ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SCA 69/11
DATE: 20120118

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

JOHNNIE HRYNKIW
Appellant

Elizabeth Stokes , for the Crown/Respondent
David Burke , for the Appellant

HEARD: January 13, 2012

KELLY J.

REASONS FOR DECISION

1On May 1, 2010, the Appellant was arrested for operating a vehicle with over 80 mgs of alcohol in 100 millilitres of blood contrary to s. 254 (b) of the Criminal Code . At trial, Weisman J. found that his rights to counsel pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms had been infringed but he did not exclude the evidence pursuant to s. 24(2) . Following that ruling, the Appellant was convicted.

2The Appellant submits that the trial judge erred in his analysis pursuant to s. 24(2). Both Counsel agree that should I find that the trial judge erred, I should conduct the s. 24(2) analysis.

3For the reasons set out below, I do find that the trial judge did err in the s. 24(2) analysis but the result is the same and the evidence is admissible. What follows are my reasons.

The Facts

4The facts of this case may be briefly stated as follows:

a. On May 1, 2010, the Appellant was arrested for over 80 and transferred to Traffic Services.

b. At 1:24 a.m., the Appellant spoke with his Counsel of choice for approximately 3 minutes but the Appellant was not satisfied with his conversation with Counsel.

c. The Appellant asked the arresting officer if he could speak with his Counsel again. Such a request was denied.

d. The Appellant did not make a request to speak to his Counsel again despite being in the company of another officer who took him to the breath room nor did he make a request of the breath technician.

e. Before conducting the breath tests, the breath technician confirmed that the Appellant had spoken to his Counsel. The Appellant referred to his lawyer on two occasions in the breath room. At this time, he appeared to be joking with the breath technician: he said that his lawyer would not want him making admissions about consuming wine. Further he told the breath technician that his lawyer would “deal with this” and “that’s why I called him”.

Analysis

a. Did the trial judge commit an error in his s. 24(2) analysis?

5I have reviewed the reasons for decision regarding the trial judge’s s. 24(2) analysis. The bulk of the decision deals with the type of advice that he anticipated the Appellant would have received had he spoken to his Counsel a second time. The trial judge found that the breach was less egregious because he did not hear any evidence as to what further information the Appellant could have received from Counsel that would have changed anything that occurred.

6Crown Counsel rightly conceded that the trial judge erred in considering the value of the advice that might have been given if the Appellant spoke to his Counsel a second time. This is not a proper consideration in the analysis of the seriousness of the Charter infringing state conduct [1] . The fact is that the Appellant was not able to fully exercise his right to counsel as he desired.

7I agree that the trial judge committed an error in principle when he considered the value (or lack thereof) of the advice that Counsel may have provided had the Appellant been granted the opportunity of a second call. Accordingly, I will conduct the s. 24(2) analysis in light of this error. [2]

b. Should the evidence be excluded pursuant to s. 24(2) of the Charter ?

8I have reviewed the materials and the principles in R. v. Grant , supra . I have concluded that the evidence should not be excluded for the following reasons.

(i) The Seriousness of the State-Infringing Conduct

9I agree with the trial judge’s conclusion that the breach of the Appellant’s s. 10 (b) rights was not particularly egregious in the circumstances. The Appellant was given the opportunity to speak with his Counsel of choice when he attended at the police station and he was able to do so for three minutes.

10Although the Appellant was denied a request to speak to his Counsel a second time, he failed to request the opportunity from two officers prior to taking the breathalyser test. One of those officers escorted him to the breath room. The other was the breath technician who engaged the Appellant in conversation specifically about his lawyer.

11Even had the Appellant felt intimidated by the arresting officer and the refusal of the arresting officer to grant his request, it appears from the DVD taken of the activity in the breath technician’s room that the Appellant was quite comfortable with that officer. He was joking about his Counsel and yet, did not request an opportunity to call him again.

12Further, there is no evidence that the failure to provide rights to counsel was institutional. There was no evidence that this was common practice at the Traffic Services Division where the Appellant was taken.

13While the Appellant’s s. 10(b) Charter rights were breached and while such a breach was more than trivial or technical, I do conclude that it was not particularly egregious in this case. The Appellant was allowed to make his call and he did not raise the issue of a second call more than once before taking the test, despite the fact that the environment was not hostile in the breath technician’s room. Accordingly, consideration of this factor warrants admissibility of the breath samples.

(ii) The Impact on the Charter -Protected Interests of the Appellant

14The second principle of s. 24(2) is a consideration of the impact on the Charter -protected interests of the Appellant. The purpose of s. 10 (b) is to ensure that those persons arrested have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and comply with those obligations.

15There is precedent wherein it was held that breath samples are not automatically excluded where the breach is minor and would not bring the administration of justice into disrepute [3] . In this case, it is conceded that the Appellant’s right to counsel was infringed but he did get an opportunity to speak to his Counsel on one occasion and therefore the breach is less egregious as set out above. Further, it was a breath sample that was taken in violation of that right and breath samples have been held to be relatively non-intrusive. Such a finding warrants admissibility of the breath samples.

(iii) Society’s Interest in an Adjudication of the Case on its Merits

16It is trite to say that it is in society’s interest to have impaired driving cases adjudicated on their merits. The evidence of the breath samples is reliable and essential to the Crown’s case. The offence is serious in light of the damage that drinking and driving can cause in our society. [4] Again, such a finding warrants admissibility of the breath samples.

(iv) Balancing the Interests

17In considering the three principles set out above and in balancing the requisite interests, I find that the evidence obtained in breach of the Appellant’s s. 10(b) Charter rights would not bring the administration of justice into disrepute. Accordingly, the evidence is admissible.

Conclusion

18For the abovementioned reasons, the appeal is dismissed.

Kelly J.

Footnotes

1. 1See: R. v. Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 at para. 71 .
2. 2See: R. v. Buhay, 2003 SCC 30 , [2003] S.C.J. No.30 at paras. 42-48 (S.C.C.).
3. 3See: R. v. Grant, 2009 SCC 32 , supra , at paras. 106 and 111 and R. v. Stillman, 1997 SCC 384 , [1997] S.C.J. No. 34 at para. 90 (S.C.C.).
4. 4See: R. v. Bernshaw, [1995] 2 S.C.R. 254 at paras. 16-19 .