ONTARIO COURT OF JUSTICE
CITATION: R. v. Alilovic, 2022 ONCJ 567
DATE: 2022 12 02
COURT FILE No.: Central East - Newmarket 4911-998-21-04586-00
BETWEEN:
HIS MAJESTY THE KING
— AND —
CHRISTINE ALILOVIC
Before Justice M.L. Henschel
Heard on November 28, 2022
Reasons for Judgment released on December 2, 2022
R. Gill..................................................................................................... counsel for the Crown
B. Daley....................................................... counsel for the defendant Christine Alilovic
HENSCHEL J.:
A. Overview
[1] Christine Alilovic is charged with a single count of “80 plus”. The trial was brief and focused. There was little dispute about the facts.
[2] Mr. Daley reasonably concedes that the Crown has established the essential elements of the offence beyond a reasonable doubt. The only issue at trial is whether there was a violation of Ms. Alilovic’s (the Applicant’s) s. 10(b) Charter right to counsel as a result of a seven-minute delay between her arrest at 1:19 a.m. and PC Fry reading the rights to counsel at 1:26 a.m.
[3] The defence submits that PC Fry failed to provide the Applicant with the right to counsel “immediately”. He submits that the violation was serious because PC Fry did not understand her obligations under s. 10(b) of the Charter. He submits that she believed and was trained that the rights to counsel must be provided “as soon as practicable”. This is an incorrect and less demanding standard than the immediacy requirement, established more than a decade ago in R. v. Suberu, 2009 SCC 33.
[4] Mr. Daley submits that the serious nature of the breach, aggravated by systemic failure by the York Regional Police to provide proper training, and the impact of the breach upon the Charter-protected interests of the Applicant require the exclusion of the breath readings under s. 24(2) of the Charter.
B. Summary of the Evidence
[5] On May 23, 2021, PC Fry was conducting traffic enforcement at Highway 50 and Major Mackenzie Drive. She saw Ms. Alilovic driving her vehicle southbound on Highway 50. She appeared to be travelling at a higher rate of speed than the flow of traffic and PC Fry measured the speed of the vehicle using a radar device as 102 km/hour in a 70 km/hour zone.
[6] PC Fry stopped Ms. Alilovic’s vehicle at 1:11 a.m. PC Fry approached her vehicle and informed her that she had stopped her for speeding. PC Fry requested Ms. Alilovic’s documents and, when Ms. Alilovic provided her driver’s license, PC Fry could smell the odour of alcohol coming from her mouth. She asked Ms. Alilovic when her last drink was, and the passenger responded that it was at 4:00 p.m.
[7] At 1:14 a.m., PC Fry made an approved screening device (ASD) demand. Ms. Alilovic accompanied PC Fry to her cruiser and provided a sample of breath into the ASD and at 1:18 a.m. registered a fail. This caused PC Fry to believe that Ms. Alilovic’s blood alcohol concentration exceeded 100 mg of alcohol per 100 milliliters of blood.
[8] At 1:19 a.m. PC Fry arrested Ms. Alilovic for operating a conveyance “80 plus”. Ms. Alilovic was very emotional and distraught. PC Fry searched Ms. Alilovic incident to arrest and told Ms. Alilovic that she would explain the process to her as best she could. PC Fry handcuffed Ms. Alilovic and placed her into the police cruiser.
[9] Once Ms. Alilovic was in the cruiser at 1:26 a.m., PC Fry read Ms. Alilovic the rights to counsel from the back of her notebook. When PC Fry asked Ms. Alilovic if she understood, she responded that she did not know what any of “this” meant. PC Fry explained the content of the rights to counsel in simple terms, explaining that she could call any lawyer she wished and that there was also a free lawyer available. Ms. Alilovic indicated that she thought she understood and said that she was scared. When asked if she wanted to speak to a lawyer, Ms. Alilovic said that she did not know and broke into tears.
[10] After providing the rights to counsel, PC Fry provided Ms. Alilovic with the caution and breath demand and transported Ms. Alilovic to the police station. Ms. Alilovic spoke with duty counsel at the police station, and subsequently was turned over to a qualified breath technician. She provided two samples of breath into an approved instrument that resulted in a reading of 160 mg/100 ml of blood at 2:38 a.m., and a second reading of 150 mg/100 ml of blood at 3:10 a.m.
