Court File and Parties

ONTARIO COURT OF JUSTICE DATE: December 12, 2024 COURT FILE No.: Halton Info # 121102200730

BETWEEN:

HIS MAJESTY THE KING

— AND —

RAYMOND SANTOS ESCUTIN

Before: Justice Jennifer Campitelli

Heard on: October 15th, 16th and November 6, 2024 Reasons for Judgment released on: December 12, 2024

Counsel: Ms. K. Ginn…………………………………………………………...Counsel for the Crown Mr. M. O’Brian...................................................................... Counsel for R. Santos Escutin

Endorsement

CAMPITELLI J.:

[1] Mr. Santos Escutin is charged that he:

(1) On or about the 4th day of March, in the year 2022 at the Town of Milton in the said region, did, within two hours after ceasing to operate a conveyance, have a blood alcohol concentration that was equal to or exceeded 80mg of alcohol in 100ml of blood, contrary to section 320.14(1)(b) of the Criminal Code of Canada.

Overview

[2] Mr. Santos Escutin has brought an application arguing that his rights as protected by s. 8, 10(b), and s. 7 of the Canadian Charter of Rights and Freedoms were violated. Mr. Santos Escutin argues the delay between the time of his arrest and when he was provided with his rights to counsel was arbitrary, without appropriate justification and thus, violated his rights as protected by section 10(b) of the Canadian Charter of Rights and Freedoms. Moreover, Mr. Santos Escutin argues the investigating officer did not demand he provide a sample of his breath as soon as was practicable, thus coercing him into an unreasonable seizure of his breath contrary to s. 8 of the Canadian Charter of Rights and Freedoms. Finally, Mr. Santos Escutin takes the position that the investigating officer intentionally muted his body-worn camera, which deprived him evidence critical to his defence, thus violating his rights as protected by s. 7 of the Canadian Charter of Rights and Freedoms. He seeks to exclude two breath samples contained on the certificate of a qualified breath technician, which was marked as Exhibit #3 on these proceedings. The readings were 140mg of alcohol in 100ml of blood.

[3] The crown does not concede any of the alleged breaches; however, there is no dispute that any Charter breach found would have a sufficiently strong temporal and contextual connection, such that the breath samples were “obtained in a manner” which would have violated Mr. Santos Escutin’s Charter protected rights. Therefore, in the event that I find a breach of Mr. Santos Escutin’s Charter protected rights, it follows that the evidence is eligible for exclusion under s. 24(2) of the Canadian Charter of Rights and Freedoms.

Did the delay between when Mr. Santos Escutin was arrested and when he was provided with his right to counsel roadside violate his rights as protected by s. 10(b) of the Canadian Charter of Rights and Freedoms?

Grounding Legal Principles

[4] Section 10(b) instructs the police to inform a detainee of his or her rights to counsel ‘without delay’. The phrase ‘without delay’ does not permit for internal qualification. The phrase does not mean “at the earliest possible convenience” or “after police get matters under control”, or even “without reasonable delay”. “Without delay” likewise does not mean “after the police have had a chance to search the suspect”. However, time spent in legitimate self-protection is not an example of “delay”, which has to be justified within a 10(b) analysis: R. v. Debot [1989] 1 S.C.R. 1140 at pp. 1163-1164.

[5] I have reminded myself that the right to counsel is to be provided ‘immediately not instantaneously’. Police officers are not required to handcuff the accused with one hand and with the other hand read the right to counsel from their notebooks: R. v. Fisk [2020] O.J. No. 707 at para. 51. Of note, in R. v. Fisk, the police did not attempt to elicit any information from the applicant during the period of delay, which would have been admissible.

The Evidentiary Record

[6] Officer Craig Watt has been employed by the Halton Regional Police Service since December of 2019. As a result, when he became involved in the investigation involving Mr. Santos Escutin, he was still a relatively new officer. Officer Watt testified that on March 4, 2022, he was assisting with a mandatory alcohol screening program or RIDE program. Officer Watt recalled that at 11:08 p.m. he decided to pull the vehicle being operated by Mr. Santos Escutin over for mandatory alcohol screening. It was the evidence of this officer that he waved over Mr. Santos Escutin’s vehicle, approached the driver’s side window, and advised Mr. Santos Escutin that he would be conducting mandatory alcohol screening. At 11:11, Officer Watt read the approved screening device demand to Mr. Santos Escutin. Mr. Santos Escutin indicated that he understood the nature of the demand, and ultimately provided a suitable sample of his breath. The approved screening device registered a fail at 11:13 p.m. As a result, Officer Watt testified that he placed Mr. Santos Escutin under arrest for impaired operation, due to the fact that his blood alcohol concentration was over 80mg of alcohol in 100ml of blood.

