock for being stopped, and that he was suffering shortness of breath due to smoking a pack of cigarettes each day. He also testified that he wasn’t drinking alcohol but was nevertheless worried that if he did the test he could be in more trouble because he was on probation. The officer agreed that the Defendant may have told him he was nervous but was never told about the Defendant’s anxiety, shock, or shortness of breath.

[17] I accept the Defendant was nervous. This would be natural for any citizen, especially one who was on probation at the time. However, I do not believe that he was in such a state of high anxiety or confusion so as to be robbed of his ability to comply with the officer’s orders. He was able to clearly and appropriately respond to all other questions and directions. Nothing in his, or the officer’s evidence, suggested any manifestation of an inability to blow properly due to emotional distress. As for being a heavy smoker, I am not satisfied that without some supporting medical evidence this fact rendered him unable to blow harder or more consistently. I do not find that the Defendant probably had a reasonable excuse for non-compliance with the demand.

[18] I would also add that the Defendant was motivated to avoid complying. He said he was worried about being in trouble if he failed. He also said he wasn’t drinking. If true, then he had no reason to be concerned about failing the test. I accept the officer’s evidence that he noted later at the station that the Defendant smelled strongly of alcohol, lending credence about the Defendant’s concerns if he failed and supporting a motive for non-compliance.

[19] The Defendant failed to comply with a lawful breath demand of which he was aware. He had no reasonable excuse for not complying. Therefore, I find the Defendant guilty of failing to provide a suitable sample of his breath into the approved screening device.

3.0: THE ALLEGED VIOLATION OF RIGHTS TO COUNSEL

[20] When the Defendant was arrested for the predicate offence of failing to provide a suitable sample he was given rights to counsel. He said he wanted to speak with a lawyer. The officer believed the Defendant said his mother was a lawyer and the Defendant provided a phone number which caused the officer to contact the dispatcher to reach out to his mother. The Defendant said he told the officer that he wanted to call his mother to get a lawyer, not that she was a lawyer. Either way, while still at the scene the officer started the process of putting the Defendant in touch with legal counsel. It turns out the Defendant’s mother was not a lawyer. She showed up at the scene but because the police were still actively engaged in their investigative duties, there was no realistic opportunity for the Defendant to consult with her in private at the time.

[21] P.C. Mulligan had no intention of detaining the Defendant any longer than was necessary to prepare an Appearance Notice and release him from the scene for the driving offence, which happened to be right behind the Defendant’s house. This is relevant because no evidence relating to this offence was obtained after the Defendant’s arrest nor was there any intention of the officer to look for more evidence on the predicate charge.

[22] While the officer was preparing to release the Defendant, he learned that the Defendant was on probation. He rearrested the Defendant and gave him rights to counsel for that offence. The officer still intended to release the Defendant unconditionally from the scene.

[23] Prior to releasing the Defendant, P.C. Mulligan was told by another officer who searched the Defendant’s car that they found what appeared to be cocaine. For a third time, P.C. Mulligan arrested the Defendant and gave him rights to counsel. However, due to the drug charge, the officer decided to bring the Defendant to the station to be released from there on conditions.

[24] No evidence concerning any of the additional charges was elicited from the Defendant at the scene.

[25] At the station, several things happened. First, the officer called the Defendant’s lawyer, Ms. Carrie Bellan, several times and left a message. Second, around the time of these calls the Defendant was arrested for drug trafficking and given his rights to counsel for a fourth time. Third, the officer appears to have failed to give the Defendant an opportunity to speak with duty counsel, another lawyer of choice, or a third party to get a lawyer after leaving a message for Ms. Bellan. Fourth, P.C. Mulligan then interrogated the Defendant without first giving the Defendant the chance to get legal advice.

[26] I am satisfied that at the station, the police probably violated the Defendant’s right to counsel following his arrest for drug trafficking. This is because P.C. Mulligan was not reasonably diligent in facilitating contact with legal counsel after calling the Defendant’s lawyer and before interrogating the Defendant.

[27] The Defendant submits that in these circumstances, I should exclude the evidence of the predicate offence collected prior to the breach of his rights at the police station. The Crown argues that there was no causal or temporal connection between the evidence of the failure to provide a suitable breath sample and the breach of the Defendant’s right to counsel on the drug charge. In the alternative, the Crown submits that if the remedial provisions of the Charter are engaged, I should not exclude the impugned evidence.

[28] In the recent case of R. v. Pileggi, 2021 ONCA 32, the Ontario Court of Appeal summarized the law on the question of connecting impugned evidence to an alleged violation of a citizen’s rights. They stated at paragraphs 101 to 108:

101 Courts have taken a generous view of the "obtained in a manner" threshold. In R. v. Pino, 2016 ONCA 389, 337 C.C.C. (3d) 402, at para. 56, Laskin J.A. described this requirement as "just the gateway to the focus of s. 24(2) - whether the admission of the evidence would bring the administration of justice into disrepute." He further held that courts should examine the "'entire chain of events' between the accused and the police" and that the "requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct": Pino, at para. 72. Finally, Laskin J.A. said that any connection between the breach and the discovered evidence may be "causal, temporal, or contextual, or any combination of these connections", as long as the connection is not "too tenuous or too remote": Pino, at para. 72. See also R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21](https://www.canlii.org/en/ca/scc/doc/2008/2008scc33/2008scc33.html#par21); R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 35; and Hobeika, at para. 77.

