ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: CR14-13-00AP
DATE: 20141230
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ZACHRY OWENS
Appellant
A. Shatto, for the Respondent
J. Zegers, for the Appellant
HEARD: December 8, 2014
[On appeal from the judgment of Morneau, J.
dated December 20, 2013]
MILLER, J.
[1] Zachry Owens was convicted December 20, 2013 of, on November 10, 2012 operating a motor vehicle with blood alcohol in excess of the legal limit.
[2] It is not disputed that Mr. Owens was operating a motor vehicle on November 10, 2014 and that during an investigation by police he provided samples of his breath into an approved instrument within the prescribed periods of time establishing that his blood alcohol level was 160mg of alcohol in 100ml of blood.
[3] The sole issue at trial and on this appeal is the admissibility of the breath samples. Mr. Owens submits that the breath samples should have been ruled inadmissible as his s.10 (b) Charter rights were violated.
[4] The undisputed facts are that Mr. Owens was found by police in care or control of a motor vehicle shortly after that vehicle had been reported to police as being operated in an erratic manner. Police formed a reasonable suspicion that Mr. Owens had alcohol in his body and demanded that he provide a breath sample into an approved screening device. Mr. Owens registered a FAIL, giving police reasonable grounds to demand that he provide samples into an approved instrument at the police station.
[5] Upon being arrested, Mr. Owens was advised by police of his rights to counsel. There is no issue that police complied with the informational components of that advice. Upon doing so, the arresting officer asked Mr. Owens “Do you wish to call a lawyer now?” Mr. Owens replied “No, not right now.” Mr. Owens was then transported to the police station where he was asked to and did provide samples into an approved instrument. Only after providing those samples was Mr. Owens asked again whether he wished to contact counsel. His reply at that time was “No, I have nothing to hide.”
[6] The trial judge referenced the Ontario Court of Appeal decision in R. v. Devries 2009 ONCA 477, [2009] O.J. No. 2421 at paragraph 42 indicating that if a detainee argued at trial that they were “misled at the roadside by the use of the universal s. 10(b) caution into believing that the right to counsel could only be exercised then and there” – in the right circumstances, failure to reiterate the right at the police station could be a successful argument.
[7] The trial judge found that those circumstances did not exist here. She found that the police officer did not mislead the defendant and the defendant was not confused. She found that the defendant did not invoke his right to speak to counsel.
[8] The trial judge noted that Mr. Owens again declined the offer to speak to counsel after he had given his breath samples. She found that she did not believe, nor was she left with a reasonable doubt by Mr. Owens’ testimony that he did not speak to counsel at that point because the offer was made too late.
[9] The trial judge dismissed the Charter application. The breath samples were admitted into evidence and Mr. Owens was found guilty.
The Law and Analysis
[10] Doherty, J.A. at paragraph 42 of Devries said this:
Where a detainee has been properly cautioned at the roadside and has indicated that he or she does not wish to speak with a lawyer, failure to re-advise the detainee of his or her right to counsel at the police station does not necessarily constitute a breach of s. 10(b). That said, however, I think that in cases such as this, it would be a much better practice for the police, upon arrival at the detachment, to reiterate the right to counsel. A simple repetition of the right to counsel and an invitation to a detainee to speak with counsel "now", if he or she wishes to do so, would serve two purposes. First, it would reinforce the fundamental importance of the right to counsel and the need for all participants in the justice system to recognize that fundamental importance. Second, it would effectively short-circuit any claim at trial by a detainee that he or she was misled at the roadside by the use of the universal s. 10(b) caution into believing that the right to counsel could only be exercised then and there. Given the right circumstances, and absent a reiteration of the right to counsel at the police station, that argument could succeed.
[11] With respect, I find that the trial judge was focussed on the wrong legal question in the circumstances of this case.
[12] Tulloch, J. (as he then was) in R. v. Munro [2009] OJ. No. 399 (S.C.J.) summed up the law succinctly at paragraph 47:
The right to counsel is not absolute; a person detained by police must invoke the right and be reasonably diligent in exercising it.: R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173 at para. 18. However, the standard for waiver of a detained person's 10(b) rights is very high.: R. v. Prosper 1994 65 (SCC), [1994] 3 S.C.R. 236; R. v. Clarkson 1986 61 (SCC), [1986] 1 S.C.R. 383. Such a waiver must be clear and unequivocal and it must be given with full knowledge of both the rights being waived and the consequences of the waiver.: Clarkson, Supra.
[13] In that case, Tulloch. J. found that in nearly identical circumstances, where at the roadside the detainee’s response to the question “Do you wish to call a lawyer now?” was “No, not right now.” there had not been a clear and unequivocal waiver.
[14] Tulloch, J., at paragraph 51 of Munro cited Campbell, J. in R. v. Kusnir [2002] O.J. No. 10(S.C.J.) at paragraph 21:
A voluntary waiver of the right to counsel, in order to be valid and effective, must be premised on a true appreciation of the consequences of giving up that right. It seems only prudent, particularly when people have been drinking and there are reasonable and probable grounds to believe they are impaired or over 80, to resolve any possible doubt against waiver and in favour of the right to counsel. Where there is any doubt at all about waiver it should be clear that there is a bright line duty on the police to ensure access to counsel.