[11] Crown counsel asked PC Fry about the reason for the delay in the provision of the rights to counsel between 1:19 a.m. and 1:26 a.m. PC Fry explained that Ms. Alilovic was very emotional when she told her she would be placed under arrest, and she was trying to calm her down. PC Fry testified that she was alone at the roadside and wanted to ensure that Ms. Alilovic knew what was going on. She attempted to calm her, put the handcuffs on Ms. Alilovic, conducted the search incident to arrest, and placed Ms. Alilovic in the back of the cruiser. She testified that she searched Ms. Alilovic before putting her into the cruiser because it is procedure to search anyone entering the back of a cruiser in order to locate weapons, evidence, or means of escape. She explained that handcuffs are put on a person in custody before the person is placed in a cruiser and before rights to counsel are given because policy dictates that a person in custody should be handcuffed due to safety concerns for the person in custody and for herself.
[12] Mr. Daley asked PC Fry whether there was any physical or logistical reason why she did not read the rights to counsel the moment she handcuffed Ms. Alilovic. PC Fry responded that her focus was on getting Ms. Alilovic handcuffed and making her aware of the reason for her arrest. She said that her focus was on safety, that she was there alone, and she was trying to get Ms. Alilovic under control and in the back of the cruiser to make sure that both she and Ms. Alilovic were safe. Once she did so she could open her notebook and read the rights to counsel from the back of her notebook. PC Fry agreed during cross-examination that Ms. Alilovic was polite and cooperative. Mr. Daley suggested to PC Fry that Ms. Alilovic did not pose any physical danger to her. PC Fry agreed that Ms. Alilovic did not seem to pose a physical danger, but added that she did not know her.
[13] During cross-examination PC Fry testified that she was taught that once a decision is made to arrest an accused person, she must administer the rights to counsel “as soon as practicable”.
[14] Mr. Daley inquired whether PC Fry would have changed her approach had she understood that the rights to counsel must be provided immediately, subject to safety concerns. PC Fry responded “no” and then indicated that she was not sure that she understood the question. Mr. Daley then suggested that the legal test was immediately, not as soon as practicable and PC Fry agreed with the suggestion that immediately was different than as soon as practicable. She agreed that she was trained that the rights to counsel must be provided “as soon as practicable” and believed it to be accurate. She agreed that if she had been instructed as to the correct test that she would have done things differently.
C. Was there a Violation of s. 10(b) of the Charter?
[15] Section 10(b) of the Charter guarantees anyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right”. Section 10(b) imposes both informational and implementational duties on the police. It obliges the police to advise a detained person of the right to retain and instruct counsel without delay (the informational duty), and, if the detained person requests to exercise their right to counsel, the police must provide the detainee with a reasonable opportunity to speak with counsel (the implementational duty). The police must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to speak with a lawyer, or has unequivocally waived the right to do so.[^1]
[16] In Suberu, the Supreme Court of Canada made clear that the right to counsel is triggered upon arrest or detention and provision of the informational component must be fulfilled immediately, subject to “concerns for officer or public safety, or limitations prescribed by law and justified under s. 1 of the Charter”.[^2]
[17] In determining whether the delay of seven minutes in this case falls within the Suberu immediacy requirement, a review of the facts and findings of Suberu and other appellate decisions that have considered the immediacy requirement provide guidance.
[18] In Bartle, the Supreme Court of Canada explained that the right to counsel must be facilitated “without delay” because:
…[W]hen an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him – or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination...[^3]
[19] In Suberu, employees of an LCBO received information to be on the lookout for two men using a stolen credit card to buy merchandise and gift cards. When Mr. Suberu, the Appellant, entered the store with a second man, the employees called the police. PC Roughley responded to the call. He learned from another officer who was inside the store that there were two male suspects in the store and, as he entered the store, he encountered Mr. Suberu who said words to the effect “he did this not me, so I guess I can go.” Constable Roughley followed Mr. Suberu outside of the store and, as Mr. Suberu was entering his van, PC Roughley said “Wait a minute. I need to talk to you before you go anywhere”. PC Roughley and Mr. Suberu then had a short conversation during which Mr. Suberu made a number of inculpatory utterances and PC Roughley observed items related to the use of the stolen card in the van. Mr. Suberu was arrested.
