ONTARIO COURT OF JUSTICE

DATE: 2023.08.14 COURT FILE No.: Toronto 22-50001016

BETWEEN:

HIS MAJESTY THE KING Respondent

— AND —

DANIEL BOGDANIC Applicant

REASONS FOR JUDGMENT

Counsel: Mr. S. Arnold, counsel for the Crown Mr. N. Stanford, counsel for Mr. Bogdanic

Before: BAND J.

I. Introduction & Issues

[1] Mr. Bogdanic was stopped at a RIDE program shortly after 10 p.m. in late December 2021. After his roadside sample yielded a “fail” he was arrested and taken to the station to provide suitable samples of his breath in an Intoxilyzer. The results showed that his BAC was above the legal limit, and he was charged with “Over 80” contrary to s. 320.14(1) of the Criminal Code.

[2] Mr. Bogdanic alleged that his right to counsel was breached in two ways: first, Sgt. Brett Moore, the arresting officer, did not advise him of his rights “without delay” as required by s. 10(b) of the Charter. Instead, he spent approximately seven minutes doing other things – mostly making notes. Second, Sgt. Moore ought to have interpreted a response he gave to one of the many recitations of his rights as indicative of a misunderstanding on Mr. Bogdanic’s part which, in turn, required that Sgt. Moore provide him with more information about how to exercise his rights.

[3] The issues I must resolve in this case are:

i. Did Sgt. Moore breach Mr. Bogdanic’s right to be informed of his right to counsel without delay?

ii. Did Sgt. Moore breach Mr. Bogdanic’s right to be informed of his right to counsel by failing to ensure that he understood his right to contact counsel of choice?

iii. If Mr. Bogdanic’s rights were breached, should the breath results be excluded?

[4] A summary of the relevant facts, which are not in dispute, will place these issues in context.

II. Facts

[5] The entire investigation was captured on Sgt. Moore’s body-worn camera, as well as other cameras at the police station.

Timing of the right to counsel

[6] At around 10 p.m. that night, it was snowing and the roads were wet in the area of Royal York Road and Dundas St. in Etobicoke. Police had set up a RIDE program on the northbound side of Royal York Road. There are two lanes of traffic in each direction, separated by a raised path about the width of a sidewalk. A number of police cars were in the area, their lights flashing. One occupied the northbound lane closest to that path. The officers were all in uniform, including reflective vests, and the area was well lit.

[7] Sgt. Moore was standing on the path when Mr. Bogdanic approached in an SUV at 10:08 p.m. He told him to pull over to the left. After a very brief conversation, Sgt. Moore made a roadside breath demand. With Mr. Bogdanic still in the SUV and the engine running, Sgt. Moore administered the test. The “fail” was registered at 10:10 p.m. Sgt. Moore began to tell Mr. Bogdanic about “next steps” and then, in his words, “sort of left him hanging there.” He then spent about a minute making notes.

[8] Then, Sgt. Moore told Mr. Bogdanic that he was “going to be arrested.” He testified that it is his practice to tell people there will be next steps, and to make notes before telling them they will be arrested. He was “trying to catch up to just write down what’s going on.” Sgt. Moore told Mr. Bogdanic that he was going to be arrested, that he could smell alcohol on his breath and that his speech was a little bit slurred. He then made more notes. It was difficult because his pad was wet from the snow. At 10:12 p.m., he told Mr. Bogdanic to turn the car off and to step out. The two of them then walked southbound to a police cruiser. Sgt. Moore, who was not holding onto Mr. Bogdanic, told him that they would be going to the station to see a qualified breath technician. He also told him that he was observing him as he walked. At 10:14 p.m., now standing beside the cruiser with Mr. Bogdanic, Sgt. Moore cuffed him to the rear and conducted a quick frisk search. He then continued to make notes. At 10:17 p.m., Mr. Bogdanic asked him if he was going to tell him about his rights. At that point, Sgt. Moore read Mr. Bogdanic his s. 10(b) rights from the back of his memo book.

[9] Mr. Bogdanic testified that he was fearful while waiting in his car. When he was told of his right to counsel, he felt relieved, knowing that a process had begun. This was in comparison to what he had seen on television, where aggressive things happen until the suspect is given their Miranda rights.

