CITATION: R. v. Beauregard, 2023 ONCJ 139
DATE: 2023·03·27
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
NOELLE BEAUREGARD
Before Justice Michael Waby
Heard on May 10, 11, 2022, July 15, 2022 and February 10, 2023
Reasons for Judgment released on March 27, 2023
P. Alexander.............................................................................................................. for the Crown
A. Little................................................................................................................... for the Accused
Waby J.:
[1] Noelle Beauregard is charged with a single count of operating a motor vehicle with a blood alcohol level in excess of 80mg of alcohol in 100 ml of blood. The Crown proceeded summarily and Ms. Beauregard pleaded not guilty.
[2] Identity is not in issue in this case.
[3] Defence counsel filed various Charter applications and initially sought the exclusion of evidence under s 24(2) of the Charter of Rights and Freedoms based upon alleged breaches of Ms. Beauregard’s section 7, 8, 9, 10 (a) and 10(b) Charter rights.
[4] In addition to the above, Defence counsel also filed Notice of Constitutional Question seeking an order granting a declaration pursuant to s. 24(1) of the Charter that for the purposes of the Accused trial s 320.14(1)(b) is of no force and effect by reason of s 52 (1) of the Constitution Act, 1982 on the basis that s 320.14(1)(b) is inconsistent with ss 7 and/or 11(d) of the Canadian Charter of Rights and Freedoms.
[5] On consent, at trial a blended voir dire was conducted with the relevant and admissible evidence to be applied to the trial proper. On the consent of the parties, it was further agreed that the Notice of Constitutional question would only be addressed in the event that this Court made a finding of guilt in respect of the single count with which the accused is charged.
[6] At the conclusion of the proceedings, and prior to submissions, Mr. Little advised the Court and the Crown that there were now only two Charter applications which Defence counsel wished to pursue and upon which he wished to make submissions, namely:
a) That the Accused’s rights under s. 10(b) of the Canadian Charter of Rights and Freedoms were violated because: a. When the Accused indicated that she did not understand the right to counsel, the arresting officer did not explain the right to counsel in simple terms. In failing to take any “additional steps” to ensure the Accused understood her rights, the arresting officer failed to comply with the informational component of the right to counsel and in doing so violated the Accused’s rights under s. 10(b) of the Canadian Charter of Rights and Freedoms; and
(b) The police failed to properly advise the Accused of the scope of her rights under s. 10(b) of the Charter when they failed to provide the Accused with sufficient information, materials and/or “tools” to properly facilitate access to counsel, besides duty counsel.
[7] That when the Accused was handcuffed to a pole within the R.I.D.E. truck, the manner in which the Accused’s detention was carried out by the police was unlawful, unreasonable, and arbitrary, in violation of ss. 7 and 9 of the Canadian Charter of Rights and Freedoms.
Overview
[8] In the early morning hours of March 14, 2020, Police Constable (PC) Preuthun was conducting a R.I.D.E. spot check on Yonge Street at Highway 401, in the city of Toronto. At approximately 12:15 a.m., PC Preuthun observed a blue Mazda 3 bearing Ontario license plate marker CCHA 042 travelling south on Yonge Street approaching the R.I.D.E. spot check. PC Preuthun stopped the vehicle and observed a female, later identified as the Accused, in the driver’s seat. The Accused was the lone occupant of the vehicle.
[9] The case for the Crown is advanced through the viva voce testimony of PC Preuthen and the breath technician, PC Khurshid, as well as the officer’s in-car camera video which was entered as an exhibit. The Defence called Ms. Beauregard.
[10] It is common ground between the parties that the Crown’s case stands or falls on my findings of credibility and reliability on the whole of the evidence tendered at this blended voir dire and as applied to the trial.
[11] The test that governs the analysis of credibility in this context is proof beyond a reasonable doubt. It was explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and other case law as follows:
If I believe Ms. Beauregard’s evidence, I must acquit her.
Even if I do not believe her evidence but I am left in reasonable doubt by it, or any of the other evidence, I must acquit her.