[20] The central issue before the Supreme Court of Canada in Suberu was whether the Appellant was subject to an investigative detention prior to his arrest, and, if so, whether the police were required to provide him with the rights to counsel upon the investigative detention. At issue was whether the words “without delay” in s. 10(b) allowed for a brief interlude between the beginning of an investigative detention and the advising of the detained person of his or her right to counsel, during which the police may ask exploratory questions in order to determine whether more than a brief detention of the person will be necessary.
[21] The Supreme Court of Canada held that interpreting “without delay” to mean “immediately” was consistent with the purpose of s. 10(b): to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. The court found that the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination. Affording protection to a detainee from the potential of self-incrimination during exploratory police questioning was integral to the courts finding that the right to counsel must be provided “immediately”.
[22] The Court stated as follows:
The specific issue raised in this case is whether the police duty to inform an individual of his or her s. 10(b) right to retain and instruct counsel is triggered at the outset of an investigative detention - a question left open in R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.), at para. 22. It is our view that this question must be answered in the affirmative. The concerns regarding self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. Therefore, from the moment the individual is detained, s. 10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel “without delay”. The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.[^4]
D. Analysis and Conclusions:
[23] There has been extensive litigation related to the Suberu “immediacy” requirement in the context of drinking and driving cases. Trial courts have come to differing conclusions about the practical implications of the immediacy requirement for police at the roadside and the type of actions and delays that are justified due to concerns for officer or public safety.
[24] Section 10(b) breaches were found in:
• R. v. Simpson, 2017 ONCJ 321, where there was a nine-minute delay to retrieve the accused’s wallet from the centre console;
• R. v. Pillar, 2020 ONCJ 394, where there was an eight-minute delay which included a pat down search, time to handcuff the accused and lodge the accused in the cruiser, and conduct a CPIC check prior to provision of the rights to counsel;
• R. v. Sandhu, 2017 ONCJ 226 where there was a seven-minute delay to speak to the accused’s passengers and to complete notes;
• R. v. Campbell, 2017 ONCJ 570, where there was a seven-minute delay to consider and arrange a tow truck, count seized money, and secure open liquor.[^5]
• R. v. Cairney, 2022 ONCJ 458, where there was a five-minute delay between arrest and provision of rights to counsel. The trial judge subtracted two minutes from the five-minute delay to allow for handcuffing which the court found to be an officer safety issue, but found that there was a breach because of three minutes spent by the officer speaking to a second officer about the identity of the accused. The court concluded that rights to counsel should have happened after handcuffing. The court found a breach, but characterized the breach as “minor”.
[25] Section 10(b) breaches were not found in the following cases:
• R. v. Rossi, 2017 ONCJ 443, where there was a seven-minute delay for search incident to arrest, to retrieve a cell phone at the accused’s request, and to calm the accused down;
• R. v. Singh, 2017 ONCJ 386, where there was a five-minute delay for a pat-down search and CPIC check;
• R. v. Foster, 2017 ONCJ 624, where there was a five-minute delay for a pat-down search and to re-cuff the complainant in the front;
• R. v. Turcotte, 2017 ONCJ 716, where the court found that conducting a pat-down search falls within the officer safety immediacy requirement and that the officer’s action in taking a moment to run the accused on his in-car computer before reading him the right to counsel was entirely reasonable given its purpose to determine if there were other bases for arresting the accused;
• R. v. Coates, [2021] O.J. No. 2774 (C.J.), where there was a four-minute delay for a pat-down search and re-cuffing the accused in the front;
• R. v. Gowan, 2019 ONSC 3791, at paras. 24-29, where the summary conviction appeal court found that a ten-minute delay between arrest and rights to counsel as the officer searched for the accused person’s missing wallet did not breach the immediacy requirement.
• R. v. Selvashanmugathasan, 2019 ONCJ 23, at para. 24, where the court found that a two-to-three-minute delay before giving the right to counsel because the officer was expediting the breathalyzer process did not infringe the right to counsel.