[7] It was Officer Watt’s evidence that he provided Mr. Santos Escutin with his rights to counsel and caution at 11:17 pm. In the period of time, which elapsed between when Mr. Santos Escutin was placed under arrest and when he was ultimately provided with his rights to counsel and caution, Officer Watt explained he engaged in the following:

(1) He asked Mr. Santos Escutin to step out of his motor vehicle and placed him in handcuffs;

(2) He placed Mr. Santos Escutin in the rear of his police cruiser to get him off the roadway;

(3) Once Officer Watt placed Mr. Santos Escutin in his police cruiser, he testified he then stepped out of the police vehicle, told Mr. Santos Escutin that he would be “right back”, and proceeded to update the road sergeant on what was going on;

(4) He then decided it was important that his notes were up to date. Officer Watt testified that especially for impaired cases, it’s good to have your notes up to date, as “timings” and things are very important. He admitted it was a “personal thing”;

(5) Of significance on this particular record, while Officer Watt was updating his notes, he can be heard on the in-car camera video footage asking Mr. Santos Escutin where he was coming from and inquiring about his alcohol consumption.

[8] When pressed while under cross-examination about the lapse in time between when Mr. Santos Escutin was arrested and when he was provided with his rights to counsel and cautioned, Officer Watt testified that it was his understanding that rights to counsel must be read as “soon as practicable” following an arrest. When the use of this language was explored, Officer Watt agreed that he did not use that language in “normal conversation”. Rather, this was something “he was trained”. He agreed that he was “told by other officers” that is when rights to counsel were to be administered following an arrest, that was a “part of his training”. Moreover, he personally observed other officers engaging in this practice while making arrests.

Analysis

[9] There will never be any consistent minute specific calculation any jurist will be able to engage in with a view to their assessment of applications of this nature. Rather, each case will involve an individualized and fact-specific analysis. On the record before me, while I find it was reasonable for Officer Watt to delay reading Mr. Santos Escutin his rights to counsel and caution, so he could be removed from the roadway and placed safely in the back of the police vehicle, I find that was where the reasonableness of Officer Watt’s conduct relative to informing Mr. Santos Escutin of his rights to counsel and caution ended. His decision to delay advising Mr. Santos Escutin of his fundamental rights, so he could update his road sergeant, and his notes, while simultaneously asking questions capable of eliciting incriminating information demonstrated a complete misunderstanding of the immediacy requirement attached to reading rights to counsel and caution ‘without delay’ following an arrest.

[10] Moreover, Officer Watt’s use of the term ‘as soon as practicable’ to describe when rights to counsel and caution must be read following an arrest causes me significant concern. It is beyond my comprehension why the use of this language is still commonplace in the work that we do in this area. It has been not years, but decades since higher level courts have provided strong guidance on the immediacy to be attached to rights to counsel and caution following the arrest of individuals, who find themselves in the custody of state actors. I sat in disbelief as I listened to Officer Watt’s evidence surrounding being “trained” to provide rights to counsel and caution “as soon as practicable” following an arrest. My concern was furthered to an even greater extent when I learned that Officer Watt had personally observed other members of Halton Regional Police Service engage in a similar practice. Regrettably, it appears notwithstanding the message has been sent loudly, numerous times, and over several years, it has still not been received.

[11] To be very clear, I find the delay between Mr. Santos Escutin’s arrest and when he was ultimately provided with his rights to counsel and caution to be arbitrary, without appropriate justification and thus, it violated Mr. Santos Escutin’s rights as protected by section 10(b) of the Canadian Charter of Rights and Freedoms.

Section 24(2) of the Canadian Charter of Rights and Freedoms

[12] The decision to exclude unconstitutionally obtained evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms requires a consideration of all of the circumstances of the case. Under R. v. Grant, it is necessary to assess and balance the effect of admitting or excluding the evidence on integrity of, and public confidence in, the justice system. When conducting this analysis the court must consider: i) the seriousness of the state’s Charter-infringing conduct; ii) the impact of the breach on Mr. Santos Escutin’s Charter-protected interests; iii) society’s interest in an adjudication of the case on its merits: R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 at paras. 71, 85-86 and R. v. Jhite [2021] O.J. No. 2178 at para. 86.

The Seriousness of the State’s Charter Infringing Conduct

[13] With respect to the seriousness of the Charter breach, I must assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts condone state deviation from the rule of law by refusing to disassociate themselves from the products of that conduct.

[14] In Jhite, Justice Stribopolous provides a helpful review of the law related to this branch of the analysis at paragraph 88 of his decision. The Supreme Court of Canada made it clear in Grant that, “ignorance of Charter standards must not be rewarded or encouraged, and negligence or willful blindness cannot be equated with good faith”: Grant supra at para. 75. The Police “are rightly expected to know what the law is” Grant supra at para. 133. This is especially true concerning their obligations under s. 10(b) of the Charter. The law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out”: R. v. NoeI 2019 ONCA 860 at para. 34.

