CITATION: R. v. Hart, 2015 ONSC 2575

COURT FILE NO.: CR-13-70000132-00AP

DATE: 20150429

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

RICHARD HART

Appellant

Daniel Guttman, for the Respondent

Marie Henein, Kathleen Heap, for the Appellant

HEARD: November 21, 2014; February 11, 2015

DUCHARME J.:

AMENDED REASONS FOR JUDGMENT

I. INTRODUCTION

1The Appellant appeals against his conviction of operating a motor vehicle "over 80", contrary to s. 253(b) of the Criminal Code by Her Honour Justice F. Bhabha of the Ontario Court of Justice on October 2, 2013. The principal ground of appeal is that the Trial Judge erred in not finding that the Appellant’s s. 10(b) rights were violated by the police However, the Appellant also submits that the Trial Judge erred in dealing with the evidence in various other ways.

II. GROUNDS OF APPEAL

2The Appellant raises four grounds of appeal:

(1) The trial judge erred in failing to find that the Appellant’s s. 10(b) rights were violated.

(2) The trial judge misapprehended the evidence with respect to Dr. Temple's intoxication and improperly rejected the Appellant's explanation for not calling Dr. Temple as a witness.

(3) The trial judge erred in finding that the Appellant’s failure to obtain a receipt from the bar counted against his credibility.

(4) The trial judge erred in rejecting the Appellant's account of bolus drinking because she did not observe increased indicia of impairment throughout the evening

3By way of remedy, the Appellant seeks the exclusion of the breath readings as well as the utterances the Appellant made to the police. The Appellant’s submission is that the conviction should therefore be quashed and an acquittal entered. In the alternative, should the breath readings not be excluded, the Appellant argues that the conviction should be quashed and a new trial ordered.

III. FACTUAL BACKGROUND

A. Overview

4The trial proceeded as a blended trial and voir dire into the voluntariness of statements and a s. l0(b) Charter application brought by the Appellant. In reasons dated December 21, 2012, the Trial Judge dismissed the Appellant's s. 10(b) Charter application and ruled that his statements were voluntary.

5The defence advanced at trial was bolus drinking, that the Appellant consumed a large quantity of alcohol within the 15 minutes prior to the traffic stop, which was not absorbed into his blood stream at the time of driving. Thus, the Appellant's blood alcohol content at the time of driving was less than 80 mg per 100 mL of blood. Both the Crown and the defence called expert toxicologist witnesses who agreed that any alcohol consumed in the 15 minutes prior to driving would not have been absorbed into the blood stream. The Appellant testified in his own defence and described his drinking pattern on the evening in question. The Trial Judge determined that the case turned on the Appellant’s credibility. Relying in part on the fact that the Appellant had lied to the police about his pattern of drinking, she concluded that the Appellant was not credible and on October 2, 2013, the Appellant was convicted.

B. Testimony of the Appellant

6The Appellant testified that he went to One Restaurant in Yorkville, arriving at around 9:00 p.m. He was to see patients the next day, so the Appellant had planned to leave the restaurant at midnight. He mingled, chatted with the owner, then moved to his own table where he ordered a glass of wine and dinner. The wine and food arrived just after 9:30 p.m.

7The Appellant testified that the wine he was drinking that evening was a Meiomi Pinot Noir with an alcohol content of 14.5%. It was served in 6-ounce glasses, and was measured by the bar staff. That particular wine cost $27 per glass. It is a house wine at One Restaurant, and the Appellant drinks that particular wine frequently, both at the restaurant and at home.

8As was his normal practice, the Appellant drank his first glass of wine over the course of an hour, finishing around 10:30 p.m. Around that time, the Appellant was joined by his friend and colleague, Dr. Temple, who said she had been drinking with friends before she arrived. The Appellant ordered two more glasses of the wine - one for each of them. The Appellant also consumed his second glass of wine over an hour. Cognizant that he had planned to leave at midnight, the Appellant looked at his watch at 11:30 p.m. and, having determined that he had time for one more glass of wine, he ordered two more glasses - one for himself and one for Dr. Temple.

9The two continued talking. The Appellant checked his watch at 11:50 p.m., and the wine had not arrived yet. He considered cancelling the order if it did not come shortly, but the wine arrived five or six minutes later. Dr. Temple went to take a sip of her wine, but she said she felt sick and was unable to drink it. At 11:59 p.m., the Appellant drank his third glass quickly, then gulped down half of Dr. Temple's glass so as not to have wasted the expensive glass of wine.

