Court File and Parties
Court File No.: Newmarket 21-01107 Date: 2022-04-08 Ontario Court of Justice
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
KOSTYANTYN MYKH ALENICH
Before: Justice Edward Prutschi
Heard on: March 17, 18 and 28, 2022 Reasons for Judgment released on: April 8, 2022
Counsel: Alice Pan, for the Crown Ernst Ashurov, for the defendant Kostyantyn Alenich
PRUTSCHI J.:
[1] PC Dennys was on general patrol on the evening of January 31, 2021 when an oncoming vehicle blinded him with its high beams. The officer made a u-turn and initiated a traffic stop at 8:45pm. When he approached the vehicle, he immediately detected an odour of alcohol coming from the driver, Mr. Alenich, who had glossy bloodshot eyes and responded to questioning in a dazed and methodical manner.
[2] PC Dennys made an alcohol screening device (ASD) demand which registered a fail. Mr. Alenich was arrested and transported to a police detachment where he provided two breath samples registering truncated readings of 200 and 190 resulting in a charge of operating a conveyance in excess of the legal limit.
[3] Mr. Alenich alleges a series of violations of his constitutional rights. Though I dismiss the majority of the claimed breaches, I find that there has been a serious breach of Mr. Alenich’s s. 10(b) right to counsel which demands the exclusion of the breath testing evidence in this case. I thus find Mr. Alenich not guilty of the offence of 80+ for the reasons that follow.
Failure to promptly provide right to counsel, caution and breath demand
[4] After failing the ASD, PC Dennys arrested Mr. Alenich, did a cursory roadside search, and placed him in the back of the police cruiser at 8:52pm.
[5] At that point PC Dennys noted in both his memo book, and via a radio call to dispatch, that there would be a delay in providing right to counsel, reading the caution and making a breath demand as he felt compelled to watch and care for Mr. Alenich's four-year old child who was alone in the backseat of the stopped car.
[6] PC Dennys spoke to the child through the rear driver's side door, comforting him and explaining in very simple terms that his father was okay and answering the child's questions.
[7] At 9:01pm another officer arrived on scene. PC Dennys briefed this officer and transferred responsibility of the child to her. He then returned to his cruiser where he provided Mr. Alenich with his right to counsel, read the caution and made a breath demand at 9:04pm.
[8] It is well established that the right to counsel should be provided immediately upon arrest or detention subject only to reasonable limitations concerning officer or public safety: R. v. Suberu, 2009 SCC 33 at para. 42.
[9] It is abundantly clear to me that PC Dennys was aware of his obligations respecting immediate provision of the right to counsel. He can be heard on the in-car camera audio to radio his dispatch, advising them that there will be a delay.
[10] The initial actions of PC Dennys in administering the ASD were designed to bring Mr. Alenich's interaction with police to as swift a conclusion as possible. Had Mr. Alenich passed the ASD, PC Dennys would have immediately released him to go about his evening. It was only the failure which triggered a series of other investigative responsibilities. After Mr. Alenich was arrested, searched, and secured inside the police cruiser, I can find no fault in the officer's decision to prioritize the care of the child for the brief period of time needed before another officer could arrive on scene, allowing PC Dennys to return his attention to Mr. Alenich.
[11] The officer made a reasonable decision when he prioritized the safety of Mr. Alenich's four-year old child. Though the child was in no immediate danger, secure in a car seat in the back of Mr. Alenich's vehicle, I can easily foresee the outrage and potential constitutional attack had PC Dennys continued with his arrest-related responsibilities while leaving a young child alone and unsupervised in a motor vehicle stopped at the side of the road. PC Dennys had no way of knowing whether the child was capable of extricating himself from the car seat or otherwise getting into a dangerous situation in the back of the car. This says nothing of the basic humanity of informing a potentially frightened child what has happened to their father.