[26] Recently in Tadesse[^6] the summary conviction appeal court upheld the trial Judge’s finding that a seven-minute delay did not breach s. 10(b) of the Charter. During the seven-minute period the officer walked the accused back to the cruiser, searched the accused incident to arrest, placed the accused in the back of the cruiser, and made preliminary notes about what transpired. In finding that there was no breach the court stated as follows:
In referencing both Suberu and Rossi, it was clear that the trial judge was alive to the immediacy principle set out in Suberu, was satisfied Cst. MacTavish was taking steps to secure his and her safety, that she was diligent in moving towards providing the right to counsel once it was safe to do so, and most importantly, that she was not eliciting incriminating information from the Appellant with respect to the offence.[^7]
[27] The word “immediately connotes a more urgent standard than ‘as soon as practicable’ or ‘reasonably promptly’”, but it does not mean “instantaneously”, where an officer is taking steps related to safety.[^8] As Suberu made clear, the immediacy requirement permits an officer to take steps necessary to secure his or her own safety, the safety of the accused and related to the safety of the public. In circumstances such as this case, it includes but is not limited to calming a detainee, handcuffing and searching the detainee incident to arrest, and placing the detainee in a secure and safe location such as the rear of a police car.[^9]
[28] I am satisfied that there was no violation of s. 10(b) of the Charter. PC Fry provided the Applicant with the rights to counsel “immediately”, subject to concerns for officer and public safety. Any delay in the provision of the rights to counsel was due to PC Fry taking reasonable steps to ensure her own safety and the safety of Ms. Alilovic.
[29] I accept PC Fry’s evidence that Ms. Alilovic was emotional and upset and that while carrying out the arrest she did her best to calm Ms. Alilovic and explain to her the reason for her arrest and what was happening. Ms. Alilovic’s emotional state contributed to the length of time required to complete the arrest and to the total period of seven minutes delay. In my view police officers must be given some ability to manage a potentially volatile or emotional circumstance in order to ensure their own safety and the safety of the detainee. Effective policing includes effective communication with detainees. Good faith efforts of an officer to effectively communicate with a detainee and calm a detainee during arrest are necessary components of good policing that can assist in ensuring the safety of the officer and the detainee. Such communication, which advances officer safety, public safety, and the safety of a detainee, should not be discouraged by the need to provide the rights to counsel “instantaneously”.
[30] PC Fry handcuffed Ms. Alilovic outside of the cruiser, and searched her incident to arrest, for reasons of officer safety and the safety of Ms. Alilovic. PC Fry testified that it is police policy for officer safety reasons that officers apply handcuffs to an individual and search the individual incident to arrest before placing the individual into a cruiser to ensure the individual is not in possession of a weapon, means of escape, or evidence. PC Fry agreed that Ms. Alilovic did not appear to pose a safety risk, however she did not know Ms. Alilovic. There was no indication that PC Fry had any opportunity to conduct any background checks.
[31] Further, in context, PC Fry’s evidence was not that she was merely following a blanket policy without turning her mind to whether there were safety concerns. PC Fry was alone, at the side of the road at night. She explained that she did not provide the rights to counsel earlier because her focus was on her safety and Ms. Alilovic’s safety. In a circumstance such as this case, a lone officer at the roadside late at night, I accept that the steps taken to secure the custody of Ms. Alilovic at the scene are appropriate and necessary.
[32] It was entirely reasonable for PC Fry, an officer working alone, with an emotionally distraught arrestee, to prioritize her safety. It was appropriate and necessary that she ensure Ms. Alilovic was not in possession of any weapon or item that could harm PC Fry or herself. It was appropriate that she take steps to ensure she could exercise control over the person she had placed under arrest, including placing handcuffs on Ms. Alilovic, and placing her in the rear of the police cruiser.
[33] PC Fry was not required to read the rights to counsel to Ms. Alilovic prior to placing her in the police cruiser, nor was she required to summarize the rights to counsel, instead of reading the rights from the back of her notebook. Such a practice could potentially lead to officer’s providing incomplete or inaccurate information. The informational content in the rights to counsel is important. It was appropriate for PC Fry to wait to read the rights to counsel until she had taken steps to calm down Ms. Alilovic, and they were both in a safe location where PC Fry could carefully and thoroughly provide the information about the rights to counsel to Ms. Alilovic and Ms. Alilovic could receive the information.