[12] Finally, even if I am not left in doubt by her evidence, I still must consider it and all of the evidence and ask myself, on the basis of the evidence that I do accept, whether the Crown has proven guilt beyond a reasonable doubt.
Summary of Relevant Evidence
Evidence of PC Preuthen
[13] PC Preuthen testified that he has been a police officer for 15 years, formerly with Toronto Police Service (“TPS”) for 14 years and for the last year has been serving with Peel Regional Police Service. In his evidence-in-chief, PC Preuthen testified that on 14th March, 2020 he was a member of the TPS and shortly after midnight was working a R.I.D.E. spot check in the City of Toronto in conjunction with the TPS R.I.D.E. truck. The officer recorded his initial interactions with the accused on his in-car video camera and the video footage was entered as an exhibit in the proceedings. The officer stopped the motor vehicle that Ms. Beauregard was driving and following his observations and interaction with her he required her to provide a suitable sample of her breath into an ASD.
[14] PC Preuthen testified that Ms. Beauregard admitted prior consumption of alcohol and that he could smell an odour of alcoholic beverage on her breath. He further testified that when he did the initial stop, Ms. Beauregard was not looking at him but she was looking ahead, and she had watery eyes. He suspected that she had alcohol in her body.
[15] It is not in issue at this trial that the demand was properly made on an approved and properly operating Approved Screening Device (“ASD”). At 12:19 a.m., the Accused registered a “fail” on the screening device and was subsequently arrested by PC Preuthen on suspicion of operation of a conveyance with excess alcohol. The officer gave evidence that he handcuffed Ms. Beauregard and that he handcuffs everyone he arrests for both their safety and his. At approximately 12:22 a.m., PC Preuthen read the Accused her rights to counsel from his memo book. After doing so, the arresting officer asked Ms. Beauregard “do you understand?” The Accused responded: “No”. It is worth recounting herein the relevant exchanges between PC Preuthen and Ms. Beauregard following her arrest, as captured on the in-car video:
PC Preuthen: So, there’s a free legal advice, which is called duty counsel. You can contact that number and then that’ll give you some legal advice as to ah what ah your, more information as to ah, what to do next, okay.
Accused: Okay.
PC Preuthen: You understand?
Accused: No.
PC Preuthen: What don’t you understand? What don’t you understand about your rights?
Accused: I don’t understand.
PC Preuthen: What don’t you understand about it though… k you’re shrugging your shoulders. Can you explain what you don’t understand about it?
Accused: Can you uncuff me?
PC Preuthen: No, you’re under arrest.
Accused: Okay.
PC Preuthen: Okay, I’m arresting you for 80 plus operation of a conveyance, it’s a criminal offence okay.
Accused: Okay so.
PC Preuthen: It’s my duty to inform you that you have the right to retain and instruct counsel without delay, you have the right to telephone any lawyer you wish, you also have the right to free advice from a legal aid lawyer if you are charged with an offence, you may apply to the Ontario legal aid plan for assistance 1-800-265-0451 is the number that will put you in contact with a duty counsel lawyer for free legal advice right now, do you understand?
Accused: Do you have, will you give me that number? (Crown submits this particular response is – “I guess so”)
PC Preuthen: Y up you will get a chance to speak to them, do you wish to speak to a lawyer now?
Accused: I guess so
[16] I find that nothing in this case turns on the different understanding between Crown and Defence as to the response above by the Accused of either “Do you have, will you give me that number? Or (Crown submits this particular response is – “I guess so”). When asked in-chief how clearly the officer felt the Accused understood the information he gave her, PC Preuthen testified that that at one point Ms. Beauregard nodded her head and also replied “I guess so” and that he took these as signs of her acknowledgement of understanding what he had said. Following the provision of rights to counsel as given by the officer, he and Ms. Beauregard went into the nearby R.I.D.E. truck to administer the required breath test by a breath technician. At 12.27 a.m., PC Preuthen called duty counsel and at 12:37 a.m., duty counsel called back and spoke in private with Ms. Beauregard.