[12] In the unique circumstances of this case, PC Dennys’ decision to delay the right to counsel, caution, and breath demand for the twelve minutes it took until a second officer to arrived on scene and assumed care of the child, was entirely reasonable and I find no Charter violation in such actions.
Failure to facilitate a call to counsel at the roadside
[13] Mr. Alenich claims a further violation of the implementational component of his right to counsel as he was not offered an opportunity to telephone counsel at the roadside once he was detained in the back of PC Dennys' cruiser.
[14] When cross-examined about this, PC Dennys noted that he had no way to provide Mr. Alenich privacy in the back of the police cruiser. Though the in-car camera (ICC) system can be turned off, this would be a serious violation of his procedural duties and PC Dennys testified he would never deactivate the audio/video recording at a time when he had someone detained in his cruiser.
[15] Once again, I can easily foresee the reasonable constitutional attack Mr. Alenich might have launched had critical evidence of the roadside procedure been lost due to a decision by PC Dennys to deactivate the ICC. The continued use of the ICC at all times when a detainee is in police custody protects the safety of both the detainee and the officer as well as ensuring the integrity of the administration of justice. There is no Charter breach by the officer in insisting that a person detained at the roadside in the back of a police cruiser only contact counsel once back at the detachment where privacy can be assured in a safe and secure environment.
The alleged strip search
[16] Once at the detachment, before being placed into a holding cell, Mr. Alenich was advised that the drawstring of his jogging pants would have to be removed for safety and policy reasons. As Mr. Alenich's drawstring was sewn into the back of his pants, officers indicated that they would have to cut the strings to comply with their safety policy.
[17] Inspector Chris Dolson, who was the Staff Sgt. in charge of the detachment on the evening of Mr. Alenich's arrest, testified that the York Regional Police (YRP) adhere to a general policy requiring the removal of all strings in clothing items such as hoodies, shoelaces and pants. This is done for safety reasons to ensure that cell detainees cannot use such strings either as weapons against others or as a mechanism for self-harm.
[18] Mr. Alenich was understandably not thrilled with the prospect of having his pants permanently damaged. PC Dennys offered an alternative: Mr. Alenich could remove the pants entirely and be given a white paper garment commonly referred to as a 'bunny' or 'painter's' suit. Mr. Alenich was satisfied with this suggestion and accepted the offer.
[19] He was provided the bunny suit and taken to a private room outside the view of the surveillance cameras adjacent to the booking hall. As Mr. Alenich was still in police custody while inside the detachment, PC Dennys accompanied him. The door to the room was left open with PC Dennys standing near the threshold. In the area outside the room, a female officer was also present though she had no direct dealings with Mr. Alenich at this time.
[20] Mr. Alenich removed his jogging pants, keeping his t-shirt and underwear on, and donned the bunny suit. Mr. Alenich testified on the Charter voir dire that he was able to see the female officer from his position in the room. She was looking at him and he was "very embarrassed" to get changed in front of her and found it "not very pleasant" to undress in front of strangers.
[21] Mr. Alenich argues that he was subjected to an unwarranted strip search in violation of his s. 8 right to be free from unreasonable search and seizure.
[22] In R. v. Golden, 2001 SCC 83 the Supreme Court of Canada provided a definition of strip searches while also prescribing the procedure to be adopted in administering them. A strip search is "the removal or rearrangement of some or all of the clothing of a person so as to permit a visual inspection of a person’s private areas, namely the genitals, buttocks, breasts (in the case of a female) or undergarments" (at para 47).
[23] Golden was particularly critical of the trend to strip search detained persons as a matter of routine policy without regard to the particular circumstances surrounding their arrest (see para. 72). The legitimate safety and investigative concerns which give rise to strip searches must be addressed on a case-by-case basis and cannot be used to justify the routine application of such searches for all detainees.
[24] Even a routine strip search, carried out in a good faith and in a reasonable manner, will violate s. 8 if there is no compelling reason for performing it in the given circumstances of a particular arrest (at para. 95). The legal limitations on the implementation of strip searches are a recognition that such actions can be degrading, humiliating, and unnecessarily violate the dignity of detained persons.