[10] Sgt. Moore was asked about the seven minute delay. His understanding is that the immediacy requirement in s. 10(b) means “as soon as practicable.” To him, that phrase operates as follows:

I think in the context, once I’ve gone through the process of using this one as the example, I’m taking notes of what’s going on, handcuffing, pat down search, things like that, and then once that process is complete, I’m gathering evidence, notes, and you sort of see that process that I tried to lay out. One step follows the next step follows the next step follows the next step. I think there was seven minutes or so of time delay between arrest, get him to the car and give him the RTC. But I tried to, and I think where that practicable piece comes into it, I was rolling through other obligations of safety, things like that. Gathering evidence, making notations first and doing that.

[11] He also indicated that he knows, “especially for impaired driving, it is preferable to give them [RTC] as soon as practicable.” He has not had training regarding s. 10(b) in almost three decades. Officers collaborate and learn from each other.

Mr. Bogdanic’s alleged misunderstanding of his right to counsel

[12] At the roadside, Sgt. Moore advised Mr. Bogdanic of his right to counsel twice. Each time, Mr. Bogdanic said he understood. When asked if he wanted to call a lawyer, he said that “maybe” he would, at the appropriate time, and that he did not know what to do. On the second occasion, Sgt. Moore asked him to definitively let him know at the station. Mr. Bogdanic said that he did not know the process and that he would see what happens in the next six to 12 hours. At the division, Sgt. Moore read Mr. Bogdanic his right to counsel again. When asked if he wanted to call a lawyer “now”, Mr. Bogdanic said “I’ll defer until I know what’s ahead of me.”

[13] The Officer in Charge of the Station confirmed that Mr. Bogdanic understood that he could speak to a lawyer “at any time.” He asked Mr. Bogdanic if he wanted to call a lawyer “now,” and Mr. Bogdanic said “potentially.” The Officer in Charge then told Mr. Bogdanic that he could make reasonable use of the phone, including calling a family member.

[14] Sgt. Moore then took Mr. Bogdanic to an interview room where he told him “we gotta get this lawyer thing sorted out.” He asked Mr. Bogdanic if he had a lawyer. He did not. He then told Mr. Bogdanic that he could call Duty Counsel for him. He described Duty Counsel as a “free lawyer” and added that such a person could provide “better guidance than two cops for next steps.”

[15] Mr. Bogdanic then asked him “as opposed to?” It is alleged that this question is evidence that Mr. Bogdanic did not understand his right to counsel. In response, Sgt. Moore said “nothing.” Mr. Bogdanic replied, “So just a conversation?” and Sgt. Moore said “Yes.” Mr. Bogdanic told him “I guess a conversation is more beneficial than no conversations, so yes. Correct me if I’m wrong.” Sgt. Moore indicated that he was not wrong. Mr. Bogdanic added “I feel like it’s the right decision.” Mr. Bogdanic then spent approximately 10 minutes on a call with Duty Counsel. Afterwards, he did not say anything about that conversation.

[16] Mr. Bogdanic testified that with respect to answering the officers when they asked if he wanted to call a lawyer, he believed that “less is more” so as to not lose an ability to “backtrack.” That is why he gave answers indicating he was deferring the decision regarding counsel.

[17] After Sgt. Moore replied “nothing” to his question “as opposed to?”, Mr. Bogdanic felt like his only options were Duty Counsel or nothing. He was not keen on speaking to Duty Counsel, whom he believed was working in collaboration with the police, but felt that he had no choice. He was underwhelmed by his conversation with Duty Counsel. It felt generic.

[18] Had he been given options, he would have scoured the internet in the hopes of remembering the name of a lawyer his friend had used in a similar predicament. Failing that, he would have searched Google for the “best defence lawyers for DUIs in the GTA.”

[19] In cross-examination, Mr. Bogdanic agreed that when he asked “as opposed to?” he had understood and not forgotten his rights, which had been recited to him multiple times. In particular, he had understood that he could call any lawyer he wished, at any time. However, he indicated that he is “not one to be pushy;” if he had been asked, “then OK.”

[20] He had also understood that he could make reasonable use of a phone, including to call a family member. He agreed that he had chosen not to do so. He had also chosen not to call a friend. He was embarrassed.

