CITATION: R. v. Gill, 2011 ONSC 4728
COURT FILE NO.: 94/10
DATE: 20110830
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
JEREMY SCHAFFER, for the Appellant/Crown
Appellant
- and -
MUNPREET GILL
GLENN HENDERSON, for the Respondent
Respondent
[On appeal from the judgment of the Honourable K. Mulligan, dated January 14, 2010]
DURNO, J.
[1] When a police officer stopped the respondent for a potential traffic violation, the constable formed reasonable grounds to suspect the respondent had alcohol in his body and made an Approved Screening Devise (ASD) breath demand at 1:07 a.m. The respondent said he would provide a sample. The officer did not have an ASD with him and at 1:08 a.m. called for one to be brought to him. While waiting for the ASD, the officer gave the respondent a summary of the rights to counsel, the respondent said he did not want to call counsel, and that he was not going to blow because he had asthma. After the ASD arrived at 1:16 a.m., the respondent repeatedly refused to provide a sample because of his asthma and was charged with refusing to provide a breath sample at 1:35 a.m.
[2] At trial the respondent sought to exclude the refusal because he was not given his rights to counsel properly and did not understand the rights. The Crown argued there was no obligation on the officer to give the rights to counsel but if he was required to do so, the officer’s summary was adequate. The trial judge found the officer was required to give the rights to counsel, that the informational component of the rights was deficient and the respondent did not understand his rights. Her Honour found the respondent’s s. 10(b) rights were violated and excluded the refusal. The Crown appeals.
[3] For the following reasons, the appeal is allowed and a new trial ordered.
The Evidence
[4] The trial proceeded as a blended trial/Charter motion in relation to the respondent’s application to exclude the evidence of his refusal pursuant to s. 24(2) of the Charter for breaches of ss. 9 and 10(b). The Crown called one witness, the investigating officer. The respondent called no evidence on the trial but testified on the Charter application.
[5] At 1:05 a.m., Constable Shears stopped the appellant’s vehicle to investigate a potential Highway Traffic Act violation. While speaking to the respondent, he noted a strong odour of an alcoholic beverage on the respondent’s breath, his eyes were watery, blood shot and red-rimmed. His face was flushed red. The officer formed the opinion the appellant was driving with alcohol in his body and at 1:07 a.m. gave the respondent an ASD demand. The respondent said he would provide a sample. The officer testified he then asked the respondent to sit in the back seat of his cruiser because of the speed vehicles travel in that area, told him he was not under arrest, and explained to him why he was sitting in the car.
[6] At 1:08 a.m. Constable Shears contacted the dispatcher, asked if there was a cruiser in the area with an ASD and requested that a device be brought to his location. While he did not know when the other officer was going to arrive, he did not think it would take long because that was usually the case. In cross-examination, the officer was asked, “Well sometimes, long can be 15, 20 minutes, sometimes 25, sometimes 5 minutes?” He replied, “I had no idea when he was going to show.”
[7] While waiting for the ASD to arrive, the officer asked the respondent if he had a cell phone and was told the respondent had one in his car. The officer continued:
And ... the reason I asked him that is so that if he did want to speak to a lawyer, I would have gotten it for him or escorted him over there to get it, so that he could’ve spoken to a lawyer. I also told him that if he did want to speak to a lawyer, the advice was free and I could provide him with the phone number for Legal Aid and that at anytime if he told me he wanted to speak to a lawyer to tell me and I would … let him speak to a lawyer right away.
[8] P.C. Shears asked if the respondent wanted to speak to a lawyer because of the “slight delay of waiting for the approved screening device.” He could not recall if he gave the respondent the toll free number or if he used the words duty counsel. He was just telling the appellant that if he wanted to speak to a lawyer that “we could [make] it happen.” The respondent said, “Nah. That’s okay” and thanked the officer.
[9] Constable Shears did not believe the appellant was under arrest as he was “merely sitting in the back of my car” with the door open on the side where he was sitting. He did not give the full formal rights to counsel because the respondent was not being charged at that point and was not detained. Had the respondent been uncooperative, he would have told him he was detained and given the entire rights to counsel.
