ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 1693-13

DATE: June 5, 2014

BETWEEN:

Her Majesty the Queen

Nila R. Mulpuru for the respondent

Respondent on Appeal

• and -

Michael Deleersnyder

Appellant

Frank Miller for the appellant

HEARD: January 8, 2014

MITROW J.

JUDGMENT

INTRODUCTION

[1] In this summary conviction appeal, the appellant appeals his conviction on a charge of having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood while operating a motor vehicle contrary to s. 253(1)(b) of the Criminal Code, made by Hornblower J. in the Ontario Court of Justice at Sarnia on September 17, 2012.

[2] The appellant brought an application to exclude from evidence the results of the analyses of his breath samples on the basis that there was a breach of the appellant’s right under s. 10(b) of Canadian Charter of Rights and Freedoms (“Charter’). The trial judge found that there had been a violation of the applicant’s s. 10(b) right but the trial judge did not exclude the breath test results pursuant to s. 24(2) of the Charter. The appeal is founded on the basis of that the trial judge erred failing to exclude the breath test results pursuant to s. 24(2) of the Charter.

THE RELEVANT FACTS

[3] The respondent agrees with the appellant’s summary of facts and what follows below is taken primarily from the appellant’s factum as representing the facts agreed to by the respondent.

[4] On February 19, 2009 at 2:28 a.m. the appellant was stopped by Constable Leblanc (“Leblanc”) of the Sarnia Police Services. The appellant at the time was operating his motor vehicle.

[5] As a result of information received by Leblanc from the appellant, a demand was made by Leblanc pursuant to which the appellant provided a sample of his breath into an approved screening device. The analysis of the sample registered as a “failure” and at 2:35 a.m., Leblanc arrested the appellant for operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[6] Following his arrest, the appellant was advised of his rights to counsel at 2:37 a.m. The appellant indicated that he understood the rights given and that he did not wish to contact a lawyer.

[7] Leblanc made a demand for samples of the appellant’s breath for the purposes of analysis and the appellant was taken to the Sarnia Police Headquarters at 2:43 a.m., arriving at 2:49 a.m.

[8] On his arrival at the police station the appellant was paraded by Leblanc before the supervisor, Staff Sargent McCabe (“McCabe”) at 2:55 p.m. Leblanc advised McCabe as to the time and reason for the appellant’s arrest, that the appellant had been given his rights to counsel and that the appellant had declined a lawyer.

[9] Leblanc conceded during cross-examination that he had heard McCabe ask the appellant if the appellant wished to call a lawyer, to which McCabe heard the appellant’s response “not yet”.

[10] Although Leblanc heard the appellant’s response “not yet”, Leblanc did not ask the appellant anything about contacting a lawyer or to clarify the words spoken by the appellant in response to the question from McCabe.

[11] Leblanc did not give any testimony as to anything that McCabe did after those words “not yet” were spoken by the appellant in response to the question from McCabe. Leblanc did not advise the appellant that the police were required to hold off attempting to obtain evidence from the appellant until the appellant had had an opportunity of contacting counsel.

[12] Constable Clifford (“Clifford”) was the breath technician on duty on the day of the appellant’s arrest. Leblanc turned the appellant over to Clifford at 3:04 a.m. Leblanc advised Clifford in the presence of the appellant as to the time and reasons for the appellant’s arrest and that the appellant had been given his rights to counsel and that the appellant had declined a lawyer. Leblanc did not advise Clifford that the appellant had replied “not yet” to McCabe’s question about contacting a lawyer.

[13] Clifford had been requested to attend at police headquarters in order to conduct an Intoxilyzer test on the appellant. Clifford met Leblanc at 3:00 a.m. in the breath room. At that time Clifford received information from Leblanc as to the grounds for the appellant’s arrest.

[14] It was McCabe’s evidence that in accordance with the usual procedure, he advised the appellant of his rights to counsel and he asked the appellant if he understood his rights to counsel to which the appellant answered that he did. McCabe asked the appellant if he wished to contact a lawyer and the appellant replied “not yet” to McCabe. It was McCabe’s evidence that he took this to mean that the appellant did not want to speak to a lawyer but perhaps he did later. McCabe did not seek any clarification from the appellant as to the words “not yet”. Further McCabe did not discuss the appellant’s response “not yet” with Leblanc, the arresting officer, who was present. Further McCabe did not relay this response to Clifford, the breath technician.