III. Section 10(b) – Positions of the Parties

[21] The defence argues that Sgt. Moore prioritized other non-urgent matters, particularly note-taking, over the immediacy requirement in breach of s. 10(b). Moreover, his understanding of the immediacy requirement is deeply flawed.

[22] The Crown’s response is that during the delay, Sgt. Moore was dealing with safety at the roadside, including where the two should stand, cuffing and patting down Mr. Bogdanic. The analysis should focus on the purposes of s. 10(b): assisting detainees to regain their liberty and to guard against the risk of self-incrimination: R v. Suberu, 2009 SCC 33 at para. 40. In this regard, the Crown argues that Sgt. Moore did not try to elicit evidence from Mr. Bogdanic. Because the delay was brief, and Mr. Bogdanic spoke to Duty Counsel before the testing procedure, the breach, if any, is minor.

[23] As for the “as opposed to” question, the Defence argues that Mr. Bogdanic was asking if calling Duty Counsel was his only option. That should have triggered Sgt. Moore to engage in more discussion and provide him with additional options and, if appropriate, resources.

[24] The Crown argues that Mr. Bogdanic understood his rights and chose to speak to Duty Counsel. He adds that the onus rested on Mr. Bogdanic to tell Sgt. Moore if he was unsatisfied with that call.

IV. Section 10(b) – Analysis

The immediacy requirement

[25] The fact that “without delay” means “immediately” has been well-settled law since Suberu was decided in 2009. Of course, it is subject to exceptions – public safety, the need to preserve evidence and times when the right is suspended in accordance with the Charter.

[26] In R. v. Davis, 2023 ONCA 227, the Court of Appeal had the opportunity to discuss the purpose and importance of the immediacy requirement. In that case, the officer was unable to account for the delay because he lacked proper notes. In this case, the lion’s share of the delay was due to the officer’s decision to prioritize making notes and reiterating the “next steps” over advising Mr. Bogdanic of his rights.

[27] At para. 41, the Court explained that

informational rights are not provided solely as a means of enjoying implementational rights. A detained person requires the immediate assurance that “they are not entirely at the mercy of the police while detained” and are entitled to a “lifeline to the outside world through which they can learn whether they are lawfully detained, and of their legal rights and obligations and obligations relating both to their liberty and the investigation.”

[28] This was not an investigation by a lone officer at the side of a highway or roadway in response to an incident or radio call. It was a RIDE program that police had set up. Presumably, safety was among their considerations when they did so. There were several police vehicles with their lights flashing, and the scene was under control. Once he failed the roadside screening test (at 10:10 p.m.), Mr. Bogdanic was entitled to be advised of his rights immediately. Assuming that Sgt. Moore felt that he needed to walk to the cruiser with Mr. Bogdanic for legitimate safety reasons, and accepting that cuffing and quickly patting down Mr. Bogdanic took priority over Mr. Bogdanic’s s. 10(b) rights, those measures took very little time. The vast majority of the time that Sgt. Moore left Mr. Bogdanic “hanging” was due to his decision to make notes as things happened. None of the cases the Crown relies upon address such a decision. In this case, taking notes in “real time” was unnecessary and unreasonable, particularly in light of the fact that Sgt. Moore was equipped with a working body worn camera. Telling Mr. Bogdanic about “next steps” in the investigation only added to this delay.

[29] Sgt. Moore’s approach was the result of his erroneous belief that “immediately” means “as soon as practicable.” It also seems that he understands that s. 10(b) rights vary according to the nature of the offence being investigated. (One must also wonder whether he believes that telling suspects about “next steps” before telling them they will be arrested – and then putting that off – causes the s. 10(b) clock to stop ticking.)

[30] I also reject the thrust of the Crown’s argument that Sgt. Moore’s notetaking would have happened anyway. That is true, but there were other sufficiently contemporaneous opportunities, such as the time Mr. Bogdanic spent speaking to Duty Counsel or in the custody of the breath technician.

[31] I accept Mr. Bogdanic’s evidence about how he felt while this was happening, which illustrates the concerns discussed in Davis. It also explains why he asked Sgt. Moore about his rights.

[32] Accordingly, Sgt. Moore breached Mr. Bogdanic’s right to be immediately informed of his right to counsel.