[10] Shortly after being told he could call a lawyer, before the ASD arrived and without being asked a question, the respondent said he could not blow in the machine because he had asthma and could not do it. Constable Shears explained the consequences of failing to provide a sample, telling the respondent about the 90 day administrative suspension and that failing to provide a sample usually carried the same penalty as registering a fail. He told the respondent that if the ASD showed a green light after he gave a sample, he would be free to go or it could be a warning and his car would be seized. The respondent continually said he could not provide a sample because his asthma prevented him from doing so.
[11] When the ASD arrived, the respondent repeatedly refused to provide a breath sample saying his asthma would not let him do so. The officer did a test himself, showed the respondent how to provide a sample, told him he had had other people with asthma and heart conditions who had provided samples, asked if he wanted his cell phone to call a lawyer, and reviewed the consequences of failing to provide a breath sample. The respondent said that while he wanted to provide a sample, he had asthma. He did not want to try. The officer was going to have to charge him.
[12] At 1:35 a.m. the respondent was arrested for failing to provide a sample and the officer read the formal rights to counsel. The respondent said, “Just get me a cab. Come on buddy.” When asked if he wanted to call a lawyer, the respondent said if he was not going to jail he would call after. The officer explained he would be released from the scene on a “Form 9” and the respondent said, “Okay. Not now then.” The officer took him to his car to get his cell phone to call a friend to pick him up.
[13] The respondent testified that as he was being walked to the cruiser the officer told him that he had the right to a free lawyer if he wanted one and was saying something about a breathalyzer. He felt he was being put into the cruiser because he was charged with drinking and driving. After he was placed in the rear of the cruiser, the officer closed the back door and got in the driver’s seat where he radioed for a breathalyzer. Constable Shears asked if he had a cell phone and he said he had one in his vehicle.
[14] The officer never explained what duty counsel was nor did he give him any phone number. The respondent did not recall the officer offering to give him the phone number for a free lawyer. He did not call a lawyer because he did not have his cell phone on him and did not know how to contact a lawyer. Had he known there was a number available, he would have called counsel. The respondent acknowledged that he never asked to speak to a lawyer and did not recall if the officer asked him if he wanted to call a lawyer. It was possible the officer asked and he said, “Na, that’s okay.” The respondent agreed that there were likely other conversations about his rights to counsel but he could not recall them.
[15] The respondent said he was totally confused that night. He thought he had already been arrested and charged with drinking and driving and refused to provide a sample because the officer would just add that charge as well.
Reasons for Judgment
[16] Her Honour reviewed the trial evidence including the officer’s evidence concerning the rights to counsel, finding:
The officer’s evidence made it clear that had Mr. Gill made such a request, there was no bar to allowing him to consult with counsel, in the officer’s mind, even given the time of day and the location of the stop.
[17] The trial judge found that during the 8 to 9 minutes between the demand and the arrival of the ASD, there were two topics discussed: the rights to counsel and Mr. Gill’s refusal to provide a sample, given his asthmatic condition.
[18] Her Honour found the issues to be determined were the adequacy of the informational component of the rights to counsel and whether the respondent truly understood his rights to counsel. Her Honour continued:
Though the Crown argued that 10(b) rights were not even required in the circumstances of this case, I find that they were, given that the officer had no idea when the device would arrive and clearly had Mr. Gill detained. The officer knew, as a result of the direct question that he placed to Mr. Gill, that Mr. Gill had a cell phone. The officer’s evidence also made it clear that he could have provided Mr. Gill with rights to counsel information and a reasonable opportunity to exercise his rights to counsel.
[19] The trial judge found the respondent had established, on a balance of probabilities, that there was a breach in relation to the informational component of the s. 10(b) rights. Accepting that it was the substance of the rights to counsel and not the recitation of the formal Brydges’ version that was determinative, Her Honour was not satisfied the essential components of the rights were transmitted to and understood by the respondent.
[20] Her Honour reached that conclusion because she doubted whether the officer truly understood the reason that rights were given and how fundamental they were in the circumstances in which they must be given. He did not understand that the respondent was detained and chose not to go through the pre-printed standard rights to counsel questions. He spoke of having a lengthy conversation with the respondent, yet only recorded roughly thirty to forty percent of what was said. He testified largely from his memory of events about one and one half year earlier based on his usual practices. Accordingly, the trial judge was unable to find his evidence as to what he told the respondent was reliable. Had Her Honour found the officer’s evidence reliable, accepting entirely what he said he recalled and thought, she would have found no breach of the informational component of the rights to counsel.