[25] The circumstances which gave rise to Mr. Alenich's disrobing raise many of the concerns evidenced in Golden. The YRP policy demanding the removal of all strings from detainees is no doubt rooted in a genuine concern for the possible harm such items can cause. But the wholesale insistence to apply this policy across the board without any analysis of the type of arrest, the nature of the string, or the circumstances of the detainee, smacks of the wrongful routinization of policy that Golden was so critical of.
[26] This blanket application of policy was also criticized in R. v. Lee, [2013] O.J. No. 637 (ONSC) where Fuerst J. attacked the YRP policy which required all female detainees to remove underwire bras. In R. v. Dunwell, [2016] O.J. No. 1288 (OCJ) Bourque J. cited Lee in again criticizing the practice of applying a given policy "without exception". In Dunwell the female detainee was forced to remove a belly button ring in keeping with a YRP policy demanding the removal of all jewellery before admission into the cells. Ms. Dunwell had been wearing a one-piece pant suit and no bra. To remove the belly button ring, her entire upper body was disrobed in the course of a search that exposed her bare breasts. After removal of the ring, she was provided the same type of bunny suit offered to Mr. Alenich. Bourque J. noted that the bunny suit was a "humiliating article of clothing" and being forced to wear it was "a further affront to her dignity".
[27] The removal of Mr. Alenich’s pants would not have been necessary had police taken a rational and informed approach to the string policy. Rather than slavishly applying a blanket policy, police have an obligation to conduct a reasonable case-by-case analysis, intelligently assessing risks and exercising their authority in a case-specific manner.
[28] Mr. Alenich's jogging pant drawstring was sewn into the back of his pants. It would have been difficult, if not impossible, for him to have removed the string for some nefarious harmful purpose. He was to be held in a cell, alone, as a short-term detainee on an 80+ charge. There was nothing to indicate he was violent or suffered from any mental health concerns. Though he was intoxicated, his interactions with police had been entirely calm and cooperative.
[29] Even if police remained insistent that a bunny suit was the only option short of ruining Mr. Alenich's pants, it is difficult to understand why Mr. Alenich could not have been offered any of several alternative steps to minimize the embarrassment inherent in the bunny suit process.
[30] Mr. Alenich could have been permitted to change on his own in the private room without the hovering presence of police officers. He had already been searched both at the roadside and again at the detachment. There was no appreciable danger involved in giving him a few moments of privacy to don the bunny suit.
[31] Even if that was not possible, PC Dennys could have entered the room with him and closed the door so that Mr. Alenich's change would not have been exposed to anyone passing by the threshold of the room. PC Dennys could have taken steps to ensure that the female officer wasn't in the vicinity while Mr. Alenich changed.
[32] Mr. Alenich's circumstances however are different from the Golden and Lee line of cases in one key respect: the bunny suit was offered to him as an alternative to damaging his pants. He was given a choice – albeit a rather unpalatable one – of either having his pants permanently damaged by cutting out the drawstring or preserving the pants by opting to don the bunny suit. The invasive strip search humiliation that Golden sought to limit arises in large part from the absence of choice in participating in a fundamentally degrading procedure.
[33] Women who found themselves in the situation that arose in Lee could not 'choose' to forgo the underwire in their bras. The metal being inextricably bound to the bra, they were compelled to remove a garment of clothing that concealed a very intimate and personal part of their anatomy. Ms. Dunwell had no choice but to disrobe nearly completely to remove a belly button ring before police would lodge her in the cells.
[34] Mr. Alenich's situation is very different – he always retained a choice (though appreciably not an ideal one). He could have declined the bunny suit and sacrificed his drawstring. Even after initially accepting the offer of the bunny suit, if at any time he felt uncomfortable with disrobing in the given circumstance, he had the option to change his mind and revert to having his drawstring cut to preserve his dignity.