[15] McCabe admitted that the appellant’s answer “not yet”, was something that should be given to the technician who was doing the breath test. Having admitted that he should have advised the technician about the appellant’s answer, McCabe did not explain why he did not inform Clifford about the appellant’s answer “not yet”.

[16] It was Leblanc’s evidence that the testing procedure conducted by Clifford took until 3:31 a.m. During this time Leblanc remained in the breath room, within earshot of the appellant and Clifford, and during that time Leblanc did not hear anything from the appellant about contacting a lawyer.

[17] It was Clifford’s evidence that after he took custody of the appellant that Clifford gave the appellant his rights to counsel. It was Clifford’s testimony that the appellant stated that he understood the rights given by Clifford and that in response to a question from Clifford as to whether he wished to call a lawyer, the appellant stated that he did not wish to call a lawyer. It was Clifford’s evidence that at no time while the appellant was in his custody did the appellant ask for a lawyer.

[18] Although Clifford conceded that he did not have a note as to the precise words spoken by the appellant in response to the question as to whether the appellant wished to speak to counsel, Clifford was clear that the appellant would have been given an opportunity to contact counsel had the appellant requested to do so.

[19] It was the appellant’s evidence that he was reasonably confident that he had told Clifford that he did not have a lawyer rather than telling Clifford that he did not wish to call a lawyer. The evidence of Clifford contradicted the appellant; it was Clifford’s evidence that the appellant had indicated that he did not wish to call a lawyer.

[20] Further it was the appellant’s evidence that he had not been told by Clifford that there was a 1-800 number available to call duty counsel.

[21] Although the appellant had lawyers in the past, it was the appellant’s evidence that when he was in custody on this occasion he did not have a lawyer.

[22] In his evidence the appellant conceded that he had not asked the police to assist him in contacting counsel. The appellant testified that he had been treated decently throughout this process. The appellant agreed that he could have had a private call to a lawyer if he wished to contact somebody but that he had refrained from doing so because he was nervous and upset and he did not want to say anything because he did not know what to do.

[23] The certificate of analysis as to the appellant’s breath samples, as completed by Clifford, indicated results of 120 milligrams of alcohol in 100 millilitres of blood for both breath samples.

GROUNDS FOR APPEAL

[24] The appellant focused his appeal on three specific issues arising from the trial judge’s analysis pursuant to s. 24(2) and the trial judge’s conclusion that balancing the necessary factors required the evidence of the analyses of the breath samples to be admitted, because to do otherwise would bring the administration of justice into disrepute.

[25] The appellant framed the issues as follows in his factum:

a) Issue 1: did the trial judge err in the characterization of the seriousness of the police conduct?

b) Issue 2: did the trial judge err in failing to properly analyze the impact of the violation on the appellant?;

c) Issue 3: did the trial judge err in failing to perform a proper balancing of the three considerations as mandated by the Grant judgment?

STANDARD OF REVIEW IN CASES INVOLVING S. 24(2) OF THE CHARTER

[26] The standard of review on a s. 24(2) analysis has been summarized by the Supreme Court of Canada in R. v. Côté, 2011 SCC 46, [2011] S.C.J. No. 46 at para. 44: where a trial judge has considered the proper factors and has not made any unreasonable finding, his or her determination is owed considerable deference on appellate review.

[27] In circumstances where a trial judge’s s. 24(2) conclusion may not command deference where an appellate court reaches a different conclusion on the breach itself, the trial judge’s underlying factual findings must be respected absent palpable and overriding error: see R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C.) at para. 129.

[28] In R. v. Côté, supra, para. 52, the Supreme Court of Canada stated that a trial judge’s findings of fact on a voire dire concerning the admissibility of evidence must be respected unless they are tainted by clear and determinative error.