[17] The officer testified that he could not recall whether he removed the handcuffs from the Accused when in the R.I.D.E. truck or not although the video evidence from inside the R.I.D.E. truck discloses that for a period of time, Ms. Beauregard was handcuffed to a pole or rail inside the truck. Ms. Beauregard subsequently provided 2 suitable samples of breath for analysis. The Certificate of a qualified breath technician was entered as an exhibit on consent. Ms. Beauregard provided readings of 185 milligrams of alcohol in 100 millilitres of blood at approximately 12:59 a.m. and 195 milligrams of alcohol in 100 millilitres of blood at approximately 1:22 a.m.
[18] In the face of a focused and adroit cross-examination by Mr. Little, PC Preuthen was commendably candid and forthright. It is to the officer’s credit that he presented as a thoughtful and reflective witness, clearly keen on seeking to improve and evolve in the performance of his duties and devoid of any guile. His evidence included the following responses in cross-examination:
Mr. Little: “So there's a free legal advice which is called duty counsel. You can contact that number. And then, and then,” my apologies. “That'll give you some legal advice as to, uh, what, uh, your more information as to, uh, what to do next, okay.”
So you, you’ve listened to the video. I just want to make sure I am not mischaracterizing anything. I’m putting to you that that’s what in effect, you just said to my client?
PC Preuthen: A. Yes.
Mr. Little: Okay. So let's just break it down. So read rights to counsel, line-for-line, word-for-word, from the back of your book, ask the question. “Do you understand?” She says, “No.” You're trained to then take steps to in effect, make sure that she understands or try to figure out what part she doesn't understand, right?
PC Preuthen: Yes.
Mr. Little: You don't at this point in time say, “Well, Ma'am, what don't you understand about that?”
That's not what you say, right?
PC Preuthen: Yeah.
Mr. Little: You don't take steps to read her the entirety of a right to counsel again. Right?
PC Preuthen: Yes.
Mr. Little: You don’t take steps to explain to her the different options that she has about speaking to a lawyer, right?
PC Preuthen: Yes.
Mr. Little: What you do is you do a singular thing, which I’m suggesting to you is to advise her about free Legal Aid duty counsel.
PC Preuthen: Yes.
Mr. Little: And how she might speak to free Legal Aid duty counsel.
PC Preuthen: Yes.
Mr. Little: Okay. Do you agree that that’s not the only way that someone can exercise their right to counsel?
PC Preuthen: Yes.
Mr. Little: In effect what you’ve done here though, with respect, after she’s told you, she doesn’t understand is you’ve given her a singular way that she could speak to a lawyer.
PC Preuthen: I could have done a better job of clarifying her rights, yes.
Mr. Little: Sure. I agree with you that you could have done a better job. That’s not what I’m getting at. I’m putting to you that what you do, whether it’s you could have done a better job or not, is you give her a singular option
PC Preuthen: Yes.
Mr. Little: You don’t give her any other options?
PC Preuthen: I don't mention the other options at all.
Mr. Little: Right. That you know, that one, she has a right to these other options, right?
PC Preuthen: Yes.
Mr. Little: Okay. Two, based upon your understanding of what you advise someone the standard rights to counsel, that includes other options besides duty counsel.
PC Preuthen: Yes.
Mr. Little: Okay. What you’ve in effect done by telling her this is you’ve steered her in a singular direction. You agree with that?
PC Preuthen: Yes.
Mr. Little: Okay. All right. So after you read that to her, she then says, “Okay.” And you asked the question, you understand? And she says, “No,” right?
PC Preuthen: Yes.
Mr. Little: All right, so at this point in time, you’ve asked her, “What don’t you understand about it though? Okay, you’re shrugging your shoulder. Can you explain what you don’t understand about it?”
And her response to you at this point is, “Can you uncuff me?”
PC Preuthen: Yes.
Mr. Little: It appears to you at that point, I would take it, given what she said, she’s somewhat irritated, if I can use that term or a not happy about being handcuffed.