[21] The trial judge also accepted the respondent’s evidence that had he known and understood the full extent of his rights, he would have contacted counsel. The officer “took a chance” in not following the standard question and answer format to make sure that there was a full transmission of the rights to counsel and a full understanding by the respondent. He risked Mr. Gill not truly understanding his rights including that he could exercise them by requesting his phone. While Mr. Gill understood the concept of a free lawyer, he did not understand the logistics of contacting the lawyer. He believed he had already been charged when the demand was made, thereby not understanding his jeopardy. Her Honour concluded the Crown had not shown that had the respondent understood his rights, he would have acted in the same way.
[22] With respect to s. 24(2), the trial judge concluded there was a serious violation that deprived the respondent from getting legal advice in relation to his true legal situation; the officer acted carelessly in relation to the respondent’s rights and the respondent’s words of refusal were not of the same evidentiary value and reliability as Intoxilyzer results. Her Honour concluded the evidence of the refusal should be excluded and acquitted the respondent.
The Positions of Counsel
[23] The Crown contends the trial judge erred in deciding the case on the basis of s. 10(b) instead of determining if there was a valid demand, whether the “forthwith” requirement was met. Mr. Schaffer argues the demand was valid because the respondent did not have a reasonable opportunity to consult counsel in the 8 to 9 minutes between the demand and the arrival of the ASD. Accordingly, the officer was not required to provide the rights to counsel. He further argues that provided the demand was valid, because the refusal is an element of the offence, a Charter violation is irrelevant to the issues to be determined.
[24] The respondent agrees that the trial judge decided the case on the wrong issue. Her Honour never addressed the “forthwith” issue. As Mr. Henderson put it, the trial arguments were presented on a tangential issue and Her Honour acquitted on that issue although it was not the issue to be determined. Nevertheless, he submits the trial judge made unassailable findings of fact that the respondent had a reasonable opportunity to consult counsel and therefore the demand was invalid. Accordingly, the respondent could not be required to provide a sample. He also submits that even if the officer was not required to give the rights to counsel, once he decided to advise him of his rights to counsel, he was required to do so properly.
Analysis
The unavailable ASD, “Forthwith” and the Charter
[25] The authority to make an ASD demand is found in s. 254(2)(b) of the Criminal Code which reads:
If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle … or had the care or control of a motor vehicle, … whether it was in motion or not, the peace officer may, by demand, require the person to … to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose. (emphasis added)
[26] It is an offence to fail or refuse, without lawful excuse, to comply with a demand made under s. 254(2)(b). s. 254(5). The criminal conduct consists of a proper demand and an unequivocal refusal to comply. The offence is complete when the refusal is given. R. v. Degiorgio, 2011 ONCA 527 at para. 42
[27] When a peace officer makes an ASD demand the motorist is detained. Thomsen v. The Queen, (1988), 40 C.C.C. (3d) 411 (S.C.C.). Once a person is detained, s. 10(b) of the Charter requires the officer to inform the detainee of his or her rights to retain and instruct counsel without delay and to provide the detained with an opportunity to exercise those rights. However, the right to counsel is not absolute and is subject to reasonable limits prescribed by law. R. v. Orbanski; R. v. Ellis, (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.). One of the reasonable limits is a valid ASD demand. Thomsen, supra.
[28] What makes s. 254(2)(b) a reasonable limit is the “forthwith” requirement, a requirement that is inextricably linked to it constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and infringement of the right to counsel notwithstanding ss. 8, 9 and 10(b) of the Charter. Absent this requirement, s. 254(2)(b) would not pass “constitutional muster.” R. v. Woods, [2005] 2 S.C.R. 2005 at para. 15, 29.
[29] “Forthwith” means immediately or without delay. This immediacy requirement is implicit in relation to the police demand and explicit in relation to the driver’s response. It connotes a prompt demand and an immediate response. It also provides the constitutional boundaries within which s. 254(2)(b) is meant to operate. Woods, supra, at para. 13, 28 and 44.