[35] The existence of this choice dramatically alters the tenor of what happens afterwards. The choice to disrobe, even in the face of irrational broadly applied policies, is not akin to the humiliation and degradation of an enforced strip search. The decision to prioritize his drawstring over his dignity was Mr. Alenich’s choice. That choice cannot amount to an enforced strip search. I therefore conclude that there has not been a breach of Mr. Alenich's section 8 right.
The paralegal issue
[36] When provided with his right to counsel at the roadside, Mr. Alenich expressed a desire to speak to his lawyer, Alex Blank. PC Dennys contacted Mr. Blank from the detachment and learned that Mr. Blank was in fact a paralegal. Prior to connecting Mr. Alenich with Mr. Blank, the following exchange took place between PC Dennys and Mr. Alenich:
DENNYS: Ok I've got Alex on the phone. So, Alex is a paralegal. ALENICH: Ok. DENNYS: So, he's not a lawyer. ALENICH: Ok. DENNYS: You're allowed to talk to him. And if you're satisfied with what he tells you that's ok. If you don't like what he tells you, you can ask me to recommend a lawyer, or I can look for lawyer at that time. But that's gonna be your decision at the end of all this. So, I do have him on the phone and you can let me know what you want to do afterwards. But if you're happy with whatever conversation you have then that's ok too, ok? ALENICH: Ok.
[37] At the conclusion of the call with Mr. Blank, PC Dennys spoke to Mr. Alenich again:
DENNYS: What are you thinking? Do you want to call a lawyer? ALENICH: No. DENNYS: You're satisfied with that? [indicating the conversation that had just taken place with Mr. Blank] ALENICH: Yes. He explained to me what's gonna happen. DENNYS: So, you're aware you could call a lawyer but you're satisfied with that? ALENICH: Ya.
[38] PC Dennys did not specifically indicate to Mr. Alenich that Mr. Blank had provided Dennys with the contact information for Mr. Ashurov who was a lawyer. Though strongly implied, PC Dennys also did not repeat to Mr. Alenich what he had told him immediately prior to the call – namely that Mr. Blank was a paralegal and not lawyer. Nor did PC Dennys provide any explanation to Mr. Alenich as to the differences between a paralegal and a lawyer or that a paralegal was not licensed to provide advice or appear in court in relation to impaired-related charges.
[39] Mr. Alenich argues that PC Dennys was obligated to issue what is known as the Prosper warning after Mr. Alenich got off the phone with Mr. Blank. This Charter requirement arises where a detainee who has previously asserted a desire to communicate with counsel, is frustrated in that effort and subsequently gives up, changing their mind. In such circumstances police are mandated to advise the detainee that their s. 10(b) right to counsel has not been exhausted and that they may continue to make reasonable efforts to satisfy their desire to speak to a lawyer before police proceed to elicit evidence from them.
[40] Alternatively, Mr. Alenich argues that PC Dennys could have complied with s. 10(b) without a Prosper warning by simply informing Mr. Alenich of the difference between a paralegal and a lawyer. Mr. Alenich contends that, ideally, PC Dennys should have offered him the opportunity to reach out to Mr. Ashurov specifically, whose number had been provided to the officer by Mr. Blank.
[41] Mr. Alenich testified on the Charter voir dire that Mr. Blank had previously represented him on a traffic ticket. He believed Mr. Blank was a lawyer. He continued to hold this mistaken belief even after PC Dennys clearly and explicitly told him immediately prior to the call that Blank was a paralegal and "not a lawyer".
[42] Though English was not Mr. Alenich's first language, I have watched the totality of his lengthy interactions with various police officers that evening. These all took place entirely in the English language. He appeared to fully and completely understand everything that was being said to him and was able to respond clearly and comprehensibly in English. Where he expressed any misunderstanding or confusion – such as when read the standard breath demand or right to counsel – he, like many native English speakers, asked for clarification, received it, and appeared to understand it.