PC Preuthen: Yes.
Mr. Little: Okay. And it appears that that’s what she’s focusing on that point in time when you asked her, what don't you understand? She’s saying, can you uncuff me, right?
PC Preuthen: Yes.
Mr. Little: So in fairness, not to you, but just in fairness, generally, at this point in time, the answer she’s giving you doesn’t appear to be responsive to what it is you’re asking her, right?
PC Preuthen: Yes
Mr. Little: Okay. All right. So she says, “Can you uncuff me?” You say, “No, you are under arrest.” Right?
PC Preuthen: Yes.
Mr. Little: You don’t take any steps to figure out what actual part of what it is you’re telling her she doesn’t understand, right?
PC Preuthen: No, I did not.
Mr. Little: Okay. All right. So we can see, and we just heard it. You go back, you read the rights again and you ask the question, do you understand? Right?
PC Preuthen: Yes
Mr. Little: She doesn't tell you. “Yes, I understand.” Right?
PC Preuthen: Right.
Mr. Little: There's no indication based upon what it is she's telling you that she understands the entirety of what you just read to her, correct?
PC Preuthen: Right.
Mr. Little: What she does is she says, “Do you have, will you give me that number?” Right?
PC Preuthen: Yes.
Mr. Little: And your response is, “Yeah, you will get a chance to speak to them. Do you wish to speak to a lawyer now?”
I take it when you say, “Yeah, you will be, you will get a chance to speak to them,” you're referring to “them” being duty counsel, because this is in reference to the number, right?
PC Preuthen: Yes.
Mr. Little: Okay. She then, you then again, you, the whole sentence is “Yep. You get a chance to speak to them. You wish to speak to a lawyer now?”
Applicant, my client says, “I guess so.” Right?
PC Preuthen: Yes.
Mr. Little: All right. So, you then go into the Ride truck, and we heard my friend played it yesterday. You tell us that when she wants to speak to duty counsel, right?
PC Preuthen: Yes.
Mr. Little: Okay. So first, in fairness, she never actually tells you she wants to speak to duty counsel, does she?
PC Preuthen: No.
Mr. Little: Okay. So you infer she wants to speak to duty counsel, right?
PC Preuthen: Yes.
Mr. Little: You infer, well, she must want to speak to duty counsel, right?
PC Preuthen: I assume she did.
Mr. Little: Sure. And I take it, one of the reasons why you assume she did is, with all due respect, the option that you give her and that you explained to her is, she could speak to free duty counsel?
PC Preuthen: Yes.
Mr. Little: All right. You don't give her any other options.
PC Preuthen: I do not.
Mr. Little: Okay. All right. Respectfully, I'm going to put to you officer that, you know, what you did is by only giving her a singular option, you steered her to duty counsel.
PC Preuthen: I did.
Mr. Little: Okay. And by doing that, respectfully, I’m suggesting to you, you know, that you violated my client's rights?
PC Preuthen: I, I thought I was doing the right thing because I thought it was her not understanding her rights. I tried to explain it to her.
Mr. Little: Sure.
PC Preuthen: I'm looking at it now. I could have done a better job describing the options that were available regarding duty counsel…sorry, seeking legal advice.
Mr. Little: Sure. And those would have included, for example, telling her that she, or explaining to her, you have the right to choose your own lawyer if you want to.
PC Preuthen: Yes.
Mr. Little: You have the right to - to use the language set out, although I don't necessarily like the way it's worded, but contact any lawyer you wish.
PC Preuthen: Yes.
Mr. Little: Right. She never tells you at any point in time after you read her stuff, that she understands that you can contact any lawyers she wishes.
PC Preuthen: Yes.
Mr. Little: Right. Okay. And the information that she gives you, I'm suggesting, you suggest to you, that she understands that she can call the 1-800 number to speak to duty counsel.
PC Preuthen: Yes.
Mr. Little: There is no other information that she gives you that leads you to believe that she understands that she has any other options besides that, correct?
PC Preuthen: Yes.