[15] Even if a constitutional breach is not found to be deliberate, in the sense that a police officer set out to violate constitutionally protected Charter rights, the Supreme Court has observed that “exclusion has been found to be warranted for clear violations of well-established rules governing state conduct”: R. v. Paterson 2017 SCC 15, [2017] 1 S.C.R. 202 at para. 44.

[16] I have also reminded myself that for every Charter breach that comes before the courts, many others may go unidentified and unaddressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion: Grant at para.75.

[17] In my view, even though I do not find that Officer Watt deliberately set out to breach Mr. Santos Escutin’s s. 10(b) Charter rights, I cannot find that he acted in good faith. The jurisprudence surrounding s. 10(b) is well-established, and there has been no uncertainly such that the conduct of the police in this instance can be excused. The law has long been clear, rights to counsel must be provided immediately after an individual is arrested. It is not a question of a “personal” style and these fundamental rights are definitely not to be provided “as soon as practicable”. As a result, I find Officer Watt demonstrated a cavalier attitude towards Mr. Santos Escutin’s s. 10(b) rights. Rights that have been characterized by our court of appeal as providing a “lifeline for detained persons”: R. v. Rover 2020 ONCA 745 at para. 45. His conduct was reckless and serious. The court cannot be seen to condone this type of conduct and must disassociate itself from it.

[18] In summary, I find that the breach of Mr. Santos Escutin’s 10(b) rights deserves placement at the more serious end of the spectrum.

The Impact of the Charter breach on Mr. Santos Escutin’s Charter-protected Interests

[19] This inquiry focuses on the seriousness of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute: Grant at para. 76.

[20] Providing arrestees with their right to counsel immediately following arrest, as guaranteed by s. 10(b) of the Charter, aims to provide individuals, without delay, with critical information surrounding their constitutionally entrenched right to speak with counsel prior to providing any information to the state. Information, which could potentially be incriminating and used against them in a criminal proceeding.

[21] I have carefully considered the evidentiary record before me, and of particular note although the period of delay was relatively short, Officer Watt asked questions of Mr. Santos Escutin during that period, which were capable of eliciting incriminating information from him.

[22] Therefore, in the circumstances, I find the breach was impactful on Mr. Santos Escutin’s Charter protected interest to be advised of his right to counsel without delay following his arrest, as guaranteed by s. 10(b) of the Charter. Therefore, this line of inquiry favours exclusion.

Society’s Interest in an Adjudication on the Merits

[23] The third line of inquiry, society’s interest in an adjudication of the case on its merits, typically pulls in the opposite direction – that is towards a finding that admission would not bring the administration of justice into disrepute. While that pull is particularly strong where the evidence is reliable and critical to the crown’s case, the third line of inquiry cannot become a “rubber stamp”: R. v. Le [2019] 2 S.C.R. at para. 142.

[24] On this record, the breath test results are reliable evidence, and the exclusion of these samples will unquestionably deal a fatal blow to this prosecution: Grant supra at paras. 81 and 83. I have reminded myself that, with a view to this line of inquiry, I must turn my mind to the important public policy concerns about the scourge of impaired driving: R. v. McColman 2023 SCC 8, [2023] S.C.J. No. 8 at para. 74.

[25] These considerations weigh heavily in favour of admitting the evidence.

Balancing the Grant Factors

[26] When balancing the Grant factors, the cumulative weight of the first two lines of inquiry must be balanced against the third line of inquiry: McColman at para. 74.

[27] In this case, given some of the aggravating factors, particularly given Officer Watt’s cavalier attitude towards Mr. Santos Escutin’s constitutionally protected rights, the first line of inquiry strongly favours exclusion. Under the second line of inquiry, I find the violation was impactful on Mr. Santos Escutin’s constitutionally protected interests. As such, I find the second line of inquiry also favours exclusion. On this record, the third line of inquiry, exclusion of reliable evidence, which is essential to the crown’s case, heavily favours inclusion.

[28] In the result, after balancing the circumstances of this case, I believe exclusion of the evidence is necessary to preserve the repute of the administration of justice. Officer Watt’s cavalier attitude towards Mr. Santos Escutin’s constitutionally protected rights was very troubling. His use of “as soon as practicable” to describe when rights to counsel and caution must be provided following an arrest has no place in the work that we do. I am significantly troubled by his evidence that this is how he was trained, and he has personally observed other police officers in this region engage in a similar practice. Moreover, I find there was some impact on Mr. Santos Escutin’s constitutionally protected interests. I have reminded myself that the breath samples are reliable evidence, and I am also mindful of the important public policy concerns surrounding impaired driving referenced by the Supreme Court of Canada in R. v. McColman. However, in the balance, the court must distance and disassociate itself from the serious and impactful police conduct present on this record.

Conclusion

[29] In the result, the breath samples are excluded from the evidentiary record. The defence application with respect to s. 10(b) succeeds. Given my finding relative to his argument, it is not necessary for me to engage in any further analysis.

Released: December 12, 2024 Justice Jennifer Campitelli