[43] I have no basis upon which to conclude that the simple and straight-forward words of PC Dennys that Mr. Blank is "not a lawyer" were misunderstood in any way. Mr. Alenich's confusion arises not from an inability to understand the English language but rather from his circumstance as a non-legally trained lay person who did not appreciate the distinction between a paralegal and a lawyer.
[44] It is clear from Mr. Alenich's testimony on the voir dire that he heard PC Dennys tell him Mr. Blank was a paralegal and not a lawyer, but the significance of that distinction was lost on him. Though he knew that "paralegal" and "lawyer" were different words, he had no reason to think their meaning held any practical difference to him in the particular circumstances he found himself in that night at the police detachment.
[45] Because PC Dennys permitted Mr. Alenich to then speak to Mr. Blank, Mr. Alenich simply assumed that this call would be the same as if he was speaking to a lawyer. To Mr. Alenich, Mr. Blank was – and remained – equivalent to a lawyer. Nothing PC Dennys said either before or after the call served to dispel this mistaken impression.
[46] Mr. Alenich testified that had he been informed that paralegals were not licenced to provide legal advice or act on impaired driving related allegations, he would not have been satisfied with the advice he received from Mr. Blank. Mr. Alenich was not waiving his right to counsel when he declined to call a lawyer following the conversation with Mr. Blank. By virtue of the words and actions of PC Dennys, Mr. Alenich reasonably believed that there was no meaningful difference between talking to his paralegal versus talking to a lawyer.
[47] It is for precisely this reason that courts in R. v. Gownden, [2008] O.J. No. 5495 (OCJ), R. v. Vukasevic, [2010] O.J. No. 5862 (OCJ), R. v. Rampersaud, [2018] O.J. No. 5296 (OCJ) and R. v. Augustine, [2019] O.J. No. 3522 (OCJ) have all imposed an obligation on police officers to explain the distinction between paralegals and lawyers. Where an officer has arrested someone for impaired-related charges and is aware that the person who the detainee wishes to contact in exercise of their right to counsel is a paralegal, the officer should minimally explain to the detainee that a paralegal is not qualified to act in such cases and offer private counsel or duty counsel as an alternative.
[48] While I fear that this imposes a high burden on officers to know and understand the limitations of a paralegal's scope of practice, I find that this knowledge is essential in ensuring that officers are equipped to properly fulfil their constitutional obligation in reasonably implementing a detainee's right to counsel. In impaired-related cases, "counsel" means "lawyer" and officers must know this and communicate it to a detainee who may mistakenly believes otherwise.
[49] PC Dennys conceded in cross-examination that he did not explain the difference between a paralegal and a lawyer to Mr. Alenich. Though he acknowledged that he knew the right to counsel conferred a right to speak to a lawyer and not a paralegal, PC Dennys – much like Mr. Alenich himself – did not know that a paralegal cannot act for an accused person in impaired-related cases.
[50] Though the officer appears to have made good faith efforts to put Mr. Alenich in touch with exactly the person Mr. Alenich requested for the purposes of obtaining legal advice, by virtue of the officer's own ignorance, the right to counsel, as distinct from a paralegal, was not implemented. This is a violation of Mr. Alenich's s. 10(b) right.
Overhold
[51] Mr. Alenich had completed the breath testing procedure and been served all the necessary documents by 11:46pm, however, he was not released from the station until 3:09am. He alleges this 'overhold' of roughly 3.5 hours constituted an arbitrary detention in violation of s. 9 of the Charter.
[52] Section 498(1) of the Criminal Code stipulates that an officer in charge must release an arrested detained "as soon as practicable". This release requirement is tempered by s. 498(1.1)(a) which permits continued detention for a variety of reasons.