PC Preuthen: Yes. And I've tried to say that I, um, I, I don't always, not explain it properly. This - this, this one time here, I didn't explain it properly, yes, that’s what I’m trying to say.
Mr. Little. Sure. But when someone tells you, they don't understand, that's not a minute detail, that's a major thing.
PC Preuthen. Yes.
Evidence of PC Khurshid
[19] PC Khurshid was the breath technician working in the R.I.D.E. truck on the night in question. He provided his evidence of his interactions with Ms. Beauregard. This included adopting the video that was entered as an exhibit from within the R.I.D.E. truck and of the breath test procedure. This included the officer facilitating contact for Ms. Beauregard with duty counsel. It was accepted that following Ms. Beauregard speaking to duty counsel the officer made no enquiries of her in respect of the nature and quality of the advice she received nor did Ms. Beauregard make any comments to the officer about that conversation. PC Khurshid further testified as to the standard processes and procedure he typically applied when dealing with prisoners at Traffic Services, police divisions and in R.I.D.E. trucks
[20] With respect to Ms. Beauregard’s engagement with duty counsel, PC Khurshid testified that as a breath tech he would not generally ask an accused whether they were satisfied with the conversation they had with duty counsel and that he would rely on them to raise a complaint and confirmed that was the case here.
Evidence of Noelle Beauregard
[21] Ms. Beauregard is 33 years of age and testified that she has worked in marketing for over 10 years. She presented as an articulate and straight-forward witness and was credible and reliable in the evidence that she gave. She did not attempt to equivocate in her evidence. Upon reviewing the in-car video footage that was entered as an exhibit from the night in question, Ms. Beauregard accepted that it presented an accurate picture of the events that transpired. When asked why she provided the responses she did to the officer when he attempted to explain her rights to counsel, Ms. Beauregard testified that she did not understand what the officer was saying and she did not understand who duty counsel was. When asked why she requested that the officer uncuff her, Ms. Beauregard gave evidence that the cuffs felt very tight and hurt and that she was feeling anxious and feared having a panic attack because she had never been in that situation before.
[22] She testified that when the officer repeated the rights to counsel her she only understood him to be referencing duty counsel as this was the only lawyer he officer mentioned and her belief was reinforced by the fact that the officer read out a telephone number for duty counsel. She testified that that based on what the officer told her she thought that she had to call that number following her arrest. When asked why she replied “I guess so” when asked if she wanted to speak to a lawyer she indicated that she thought it was better to speak to the lawyer the officer mentioned rather than no lawyer at all. She testified that based on what the officer told her she understood her only option to be that of speaking with duty counsel as the officer said it three times. Once inside the R.I.D.E. truck, Ms. Beauregard gave evidence that she was handcuffed to a pole inside which made her feel like an animal but she did not want to make another request to the officer to uncuff her so she complied with the process. The handcuffs were removed when she went to speak with duty counsel
[23] When asked whether she was happy with her conversation with duty counsel, Ms. Beauregard testified that she was not happy or satisfied because she had no idea who she was speaking with and she did not know how experienced they were and that the conversation felt like the person was reading from a script When asked why she did not raise this with the police after the call she gave evidence that she remained under the impression that it would be pointless to do so and that duty counsel was her only option because the officer mentioned them 3 times when she was arrested and that was they only lawyer he mentioned and she did not have a lawyer of her own.
[24] Ms. Beauregard gave evidence she had her cell phone with her and if she had been given the choice she would have preferred to research and call a lawyer of her choosing where she could know more about them and put a face to the name which is what she did later that morning after her release. When asked how she selected her counsel of choice after her release Ms. Beauregard testified that she used Google to search and research lawyers. She gave evidence she was on the phone with duty counsel for about 5 minutes in the R.I.D.E. truck.