[34] In this case, once Ms. Alilovic was secured in the rear of the police cruiser, PC Fry immediately read the rights to counsel from the back of her notebook to Ms. Alilovic. She did not engage in non-urgent or unnecessary actions, such as arranging the tow of the vehicle or chatting with other officers on scene before providing the rights to counsel.
[35] During the time between the arrest and reading of the rights to counsel, PC Fry did not engage in any investigative conduct that created a risk that the Applicant would incriminate herself. Her actions were not investigative. PC Fry was focused solely on taking steps necessary to safely complete the arrest of Ms. Alilovic.
[36] Whatever PC Fry’s understanding of the timing requirement for provision of the rights to counsel, her actions complied with the immediacy requirement as explained in Suberu. All of her actions, from the time she initiated the arrest to the point she began reading the rights to counsel, were for the purpose of ensuring her own safety, the safety of Ms. Alilovic and the safety of the public, and once she addressed those concerns, she immediately read the rights to counsel. There was no violation of s. 10(b) of the Charter.
E. If there was a violation of s. 10(b) of the Charter should the evidence be excluded under s. 24(2) of the Charter?[^10]
[37] In the event I am wrong, and there was a delay in the provision of the rights to counsel that constituted a violation of s. 10(b) of the Charter, I am not satisfied on a balance of probabilities that the evidence should be excluded under s. 24(2) of the Charter.
[38] According to the Supreme Court of Canada decision in Grant[^11], there is a three-pronged test that must be applied when considering the admissibility of evidence under 24(2) of the Charter. The court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following factors:
(1) the seriousness of the Charter infringing state conduct;
(2) the impact of the breach on the Charter-protected interests of the accused; and
(3) society’s interest in the adjudication of the case on its merits.[^12]
[39] This requires attention to whether the overall repute of the justice system, when viewed in the long term and objectively speaking, will be negatively affected by the admission of the evidence, taking all the circumstances into account.
[40] In my view consideration of these governing principles clearly leads to the conclusion that the results of the Applicant’s breath samples should be admitted.
Seriousness of the Breach
[41] In assessing the seriousness of a breach, Grant requires an examination of the police conduct and a determination of where it fits on a spectrum from mere technical breaches at one end to bad faith violation at the other. In this case, if there was a breach of s. 10(b), it was close to being a technical breach. There was not a significant departure from Charter standards. PC Fry did not set out to deliberately violate the Applicant’s rights, did not act in bad faith, and did not act with indifference to the Applicant’s section 10(b) rights. Rather, any delay in the provision of the rights to counsel flowed, at least in part, from PC Fry’s good faith efforts to calm the Applicant and explain the reason for her arrest. PC Fry did not show indifference to the provision of the rights to counsel by engaging in unnecessary tasks or chatting with other officers.
[42] PC Fry required time to inform the Applicant of the reason for her arrest, search the Applicant incident to arrest, and handcuff the Applicant. The total period of delay in provision of rights to counsel, if there was a breach, was something less than 7 minutes. The factual circumstances in this case are in no way comparable to a case such as Rover, where the accused, after requesting to speak with a lawyer, was held in a cell without explanation for six-and-one-half hours without being provided the opportunity to speak with a lawyer while the police executed a search warrant. The Court found the conduct involved a very serious breach that was part of a systemic or institutional police practice of holding detained individuals “incommunicado” while the police obtained and executed search warrants.
[43] Mr. Daley submits that PC Fry’s evidence that she was trained that the rights to counsel must be given “as soon as practicable” demonstrates a systemic failing which renders the police conduct more serious and is conduct that the court must distance itself from. I am not satisfied that the Applicant has established a systemic failure. I am not satisfied that the Applicant has established a “chronic problem” with the York Regional Police systemically delaying s. 10(b) rights. The only evidence before the court that suggested erroneous training was that of PC Fry. While PC Fry should have known and been able to articulate the well-established principle that rights to counsel must be provided immediately, subject to officer safety or reasonable limits prescribed by law and justified under s. 1, in my view the Applicant has not established on a balance of probabilities a systemic failing. PC Fry may have misunderstood or misremembered her training.