[15] I find the trial judge erred in law in failing to consider whether Mr. Owens’ response to the question “Do you wish to call a lawyer now?” amounted to a clear and unequivocal waiver. I am of the view, in all of the circumstances of this case, that it did not.
[16] I agree with the analysis of Tulloch, J. in Munro at paragraph 49: “Here, the Appellant was equivocal in his response to [the officer]'s offer to call counsel "now." In my opinion, "Not right now" is not the same as an unequivocal "No." Rather, it logically implies a future exercise of the right.”
[17] Tulloch, J. found that the evidence following the Charter breach in Munro was only admissible where it followed the “fresh start” made by police when they provided access to duty counsel once arriving at the police station and before breath samples were taken.
[18] No such fresh start was made here. The officer’s offer to Mr. Owens to contact a lawyer after his breath samples had been taken does not amount to a fresh start, nor do I find that Mr. Owens’ response to the offer informs his roadside response. The intervening event – the taking of the breath samples – provides a clear break between the two offers and responses. Mr. Owens’ response to the after-the fact offer must be considered in the context that he had, at that point, already furnished police with all of the evidence they needed in order to prove the charge against him. It entirely defeats the purpose of obtaining meaningful advice from a lawyer before such evidence is provided.
[19] I find that Mr. Owens did not unequivocally waive his right to consult with counsel, and that the police actions in demanding and receiving breath samples from him before offering him a meaningful opportunity to contact counsel amounts to a violation of Mr. Owens’ s.10(b) Charter rights.
[20] I go on to consider whether the evidence derived from the breath samples should be excluded pursuant to s.24(2) of the Charter. I am guided by the principles set down by the Supreme Court of Canada in R. v. Grant 2009 SCC 32, [2009] S.C.J. No. 32.
[21] As set out at paragraph 71 of that decision, the court must embark on a three stage enquiry:
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[22] As noted at paragraph 74:
State conduct resulting in Charter violations varies in seriousness. At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute.
[23] Here the arresting officer testified that the reason he did not ask Mr. Owens if he wished to contact a lawyer upon their arrival at the police station was so that the taking of the breath samples was not delayed. While there is a body of case law addressing the requirement that breath samples be taken “as soon as practicable” it is clear that giving a detainee an opportunity to exercise his or her right to counsel would not be considered as occasioning an unreasonable delay. As recently affirmed in R. v. Taylor 2014 SCC 50 at paragraph 31 “a police officer’s implementational duties under s. 10(b) are necessarily limited in urgent or dangerous circumstances” but it has also been clear since R. v. Prosper 1994 65 (SCC), [1994] S.C.J. No. 72 that in the context of impaired driving cases, 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.
[24] It is clear on the evidence that the arresting officer’s decision to delay offering Mr. Owens an opportunity to contact counsel at the police station until after he had provided breath samples was a deliberate one. As indicated in Grant at paragraph 75 “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith” and “deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence.” I find that the first stage analysis in this case favours exclusion.
[25] The second stage of the inquiry requires an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. In Grant at paragraph 76 it is noted that “The more serious the impact on these interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.”
[26] As the Court noted in Taylor at paragraph 41, there is no need to speculate about the advice the detainee might have received had he been given access to counsel such as whether he would have refused to consent to provide the breath samples. It is clear that the breach of his right to counsel before the breath samples were taken had the effect of depriving him of the opportunity to make an informed decision about whether to provide to the police incriminating evidence that would be used against him at trial. I find that the second stage analysis in this case also favours exclusion.
[27] The third stage enquiry requires a court to ask whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. The reliability of the evidence and its importance to the Crown’s case are factors to be considered. As noted in Grant at paragraphs 106 and 111, breath sample evidence engages both these factors and favours inclusion unless the breach was serious and their admission would bring the administration of justice into disrepute.
[28] In this case it is clear that the Crown’s ability to prove the charge against Mr. Owens rests on the admissibility of the breath sample analysis. However, as the Supreme Court noted in excluding similarly important and reliable evidence in Taylor at paragraph 38:
It goes without saying that the public has an interest in an adjudication of the merits of a case where, as here, the evidence sought to be excluded is reliable and key to the case. But as this Court has consistently said, most recently in R. v. Spencer, 2014 SCC 43, at para. 80, the public also has an interest “in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences”.
[29] I find that the serious and deliberate nature of the breach here and its impact on Mr. Owens’ rights to be significant. On balance I find that the admission of the breath samples into evidence in all the circumstances of this case would bring the administration of justice into disrepute.
[30] Mr. Owens appeal is granted, the conviction is set aside and an acquittal will be entered.
MILLER, J.
Released: December 30, 2014
R. v. Owens, 2014 ONSC 7471
COURT FILE NO.: CR14-13-00AP
DATE: 20141230
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
HER MAJESTY THE QUEEN
– and –
ZACHRY OWENS
REASONS FOR JUDGMENT
MILLER, J.
Released: December 30, 2014