[25] In cross-examination, Ms. Beauregard confirmed that she has a Bachelor’s Degree and that English is her first language. When asked whether she accepted that it would be harder to contact a lawyer in the middle of the night rather than at 8:00 a.m. in the morning, Ms. Beauregard testified that she did not know as she had never had to call a lawyer before. She gave evidence she did not believe that alcohol had impacted her ability to understand what was being said to her and accepted that the police could not read her mind and know whether she was satisfied with the conversation she had with duty counsel. She also accepted that she could have asked questions if she had wished to do so and had no reason to be afraid of the officers but she was anxious and put on a front to make it seem that everything was okay and to hid how she really felt and that the extent of the discomfort she felt with the handcuffs is that they felt ‘a bit tight’ and she acknowledged that she was cuffed by a single hand inside the R.I.D.E. truck for a portion of time, rather than being cuffed with both hands behind her back.
The Position of the Parties
Crown Position
[26] Mr. Alexander for the Crown agrees that the issues for this court are factually driven and based upon the particular circumstances of this case. The Crown submits that PC Preuthen used plain and standard language in delivering the rights to counsel to Ms. Beauregard and that he made reasonable efforts to explain them when she indicated that she did not understand what he had said. The Crown submits that the Accused is an educated person with English as her first language who sufficiently understood her rights and in any event she was not diligent in raising any concerns with the officers that night who could not reasonably have known what unspoken thoughts were in Ms Beauregard’s head. The Crown further submits that the officer’s concession in cross-examination as to ‘steering’ the accused solely in the direction of duty counsel were imprecise and do not amount to a breach of her Charter rights. While the Crown accepts that the officer could have perhaps done a better job, Mr. Alexander submits that no actions on the part of the officer amounted to a breach of Ms Beauregard’s Charter rights in respect of either her rights to counsel or in respect of her being handcuffed
Defence Position
[27] Mr. Little submits that it is abundantly clear from the video evidence, PC Preuthen’s own and that of Ms. Beauregard that she clearly failed to understand her rights to counsel and communicated this unambiguously to the officer. Furthermore, Mr. Little submits that on the somewhat unique and specific facts of this particular case it is clear from PC Preuthen’s own candid evidence that the right to counsel he administered to Ms. Beauregard were missing the critical and necessary informational component to make them meaningful or Charter compliant. He further submits that the arbitrary manner of her handcuffing and its impact on Ms. Beauregard amounts to a breach of Ms. Beauregard’s Charter rights.
Law and Analysis
[28] In assessing each witness’s testimony, I must consider the credibility and reliability of the account provided. In assessing the credibility and the reliability of the evidence of the witnesses, I have distinguished between credibility and reliability. Credibility relates to a witness’ sincerity, whether he/she is speaking the truth as she believes it to be. Reliability relates to the actual accuracy of his/her testimony. In determining this, I must consider his/her ability to accurately observe recall and recount the events in issue. A credible witness may give unreliable evidence. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.
[29] The credibility and reliability of a witness must be “tested in the light of all the other evidence presented”. R v. Stewart, 1994 CanLII 7208 (ON CA), [1994] O.J. No. 811 (C.A.) at para 27.
[30] As I assess a given witness’s testimonial account, I am mindful that I may accept some, none, or all of their account.
[31] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.
[32] It is common ground as between the parties that Ms. Beauregard was the driver of the motor vehicle at the time she was stopped by PC Preuthen on March 14, 2020. The live issues in this case are whether there was a breach of Ms. Beauregard’s 10(b) Charter rights following her arrest by with PC Preuthen and/or whether there was a breach of her s. 7 and 9 Charter rights as a result of being handcuffed to a pole in the R.I.D.E. truck following her arrest and whether, in the event that any such breaches occurred, that the evidence of the breath test readings should be excluded under s 24(2)of the Charter. I shall turn first to the alleged 10 (b) Charter breaches.
Alleged 10 (b) Charter Breaches
[33] It is alleged that given the manner in which PC Preuthen provided Ms. Beauregard with her rights to counsel upon her arrest it was clear that she did not understand what she was told by him and that the officer failed to take the necessary steps to remedy an obvious defect. Furthermore, it is submitted that the officer failed in respect of the necessary informational component required in properly providing an accused’s rights to counsel and that the consequence of this was that he effectively ‘steered’ the Accused solely in the direction of duty counsel and not any other counsel of her choice. I am considerably assisted by the available footage that accurately captures the interaction between the officer and Ms. Beauregard, as well as their correspondingly candid and credible evidence before me.
