ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 002/14 AP
DATE: 2014-12-08

B E T W E E N:

DAVID SWAINE

David Bennett, for the Appellant

Appellant

• and -

HER MAJESTY THE QUEEN

Sharon Tysick, for the Respondent

Respondent

HEARD: October 28, 2014

D E C I S I O N

WILCOX, J.

INTRODUCTION

[1] The Appellant appealed from a decision of Maille J. dated January 21, 2014 convicting him of operating a motor vehicle having consumed alcohol in such quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code. For the reasons that follow, I would allow the appeal.

EVIDENCE AT TRIAL

[2] Certain facts were not in dispute. At approximately 2:38 a.m. on September 23, 2012, the Appellant was operating a motor vehicle. He was stopped by Provincial Constable Devost to assess his sobriety, and registered a “fail” on the approved screening device. He was consequently arrested and taken to the Temiskaming Detachment where he was turned over to Provincial Constable Pauls, a qualified technician, for breath tests. Two suitable samples were obtained, with readings in excess of the legal limit, and he was charged accordingly. The case went to trial on December 13, 2013. The Appellant brought a Charter application to exclude the results of the breath tests on the grounds that his rights to counsel were violated. The matter proceeded as a blended hearing. The accused did not dispute that the essential elements of the offence were otherwise proven.

[3] PC Devost testified that he had provided rights to counsel to the accused at the roadside after arresting him and that the accused indicated that he understood and did not wish to call a lawyer. The focus then turned to Devost’s dashpad notes. They had entries “RTC” and “lawyer”. Then, there was something scratched out, with “no” on top of it. Devost said that he had scratched out the word “no”. He had asked the Appellant if he wanted to speak to a lawyer, but could not explain why the original “no” was scratched out. This was to figure later in the trial judge’s decision.

[4] Devost turned the Appellant over to Pauls at 3:13 a.m. Among other things, he advised Pauls that the Appellant did not wish to speak to duty counsel or a lawyer. Notwithstanding this, before beginning the breath testing, Pauls addressed the Appellant’s rights to counsel again. The Appellant’s response is central to this appeal. Pauls testified that, “(h)e began to say to me something – Pauls did not recall exactly what – about possibly wanting it and then he paused and said, and I quoted it, wrote it down immediately, he said, “You know what? … fuck it” ”. Pauls indicated he took that to mean that the Appellant was initially “waffling” like he was unsure, but that it became clear that the Appellant did not want to speak to a lawyer. He proceeded with the breath tests.

[5] The Appellant’s evidence was that he had wanted to speak to a lawyer and had made that known to police as soon as Devost read him his rights. Specifically, he had wanted to call his wife, who was a lawyer, and did not need duty counsel. He was denied the use of his cell phone for this at the roadside and again later.

[6] After Pauls had advised him of his rights to counsel and asked, the Appellant had indicated that he had better (make a call). However, Pauls had continued with the test preparations. As the Appellant said, “… we just kept going on with the, you know, all the instructions and whatnot of the breathalyzer and I just, I was frustrated. I just, fuck it, you know? Nobody is paying attention to me here, obviously”. He testified that he had never told police that he did not want to talk to a lawyer.

DECISION AT TRIAL

[7] In his Reasons for Judgment, the trial judge decided a number of issues. Not all of those decisions are the subject of this appeal. Only those that are relevant to the appeal will be addressed here.

[8] The trial judge was satisfied beyond a reasonable doubt that all essential elements of the offence had been proven, subject to the Charter application to exclude the breath test results.

[9] The trial judge expressed significant concern over Devost’s inability to explain the changes to his dashpad notes, where, as set out above, the word “no” had been scratched out and rewritten. He found that the Appellant understood his rights to counsel and drew an adverse inference against the Crown that the Appellant did not clearly and unequivocally waive his rights to counsel with Devost. Therefore, he found that the Appellant’s rights to counsel were violated when Devost did not provide him with a reasonable opportunity to consult a lawyer before attempting to elicit evidence from him by turning him over to Pauls for breath testing. In his Grant analysis under s. 24(2) of the Charter, the trial judge found that the breath test results were obtained in a manner that infringed his rights to counsel. However, the seriousness of the infringement by Devost was held to be attenuated by what the trial judge said was the later Charter-compliant conduct of Pauls and therefore only modestly favoured exclusion of the breath test readings from evidence. After considering the other two lines of inquiry in the analysis and balancing the results of all three, he denied the Appellant’s application to exclude the breath test results, admitted the evidence, and found him guilty.

[10] The other part of the decision requiring mention is the trial judge’s discussion of the Appellant’s “you know what? … fuck it” comment. He found that the Appellant understood his rights to counsel but that his comment had no reasonable interpretation other than that the Appellant had changed his mind and did not wish to speak with a lawyer. Notably, the trial judge stated that, “(d)uring his testimony, the accused did not suggest that he meant anything else by this comment”. Consequently, the trial judge found that the Appellant had clearly and unequivocally waived his rights to counsel with Pauls and that Pauls did not violate his rights to counsel by not holding off performing the breath tests to give a reasonable opportunity to consult with counsel before the breath tests were administered.