[30] The boundaries within which Charter rights are justifiably infringed have recently been described by the Court of Appeal as the “forthwith window.” R. v. Degiorgio, supra, at para. 49. It is the period in which the detained person can be required to respond to a valid ASD demand by either providing a suitable sample, failing or refusing to provide a suitable sample. During that window, the detainee can incur criminal liability by failing or refusing to provide a sample unaffected by the Charter. Degiorgio, supra, at para. 34 and 47.
[31] When the “forthwith window” opens and closes is determined with respect to the right to counsel. The critical question is whether there was a realistic opportunity for the detainee to consult counsel before being confronted with the ASD and required to provide a suitable sample. R. v. Cote, (1992), 70 C.C.C. (3d) 280, cited with approval in Woods, supra, at para. 35. It is not simply an opportunity to contact counsel. Rather, there must be a realistic opportunity to contact, seeks and receive advice before being confronted with the ASD. R. v. Torsney, (2007), 2007 ONCA 67, 217 C.C.C. (3d) 571 (Ont. C.A.).
[32] Whether that “realistic opportunity to consult counsel” exists is a question of fact to be determined considering all the circumstances in the case. R. v. Latour, (1997), 116 C.C.C. (3d) 279 (Ont. C.A.), Tornsey, supra, at para. 8. Courts have considered the following non-exhaustive list of circumstances:
i. the time the officer believed the ASD would arrive (R. v. George, (2004), 187 C.C.C. (3d) 289 (Ont. C.A.)[^1];
ii. the time between the demand and the taking of the sample (Latour, supra);
iii. the time between the demand and the ASD’s arrival (George, supra and R. v. Yamka (2011), 2011 ONSC 405, 267 C.C.C. (3d) 81 (S.C.J.));
iv. the day of the week and/or time at which the detainee would have been attempting to contact counsel (R. v. Singh, (2005), 24 M.V.R. (5th) 19 (Ont. C.A.));
v. whether the detainee had a cell phone, although this factor in itself is not determinative (George, supra, at para. 42; R. v. Beattie, [2009] O.J. No. 4121 (C.J.));
vi. the actual time it took for the ASD to arrive (Latour, supra);
vii. whether there was an explanation for the delay (R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.); and
viii. whether the detainee contacted counsel at the station after being arrested (Torsney, supra).
[33] I would also add for occasions when the detainee has a cell phone, whether they had the number for counsel or would rely on duty counsel with its “call back” feature. It would also be important to determine if they had counsel’s number, whether it was an office number, 24 hour pager, or cell number as well as the previously noted time of day and day of the week the call would be placed.
[34] As illustrated in the above summary, courts have considered different time periods as relevant to the issue to be determined. While the start of period is generally when the suspicion is formed and/or when the demand is made, courts have considered the time until the machine arrives, when the first attempt is made, when the suitable sample is provided or the detainee fails or refuses to provide a sample.
[35] I suggest that the appropriate calculation is the time from forming the suspicion and the time the ASD is with the demanding officer and the detainee or to deduct “operational time” where the end of the time period is the providing of a sample or refusal. In R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.) at p. 104-5, the Court identified “operational time” as a component of the calculation. It is implicit that every ASD demand is going to require time for the officer to prepare the equipment, to explain and perhaps illustrate its use. That period is going to be constant whether the ASD is sitting next to the officer when he or she makes the demand or if the device has to be delivered to the scene. In addition, there are often delays in obtaining the sample or concluding the detainee should be charged with failing or refusing. That time should not be part of the calculation.
[36] Given that the determination is fact-specific, the question is not answered simply by calculating the number of minutes the “forthwith window” was open regardless of the parameters of the time period. However it is an important consideration. R. v. Cote (1992), supra, at p. 285. The following cases reflect that proposition: a) cases where a realistic opportunity to consult counsel existed: R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.) – 15 minutes; R. v. Beattie, [2009] O.J. No. 4121 (O.C.J.) – 20 minutes; R. v. Grant, (1991), 67 C.C.C. (3d) 268 (S.C.C.) – 30 minutes; R. v. Najm, (2006), 32 M.V.R. (5th) 204 (Ont. C.A.) – 12 minutes, R. v. Cote, supra – 14 minutes; and R. v. George (2004), 187 C.C.C. (3d) 289 (Ont. C.A.) – where the officer knew in advance the device would not arrive for 15 to 20 minutes and it arrived in 18 minutes. b) Cases where there was no realistic opportunity to consult counsel: R. v. Pillon, [2006] O.J. No. 701 (S.C.J.) – 7 minutes; R. v. Torsney, (2007), supra - 6 or 7 minutes; R. v. Yamka, (2011), 2011 ONSC 405, 267 C.C.C. (3d) 81 (S.C.J.) – 10 minutes; R. v. Latour, supra – 12 minutes; R. v. Singh (2004), 4 M.V.R. (5th) 252 (S.C.J.) – 11 minutes; R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 (S.C.J.), - 8 minutes; and R. v. Singh, [2005] O.J. No. 4787 (C.A.) where the officer believed the ASD would arrive in 5 to 10 minutes and it arrived in 10 minutes.