THE “GRANT” ANALYSIS

[29] Section 10(b) of the Charter states that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

[30] There is no dispute that the trial judge properly informed himself that the question of whether the admission of evidence obtained as a result of a breach of an appellant’s s. 10(b)
Charter right would bring the administration of justice into disrepute, necessitated an assessment and balancing of the three factors identified by the Supreme Court of Canada in R. v. Grant, supra, at para. 71:

1. the seriousness of the Charter-infringing state conduct;
2. the impact of the breach on the Charter-protected interests of the accused; and
3. society’s interest in the adjudication of the case based on its merits.

DID THE TRIAL JUDGE ERR IN THE CHARACTERIZATION OF THE SERIOUSNESS OF THE POLICE CONDUCT?

[31] This issue relates to the first of the Grant factors: the serious of the Charter – infringing state conduct.

[32] The central argument advanced by the appellant was that both McCabe and Leblanc were aware of the appellant’s “not yet” response given to McCabe in response to McCabe’s question as to whether the appellant wished to contact a lawyer now. The appellant submits that the “not yet” response did not constitute a waiver by the appellant of his rights to counsel, and created an obligation on both McCabe and Leblanc to “hold off” on the process of obtaining breath samples until the appellant had an opportunity to contact a lawyer.

[33] Further, the appellant submits that neither McCabe nor Leblanc informed the breath technician, Clifford, as to the “not yet” response; but rather Leblanc had indicated to Clifford that the appellant had waived his right to counsel (referring to the appellant’s response to Leblanc while at the roadside).

[34] The trial judge characterized the aforesaid conduct as “inadvertent”. The appellant submits that the characterization of this conduct as inadvertent was unreasonable and constituted a material misapprehension of fact, and that the trial judge erred in concluding that the “state conduct was at the lower end of the spectrum of seriousness” (reasons for judgment, page 15).

[35] The respondent submits, in relation to McCabe, that there was no admission that McCabe intentionally withheld the “not yet” comment from Clifford; and that McCabe said that relaying this type of information to the breath technician was something he “would do”. The respondent submits that McCabe was never asked at trial as to his explanation, if any, for not conveying the “not yet” response to Clifford.

[36] The respondent submits that the police conduct, in relation to the Charter breach was not serious, and that there is no basis upon which to disturb the trial judge’s finding on the issue of seriousness.

a. McCabe’s Evidence

[37] During his examination-in-chief, McCabe testified as to the questions he asked the appellant and the responses received. In relation to the question “… do you understand you have the right to retain and instruct counsel, legal aid, without delay?”, the appellant responded “yes”. On being asked “do you wish to contact a lawyer now?”, the appellant’s reply was “not yet” (transcript of evidence, page 7).

[38] During cross-examination McCabe gave the following evidence when it was suggested to McCabe that the “not yet” response was somewhat equivocal (transcript of evidence, page11):

Q. All right. All right. So, what did that mean to you, if anything, when, when you say, do you wish to contact a lawyer now, and he says, not yet, you’ll, you’ll agree with me that that’s a, somewhat equivocal, is it not?

A. It means he doesn’t want to speak with a lawyer now.

Q. Now. I see. Okay. Perhaps later?

A. Perhaps.

[39] McCabe was asked in cross-examination whether he relayed to the breath technician (Clifford) the appellant’s response of “not yet”. McCabe’s evidence was as follows (transcript of evidence, page 12):

Q. Did you relay the information to the breath technician that at 2:55 he said, not yet?

A. No.

Q. Did you relay that to the breath tech?

A. Don’t recall that, no.

Q. I suggest you did not relay that information to the breath tech …

A. That’s correct.

Q. … is that fair?

A. That’s fair.

Q. Okay. And would you not agree with me, Officer, based on your experience, that the response to a question, do you wish to call a lawyer now, and when the response is equivocal as it was, not yet, that that’s information that should be given to the breath tech?

A. The arresting officer’s right beside me when he made that statement.

Q. I see.

A. And he’s taken by the arresting officer into the Intoxilyzer room.

[40] At page 13 of the transcript McCabe gave the following response during cross-examination as to whether the breath technician should have received the information about the “not yet” response:

MR. DUCHARME: Q. I suggest to you that that information, when asked, do you wish to call a lawyer now, and the response is, not yet, that’s information that should be given to the breathalyser technician before he administers the breath tests, wouldn’t you agree?