APPEAL

[11] The appeal was argued on two grounds

1. The trial judge erred in finding that the impugned statement (i.e. “fuck it”) constituted a clear and unequivocal waiver; and 2) the trial judge erred when he misapprehended the evidence of the Appellant in a material fashion with respect to the meaning of the impugned utterance thus resulting in an unfair trial and a miscarriage of justice.

They are closely related, however, calling into question as they do the meaning of the impugned statement.

[12] DISCUSSION

[13] Part XXVII of the Criminal Code provides for summary conviction appeals including of conviction and sentence, and incorporates ss. 683 through 689, except for some subsections which are not relevant here. S. 686(1)(a) sets out the powers that this court has in appeals. These include that the court may allow the appeal where it is of the opinion that

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or iii) on any ground there was any miscarriage of justice.

[14] In R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, Fish J., writing for the court, reaffirmed the governing principles on appeals at paragraph nine, as follows:

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm ….

[15] In R. v. Ilyasov, [2013] O.J. No. 4827, H. K. O’Connell J. stated at paragraph 55:

It is trite that an appellate court owes deference to findings of fact made by the trial judge and must not simply interject its own reading of the facts into the equation. The appellate court is entitled to review, examine and re-weigh the evidence but only to determine if it reasonably supports the trial judge’s conclusions. In other words if the trial judge could reasonably have reached the conclusion on the evidence before the trial court, appellate intervention is not warranted.

[16] Dealing with the first ground of appeal, before dealing with the issue of whether or not the Appellant waived his rights to counsel, there first would have to be a finding that he asserted the right and was reasonably diligent in exercising it. The Crown argued that the Appellant did not assert his right. With respect, however, I am persuaded by the defence that the assertion of the right is inherent in the trial judge’s adverse inference against the Crown that the Appellant did not clearly and unequivocally waive his rights to counsel with Devost.

[17] “Once a detainee has indicated a desire to exercise his rights to counsel, the state is required to provide him 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.” (R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, at paragraph 34. See also R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429).

[18] The standard for waiver of one’s right to counsel is very high. Furthermore, where a detainee has asserted right to counsel, but then indicates a change of mind, further information, known as a “Prosper warning” must be given by the police. The burden of proof of that change of mind and an unequivocal waiver is on the Crown. (R. v. Prosper paragraphs 43 and 44, R. v. Willier paragraphs 29 through 35).

[19] The Crown submitted in the alternative that, if a waiver was in fact necessary, there was a clear and unequivocal one. Again, with respect, I disagree. Instead, I agree with the defence that the expression “fuck it” is equivocal and capable of supporting many interpretations. In the circumstances, and given the importance of the right at stake, I think it was incumbent on the police to explore the matter further to get clarification following the utterance of the impugned phrase and to give a Prosper warning. This would also follow, in theory, from the trial judge’s adverse inference against the Crown, but Pauls would have had no way of knowing that at the time. With respect, I find that it was an error to find there was a waiver of the right to counsel prior to the breath tests being taken.

[20] I turn next to the second ground of appeal, that the trial judge misapprehended the evidence with respect to the meaning of the impugned phrase.

[21] In R. v. Morrissey 1995 3498 (ON CA), 22 O.R. (3d) 514, the Court of Appeal for Ontario dealt with an appeal based on the misapprehension of evidence. The court stated that a miscarriage of justice can result from the misapprehension of evidence (page 22). “A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence.” (page 20) “If an Appellant can demonstrate that the conviction depends on a misapprehension of the evidence, then, …, it must follow that the Appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.” (page 23) This is referred to as the “Morrissey test”. (R. v. Baines, 2012 ONCA 305, 2012 O.N.C.A. 305 at paragraph 12. See also R. v. M.M.C., [2014] O.J. No. 1919, at paragraphs 31 through 33).

[22] Morrissey, it should emphasized, describes a stringent standard. “Misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge … the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning and process resulting in a conviction”.” (R. v. Baines, 2012 ONCA 305, 2012 O.N.C.A. 305 paragraph 13, quoting Binnie J. writing for the Supreme Court of Canada in R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732).

[23] The test has also been stated as “did the trial judge err in his appreciation of the evidence in a manner that could have affected the outcome?” (R. v. Baines at paragraph 14, referring to R. v. C. (R.) [1993] 2 C.S.R. 226).

[24] The Crown submitted that there was no misapprehension of the evidence; although the Appellant testified that he said it in frustration, the trial judge was correct in saying that the Appellant never suggested that he meant anything else by it and, it follows, in finding that the Appellant clearly and unequivocally waived his right to counsel with Pauls. Again, with respect, I disagree. I agree with the defence that, in the circumstances, starting with his experience with Devost and continuing with Pauls as the Appellant explained in his testimony, the phrase was not an expression of waiver, but rather one of frustration, or even of resignation. He gave up. Therefore, I give effect to this ground of appeal as well.

[25] I note that my findings would affect the trial judge’s Grant analysis in at least one particular. As previously mentioned, the trial judge found that Devost’s violation of the Appellant’s right to counsel was significantly attenuated by Pauls’ subsequent conduct, which the trial judge found to be Charter-compliant. My findings above negate this, raising the question of whether the result of the Grant analysis would have been the same.

[26] The appeal is allowed and the matter is remitted to the Ontario Court of Justice for a new trial.

Justice James A. S. Wilcox

Released: December 8, 2014