[37] Finally, the examination of all the circumstances is not limited to what the officer knew at the time of the demand. In Latour, supra, the appellant argued the officer had to have a reasonable basis to believe he or she was in position to require the sample be provided, in effect, within the “forthwith window.” The Court of Appeal disagreed, with Charron J.A., as she then was, finding:
31 In my view, Parliament did not require that the peace officer have this belief. The section simply provides that, prior to making the demand, the peace officer must reasonably suspect that a person who is operating a motor vehicle (or who is engaged in any one of the other named activities) has alcohol in his or her body. If the peace officer forms the required suspicion, he or she may make a demand that the person provide "forthwith" a sample of breath for analysis in an approved screening device. Of course, the peace officer who makes such a demand is under a duty to act upon it within the statutory limits. If, as the events actually unfold, the peace officer is in a position to require the person to provide the sample before there is any realistic opportunity to consult counsel, the statutory requirements are met. The detained person has no cause for complaint as the events will have unfolded in accordance with the legislative scheme and within its constitutional boundaries. I see no sound policy reason for requiring that the statutory requirements be met by design rather than by chance. Compliance is compliance whether fortuitous or otherwise.
33 It is therefore my view that all circumstances, including the time elapsed between the demand and the taking of the sample, must be considered in determining whether the police officer was in a position to require that a breath sample be provided "forthwith", that is, before there was any realistic opportunity to consult counsel.
[38] While answering the question does not strictly involve the application of the Charter or Charter issues, the interrelationship between ASD demands and the suspension of Charter rights within the “forthwith window” often results in courts addressing the question as a Charter issue. For example, the Supreme Court of Canada held if the sample was provided or failure or refusal occurred within the forthwith window while the rights are suspended there is no Charter analysis. If the event occurred outside the window, there must be a Charter analysis because the rights are not suspended. R. v. Grant (1991), supra.
[39] In R. v. Misasi, (1993), 79 C.C.C. (3d) 339 (Ont. C.A.) the Court held that where the demand is made outside the boundaries of s. 254(2)(b), the detainee is not obliged to comply with it. No Charter relief is necessary with respect to the offence. Where a demand is made within the boundaries, the Charter is overridden and there is no obligation on the officer to give the rights to counsel. A Charter issue did not arise in either circumstance.
[40] In Degiorgio, supra, the Court held that if the “forthwith window” expires, either the taking of the sample or the detainee failing or refusing to provide a suitable sample without first providing the detainee an opportunity to contact counsel is an infringement of s. 10(b) and cannot be saved by s. 1. at para. 49 and 50. See also Torsney, supra, at para. 13, where the case was argued as a s. 10(b) case, Beattie, supra, where the trial judge referred to the argument morphing into a s. 8 argument, and Fildan, supra, where the issue was addressed under ss. 8 and 10(b).
[41] Regardless of the approach, the threshold and essential question is whether or not the suitable sample, failure or refusal occurred followed a valid demand - whether it occurred within the “forthwith window” having regard to all the circumstances given it is a fact-specific analysis. In order to determine whether an ASD demand was valid, a trial judge is required to answer the following question: was there a realistic opportunity for the detainee to contact, seek and receive legal advice within the “forthwith window?”
Analysis
[42] The trial judge found the officer was required to give the respondent his rights to counsel and that the issues to be determined were the adequacy of the informational component of the rights to counsel and whether the respondent understood his rights. She found as a fact that the recitation of the rights was deficient. No appeal is taken from that finding of fact.