A. I would. I would do it.

b. The Trial Judge’s Reasons

[41] In relation to credibility the trial judge concluded that the appellant’s evidence on the voire dire was vague, lacking in detail and not reliable. The trial judge found that the evidence of all three police officers was consistent and the trial judge accepted their evidence. There is no basis in this appeal to disturb these findings.

[42] The trial judge found that the appellant’s response of “not yet” to McCabe’s question as to whether he wished to contact a lawyer now, was ambiguous and did not constitute a waiver by the appellant as to his s. 10(b) right to counsel. This led the to the trial judge’s further findings that: McCabe ought to have cleared up the ambiguity and he did not; that although the primary responsibility to clean up this ambiguity fell to McCabe, that Leblanc should have cleared up the ambiguity and he did not do so (reasons, page 10).

[43] The trial judge accepted what Leblanc told Clifford about the appellant’s arrest, including Leblanc advising Clifford that the appellant had declined his right to counsel at the roadside.

[44] In examining the fact that although Clifford was not made aware of the “not yet” response by the appellant to McCabe, the trial judge considered the fact that Clifford independently advised the appellant of his right to counsel and that the appellant declined. Specifically the trial judge considered whether the appellant’s response to Clifford constituted a waiver of his right to counsel. The trial judge concluded that there was no waiver by the appellant stating as follows (pages 11 and 12 of the reasons):

… While in other circumstances Mr. Deleersnyder’s response to Constable Clifford would constitute a waiver of the right to counsel, it cannot here. Constable Leblanc and Staff Sargent McCabe had an obligation to advise the accused of their obligation to hold off on the next step in the investigation. This is the law according to Regina v. Prosper, a decision of the Supreme Court of Canada which creates three duties on the police:

(a) the duty to inform of the right of counsel,

(b) the duty to give a reasonable opportunity to consult counsel, and

(c) the duty to hold off in eliciting further evidence from an accused who has expressed a desire to consult counsel until such times as they have had that opportunity.

As an aspect of this latter duty, there is an additional component where an accused asserts the right to counsel and then indicates the change in that position. As stated by Mr. Justice Lamer in Prosper, and I quote:

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.

[45] The trial judge then considered the failure of the police to hold off on further investigation, as follows at page 12:

… After advising Mr. Deleersnyder of his right to counsel, Constable Clifford received what appeared to him to be a clear waiver of the right to counsel. Since there was no clear waiver in response to Staff Sargent McCabe’s question, Mr. Deleersnyder should have been told by Constable Clifford, or by someone, of the obligation on the police to hold off in the next step of the investigation. …

[46] The trial judge found that the failure of the police to notify the appellant of this additional obligation to hold off was a violation of the appellant’s s. 10(b) right based on R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236 (S.C.C.).

[47] Having found a violation of the appellant’s s. 10(b) right to counsel, the trial judge relied on the fact that the appellant waived his right to counsel at the roadside, and that the police had therefore complied with the appellant’s Charter-protected right to counsel. The trial judge reached this conclusion by finding that McCabe, and also Clifford, had no obligation to advise the appellant as to his right to counsel. The trial judge viewed the steps taken by McCabe in advising the appellant of his right to counsel only “as a precautionary measure”. The trial judge reasoned that this step was indicative of a respect for the Charter-protected right of the appellant. The trial judge characterized the failure of McCabe and Leblanc to clarify what the appellant meant by “not yet”, as more indicative of inadvertence rather than an act showing “flagrant disregard” for the appellant’s rights (reasons, page 14, lines 5 – 10).

[48] The trial judge viewed the failure of McCabe and Leblanc to inform Clifford of the appellant’s “not yet” response, as resulting from inadvertence (reasons, page 14, lines 23-26).

c. Analysis

[49] Section 10(b) imposes on the state both informational and implementational duties. This was explained as follows in R. v. Prosper, supra, at para. 35:

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 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1241-42; R. v. Evans, 1991 98 (SCC), [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 134 (SCC), [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.

[50] With respect to a detainee’s waiver, once a detainee asserts a right to counsel, there must be a clear indication that the detainee has changed his or her mind and the Crown bears the burden of establishing an unequivocal waiver: R. v. Proper, at para.45.