[44] Moreover, despite PC Fry’s misstatement of the requirement as “as soon as practicable” instead of “immediately”, her conduct, if it did fall short, did not represent a serious departure from the immediacy requirement.
[45] Unlike in Thompson[^13], I am not satisfied that there is evidence or a body of law which establishes a chronic problem in the provision of the rights to counsel immediately by York Regional Police. I was not provided with any other case suggesting erroneous training of York Regional Police Officers.[^14]
[46] Mr. Daley relied upon Abdullah[^15], a summary conviction appeal matter, where the trial judge’s exclusion of breath test results was upheld. In upholding the exclusion of the evidence, Justice Harris found that the trial judge’s finding that the breach was serious was well supported because the investigating officer did not understand the requirements to make an ASD demand and, as a result, did not turn her mind to whether there was a reasonable suspicion that the subject had been driving within the previous three hours, a belief required for a lawful demand pursuant to s. 327.27(1) of the Criminal Code. The trial judge inferred that the officer’s lack of knowledge about the requirements to make an ASD demand was due to a lack of training and was systemic in nature.
[47] In upholding the trial judge’s decision to exclude the evidence under s. 24(2), Justice Harris emphasized that the trial judge found not only that the officer did not have objective reasonable suspicion of driving within the previous three hours but that the officer’s understanding of her legal obligations was seriously lacking.
[48] Abdullah is distinguishable because I am not satisfied that PC Fry’s inability to articulate the immediacy requirement in Suberu is representative of a systemic issue within the York Regional Police, and the lack of understanding did not lead to an erroneous exercise of police powers over the subject that lead to incriminating evidence, the ASD sample, being obtained. The lack of understanding, at most, may have contributed to a brief delay of the provision of the rights to counsel.[^16]
[49] In Cairney, Justice Monahan, of the Ontario Court of Justice found that a three-to five-minute delay in the provision of rights to counsel should not be found to be serious, noting that the officer made an error by speaking with a second officer about the accused’s identity before reading the rights to counsel. However, as in this case, the court emphasized that the police did not seek to obtain evidence from the accused without giving him an opportunity to consult with counsel. The court reached this conclusion despite being aware of “systemic” issues concerning the delay in providing rights to counsel in Peel, finding that “I consider that the section 10(b) breach here, considered by itself or in conjunction with the section 9 issue, was not serious and had little impact on Mr. Cairney and does not justify the exclusion of the evidence”.
[50] In my view, the breach was not serious, and this factor supports admission rather than exclusion.
Impact on the Charter Protected Rights
[51] In Thompson, Justice Jamal, at that time of the Ontario Court of Appeal, emphasized that the second line of inquiry under s. 24(2) asks whether the Charter breach “actually undermined the interests protected by the right infringed”. This involves identifying the interests protected by the relevant Charter rights and evaluating how seriously the Charter infringements impacted those interests. The more serious the impact on the Charter-protected interests, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”.[^17]
[52] As noted above, the s. 10(b) right to retain and instruct counsel without delay and to be informed of that right allows a detainee to obtain advice about how to exercise their rights relevant to their legal situation. The provision helps to ensure that a detainee’s choice to speak to the police is free and informed and guards against the risk of involuntary self-incrimination.[^18]
[53] As in Thompson, the impact of the violation of s. 10(b) is minimal because PC Fry did not try to question the Applicant before advising her of the rights to counsel and she made no inculpatory statements.[^19]
[54] PC Fry did not seek to obtain incriminating evidence from the Applicant during the period of delay, and provided the Applicant with her rights to counsel and assisted the applicant to exercise her right to counsel at the police station prior to the breath samples being obtained.
[55] This factor supports inclusion of the breath readings. The impact is very different than in Rover, where the court found a significant impact on the Appellant’s security of the person due to the psychological pressure brought to bear on the appellant by holding him without explanation and access to counsel for hours.