[34] Contrary to the Mr. Alexander’s submissions, I have absolutely no difficulty in concluding that there was a breach of Ms. Beauregard’s 10 (b) Charter rights in the particular circumstances of this case. The video evidence makes this clear, this conclusion is then bolstered by the evidence of the officer who administered Ms. Beauregard’s rights to counsel. Notwithstanding the cross examination by Crown counsel of the accused as to her understanding in the witness box of a word-by-word reconstruction of what the officer said to her when he gave her rights to counsel, the context in which these flawed rights were originally administered was wholly different. Both the defects in the provision of the rights to counsel and Ms. Beauregard’s lack of understanding were unambiguous.
[35] This case does not turn on the extent to which police officers facilitated access to counsel and the implementational component of the rights to counsel. As such, the learned body of jurisprudence that deals with this particular issue is readily distinguishable from the facts of this case. This case turns, almost exclusively, on the inadequacy of the informational component and the consequential lack of understanding of her rights by Ms. Beauregard.
[36] Section 10 (b) imposes a duty on the police to inform an accused of their rights in manner which they can understand. Where, as here, there is a clear indication by the accused that she does not understand the rights read then the police cannot rely on their mechanical recitation. They must take steps to ensure that the accused understands.
R. v. Evans, 1991 CanLII 98 (SCC), [1991] S.C.J. No. 31, 63 C.C.C. (3d) 289
[37] It is clear from P.C. Preuthen’s own evidence that this was not the case and he readily acknowledges this as being so. The officer accepts that the lack of understanding unambiguously communicated by Ms. Beauregard was “a major thing.” The courts have consistently made it clear that with respect to rights to counsel it is about giving accused persons meaningful options so that they can make an informed decision as to how exercise those rights or waive them. I also fully accept Ms. Beauregard’s evidence in regard to her confusion and lack of understanding in respect of the rights to counsel information as given to her by PC Preuthen
[38] I echo the sentiments expressed by Justice Di Luca in R v Yi, and conclude that the officer’s subjective view of what he should have done, while not determinative of the section 10(b) Charter issues were certainly pertinent to and relevant to assessing whether this is one of those cases where compliance with section 10(b) required the officer to seek further clarification from the accused in the provision of her 10(b) rights. I find that based on his interactions with accused following his delivery of her rights to counsel there was clearly was an obligation upon the officer to go further and do more in this particular case.
SECTION 24(2)
[39] Section 24(2) of the Charter reads as follows:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[40] There is no dispute as between the parties that if the alleged breaches occurred as described, the breath results were obtained in a manner that infringed Ms. Beauregard’s Charter rights. R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12
[41] Whether the admission of the evidence would bring the administration of justice into disrepute is governed by the test first articulated in the Supreme Court's decision in R. v. Grant, 2009 SCC 32 at para. 71:
Whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
See R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12
The Seriousness of the Breach
[42] It is my view that, in the particular circumstances of this case, the breaches with respect to Ms. Beauregard’s rights to counsel are both obvious and significant. Ms. Beauregard’s rights to counsel were clearly and by the officer’s own admission, insufficiently communicated to her. Ms. Beauregard made it clear on more than one occasion in her exchanges with the officer that she did not understand the information he had given her. Furthermore, the officer also accepted in his evidence that a critical informational component of the rights to counsel was missing and that he acknowledged that he “steered” the accused to duty counsel as a direct consequence of only providing her with this option.
[43] The taking of Ms. Beauregard’s breath samples was done without lawful authority. While I find that the breaches on the part of P.C. Preuthen were neither wilful nor flagrant, neither were they merely inadvertent. Police officers are expected to know the law they are enforcing. R. v. Tim, supra, at para. 84. In my opinion, the breaches in this case amount to a significant departure from the required and necessary Charter standards and they are not mitigated by any good faith or inadvertence according to the law as recently explained in Tim, supra.