[51] With respect, I find that the trial judge’s conclusion that the police conduct was inadvertent and on the lower end of the spectrum of seriousness to be unreasonable.

[52] The trial judge focused on the informational aspect of the state’s obligation towards the appellant’s s. 10(b) right to counsel. This occurred when the trial judge considered that after declining his right to counsel at the roadside, the appellant was later advised of that same right by both McCabe and Clifford even though there was no obligation to do so. The trial judge, in effect, found that this conduct mitigated the failure of the police to properly respond to the “not yet” statement by the appellant, leading the trial judge to find that the police conduct was inadvertent.

[53] However, there was no explanation from McCabe at trial as to why he failed to follow up on the “not yet” response, nor was there any explanation given by Leblanc. Accordingly it was unreasonable, given the record, for the trial judge to conclude that this conduct was inadvertent.

[54] The trial judge, in emphasising the informational component of the appellant’s right to counsel, gave insufficient or no consideration to the breach of the state’s obligation regarding the implementational component of the appellant’s s. 10(b) right.

[55] The trial judge found that the appellant had not waived his right to counsel given his “not yet” response to McCabe, and that McCabe and Leblanc both failed to clarify the appellant’s response. Given the trial judge’s finding that the appellant had not waived his right to counsel, the police had an implementational duty to give the appellant an opportunity to exercise his right to counsel. The police failed to do that, and this failure was not mitigated by McCabe and later Clifford asking the appellant whether he wanted to contact a lawyer (being the informational component of the appellant’s s. 10(b) right).

[56] The evidence of Leblanc was that there was a phone available at the police station, and that at no time was the appellant placed in front of the telephone or told that he could use the phone to call a lawyer if he wished. No explanation was given by police as to why the implementational component of the s. 10(b) right to counsel was breached.

[57] The trial judge’s finding “… that there was no need for any further advice by the police with respect to the Charter of Rights” is unreasonable given the failure of McCabe and Leblanc to properly respond to the appellant’s “not yet” response, and their failure to tell the appellant of the police obligation to “hold off”.

[58] Further, the trial judge found that the appellant should have been told by Clifford, or someone else, as to the police obligation to hold off on the next step of the investigation – which in this case would have been the breath tests. Importantly, in relation to Clifford, the trial judge expressly considered whether Clifford’s failure to “hold off” on conducting the breath tests could be excused because Clifford had not been made aware of the appellant’s “not yet” response. The trial judge made an express finding that Clifford’s lack of knowledge was not an answer to the police requirement to advise the appellant of the obligation on the police to “hold off”.

[59] In summary, the trial judge’s reasons disclose the following facts evidencing s. 10(b) breaches:

a) the failure of McCabe and Leblanc to do anything about the appellant’s “not yet” response including failing to give the appellant an opportunity to use the phone or to advise him of that availability;

b) the failure of both McCabe and Leblanc to communicate to Clifford that the appellant had not waived his right to counsel in response to a question from McCabe (being the “not yet” response from the appellant);

c) the trial judge’s finding that McCabe and Leblanc failed to advise the appellant of the police obligation to “hold off” conducting the breath tests (including the finding that Clifford’s lack of knowledge about the “not yet” response did not mitigate that obligation), especially considering Leblanc’s evidence that he turned custody of the appellant over to Clifford at 3:04 p.m. still leaving ample time for the breath tests to be conducted given that Leblanc first observed the appellant operating his motor vehicle at 2:28 a.m.; and

d) the fact that Leblanc, being aware of the appellant’s “not yet” response (found by the trial judge not to constitute a waiver of the appellant’s right to counsel), failed to report that fact to Clifford and instead only reported to Clifford the appellant’s waiver of his right to counsel at the roadside, thus providing Clifford with incomplete and inaccurate information.

[60] In R. v. Grant, supra, at para. 74, it was noted that state conduct resulting in Charter violations varies in seriousness from “inadvertent or minor violations” at one end of the spectrum to wilful or reckless disregard of Charter rights at the other end of the spectrum.

[61] The totality of the aforementioned conduct, at least on the part of McCabe and Leblanc, is far more indicative as a minimum of negligence, not mere inadvertence. The trial judge’s reasons, as a whole, suggest that the police were viewed as acting in good faith, which I find to be unreasonable based on the record and the trial judge’s findings of fact. Ignorance of Charter standards must not be rewarded, or encouraged, and negligence (my emphasis) or wilful blindness cannot be equated with good faith: R. v. Grant, supra at para.75.