[53] The Summary Conviction Appeal Court in R. v. Sapusak, [1998] O.J. No. 3299 (SCAC) ruled that an accused with a blood alcohol concentration (BAC) of 130 could legitimately be detained for some 6-7 hours until his BAC would have been expected to drop below 50 to ensure the safety of himself and the public. This decision was upheld by the ONCA, [1998] O.J. No. 4148 (CA). In R. v. Kavanagh, [2017] O.J. No. 430 (SCJ) Heeney J. reviewed both an earlier opinion of Durno J. in R. v. Price, 2010 ONSC 1898 and the ONCA's ruling in Sapusak and determined that Sapusak was binding authority standing for the proposition that high BAC alone is a legitimate non-arbitrary ground for continued detention.
[54] In Mr. Alenich's case, his readings were extremely high, having blown 200 and 190 at around 10:50pm. The dangers posed by such a high BAC provide an ample non-arbitrary basis for Mr. Alenich's continued detention in the absence of his release to a responsible third party.
[55] Both PC Dennys and Inspector Dolson testified that they each believed someone had attempted to contact Mr. Alenich's wife to see if she would come and pick him up from the station. Inspector Dolson was "very confident" that such a call was made. PC Dennys could not recall if he spoke to Mr. Alenich's wife, but he understood that someone had communicated with her and that she would not be attending.
[56] The police appear to have exhibited a somewhat blasé attitude about Mr. Alenich's prompt release. Though Mr. Alenich sought access to his cell phone so that he could try to contact his wife from the detachment, PC Dennys informed him that she was unwilling to pick him up, commented on the lateness of the hour, and assured Mr. Alenich that he would not be at the station much longer.
[57] Mr. Alenich's wife testified and indicated that the only call she received was to pick up her child from the roadside. She was therefore aware that Mr. Alenich had been arrested and was being detained in custody though she said she received no call from any officer to pick Mr. Alenich up at the station. Had she received such a call, depending on the time, she would have attended herself or tried to get another friend or family member to pick him up.
[58] The evidence of Mr. Alenich's wife suggests that PC Dennys had no reason to make the assumptions he did. Nor could PC Dennys really know how much longer Mr. Alenich would be detained at the station since PC Dennys was concluding his shift at that time and the decision regarding Mr. Alenich's release would be left to the discretion of the Staff Sgt.
[59] However, despite knowing of Mr. Alenich's detention, his wife did not of her own initiative arrange for herself or anyone else to attend the detachment and await Mr. Alenich's release. This supports the recollection of officer Dennys that he had learned, either directly or through communication with another officer, that Mr. Alenich's wife was less than enthused about the quick return of her husband after he had been arrested for an impaired-related offence while driving her four-year old child.
[60] Though police could have been somewhat more diligent in documenting their efforts to locate a responsible third party to pick up Mr. Alenich, I do not find that Mr. Alenich was arbitrarily detained. In circumstances where the time from document service to release is approximately 3.5 hours for a detainee whose BAC was as high as 200 at the time of breath testing, I find no breach of Mr. Alenich’s s. 9 right.
Section 24(2) Grant analysis
[61] Having found a violation of s. 10(b) I turn now to an analysis under s. 24(2) to determine whether the breath test readings that form the foundation of the case against Mr. Alenich should be excluded from evidence. To do so I instruct myself in accordance with the SCC’s three-prong test articulated in R. v. Grant, 2009 SCC 32.
[62] First, I analyze the seriousness of the Charter infringing state conduct. Second, I assess the impact of the breach on the Charter protected interests of the accused. Finally, I assess society’s interest in adjudication of the case on its merits. The balancing of these three factors is calibrated to inspire confidence in the long-term repute of the administration of justice.
Seriousness of the Charter infringing conduct
[63] It is clear to me that it was not PC Dennys' intent to frustrate Mr. Alenich's ability to exercise his right to counsel. Indeed, at all times the officer made every effort to accommodate this goal. He was forthright and direct in informing Mr. Alenich that Mr. Blank was a paralegal (in contrast to the facts of Vukasevic where the officer neglected to pass this information onto the detainee).