[43] Both counsel agree the informational component to the rights to counsel and the respondent’s understanding of those rights were not the critical issues to be determined. They agree the trial judge did not address the essential question noted earlier. I agree with counsel. Her Honour never addressed whether the demand was valid, the forthwith issue – whether there was a realistic opportunity in the 8 to 9 minutes between the demand and the arrival of the ASD for the respondent to contact, seek and receive legal advice. While not surprising given how trial counsel chose to litigate the case, Her Honour erred in failing to address the key issue.
[44] Where counsel differ is on whether the trial judge implicitly or explicitly made the findings of fact that nevertheless answered the key question. For the following reasons, I find the factual findings were either not made or were made without an analysis of all the circumstances.
[45] First, the trial judge never mentioned the “forthwith” requirement in s. 254(2)(b). While Her Honour referred to the demand being valid, that was only in the context of the officer having the requisite reasonable suspicion.
[46] Second, there was no reference to the relevant time being the 8 to 9 minutes. Indeed, the trial judge found the officer was required to give the rights to counsel because the respondent was detained and because he had no idea when the ASD would arrive. As noted earlier, there is no requirement for the officer to determine in advance when the device would arrive. Of greater importance, Latour, supra, makes it clear that the determination must be made taking into account the time the machine actually arrived, not just the officer’s belief at the time of the demand. If the machine fortuitously arrived within the “forthwith window” even though the officer had no idea when it would arrive would have been determinative of the issue. From the summary of cases noted above, it would be open to conclude the machine arrived within the window. It was an issue the trial judge was required to address.
[47] Third, Her Honour noted in outlining the evidence that the officer said if the respondent asked to speak to counsel there was no bar to him doing so notwithstanding the time of day and location of the stop. She also noted in reviewing the evidence that the officer made it clear he could have provided Mr. Gill with rights to counsel and a reasonable opportunity to exercise his rights to counsel. However, those findings either do not address the key issue or do so without an analysis of all the circumstances as noted earlier.
[48] The officer never testified that he could provide the respondent with a reasonable opportunity to exercise his rights to counsel as described in the case law cited above. In addition, neither finding addresses the critical question in the context of the 8 to 9 minutes between the demand and the arrival of the ASD. No one asked the officer about the relevant timeframe. Finally, the findings rely on this officer’s view of the law. Her Honour’s findings regarding his knowledge of the law are amply illustrated by the record. It was for Her Honour to answer the question, not the officer.
[49] Given the way in which counsel framed the issue at trial, it is not surprising that the trial judge never addressed the appropriate issue considering all the circumstances. Her Honour never made the essential factual finding whether the refusal occurred within the “forthwith window,” whether the respondent refused to comply with a valid demand. I am persuaded the trial judge erred and the acquittal must be set aside.
Should the respondent be convicted or a new trial ordered?
[50] Having reached that conclusion, s. 686(4)(b) of the Criminal Code provides that I can either direct a new trial or enter a verdict of guilty. The Crown submits that examining all the circumstances there was no realistic opportunity to consult counsel, a finding of guilt is inevitable and should be entered. The respondent argues a new trial is required for factual findings to be made.
[51] In R. v. Cassidy (1989), 50 C.C.C. (3d) 193, the Supreme Court of Canada found an appellate court may allow a Crown appeal from an acquittal and substitute a conviction where;
(1) the Crown establishes that an error of law was committed at trial;
(2) satisfies the appellate court that had the law been properly applied, the verdict would not have been the same; and
(3) further demonstrates the accused should have been found guilty ‘but for’ the error of law.
For a conviction to be entered all findings necessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue. This test must be strictly applied. Cassidy, supra, at para. 16. It is the third requirement that is in issue at this stage of the appeal.