102 Acknowledging this generous approach to the "obtained in a manner" requirement, the respondent relies on the following passage from Strachan, in which Dickson C.J. said, at pp. 1005-1006:

The presence of a temporal connection is not, however, determinative. Situations will arise where evidence, though obtained following the breach of a Charter right, will be too remote from the violation to be "obtained in a manner" that infringed the Charter. In my view, these situations should be dealt with on a case by case basis. There can be no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote.

103 The respondent contends that there was no causal or temporal connection, and any contextual connection was too remote.

104 Strachan must be read in light of the subsequent jurisprudence referred to above, which confirms the broad nature of the "obtained in a manner" standard. Engaging in the requisite case-specific inquiry, there was both a temporal and a contextual connection between the breaches and the discovery of the drugs.

105 The first infringement of s. 10(b) - the duty to hold off - occurred within minutes of the police entering the appellant's home and commencing their search. Moreover, the question posed by Sgt. Buligan pertained to the context of the search - he asked the appellant if he would like to tell the police where anything was. The genesis of the second infringement - the denial of counsel of choice and the delay in the implementational component - began just minutes after that, in the appellant's home, when D.C. Wray promised to contact the appellant's father. At this point, the search was already underway.

106 What occurred at the police station was clearly connected to these events, given that D.C. Wray neglected to ensure that the transporting officer was aware of his undertaking to call the appellant's father. Although part of the breach sequence occurred after the lawful search, the two events were largely concurrent. It cannot be said that the connection between the discovery of the evidence and the infringements was "too remote", as contemplated in Strachan and Pino.

107 I agree with the respondent that there was no causal connection between the s. 10(b) infringements and the discovery of the evidence. However, it has long been the law, from Strachan onwards, that a causal connection is not required to pass through the s. 24(2) "gateway".

108 That said, the absence of any such connection remains a relevant consideration. In R. v. Lenhardt, 2019 ONCA 416, 437 C.R.R. (2d) 328, at para. 11, this court held: "There need not be a causal relationship to establish a case for exclusion under s. 24(2), but the absence of any such connection is a factor weighing against exclusion." See also R. v. Do, 2019 ONCA 482, at para. 12….

[29] Applying these principles to the case at bar, I agree with the Crown that there is no causal connection between the breach and the impugned evidence because the breach was for an unrelated offence. Furthermore, I find there was no contextual or temporal connection either. Looking at the entire chain of events, there was not a single, continuous transaction but a series of discrete investigations, each subsequent matter being separate and very different from the predicate offence. The breach at the station was too remote and too tenuous to engage a connection with the evidence of the failure to provide breath samples.

[30] If I am wrong and there was a sufficient connection between the breach and the predicate offence, I would not exclude the evidence of the failure to provide a suitable breath sample.

[31] Interrogating a detainee after failing to reasonably facilitate contact with a lawyer is a serious breach of that person’s right to counsel. One must consider the entirety of the circumstances to decide just how serious such a breach was. Here, the police were aware of, and provided, rights to counsel not once but four times while the Defendant was detained. At the scene, P.C. Mulligan took steps to facilitate access to counsel when he called the dispatch to reach out to the Defendant’s mother who, at that point, the officer believed was a lawyer. The breach was not absolute in the sense that the officer took significant, but incomplete, steps to facilitate the Defendant’s rights including calls to his lawyer of choice. There is no evidence of any systemic problems with the local police breaching citizens’ rights and no evidence this officer was responsible for repeated, ongoing, or multiple breaches in this case. Furthermore, the fact that there is no causal connection between the evidence and the breach mitigates the seriousness vis-a-vis this charge. All told, I find that the seriousness of the breach tips the scale modestly in favour of exclusion of the evidence.

[32] The impact on the Charter-protected interests of this Defendant were minimal, if non-existent. As noted, there was no causal connection. Furthermore, the charges being investigated at the station were withdrawn by the Crown prior to arraignment. Courts recognize that having access to a lawyer is a “lifeline” for a detainee: R. v. Rover, 2018 ONCA 745. Here, the Defendant was tossed such a lifeline, however inadequately, for the unrelated charge of trafficking drugs and, most importantly, no evidence concerning the predicate offence was obtained after he left the scene. This factor militates towards inclusion of the evidence.

[33] Drinking and driving is a scourge on society. Offences relating to this social problem are serious and there is a significant public interest in trying them on their merits. The evidence is this case was important to the prosecution and leans heavily towards inclusion.

[34] I therefore decline to exclude the evidence of the predicate offence. To exclude the evidence in this case would be using section 24(2) of the Charter more to punish P.C. Mulligan than to protect the long-term repute of the criminal justice system: R. v. Hobeika, 2020 ONCA 750, [2020] O.J. No. 5103 (C.A.) at paragraph 90](https://www.canlii.org/en/on/onca/doc/2020/2020onca750/2020onca750.html#par90); R. v. Pileggi, 2021 ONCA 32, [2021] O.J. No. 32 (C.A.) at paragraph 127](https://www.canlii.org/en/on/onca/doc/2021/2021onca32/2021onca32.html#par127).

4.0: CONCLUSIONS

[35] For the reasons set out above, a finding of guilt will be recorded on the count of failing to provide a suitable breath sample, contrary to section 320.15 of the Criminal Code.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice