ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-11845
DATE: 2013/10/30
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
– and –
MAXIME MORIN-LEBLANC
Respondent
Matthew Humphreys, for the Crown
Lorne J. Goldstein, for the Respondent
HEARD: October 15-16, 2013
decision on charter issues
lalonde j.
[1] The accused has brought an application challenging the voluntariness of statements made to police in connection with his arrest refusal to provide a breath sample-death contrary to section 255(3.2) of the Criminal Code, R.S.C. 1985, c. C-46. The applicant also asserts that his rights were violated contrary to sections 10(a), and s. 10(b) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[2] The applicant takes no position on the question that the other utterances made by the applicant to Constable Daniel Levesque after being cautioned while inside the cellblock area of the Ottawa Police Station are voluntary. I make a finding, that after hearing the evidence of Constable Daniel Levesque, the Crown has proven beyond a reasonable doubt that these utterances were voluntary. Also, after viewing the audio/video statement made by the accused while being interviewed by Detective Nigel Emaman, and as the applicant takes no position, I find that this statement was also voluntary.
[3] The accused argues that the statements in which he refused to provide a breath sample to Constable Kari Launen should be excluded because of a breach of his s. 10(b) Charter right to be informed of his right to counsel without delay.
[4] It is the position of the Crown that his refusal is admissible as there was no change in the jeopardy faced by the accused from the time in which he was provided a 10(b) caution and spoke to his lawyer and the time when he refused an intoxilyzer demand. The Crown asserts that there was no duty on Constable Launen to inform the accused of the consequences of a refusal.
Facts
[5] I have reviewed the facts as Crown counsel sets out in his factum and I will use them as they are acceptable. They reflect accurately the evidence heard from police officers on this voir dire.
[6] On October 15, 2011 at 3:03 a.m. the applicant drove his Honda Accord with his two passengers the wrong way down St. Patrick Street from Dalhousie Street to Cumberland Street.
[7] At the intersection of St. Patrick and Cumberland Street he struck and killed Ms. Alexandra Dodger as she was crossing the street.
[8] Constable Daniel Levesque, a member of the Ottawa Police Service, arrived on the scene and observed the applicant’s car parked, facing the wrong way on St. Patrick Street.
[9] Cst. Leveque learned that the applicant was the driver of the motor vehicle. The officer detected a strong odour of alcohol coming from the applicant’s breath and noticed the applicant’s eyes were red and glossy. When asked if he had any alcoholic beverages that evening the applicant replied yes, and according to Cst. Levesque, the applicant admitted to the consumption of several alcoholic drinks.
[10] Following a conversation with the applicant and after ensuring the victim was under the care of paramedics, Cst. Levesque demanded that the applicant provide a sample of his breath into an approved screening device. The applicant did so and he registered a “fail.”
[11] The accused was then placed under arrest for impaired driving causing bodily harm and driving with over 80 milligrams of alcohol in 100 millilitres of blood causing bodily harm. The maximum penalty for these offences is 10 years imprisonment respectively.
[12] Cst. Levesque informed the applicant of his right to counsel and provided him with the primary and secondary caution. The applicant indicated that he understood all of these cautions. At 3:21 a.m. Cst. Levesque read the accused the intoxilyzer demand in French.
[13] The applicant was placed in the police vehicle and taken to the police station. Before the applicant spoke with his lawyer, Cst. Levesque learned that Ms. Dodger had died. At 3:48 a.m. re-arrested the applicant for impaired driving causing death pursuant to section 255(3) which carries a maximum penalty of life imprisonment and driving with over 80 milligrams of alcohol in 100 millilitres of blood causing death pursuant to section 255(3.1) which carries a maximum penalty of life imprisonment. The following is the sequence of the conversations between officers and the accused once these new charges were laid:
At 3:53 a.m., after the re-arrest, Cst. Levesque again informed the applicant of his right to counsel and provided him with the primary and secondary caution. Cst. Levesque then made an intoxilyzer demand and re-read the applicant the intoxilyzer demand which involves a caution simpliciter that the accused may refuse to provide a breath sample but that the consequence will be an additional criminal charge.
After being cautioned the second time, the accused stated in French: “Je m’excuse. J’ai voulu eviter le vehicule: and “Fuck man, j’aurais du rentrer dans le char, tata.” This translates to: I’m sorry, I wanted to avoid the vehicle” and “Fuck man, I should have hit the car” in English.
At 3:57 the applicant spoke to his lawyer for approximately 17 minutes.
While the applicant was speaking with his lawyer, Cst. Levesque realized that he had not advised the applicant that he was also under arrest for dangerous operation of a motor vehicle causing death pursuant to section 249(1)(a) which carries a sanction of fourteen years.
After the applicant had finished speaking with his lawyer, Cst. Levesque informed the applicant that he was also facing a charge of dangerous operation of a motor vehicle causing death by summarizing for the applicant that charges had been increased to dangerous operation of a motor vehicle causing death, impaired operation of a motor vehicle causing death, and over 80 milligrams of alcohol in 100 millilitres of blood causing death.
Cst. Levesque then again informed the accused of his right to counsel and provided him with primary and secondary caution. The accused replied, “oui, oui, c’est fait” indicating that he understood the caution.
At 4:48 a.m. the applicant was taken to a room to perform the intoxilyzer breath test.
In the interview, the applicant was told on multiple occasions what three charges he was facing, and that he could contact his lawyer.
In the interview, the applicant was requested to provide a breath sample. He asked if he could refuse and the officer provided the applicant with a caution simpliciter that the accused may refuse to provide a breath sample but that the consequence will be an additional criminal charge. The applicant refused to give the breath sample.
The applicant was informed that there he would now facing a new charge (a new jeopardy) and was given the opportunity to contact his lawyer.
The applicant was arrested for refusal to provide a breath sample as demanded and the officer informed the applicant of his right to counsel and provided him with primary and secondary caution.
Eventually, the Crown proceeded by charging the applicant with criminal negligence causing death, impaired operation of a motor vehicle causing death and refusal to provide a breath sample where death was caused.
[14] I note that before the applicant chose to refuse to provide a breath sample he had been arrested for impaired driving having caused death pursuant to s. 255(3) of the Code and received advice from his counsel of choice. The maximum penalty pursuant to s. 255(3) is life imprisonment – the same penalty or jeopardy as s. 255(3.2) of the Code.
The Issue
[15] Have the accused’s s. 10(a) and s. 10(b) rights under the Charter been violated?
The Applicant’s Position
[16] Counsel for the applicant points out that the court cannot be certain what the accused understood he was refusing when he refused to give a breath sample. In this case, the set of circumstances in relation to the charges changed when the victim died. Once the applicant was informed that the pedestrian had died, charges were varied to take that fact into consideration. Just as a charge of assault can change into a charge of assault causing bodily harm, then to aggravated assault and then to manslaughter over the course of an investigation, in this case, as the facts changed (the death of the injured pedestrian), charges became more serious. Similarly, the jeopardy faced for a refusal to give a breath sample simpliciter that calls for a maximum of five years imprisonment is increased to a penalty of up to life imprisonment when the accident caused a death. The applicant states that since the jeopardy for the “refusal to provide a sample” offence changed when the victim died, the accused ought to have been informed of this fact so that he could exercise his 10(b) rights with the knowledge of what jeopardy he was facing.
[17] Counsel for the applicant relies on R. v. Black, 1989 75 (SCC), [1989] 2 S.C.R. 138 at paras. 23, 24 and 25 where Wilson J. stated:
23 This Court has on numerous occasions stated that a purposive analysis must be undertaken when interpreting Charter provisions: see Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145, and R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295. The Court held in Clarkson v. The Queen, 1986 61 (SCC), [1986] 1 S.C.R. 383, that s. 10(b) was concerned with fostering the principles of adjudicative fairness. Quoting from p. 394:
This constitutional provision is clearly unconcerned with the probative value of any evidence obtained by the police but rather, in the words of Le Dain J. in Therens, supra, at pp. 641-42, its aim is "to ensure that in certain situations a person is made aware of the right to counsel" where he or she is detained by the police in a situation which may give rise to a "significant legal consequence".
24 Moreover, s. 10(b) should not be read in isolation. Its ambit must be considered in light of s. 10(a). Section 10(a) requires the police to advise an individual who is arrested or detained of the reasons for such arrest or detention. The rights accruing to a person under s. 10(b) arise because he or she has been arrested or detained for a particular reason. An individual can only exercise his s. 10(b) right in a meaningful way if he knows the extent of his jeopardy.