[52] The Crown relies on the Court of Appeal judgment in R. v. Feliszewski [1963] O.J. No. 180, in support of his submission that a conviction should be entered. I am not persuaded the judgment assists the Crown for three reasons. First, while the judgment is written by Schroader J.A., it is apparent from para. 6, that His Lordship was in dessent on the issue of whether a new trial should be ordered or a conviction entered. There were two issues in the appeal: Did the SCA judge err in finding there was no evidence of careless driving? If he did, should there be a conviction or a new trial? That paragraph makes it clear the Court was unanimous in finding there was sufficient evidence upon which to base a conviction but divided as to whether there should be a new trial or conviction. While Schroeder J.A. was “in accord with the views of [his] brethren that the Crown had established error in law and the appeal should be allowed,” His Lordship “respectfully dissented from the disposition proposed by [his] brethren, who directed that there should be a re-hearing of the appeal [in a trial de novo].” His Lordship felt a conviction should have been entered and after giving brief oral reasons at the hearing of the appeal said he would provide written reasons for his dissenting opinion at a later date. The reasons upon which the Crown relies are those reasons.
[53] Second, Feliszewski, supra, is a 1963 decision so the Court of Appeal did not have the benefit of the Cassidy, supra, judgment.
[54] Third, Schroeder J.A. found the Crown had established a prima facie case against the respondent, which left unanswered, was conclusive. Feliszewski rear-ended a stopped car. According to the judgment, “undoubtedly surmising the climate was favourable” chose to call no evidence after his unsuccessful directed verdict application. There was no dispute on the facts and no findings of fact to be made. That is not the case here.
[55] This case is also distinguishable from another case relied upon by the Crown, Duscharme J.’s judgment in R. v. Padavatten, [2007] O.J. No. 2003 (S.C.J.). His Honour rejected the respondent’s submission that there might have been other arguments advanced or evidence called in the absence of any indication what those arguments or evidence might have been. As occurred in this case, that accused person was not calling evidence on the trial itself.
[56] As noted in submissions when counsel were asked to return for additional argument, the Court of Appeal has been faced with a similar issue in relation to s. 24(2) of the Charter rulings after the judgment of the Supreme Court of Canada in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.). See R. v. Blake 2010 ONCA 1, R. v. Pham, 2011 ONCA 271, and R. v. Bergauer-Free, 2009 ONCA 610. Where all the factual findings have been made the Court has conducted the post-Grant s. 24(2) analysis and not ordered a new trial. Where there were findings of fact to be made or additional evidence required, new trials were ordered. However, there is distinction between findings on essential elements of the offence and applying previously made findings of fact to the s. 24(2) factors.
[57] The question then becomes did the trial judge make all the necessary findings necessary to conclude the demand was valid either explicitly or implicitly or can it be concluded that the findings essential to that determination were not in issue?
[58] The validity of the demand was in issue as the Crown argued the officer was not required to give the rights to counsel. Both counsel on appeal agree that it should have been the issue at trial. In addition, I am not persuaded the findings of fact essential to the determination were made implicitly or explicitly by the trial judge. As a result of trial defence counsel’s notice of application, the trial was conducted on the basis this was a s. 10(b) Charter case. That was the focus of the questioning and argument. While Crown counsel at trial attempted to raise the issue of whether the officer was required to give the rights, Her Honour answered the question without considering all the circumstances. Accordingly, I am not persuaded all the essential factual findings were made. Indeed, it would be difficult to do so, given the route the trial took. The essential issue was neither argued nor determined.
[59] Accordingly, I am persuaded a new trial must be ordered.
The Crown’s Second Ground of Appeal
[60] The Crown also argued for the first time in oral submissions on appeal that because the refusal was an element of the offence, no rights to counsel or Charter issue arose relying on the Court of Appeal judgment in R. v. Hanneson (1989), 49 C.C.C. (3d) 467. Accordingly, the judge erred, finding a Charter breach when the evidence sought to be excluded was an essential element of the offence - a verbal refusal.
[61] The respondent, while not objecting to the appellant raising a new ground in this manner, makes two related submissions. First, he does not abandon trial counsel’s submission that even if the officer was not required to give the rights to counsel, having given a modified and deficient version there was still a breach. Second, he argues there is distinction between events that occur during a period when the rights are suspended and when the event occurs after a Charter violation. In addition, he notes the respondent was not charged at the time of his initial refusal. It was not until 1:35 a.m. that he was charged.
[62] In Hanneson, supra, four police officers were charged with assault and attempting to obstruct justice. At issue were the statements three of the accused made to senior officers under the Police Services Act, R.S.O. 1990, c.P.15 when they were detained and not advised of their s. 10(b) Charter rights. Their accounts during the interview, in part, formed the subject matter of the obstruct justice charge. The Court of Appeal found no voir dire was required because the statements given were the gravamen of the offence.