The “as opposed to?” question

[33] That question must be considered in the context of what took place that night, and the testimony at trial. Officers advised Mr. Bogdanic of his rights multiple times. He understood his right to call any lawyer he chose, at any time. He did not to avail himself of that right, either because he was hedging, embarrassed or shy. None of those reasons placed an onus on the police to provide him with more information or options. He was not improperly steered towards Duty Counsel. He chose to speak to Duty Counsel, understanding that all he could get was a “conversation” and having indicated that this was the “right decision.” Thereafter, the onus was on him to speak up if he was not satisfied with his conversation with Duty Counsel. He did not.

[34] I agree with the findings Madam Justice Molloy made in similar circumstances in R. v. Beckles, 2023 ONSC 3217, at para. 105.

[35] Accordingly, this alleged s. 10(b) breach has not been made out.

V. Section 24(2) – Positions of the Parties

[36] The Defence argues that the breach of the immediacy requirement is serious because it was caused by a very experienced officer who misunderstands basic and well-settled constitutional norms. He also points to caselaw, including from the Court of Appeal, indicating that Sgt. Moore’s misunderstanding of the immediacy requirement reflects a systemic problem. The impact on Mr. Bogdanic was meaningful, as described in Davis. As for public interest in a prosecution on the merits, the Defence submitted that it is a factor that “cuts both ways.”

[37] The Crown argues that the Defence has failed to establish that the evidence was “obtained in manner” that violated the Charter because the police made a “fresh start” by severing any temporal, contextual or causal connection between the breach and the evidence obtained. Any remaining connection is rendered remote or tenuous. Failing that, the Crown argues that the breach was minor – a matter of inches, not miles from the mark. Moreover, there is no evidence that it was systemic in nature. The impact on Mr. Bogdanic was also minimal. He felt relieved when he was told of his rights, the police did not attempt to elicit evidence during the delay and he was ultimately able to speak to Duty Counsel. Public confidence favours admission of the evidence.

VI. Section 24(2) - Analysis

Obtained in a manner and the “fresh start” doctrine

[38] The Crown argues that the passages in Davis discussing the fresh start doctrine are obiter dicta, since that Court did not allow the Crown to raise the “obtained in a manner” argument for the first time on appeal. Even if that is technically true, those passages are no less instructive to trial judges. In this case, Sgt. Moore’s subsequent compliance with s. 10(b) did not repair the damage done while Mr. Bogdanic was left “hanging.” As the Court stated at para. 38, such facts make “a poor case for the application of the” doctrine. This is not a clear case in which it should be applied (para. 44).

[39] Approximately two hours passed between the moment Mr. Bogdanic’s s. 10(b) rights were breached and the collection of his breath samples. Accepting that the breach did not have a causal connection to the seizure, I am satisfied that there is a temporal connection. There is also a strong contextual one. Here, as in Davis, the breach “occurred as part of an arrest undertaken for the very purpose of securing the evidential breath samples” and the breach and seizure “were proximate in time” (para. 42). The connection is not tenuous or remote.

The test

[40] Section 24(2) of the Charter allows a court to exclude evidence where admitting it would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, at paras. 68-70, the Supreme Court explained this concept.

The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)’s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[41] I must consider three factors: (1) the seriousness of the violation; (2) the impact of the violation on the accused's Charter-protected interests; and (3) society's interest in the adjudication of the case on its merits (ibid, at para. 71). The focus must be on the long-term and prospective effect of a remedy or lack of remedy. Given the issues presented in this case, the Supreme Court of Canada’s decision in R. v. Le, 2019 SCC 34 provides important guidance. At para. 141, the majority provided the following explanation of the interplay between the Grant factors:

While the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion. More particularly, it is not necessary that both of these first two lines of inquiry support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute. Of course, the more serious the infringing conduct and the greater the impact on the Charter-protected interests, the stronger the case for exclusion (R. v. McGuffie, 2016 ONCA 36, at para. 62). But it is also possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute. It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion.

Seriousness of the breach

[42] This stage is focused on whether the Court must dissociate itself from the police conduct to "preserve public confidence in the rule of law and its processes" (Grant, at para. 73). To determine this, I must place the police conduct on a spectrum of seriousness.