26 The Crown argued that, despite the change in the charge, the preliminary legal advice which the appellant received might well have been unchanged. This may be so. On the other hand, given the differences in the charges as discussed above, to conclude that the advice would inevitably have been the same is sheer conjecture. In my opinion, it is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed. If the Crown's argument on this point were sound, each time an accused was asked to blow into a breathalyzer there would be no need to advise the accused of his s. 10(b) rights since it might be assumed that counsel would advise the accused that he should submit to the breathalyzer on the basis that failure to do so constitutes a criminal offence. Such reasoning runs directly afoul of this Court's judgments in R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, and Trask v. The Queen, 1985 30 (SCC), [1985] 1 S.C.R. 655. It also totally defeats the purpose of s. 10(b). [Emphasis added.]
[18] Two officers testified in the case at bar that they did not know the extent of the jeopardy in section 235(3.2) of the Criminal Code. As a result, no meaningful consideration could be given to the accused’s rights. Counsel for the applicant argues that once the accused’s jeopardy for refusing to give a breath sample changed to life imprisonment, he had a right to be informed of such a change and speak to his lawyer a second time.
[19] Quoting para. 39 of the Black decision, counsel for the applicant argues that allowing the evidence of his client’s refusal in evidence would adversely affect the fairness of the trial by impinging the accused’s rights against self-incrimination, a right that would have been protected had the accused spoken to his counsel. Defence counsel relies on the Black case for the fact that the statement was excluded even though the police officers acted in good faith and he asserts that similarly, in the case at bar, the refusal statement should be excluded.
[20] The case of R. v. Borden, 1994 63 (SCC), [1994] 3 S.C.R. 145 involved sexual assault charges against the accused. Paragraphs 42, 43 and 44 read as follows and are relied on by the applicant to have his statement refusing to provide a sample excluded:
42 This non-disclosure on the part of the police of their dual purpose in seizing the respondent's blood also forms the basis for the claim that the s. 10(a) and (b) rights of the respondent were infringed. The appellant argued that the respondent's s. 10(a) and (b) rights were not triggered in this appeal, in that he was never arrested or detained in relation to the October sexual assault. Rather, the entire time that he was in the custody of the police, he was detained for the motel sexual assault.
43 This argument, however, contradicts the testimony of the police officers, who admitted that their predominant intention in taking a sample of the respondent's blood was the investigation of the assault on the elderly woman by a comparison of the DNA in the blood with the DNA in the semen found on her blanket. As already mentioned, the taking of the blood represented both a consensual taking in respect of the motel offence, and a seizure of it in respect of the October offence. Once matters reached a point at which the officers were investigating two offences, the respondent was detained in relation to both of them, and had the right to be informed of this dual investigative intention. Therefore, I find that the right of the respondent under s. 10(a) of the Charter to be informed of the reasons for his detention was violated in this case.
44 As this Court has previously stated, the rights in s. 10(a) and 10(b) of the Charter are linked. One of the primary purposes of requiring the police to inform a person of the reasons for his or her detention is so that person may make an informed choice whether to exercise the right to counsel, and if so, to obtain sound advice based on an understanding of the extent of his or her jeopardy: R. v. Black, 1989 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-53; and R. v. Smith, 1991 91 (SCC), [1991] 1 S.C.R. 714, at p. 728. To the credit of the police in this appeal, they were extremely fair in facilitating the exercise of the respondent's right to counsel in respect of the sexual assault for which he had been arrested. Obviously, the respondent ignored the advice of his lawyer not to tell the police anything.
[21] Counsel points out that the Supreme Court in para. 50 of the Borden decision state that the good faith of the police did not save an admission that would render the trial unfair.
[22] Counsel also relies on R. v. Sawatsky, 1997 511 (ON CA), 35 O.R. (3d) 767, where Doherty J.A. dealt with the question of whether an infringement of a s. 10(b) right was a technical obstacle only. In that case, the accused was charged in connection with an arson in Peterborough. The female accused told the police officers that she had set the fire to get even with her boyfriend and that she also had set a fire in Kingston, Ontario two years earlier. The trial judge had rejected the argument that the accused’s s. 10(b) right should have been reinstated once the accused began to discuss a second fire. Doherty J. A. stated at paras. 23-26:
23 The right to counsel enshrined in s. 10(b) of the Charter is a principle of fundamental justice and reflects a commitment to the fair treatment of persons detained by the police even at the expense of investigative efficiency; R. v. Clarkson (1986), 1986 61 (SCC), 25 C.C.C. (3d) 207 at 217-18 (S.C.C.). Section 10(b) recognizes that persons detained by the police operate under a very real disadvantage and must be able to seek the assistance of counsel in a timely fashion.