[56] I have considered that for a detainee being made aware of the right to counsel may provide a degree of comfort, and that in the context of roadside detentions, the right to counsel is suspended during the investigation in accordance with Orbanski[^20]. This increases the importance that the individual be provided with the rights to counsel immediately upon arrest.[^21] In this case the period from suspension between the stop at 1:11 a.m. to arrest at 1:19 a.m., was not lengthy – a period of eight minutes. I am satisfied that the impact on the Applicant’s Charter-protected rights was not significant and this factor favours admission of the evidence.
Societal Interest on the Adjudication of the Case on the Merits
[57] The third Grant factor, the societal interest in an adjudication of a case on the merits, also favours admission. The truth-seeking function of the criminal process is better served by the admission rather than the exclusion of the evidence and this factor weighs strongly in favour of the admission of the evidence.
[58] Breath sample evidence is reliable, minimally intrusive, and its admission would clearly serve the truth-seeking process more than would its exclusion. The Charter violation in no way undermined the reliability of the evidence and the evidence is vital to the Crown’s case.
[59] As noted by Justice Campbell in Rehill, the public has long had a very strong interest in dealing with “drinking and driving” cases on their merits. The societal interest in a criminal trial on its merits would be seriously undermined if such highly reliable and critical evidence were excluded. This third prong of the analytical framework under 24(2) of the Charter strongly favours admission of the evidence.[^22]
F. Conclusion
[60] It would be difficult to reconcile a finding that the exclusion of the breath samples is required in a case such as this – where there was a brief delay in the provision of the rights to counsel and no causal connection between the alleged breach and the evidence obtained – with the governing authorities from the Supreme Court of Canada.[^23]
[61] For these reasons, the evidence is admitted under s. 24(2) of the Charter and there is a finding of guilty on the 80 plus count.
Released: December 2, 2022
Signed: Justice M.L. Henschel
[^1]: R. v. Suberu, 2009 SCC 33, at paras. 37 and 38 [“Suberu”]; R. v. Taylor, 2014 SCC 50, at para. 21. [“Taylor”]; R. v. Rover, 2018 ONCA 745, at paras. 24 and 25 [“Rover”].
[^2]: Suberu, at paras. 38-42; Rover, at paras. 25-26; R. v. Thompson, 2020 ONCA 264, at paras. 67-71 [“Thompson”]; R. v. Mhlongo, 2017 ONCA 562, at paras. 48-49; Bartle, at pp. 191-192; Thompson, at paras. 67-71.
[^3]: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 191. [“Bartle”]
[^4]: Suberu, at para. 2.
[^5]: Many of cases these cases were outlined in an unpublished paper by Mabel Lai. “The informational Component of the Right to Counsel.” 2022 National Criminal Law Program, at p. 6 footnote 26.
[^6]: R. v. Tadesse, 2022 ONSC 5128, at paras. 52 to 63.
[^7]: R. v Tadesse, at para. 61
[^8]: R. v. Turcotte, 2017 ONCJ 716, at paras. 11 and 12. [“Turcotte”]
[^9]: R. v. Kuznetsoff, 2021 ONCJ 124, referring to Turcotte, at paras. 9-10. See also Thompson, at para. 91, where the Court made clear that the the requirement for immediacy should not be equated with the lower standard of practicality or convenience.
[^10]: There is reason to question whether the evidence in issue, the breath samples, was “obtained in a manner” that breached the Charter given the only connection between the obtaining of the evidence and the breach is a weak temporal connection. There is no causal connection between the alleged breach and the obtaining of the breath samples, the grounds for the breath demand and obtaining the breath samples were developed entirely prior to the breach. However, this issue was not raised or argued during submissions, and it is unnecessary for me to resolve it, given my finding that even if the evidence was “obtained in a manner” that breached the Charter, it should be admitted.
[^11]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[^12]: Grant, at para. 71.
[^13]: R. v. Thompson, 2020 ONCA 264.
[^14]: Thompson; at paras. 91-96.
[^15]: R. v. Abdullah, 2022 ONSC 4119.