[63] In doing so, the Court relied on the judgment of Martin J.A. in R. v. Stapleton (1982), 66 C.C.C. (2d) 231 at p. 233 where an accused went to a police station and made a false complaint that became the subject of an obstruct police charge:
The rule as stated by Lord Sumner in Ibrahim v. The King, [1914] A.C. 599 at pp. 609-610, that no statement by an accused is admissible in evidence against him unless it is shown by the prosecution to be a voluntary statement, in the sense that it was not induced by fear or prejudice or hope of advantage inspired or held out by a person in authority, applies to statements made by an accused after the commission of an offence and which are sought to be introduced in evidence for the purpose of incriminating him in respect of the commission of that offence. In the present case, the statements made by the accused to Sergeant Cronk were not introduced to incriminate the appellant in respect of an offence which he is alleged to have previously committed. The statements are alleged to constitute the actus reus of the very offence charged. The confession rule requiring proof of voluntariness of any incriminating statement made to a person in authority is, consequently, not applicable.
[64] The Court in Hanneson, supra, later held:
The question then becomes - what is the effect of such a Charter breach. Does such a breach insulate the person detained against liability for subsequent criminal acts? The answer must be in the negative. It cannot be sensibly argued that following a breach of s. 10(b) of the Charter the person detained is free to assault his custodian or commit theft without any attendant criminal responsibility. Similarly, despite a breach of s. 10(b) a detained person will attract criminal responsibility for crimes committed by words, e.g. threatening death or offering a bribe. Section 10(b) has as its object the provision of counsel to those under investigation for crimes already committed in order that they might be advised with respect to making disclosure, the provision of evidence, etc. regarding those crimes. Section 10(b) cannot possibly relate to crimes yet to come.
[65] In R. v. Ha, 2010 ONCA 433, the accused was arrested for marijuana production. The trial judge found breaches of the accused’s s. 9, 10(a) and (b) Charter rights and excluded the accused’s statement to police regarding the production charge. However, while speaking to the police the accused offered them money if they did not charge her. Relying on Hanneson, supra, the Court found that despite the ss. 9 and 10(b) breaches, Ha’s attempt to bribe the officer was admissible.
[66] The Court of Appeal recently affirmed that statements from a detained motorist were admissible if the statements constitute evidence of the actus reus of the offence. R. v. Rivera, 2011 ONCA 225 at para. 50, LaForme J.A. held that if an accused made a roadside statement that related directly to the refusal, it was open to the Crown to lead the evidence as establishing the actus reus of the offence. An example of such as statement was the comment of a driver after being given an ASD demand, “I don’t care, charge me.” R. v. Bijelic, [2008] O.J. No. 1911 (S.C.J.).
[67] The respondent’s position would result in the following anomalous result. Where a detainee should have been given his or her rights to counsel that they were not given, their statements were nevertheless admissible if they were the substance of an offence. However, if there was no obligation to give the rights to counsel but they were defectively given resulting in a Charter breach, they were inadmissible. I am not persuaded that is a correct interpretation or application of the binding authorities. In addition, I fail to see how the timing of the arrest impacts on the issue.
[68] The Crown appropriately concedes that this ground alone does not result in a conviction unless it has been established that there was a valid demand. For the reasons indicated earlier, that issue was never appropriately determined.
Conclusion
[69] The appeal is allowed and a new trial ordered.
[70] The respondent is required to appear in the Ontario Court of Justice on September 19, 2011, at 9 a.m. in court 104 to set a new trial date.
___________________________ DURNO, J.
Released: August 30, 2011
CITATION: R. v. Gill, 2011 ONSC 4728
COURT FILE NO.: 94/10
DATE: 20110830
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
APPELLANT
- and –
MUNPREET GILL
RESPONDENT
SUMMARY CONVICTION APPEAL COURT
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable K. Mulligan, dated January 14, 2010]
DURNO, J.
Released: August 30, 2011
[^1]: While there is no obligation on the police officer to ask when the machine will arrive (R. v. Singh, (2004), 4 M.V.R. (5th) 252 (S.C.J.) at p. 262), it would be advisable for officers to make the inquiry to assist them in determining how to proceed.