24 Chief Justice Lamer described the purpose of s. 10(b) in these terms in R. v. Bartle (1994), 1994 64 (SCC), 92 C.C.C. (3d) 289 at 300 (S.C.C.):
The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfill those obligations: [citations omitted]. This opportunity is made available because, when an individual is detained by the state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: … [Emphasis added.]
25 The noble purposes underlying s. 10(b) identified by the Chief Justice must animate any consideration of its application to a given fact situation. A s. 10(b) claim cannot be approached as if it were an attempt to place a technical obstacle in the way of effective law enforcement.
26 Section 10(b) places certain obligations on the police. Foremost among these is the duty to tell a detained person without delay that she has a right to speak with a lawyer. This obligation is imposed on the police s a detained person can decide whether to exercise her right to counsel before any further interaction with the police: R. v. Bartle, supra, at pp. 301-302. To make the exercise of the right to counsel meaningful, the detained person must be in a position to make an informed decision as to whether to seek counsel’s assistance. To do so, the detained person must at least know why she is detained and why the police wish to question her or involve her in some other investigative process: R. v. Borden, supra, at p. 419; R. v. Young (1992), 1992 7607 (ON CA), 73 C.C.C. (3d) 289 at 297 (Ont. C.A.).
[23] Counsel for the applicant also relies on the decision of R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R.310 to support the proposition that where a detainee has been given his s. 10(b) rights at the outset of an investigation he has the constitutional right to further consultations with counsel during the course of the investigation when there is a change in the jeopardy he is facing. McLachlin C.J. and Charron J. state at para. 2:
2 We conclude that s. 10(b) does not mandate the presence of defence counsel throughout a custodial interrogation. We further conclude that in most cases, an initial warning, coupled with a reasonable opportunity to consult when the detainee invokes the right, satisfies s. 10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognition of the right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient. The categories are not closed.
[24] The Justices in the Sinclair case also address the situation where more than one consultation is needed at paras. 47, 48, 51 and 52:
47 Section 10(b) should be interpreted in a way that fully respects its purpose of supporting the detainee’s s. 7 right to choose whether or not to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation at the time of detention or shortly thereafter. This gives the detainee the information he needs to make a meaningful choice as to whether to cooperate with the investigation or decline to do so. However, as the cases illustrate, sometimes developments occur which require a second consultation, in order to allow the accused to get the advice he needs to exercise his right to choose in the new situation.
48 The general idea that underlies the cases where the Court has upheld a second right to consult with counsel is that changed circumstances suggest that reconsultation is necessary in order for the detainee to have the information relevant to choosing whether to cooperate with the police investigation or not. The concern is that in the new or newly revealed circumstances, the initial advice may no longer be adequate.
51 The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(b) advice and opportunity to consult counsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If the investigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, or jeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult with counsel and obtain advice on the new situation. See Evans and Black.
52 If events indicate that a detainee who has waived his right to counsel may not have understood his right, the police should reiterate his right to consult counsel, to ensure that the purpose of s. 10(b) is fulfilled: Prosper. More broadly, this may be taken to suggest that circumstances indicating that the detainee may not have understood the initial s. 10(b) advice of his right to counsel impose on the police a duty to give him a further opportunity to talk to a lawyer. Similarly, if the police undermine the legal advice that the detainee has received, this may have the effect of distorting or nullifying it. This undercuts the purpose of s. 10(b). In order to counteract this effect, it has been found necessary to give the detainee a further right to consult counsel. See Burlingham.
The Crown’s Position
[25] The Crown argues that the applicant was informed of his s. 10(b) Charter Rights without delay. Further, the accused’s refusal to give a breath sample is admissible as there was no change in jeopardy nor was there a duty upon Constable Launen to inform the accused of the sentencing consequences of a refusal to provide a breath sample.
[26] In his factum Crown counsel set out the jurisprudence on the basic refusal to give a breath sample as follows:
• R. v. Danychuk, 70 O.R. No. 615 at paras. 19 and 21 (C.A) supports the proposition that there are no provisions in the Criminal Code or at common law that places a duty on a police officer to explain to a detainee the process and consequences of his failure to comply to a demand for a breath sample;
• R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 at para. 45 establishes that persons to whom demands to give breath samples are made must comply immediately and not later at a time of their choosing when they have decided to stop refusing.
• R. v. Rivera, 2011 ONCA 225, 104 O.R. (3d) 561 at para. 50 stand for the proposition that where statements of an accused constitute the gravamen or foundation of the offence, such statements are admissible without the need for a voir dire to establish voluntariness.
