ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 7218/11
DATE: 2012-04-30

BETWEEN:

HER MAJESTY THE QUEEN – and – MACKENZIE MANCHULENKO Respondent

Mike Kelly, for the Crown
Donald Orazietti, for the Respondent

HEARD: April 18, 2012

REASONS ON APPEAL

JUSTICE E. GAREAU

1The crown appeals a decision made on May 31, 2011 by the Honourable Madam Justice E. K. Bignell in the Ontario Court of Justice.

2On May 31, 2011 the learned trial judge dismissed charges under s.253 (a) and s.253(b) of the Criminal Code of Canada .

3Prior to dismissing the charges on July 2, 2010, the learned trial judge made a ruling on a voir dire in which she found that Mr. Manchulenko’s right to counsel under s.10(b) of the Charter of Rights and Freedoms had been breached and excluded the evidence of two breath tests after a s.24(2) analysis.

4In his submissions before this court on the appeal, crown counsel urged the court to allow the appeal, strike the acquittal of the accused and order a new trial on the following grounds:

(a) that the learned trial judge erred in finding a breach of the s.10(b) Charter right to counsel, and, in particular, she erred in her application of the case of R. v. Prosper , 1994 , [1994] 3 S.C.R. 236;

(b) that the learned trial judge erred in excluding both breath tests from evidence.

5The case of R. v. Prosper , 1994 , [1994] 3 S.C.R. 236 is a 1994 case heard by a full panel of the Supreme Court of Canada. In that case, Mr. Prosper was observed to be driving erratically. A s.10(b) Charter caution was read to Mr. Prosper, advising him of his right to counsel and of the right to apply for free legal aid. Mr. Prosper indicated that he wanted to speak with a lawyer before taking the breathalyser tests. The police provided him with a list of legal aid lawyers to call. Over a 40-minute period, Mr. Prosper tried, with the assistance of the police, to reach 12 lawyers on the list. Mr. Prosper failed to reach any lawyers on the list and declined to use the telephone book offered to him by the police indicating he could not afford the legal fees of a private lawyer. Unable to reach a legal aid lawyer, Mr. Prosper agreed to take the breathalyser tests, both of which failed.

6In the R. v. Prosper case, the Supreme Court of Canada held that once an accused has indicated a desire to exercise the right to counsel, that the police must provide that person with a reasonable opportunity to consult counsel and the police may not elicit incriminating evidence from the accused until that opportunity has been given. The Charter right under s.10(b) “to retain and instruct counsel without delay and to be informed of that right” is a fundamental right to protect against self-incrimination.

7The majority in R. v. Prosper held that once the accused asserted his right to counsel and tried repeatedly to contact counsel without success, there was a requirement of the police to “hold off” from their investigation until the accused had a reasonable opportunity to contact counsel. Failing to “hold off” in the Prosper case resulted in an infringement of the accused’s s.10(b) Charter rights. Lamer, C.J., writing for the majority of the court, explained the obligation to “hold off” at paragraph 34 of the judgment as follows:

As this Court has stated on a number of occasions, s. 10(b) imposes both informational and implementational duties on state authorities who arrest or detain a person. (See Bartle, at pp. 192-94; R . v . Manninen , [1987] 1 S.C.R. 1233 , at pp. 1241-42 ; R . v . Evans , [1991] 1 S.C.R. 869 , at p. 890 ; Brydges, at pp. 203-4.) Once a detainee has indicated a desire to exercise his or her right to counsel, the state is required to provide him or her with a reasonable opportunity in which to do so. In addition, state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel. As the majority indicated in R . v . Ross , [1989] 1 S.C.R. 3 , at p. 12, once a detainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. In other words, the police are obliged to "hold off" from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel.

8The court went on to indicate that what constituted a “reasonable opportunity” for an accused to exercise his right to counsel will depend on all the surrounding circumstances. In other words, the facts of each case will have to be examined to determine whether the accused was afforded a “reasonable opportunity” to contact counsel.

9In R. v. Prosper , the court held that the accused did not waive his right to counsel and for there to be a waiver of the right under s.10(b) of the Charter , this must be clear and unequivocal, the burden of establishing that the accused waived this right resting on the crown. As Lamer, C.J. indicated at paragraph 43 and 44 of the judgment:

In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.

Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Ross , at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high: Clarkson v . The Queen , [1986] 1 S.C.R. 383 , Manninen , and Evans . As I said in Bartle , at pp. 192-94 and 206, a person who waives a right must know what he or she is giving up if the waiver is to be valid. That being said, it stands to reason that the right to counsel guaranteed under s. 10( b ) must not be turned into an obligation on detainees to seek the advice of a lawyer.

10The majority in R. v. Prosper held that the statutory requirement to take the breath samples within two hours to create the evidentiary presumption pursuant to the Criminal Code of Canada did not constitute “compelling and urgent” circumstances that alleviated the police’s obligation to “hold off” once the accused expressed his desire to exercise his s.10(b) Charter right. As indicated in paragraph 45 of the majority decision in R. v. Prosper :

Finally, I wish to point out that there may be compelling and urgent circumstances in which, despite a detainee's being unable to contact a lawyer due to the unavailability of a " Brydges duty counsel" system, police will not be required under s. 10( b ) to hold off. However, in the context of impaired driving cases, I am satisfied that the existence of the two-hour evidentiary presumption available to the Crown under s. 258(1)( c )(ii) of the Code does not, by itself, constitute such a compelling or urgent circumstance. "Urgency" of the kind referred to by this Court in cases such as Manninen , supra , and R . v . Strachan , [1988] 2 S.C.R. 980 , is not created by mere investigatory and evidentiary expediency in circumstances where duty counsel is unavailable to detainees who have asserted their desire to contact a lawyer and been duly diligent in exercising their s. 10( b ) rights. A detainee's Charter -guaranteed right to counsel must take precedence over the statutory right afforded to the Crown which allows it to rely on an evidentiary presumption about what a breathalyser reading would have been at the time of care and control of a vehicle. Loss of the benefit of this presumption is simply one of the prices which has to be paid by governments which refuse to ensure that a system of " Brydges duty counsel" is available to give detainees free, preliminary legal advice on an on-call, 24-hour basis. In the circumstances presented in this case it is neither necessary nor appropriate to consider s. 1 of the Charter . However, if, for example, a section of the Code was to be enacted which required a person to take a breathalyser test within a fixed time whether or not a lawyer had been consulted, then a court might well be required to consider, depending on the time allotted amongst other factors, whether such a provision could be justified under s. 1 of the Charter .

11The court went on in Prosper to conduct a s.24(2) Charter analysis and determined that the admission of the breath tests “would adversely affect the fairness of the trial and bring the administration of justice into disrepute.”

12In our appeal, the crown suggests that the learned trial judge erred in applying R. v. Prosper to the fact situation with respect to the accused Manchulenko. The crown submits that unlike in the Prosper case, Mr. Manchulenko does not respond out of frustration in being unable to contact counsel, as in Prosper, but rather changes his mind about exercising his s.10(b) rights, thereby relieving the police of the obligation to “hold off” their investigation. The crown suggests that Mr. Manchulenko did not exercise reasonable due diligence in contacting counsel and this was not dealt with in the decision of the learned trial judge.

13The learned trial judge found no breach of Mr. Manchulenko’s s.10(b) rights at the roadside when he was arrested or in the booking-in room at the police station. Bignell, J. found the breach of the s.10(b) rights while the accused was in the breath room for the breathalyzer samples. The facts, as found by the learned trial judge, are stated on page 12 of her Reasons of July 2, 2010, which reads as follows:

“Once again in the breath room Mr. Manchulenko was asked again if he wished to call a lawyer and he indicated that he did. Constable Martin immediately took him to the phone room. Constable Martin was able to tell the court his normal procedure when he takes someone to the phone room. In this specific case, however, his primary focus was the taking of the breath tests. He had notes regarding the taking of the tests but had no notes regarding his interaction with Mr. Manchulenko in the phone room itself. At trial, Constable Martin could not remember what had happened in the phone room and quite rightly did not want to speculate.

Mr. Manchulenko testified that upon his first trip to the phone room, he did not recall a phone book or list and was not offered any help as to who to call. He would have been in that room approximately 20 seconds just sitting there. He then told the police, “Let’s just get this over with”. He returned to the breath room where he provided the first breath sample.”