[^16]: In Grant, at para. 72, the SCC held that the first line of inquiry under s. 24(2) requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. Unlike the conscripted statement in Grant, which lead to the discovery of the firearm, no evidence was obtained as a result of any delay in the provision of the rights to counsel. While R. v. Pino, 2016 ONCA 389 has broadened the circumstances where evidence may be found to have been “obtained in a manner” such as to engage s. 24(2) of the Charter, the relationship between the alleged breach and the evidence sought to be excluded continues to be relevant to the assessment of the seriousness of the breach and its impact on the Applicant’s Charter protected rights when determining whether it is necessary to exclude evidence to dissociate the state from the fruits (in this case the breath samples) of the unlawful conduct. See also R. v. Le, 2019 SCC 34, at para. 140, where the impact of the breach was found to be significant because the incriminating evidence would not have been discovered but for the arbitrary detention in contravention of s. 9 of the Charter.
[^17]: Thompson, at para. 97.
[^18]: Thompson, at para. 99.
[^19]: Thompson, at para. 100. See also R. v. Gardner, 2021 ONSC 3468, at para. 87.
[^20]: R. v. Orbanski, 2005 SCC 37.
[^21]: R. v. Sandhu, 2017 ONCJ 226, at para. 12.
[^22]: R. v. Rehill, 2015 ONSC 6025, at para. 40. See also R. v. Jennings, 2018 ONCA 260; Taylor, at para. 45; Grant, at para. 106.
[^23]: The alleged Charter non-compliant conduct is less serious, and less impactful than the breaches that occurred in the seminal decision of Grant, where the SCC admitted the evidence, despite s. 9 and s. 10(b) Charter breaches. In Grant the SCC held that the police conduct, and questioning resulted in an unlawful psychological detention. The questioning during the detention resulted in Grant incriminating himself by telling the police that he had a firearm which was subsequently located. Grant was not provided with the right to counsel during the detention at any point leading up to the seizure of the firearm and the SCC found that had the right to counsel been given the evidence may not have been discovered. The SCC held that the breach was not egregious, in part due to a state of uncertainty of the law regarding detention. However, the court found that the impact on Grant’s Charter protected rights was significant, although not at the most serious end of the scale. The impact of the breach was aggravated because the evidence was not discoverable without Grant’s self-incrimination. His incriminating statements were made as a result of pointed questioning and he was in immediate need of legal advice but was not told of the right to counsel or given any opportunity to seek counsel. The SCC found the public interest in determination of the case on the merits was considerable and the Supreme Court of Canada ruled the evidence admissible.
In R. v. Harrison, [2009 SCC 34](https://www.canlii.org/en/ca/scc/doc/2009/2009scc34/2009scc34.html), at para. [36](https://www.canlii.org/en/ca/scc/doc/2009/2009scc34/2009scc34.html#par36), the nature of the police misconduct, resulting in exclusion, was of an entirely different magnitude than the alleged Charter non-compliant conduct in this case. In Harrison, the officer knowingly stopped the Appellant without lawful authority. The officer’s conduct in “stopping and searching the vehicle without any semblance of reasonable grounds” was characterized as “reprehensible”. After stopping the Appellant in violation of s. 9, the officer unlawfully searched the Appellant’s vehicle, locating a large quantity of illegal drugs, the subject of the application for exclusion. The police conduct was found to constitute a “blatant disregard for Charter rights” and the officer was found to have misled the court during his evidence in seeking to justify the conduct.
Similarly, the nature and impact of the offending police conduct in R. v. Le, [2019 SCC 34](https://www.minicounsel.ca/scc/2019/34), was also of a very different nature than in this case. In Le, the SCC found that the police arbitrarily detained the Appellant contrary to s. 9 of the Charter and concluded that the firearm located when the Appellant fled, would not have been discovered but for the arbitrary detention. The SCC found that it was a serious breach with a significant impact on Le’s Charter protected rights holding, at para. 161, that:
…the police crossed a bright line when, without permission or reasonable grounds, they entered into a private backyard whose occupants were "just talking" and “doing nothing wrong". The police requested identification, told one of the occupants to keep his hands visible and asked pointed questions about who they were, where they lived, and what they were doing in the backyard. This is precisely the sort of police conduct that the Charter was intended to abolish. Admission of the fruits of that conduct would bring the administration of justice into disrepute”.