[43] Whether or not a breach is systemic in nature, it can be viewed as serious when it involves an officer who fails “to give proper attention and respect to well-known and settled Charter obligations” (Davis, at para. 53). To the extent that a breach is systemic, that too is aggravating (R. v. Harrison, 2009 SCC 34, at para 25).

[44] In R. v. Nguyen, 2008 ONCA 49 at para. 20, the Court of Appeal noted

Once detained, an individual is at the mercy of state actors. Thus, in circumstances where the informational component of s. 10(a) of the Charter is easy to fulfill - as it was in this case - the breach of the obligation to provide that information cannot be considered a trivial matter. We say this because, as the jurisprudence illustrates, the right against self-incrimination is fundamental to the spirit of s. 10 of the Charter.

[45] The Charter-infringing conduct – breaching the immediacy requirement of s. 10(b) by unreasonably prioritizing other things such as note-taking – was very serious because it was a violation of well-settled Charter norms. Also, the obligation was easy to fulfil when Mr. Bogdanic was left sitting in his car.

[46] In addition, breaches of this nature appear to be systemic. Since 2013, in both the Peel and Toronto regions, I have heard many officers testify that “without delay” means as soon as practicable. Some have even testified that it means as soon as practical. The cases submitted by the Defence expose the pervasiveness of the problem: R. v. Toth, 2021 ONCJ 235, R. v. Campoli, 2020 ONCJ 167, R. v. Sandhu, 2017 ONCJ 226, R. v. Thomson, 2020 ONCA 264, and Davis.

[47] This factor pulls very strongly in favour of exclusion of the breath samples.

Impact of the breach on Mr. Bogdanic’s Charter-protected interests

[48] In R. v. Tim, 2022 SCC 12, at para. 90, the Supreme Court of Canada wrote that this line of inquiry considers the impact of the breach(es) on the accused's Charter-protected interests and asks whether the breach “actually undermined the interests protected by the right infringed.” I must identify “the interests protected by the relevant Charter rights” and evaluate “how seriously the breaches affected those interests.” As with the first line of inquiry, I must then “situate the impact on the accused's Charter-protected interests on a spectrum, ranging from impacts that are fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed.” As the Court explained,

[t]he greater the impact on Charter-protected interests, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. This is because "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."

[49] At issue here was Mr. Bogdanic’s right to know that he was not entirely at the mercy of the police and would have a “lifeline” to the outside world. A case in point, Mr. Bogdanic was fearful throughout the delay. The breach was not technical or trivial. However, it lasted less than 10 minutes. I would characterize its impact as moderate in this case.

[50] This factor pulls moderately in favour of exclusion of the evidence.

Society's interest in adjudication on the merits

[51] This line of inquiry is concerned with the reliability of the evidence and its importance to the Crown’s case. The question is “whether the truth-seeking function of the criminal process would be better served by admission of the evidence, or by its exclusion” (Grant, at para. 79). Reliable and critical evidence generally pulls toward inclusion. That said, this factor cuts both ways and ought not be permitted to overwhelm the analysis (Harrison, at para. 34; Grant, at para. 84. As the Court stated in Grant, “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious … it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high” (ibid).

[52] Here, the breath samples are highly reliable and crucial to the Crown’s case. Any drinking and driving offence is serious, however, this case falls toward the lower end of the spectrum.

[53] That said, this factor pulls strongly in favour of the admission of the evidence.

Balancing

[54] The balancing exercise does not lend itself to mathematical precision. The question is whether, having regard to all the circumstances, the admission of the evidence would bring the administration of justice into disrepute. I am mindful of the Canadian public’s interest in seeing drinking and driving cases prosecuted on their merits and punished. Nonetheless, I find that the admission of the evidence in this case would have a lasting impact on the repute of, and the public’s confidence in, the administration of justice.

[55] Even though the second line of inquiry does not pull strongly in favour of exclusion, I find that, on balance, the sum of the first and second factors clearly outweighs society's interest in the truth-seeking function of a trial on the merits. To admit the evidence would send a message to the public that Charter rights are of little avail to citizens.

[56] For these reasons, the breath samples are excluded.

VII. Conclusion

[57] Without the breath samples, the Crown cannot prove that Mr. Bogdanic’s blood alcohol content was above the legal limit. He is therefore entitled to be found not guilty.

Released: August 14, 2023 Justice Patrice F. Band