[64] He was attempting to be kind and helpful towards Mr. Alenich by nevertheless permitting Mr. Alenich the opportunity to speak to someone who was not counsel. He advised Mr. Alenich that he had the right to speak to a lawyer and underscored this right both immediately before and immediately after the conversation between Mr. Alenich and Mr. Blank. This stands in contrast to Augustine where the officer transferred the accused to the breath technician after his conversation with a paralegal without ever offering the alternative of a lawyer.
[65] Unfortunately, being himself ignorant of the practical difference between paralegals and lawyers in impaired-related cases, PC Dennys failed to articulate this important distinction to Mr. Alenich. Comments from PC Dennys about Mr. Alenich's satisfaction with Mr. Blank's advice inadvertently reinforced the belief in Mr. Alenich's mind that no practical distinction existed.
[66] Unlike the officers in Augustine and Gownden, PC Dennys was unaware that impaired-related cases were outside the scope of a paralegal's lawful practice. In this sense, the breach in this case is more akin to that in Rampersaud where Feldman J. was unsympathetic to the officer's lack of knowledge noting, "it was the officer's obligation to know and explain the difference to the defendant and to recognize that in permitting reliance on advice from a paralegal he was not fulfilling the implemental aspect of his duty" (Rampersaud supra at para. 40).
[67] The result is that Mr. Alenich's purported exercise of his right to counsel was nothing of the sort. He was unintentionally but effectively misled to believe he had received the advice of counsel guaranteed to him under s. 10(b) when in fact that was not the case.
[68] In such circumstances, even without any intentional or flagrant violation, and in the absence of any bad faith or malicious intent, the breach remains far more serious than a mere technical error. Detainees cannot obtain advice from legal counsel where they are misled, deliberately or otherwise, into thinking a paralegal's consultation is equivalent when it is not. The result is the complete denial of true right to counsel. This is a serious violation favouring exclusion of evidence.
Impact of the Charter infringing conduct
[69] Though Mr. Alenich at that time thought otherwise, his breath samples were obtained without him having been able to obtain legal advice. Mr. Alenich's decision not to take up PC Dennys on the offer to call a lawyer can hardly be seen as a waiver when Mr. Alenich at all times reasonably believed he had already obtained sufficient and equivalent legal advice.
[70] Thus, the impact on Mr. Alenich's right to counsel is significant – he participated in a process to conscript evidence from him without first receiving the opportunity to obtain genuine legal advice. This prong therefore further supports the exclusion of evidence.
Society’s interest in adjudication on the merits
[71] Intoxilyzer breath readings are highly reliable evidence that are fundamental to the Crown’s ability to prove its case. The combination of alcohol and driving remains a clear and present danger to the safety of every member of the public, whether driver or passenger, pedestrian or vehicle.
[72] Mr. Alenich's readings were extraordinarily high and his operation of a motor vehicle in this state with his four-year-old child in the back seat is egregious and extremely concerning. There is no dispute that his consumption of alcohol that evening endangered himself, his child, and everyone else on the road. This prong of the test strongly favours inclusion of the evidence.
[73] In now looking at the circumstances as a whole, I have concluded that the first and second prongs clearly favour exclusion whereas the third prong favours admission. On balance, the risk of diluting the right to counsel overrides the short-term damage to the administration of justice that would be caused by exclusion of the breath readings. It is essential that front-line officers be aware of the distinction between paralegals and lawyers and be able to confidently and accurately advise detainees of the significance of that distinction in cases where a detainee may be confusing paralegal advice with their constitutional right to counsel.
[74] As a result, I exclude the breath readings from evidence in this trial. There being no further evidence upon which the Crown can rely, I find Mr. Alenich not guilty of the offence of operating a conveyance in excess of the legal limit.
Released: April 8, 2022 Signed: Justice Edward Prutschi