[62] Among a number of cases relied on by the appellant is R. v. Berger, [2012] A.J. No. 642 (Alta. C.A.). That case involved an appeal from a dismissal of a summary conviction appeal after conviction at trial of “over 80” pursuant to s. 253(1)(b) of the Criminal Code.

[63] The trial judge admitted the breathalyser results notwithstanding a breach of the defendant’s s. 10(b) Charter right to counsel. The defendant had indicated that he wanted to contact a lawyer and was permitted to do so. After a number of attempts the defendant was not able to contact counsel. The officer then told the defendant that he could continue his attempts to contact a lawyer, or choose to comply with the officer’s demand for a breath sample. The officer did not advise the defendant of his right to hold off on providing a sample until he had spoken to counsel.

[64] The defendant was then told that the police would not take a statement from him or ask him to participate in any process that provided evidence against him until the defendant was certain whether he wanted to exercise his right to counsel. Again the defendant was not told that he need not provide a breath sample until he had spoken to counsel. The defendant responded that he did not want to waive his right to counsel but “it’s impossible to get that right”. This did not amount to an equivocal waiver of his s. 10(b) right as conceded by the Crown.

[65] Accordingly, similar to the case at bar, there was a breach of the implementational component of s. 10(b). Thereafter, the defendant (in R. v. Berger) provided one sample of his breath, he was returned to the phone room, and after six minutes was able to obtain legal advice and later, gave a second breath sample. Both samples evidenced a blood alcohol level over the legal limit.

[66] The trial judge, in conducting the s. 24(2) analysis, concluded that the Charter beach was merely technical, being at the low end of the scale. The summary conviction court concluded that the trial judge’s decision was correct.

[67] The Alberta Court of Appeal, in allowing the appeal and quashing the conviction, disagreed with the trial judge’s characterization of the seriousness of the police conduct and noted that the finding of the trial judge that the breach was not serious was impacted by the trial judge’s apparent misunderstanding that there was a Charter breach of the informational component of the defendant’s s. 10(b) right when, in fact, the breach related to the implementational component. I find that the analysis by the Alberta Court of Appeal in R. v. Berger is of assistance in characterizing the conduct of the police in the case at bar.

[68] The respondent relies on a decision by the Alberta Court of Queen’s Bench in R. v. Kanik, [2011] A.J. 192 (Alta. Q.B.), where the court dismissed a summary conviction appeal from a conviction of “over 80” contrary to s. 253(1)(b) of the Criminal Code. The trial judge had admitted the breath test results after a s. 24(2) analysis.

[69] That case involved a number of failed attempts by the defendant to contact a lawyer before providing two breath samples, in circumstances where the trial judge was only left in doubt as to whether the defendant’s waiver as to the s. 10(b) right to counsel was unqualified, there being no other issues with the informational and implementational components of the defendant’s s. 10(b) rights.

[70] I find that the case at bar is distinguishable from R. v. Kanik, supra, given the various breaches of the appellant’s s. 10(b) right to counsel as discussed earlier.

[71] In view of the conclusion reached on the ground of appeal in relation to the seriousness of the police conduct, I find that the appeal should be allowed and the conviction quashed. I find further that it is not necessary to address the other grounds of appeal raised by the appellant, nor to conduct a Grant analysis in this appeal based on the disposition of this appeal set out below.

[72] While the appellant sought an order quashing the conviction and entering an acquittal, the appellant, in the alternative, sought a new trial.

[73] During his submissions, Mr. Miller conceded, candidly, that the record below may not be sufficient to allow the summary conviction appeal court to undertake a fresh Grant analysis, which would be necessary if an acquittal was to be considered.

[74] I accept that submission and I find that a new trial is the appropriate disposition.

ORDER

[75] For reasons set out above, the appellant’s conviction is quashed, and a new trial is ordered before a different judge in the Ontario Court of Justice at Sarnia.

“Justice Victor Mitrow”

Justice Victor Mitrow

Released: June 5, 2014