[44] As in R v Koralov [2022] O.J. No. 5638, although on arguably less clear cut facts, the failure to adequately communicate rights to counsel was never rectified and the 10(b) breach continued throughout Ms Beauregard’s detention. I find that Ms Beauregard did not have a clear or meaningful understanding of her rights to counsel and that this was through no fault of her own.
[45] The clear and meaningful provision of an individual’s rights to counsel is a cornerstone of our criminal justice system. Rights to counsel are not window dressing, nor are they simply a formulaic incantation that officers must merely recite in order to comply with the Charter. If, as here, it is clear that an accused indicates that they do not understand this critical information the courts have repeatedly made it clear that officers have an obligation to pro-actively enquire and seek to address the issue. On the officer’s own evidence an accused clearly indicating that they do not understand their rights to counsel “is a major thing.”
[46] This breach is then compounded when the informational component that was delivered was clearly deficient. Again, with a candour that is to his credit, the officer accepts that he steered Ms. Beauregard solely towards duty counsel and did not provide her with information in respect of her right to contact a lawyer of her own choosing. I find that the breaches in this case fall at the more serious end of the spectrum.
The Impact of the Breach on the Charter-protected Interests of the Accused
[47] As acknowledged by the officer, if not the Crown, Ms. Beauregard’s rights to counsel were never properly explained to her. Her liberty interests were infringed over an period of time, for part of which she was handcuffed to a bar inside the R.I.D.E. truck. I am mindful of the fact that there is an accompanying Charter application before me in respect of the handcuffing of Ms. Beauregard. For now on that particular issue, I shall simply echo the words of Justice Silverstein in R. v. Koralov, [2022] O.J. No. 5638. “The difference between being under arrest and being cuffed to a bar is significant.” The taking of her bodily substance was unauthorized.
[48] I accept that the impact of these breaches is somewhat mitigated the relatively non-invasive nature of the taking of his breath samples and by Ms. Beauregard’s access to duty counsel. However, the evidence from Ms. Beauregard, which I accept, is that this was a less than satisfactory encounter with duty counsel for the reasons that she gave. The particular circumstances of this case underscore the fundamental importance that flows from the proper communication of an accused’s rights to counsel and a clear and corresponding understanding of them by an accused person. I conclude that the breaches had a significant impact on Ms. Beauregard’s Charter-protected interests.
Society’s Interest in the Adjudication of the Case on its Merits
[49] The Supreme Court in Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at paras. 33 and 34, deals with this factor as follows:
At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown’s case.
The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public's interest in having the case adjudicated on its merits.
[50] I find that the third Grant factor favours admission of the evidence.
Balancing the three Grant Factors
[51] The Supreme Court in Harrison, supra, at para. 36 explains the proper approach to balancing the three Grant factors
[52] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. “The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed. “ R v Koralov , supra.
[53] Justice Doherty, in R. v. McGuffie, 2016 ONCA 365 at para. 63, added this to the analysis: “If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility”.
[54] The breaches of the accused’s Charter rights were serious and strongly favour exclusion of the evidence. The impact of the breaches also strongly favours exclusion. Ms Beauregard’s rights to counsel were never properly or clearly explained to her.
[55] Notwithstanding the reliability of the evidence, its importance to the Crown's case, the significantly high readings and the public interest in an adjudication of this case on its merits, the admission of the evidence in this particular case would, in my opinion bring the administration of justice into disrepute.
[56] Given my findings above in respect of the breaches of Ms. Beauregard’s 10(b) rights, I do not propose to go on to separately address the accompanying Charter application in respect of the handcuffing of Ms. Beauregard in the circumstances of this case.
Conclusion
[57] The evidence of the breath tests is excluded and the Over 80 count against Ms. Beauregard is dismissed.
Released: March 27, 2023
Justice Michael Waby