[27] Crown counsel relies on the decision in R. v. Smith, 1991 91 (SCC), [1991] 1 S.C.R. 714 for the fact that an accused can validly waived their right to counsel if he or she understood the sort of jeopardy they faced when they made the decision to dispense with counsel or as in the present case to receive legal advice.
[28] In Smith, the accused was arrested for a “shooting incident” at which time Charter rights were extended to him. During the ensuing interview with the police, the interviewing officer learned that the victim had died and that the accused would be facing a murder charge. The officer neglected to inform the accused of this change or renew the Charter rights reflecting the new circumstances. The Supreme Court concluded that the accused’s rights were not violated since he understood generally the situation he was in and could have appreciated the consequences of deciding for or against counsel. McLachlin J. (as she then was) stated the following at paras. 27 and 28:
27 It has never been suggested, however, that full information is required for a valid waiver. Indeed, if this were the case, waivers would seldom be valid, since the police typically do not know the whole story when the accused is arrested. Nor is the failure of the police to precisely identify the charge faced in the words of the Criminal Code necessarily fatal. In the initial stages of an investigation the police themselves may not know the precise offence with which the accused will be charged. Moreover, the words of the Code may be less helpful to a lay person than more common parlance in communicating the extent of jeopardy. Finally, the degree of awareness which the accused may be reasonably assumed to possess in all the circumstances may play a role in determining whether what the police said was sufficient to bring home to him the extent of his jeopardy and the consequences of declining his right to counsel.
28 The question reduces to this: in this case was the accused possessed of sufficient information to make his waiver of counsel valid? To my mind, to establish a valid waiver of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by the evidence the accused generally understood the sort of jeopardy he faced when he or she made the decision to dispense with counsel. The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told.
[29] Crown counsel points out that in this case, the applicant never failed to appreciate the seriousness of the situation he faced on the day of his arrest. He knew he had been driving after consuming many alcoholic drinks, that the victim in his words was lying on the pavement like “a ragdoll”, he had witnessed the emergency personnel at the accident scene, he was informed that the victim had died, he was re-arrested on an impaired driving charge causing death, a driving over .08 charge causing death and a breath sample demand was made; all this happened before the accused entered the telephone booth at the police station to speak with the lawyer of his choice.
[30] The British Columbia Court of Appeal interpreted R. v. Smith in R. v. Shaw (1995), 1995 1970 (BC CA), 68 B.C.A.C. 314 at para. 8 and held that a second Charter warning is not required if the accused understood the sort of jeopardy he or she faced when he or she made the decision to dispense with receiving legal advice.
[31] Crown counsel argues on the authority of R. v. Schmautz, 1990 134 (SCC), [1990] 1 S.C.R. 398 at paras. 26 and 28 that a new right to counsel arises only when the extent of the legal jeopardy changes significantly. The Crown argues that in this case, the extent of jeopardy did not change as before the applicant spoke with his lawyer, he was facing penalties of up to life imprisonment for impaired driving causing death and driving with an alcohol content in his blood of over .80 causing death which also calls for a penalty of up to life imprisonment.
[32] In R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869 at para. 48, Sopinka J. explained that there has to be a discrete change in the investigation involving a different unrelated offence than that contemplated at the time of the warning to cause the police to give the accused a right to counsel anew. Sopinka J. stated:
48 I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counsel every time that the investigation touches on a different offence. I do, however, affirm that in order to comply with the first of the three duties set out above, the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at the time of the warning. [Emphasis added.]
[33] The New Brunswick Court of Appeal interpreted the Supreme Court’s decision in Smith when it decided R. v. O’Donnell (1991), 1991 2695 (NB CA), 118 N.B.R. (2d) 91 (C.A.). Angers J. stated at para. 12:
Corporal Theriault, when he gave the demand, could not anticipate the precise charge. He was not, in my opinion, obliged to tell Mr. O’Donnell either the maximum sentences or the range of sentences imposed for the charges, all of which involve the consumption of alcohol while driving, that could result from this incident. In my view, jeopardy means more than simply knowing the maximum or likely penalties a person is facing. It includes, as McLachlin, J. points out, that person’s general awareness of the situation he faces. [Emphasis added.]