14There may be a distinction in these facts from the facts in R. v. Prosper , but, in my view, this is a distinction without a difference. Mr. Manchulenko was in the room to use the telephone no more than 20 seconds. What opportunity to exercise his s.10(b) Charter rights did this afford? Mr. Manchulenko’s evidence was that he did not recall a phone book or a list of lawyers and was offered no assistance whatsoever from the police with respect to the placing of the call.

Under these circumstances, it is not hard to imagine that Mr. Manchulenko, in the middle of the night, would utter the words “Let’s get this over with.”. In my view, this is just as much an act of frustration as the accused’s response in R. v. Prosper .

15I do not view the actions of Mr. Manchulenko as a waiver of his rights under s.10(b) of the Charter . I agree with the learned trial judge’s assessment that “the burden of establishing an unequivocal waiver is on the crown. I find, in this case, that an unequivocal waiver on the part of Mr. Manchulenko has not been established.” In my view, the words “Let’s get this over with.” fall significantly short of equating to a clear and unequivocal waiver of the accused’s constitutional right against self-incrimination and right to counsel under s.10(b) of the Canadian Charter of Rights and Freedoms.

16I agree with the learned trial judge’s application of R. v. Prosper to the case of Mr. Manchulenko. After Mr. Manchulenko came out of the room after 20 seconds, the police had an obligation to “hold off” until the accused had a reasonable opportunity to exercise his right to counsel.

17With regard to the second ground of appeal, it is the crown’s contention that the learned trial judge erred in excluding both breath samples. The basis for this argument is that in between the first and second breath tests, Mr. Manchulenko did contact and spoke to legal counsel. He did this prior to taking the second breath sample and therefore, the crown contends, was afforded the right to counsel prior to the taking of the second test. The crown argues that the second test should have been admitted into evidence.

18Although with only one breath sample, the crown could not rely on the statutory presumption created by two breath tests, it submits with one breath test it could have called a toxicologist to testify to prove the impairment of the accused. Counsel for Mr. Manchulenko contends that there would be a genuine issue about the admissibility of only one breath test and that the evidence that a toxicologist may give is mere speculation. Counsel for Mr. Manchulenko suggests that even if one breath sample being admitted with additional toxicology evidence there would not be reliable evidence sufficient to convict Mr. Manchulenko.

19I do not view the two breath samples as capable of being parcelled off or separated from each other. Once there is a Charter breach and the accused was not afforded his s.10(b) Charter rights, all the evidence from that point onward should be excluded. If the fundamental right against self-incrimination is infringed, all the evidence gathered from that point onward is tainted and is subject to be excluded under a s.24(2) Charter analysis. Once Bignell, J. found the Charter breach, all the evidence obtained from that point onward, including Mr. Manchulenko’s second breath sample, was excluded.

As indicated at paragraph 39 of the decision for the majority in R. v. Prosper :

Making the police hold off in situations where a detainee has been reasonably diligent in exercising his or her right to counsel, including where appropriate trying to reach a private lawyer, and where " Brydges duty counsel" is not available would accommodate a detainee's privilege against self-incrimination. The police investigation with respect to evidence in the construction of which a detainee must necessarily participate (e.g., confessions, identification evidence, and breath and blood samples) would have to be held in abeyance until such reasonable time as a detainee is able to make contact with a private lawyer or whatever duty counsel service is in existence in the jurisdiction.

20The police had an obligation to “hold off” at the point of the indication by the accused of his wish to exercise his right to counsel and all evidence from that point onward offends the right against self-incrimination and should be excluded. In this regard, breath samples are no different than a confession.

21In my view, there was no error committed by the learned trial judge in her application of the principles of R. v. Prosper to the facts in the case against Mr. Manchulenko and no error in the learned trial judge’s exclusion of both samples of breath under s.24(2) of the Canadian Charter of Rights and Freedoms .

22A review of the Reasons of the learned trial judge clearly indicates that she thoroughly considered the issue of the breach under s.10(b) of the Charter and the exclusion of the evidence under s.24(2) of the Charter . The trial judge’s Reasons are clear and cogent and well supported on the evidence and on the application of the law.

23Accordingly, this crown appeal is dismissed. This matter was to be before me for decision on May 30, 2012, but is now struck from that list since I have been able to release my decision in writing earlier than scheduled.