[34] In R. v. O’Donnell, the accused was involved in a motor vehicle accident in which a child was seriously injured. The accused was told that the police were investigating an offence under s. 253 of the Criminal Code, a breathalyzer demand was made and the accused was given his Charter rights. However, between the taking of the first and second breath samples the child died. The accused was not informed and the next breath sample was taken. Ultimately, the conviction for impaired driving causing death was upheld on the grounds that the police officer was not obliged to anticipate the precise charge that the accused would face nor was he required to inform the accused of the range of sentences applicable to each of the possible charges. An application for leave to appeal was dismissed by the Supreme Court of Canada: [1991] S.C.C.A. No. 335.
[35] Crown counsel concludes that in this case Constable Launen was not required to advise the accused of the consequences of his failure to provide a breath sample. The actus reus of the offence was made out at the time of the refusal. The applicant was already facing charges which carried maximum terms of life imprisonment. There was no change in jeopardy notwithstanding what the officer did or did not know about the penalty that a charge under 255(3.2) carried. There was no reason or obligation for the officer to inform the accused about an increased penalty associated with the failure to provide a breath sample where the accident resulted in a death. Therefore there was no breach of s. 10(a) or (b) of the Charter.
Decision
[36] There is nothing in s. 255(3.2) of the Criminal Code that states an accused must be cautioned about the penalty associated with the charge and given an opportunity to consult with his counsel prior to indicating to a breathalyzer technician a refusal to give a breath sample. There are no precedents in the jurisprudence that establish such a right.
[37] It is significant that just prior to taking the accused to the breathalyzer room, the accused was offered the right to speak to counsel. The accused spoke to an experienced counsel for over 15 minutes. While I cannot speculate what was exchanged between counsel and his client, I am mindful that the accused knew of the dire straits that he was in.
[38] The circumstances facing the accused could not have been more serious. He had driven after drinking alcoholic beverages, had registered a fail on the roadside test at the scene of the accident and he knew that the pedestrian he hit had died. He had also been read an intoxilyzer demand and caution at the police station prior to speaking with his lawyer.
[39] Once the accused refused to give a breath sample, the actus reus of the offence was made out. This finding allows me to dispose of the voluntariness argument advanced by the applicant. As explained by the Court of Appeal in R. v. Rivera, although the voluntariness of statements made by an accused to a person in authority must normally be proven by the Crown, in a case where the words of refusal constitute the actus reus of the offence charged, it is not necessary to establish on a voir dire the voluntariness of the accused’s statement: at para. 101.
[40] The applicant has the onus to establish on a balance of probabilities that his s. 10(a) and (b) rights were breached, he has failed to do so. Although a new charge was added after the applicant refused to provide a breath sample, the jeopardy faced by the applicant did not change. As explained by the court in R. v. O’Donnell at para. 12, jeopardy means more than simply knowing the maximum or likely penalties a person is facing it includes the person’s general awareness of the situation he faces. Here, as was the case in O’Donnell, all of the charges arose from the same events that the applicant had full knowledge of. The applicant knew he faced three charges in relation to an accident he caused that resulted in the death of the victim. Two of these charges made him liable to life imprisonment. The applicant also had notice that an intoxilyzer demand would be made by virtue of the warning he received when he arrived at the police station. He therefore did appreciate the jeopardy he was in and as such, the police did not have to re-caution the accused prior to his refusal to provide a sample of his breath.
[41] I also rely on Justice Sopinka’s explanation in R. v. Evans at para. 48 that an accused is only entitled to be re-informed of their right to counsel when there is a discrete change in the purpose of the investigation. There was no such change in this case. When the intoxilyzer demand in question was made, the purpose of the police investigation had not changed from that contemplated when the applicant was given an opportunity to speak to his lawyer.
[42] With regard to the authorities relied on by the applicant, I find that read as a whole, these cases are only helpful for outlining the fundamental link between an accused’s s.10(a) and (b) rights. On that point, I agree with counsel that a purposive approach must be taken when interpreting these rights and an accused cannot meaningfully exercise his or her right to counsel without adequate disclosure of the nature and purpose of the police investigation and an appreciation of the scope of the jeopardy they face. These fundamental principles are not undermined by the fact that an accused is only entitled to be re-cautioned when there is a fundamental change in the nature or scope of the investigation.
[43] For the above reasons, I dismiss the accused’s application as I find that the accused was not under a new jeopardy and he was not facing a new, unrelated offence, as discussed in the case law submitted by the Crown.
Lalonde J.
Released: October 30, 2013
COURT FILE NO.: 11-11845
DATE: 2013/10/30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Applicant
– and –
MAXIME MORIN-LEBLANC
Respondent
DECISION ON CHARTER ISSUES
Lalonde J.
Released: October 30, 2013