10The Appellant left to take Dr. Temple home at 12:01a.m. or 12:02 a.m. There was no need to pay a bill that evening, as the Appellant has a tab at the restaurant, and receives a monthly global charge on his credit card. It took only a minute to get from the table to his car, which was parked right outside of the restaurant.

11Just before they were stopped by P.C. Nasim, Dr. Temple said she was going to be sick, so the Appellant pulled to the side of the road. She then said she was fine, so the Appellant continued driving, turning right onto Donlands Avenue, and then was pulled over for the right turn.

12When asked by police throughout the evening about his alcohol consumption, the Appellant lied saying that he drank three glasses of wine, finishing forty-five minutes to an hour before he was stopped. The Appellant testified that he felt fine when he was pulled over. He minimized the amount of alcohol he had and gave an incorrect timeframe for his drinking when speaking to the officers because he was scared and didn't want to look irresponsible.

13The following day, the Appellant returned to One Restaurant and obtained a wine glass, which was exhibited at trial. He marked down exactly the level at which he observed the wine in Dr. Temple's glass after he gulped down what looked like half on the bevel. By measuring the amount remaining, the Appellant determined that he had consumed 10 ounces of wine immediately prior to leaving the restaurant, between 11:59 p.m. and 12:01 a.m.: 4 ounces from Dr. Temple's glass, in addition to the 6 ounces of his own wine.

14The Appellant testified that he remembered the minute-by-minute details of the evening with precision because he had gone over it immediately afterwards, detailing it for himself.

C. The Appellant’s Interaction with the Police

15P.C. Nasim pulled over the Appellant at 12:12 a.m. on July 15, 2011 for turning right at a red light without coming to a complete stop. In order to establish grounds to administer an Approved Screening Device ("ASD"), P.C. Nasim asked the Appellant whether he consumed alcohol, and details about his consumption. The Appellant told the officer that he drank three glasses of wine, finishing an hour ago. P.C. Nasim demanded the Appellant provide a breath sample into an ASD at 12:20 a.m. At 12:28 a.m., the Appellant registered a fail, and he was arrested.

16The Appellant was read his right to counsel at 12:34:35 a.m. P.C. Nasim asked: "Do you understand?" and the Appellant replied: "I do". P.C. Nasim then asked: "Do you wish to call a lawyer now?" In response, the Appellant laughed and said under his breath: "I don't know” or “I don’t, no.” P.C. Nasim testified that he only heard him say “I don’t”. P.C. Nasim then asked: "Sir?" The Appellant replied: "I need to call my secretary to deal with a few things right now.”

17At 12:51:43 a.m., while in the back of P.C. Nasim's scout car en route to 32 Division, P.C. Nasim and the Appellant had the following exchange:

P.C. Nasim: Now I'm asking you again, um, obviously you said about the lawyer, do you want to speak to duty counsel then, to get legal aid advice?

Appellant: No, I, uh, you know, it's fine, I mean I would like to, but I need to speak to my secretary about my office in the morning, like really. [Emphasis added.]

18It appears from the cross-examination of P.C. Nasim that he did not hear the highlighted portion of what the Appellant said until a recording of what was said in the scout car was played in court. At this point, he agreed that this was not an unequivocal waiver of the right to counsel. P.C. Nasim testified that he had suggested duty counsel again hoping that, if the Appellant spoke to duty counsel, he would be advised to stop suggesting that perhaps P.C. Nasim and he could work this out between them.

19The Appellant was not cautioned by P.C. Nasim until 1:05:00 a.m., while waiting in the police vehicle upon arrival at the detachment. P.C. Nasim then immediately engaged in investigative questioning regarding the Appellant's alcohol consumption. The Appellant answered that he drank three glasses of wine starting at 9:00 p.m. or 9:30 p.m., and stopping forty-five minutes to an hour before he was stopped. He said he felt the effect of the drinking but that it did not affect his ability to drive.

20From 1:18:43 a.m. to 1:21:35 a.m., still in the police vehicle prior to entering the detachment, P.C. Nasim asked the Appellant further questions about his activities that evening and elicited further statements regarding the Appellant's drinking pattern.

21At 1:32:15 a.m., in the booking room in the presence of P.C. Nasim and the booking Sergeant, the Appellant was asked to confirm that he understood the right to counsel but wanted to speak to his secretary. He answered affirmatively. The Appellant was not asked if he wanted to speak to counsel or if he had declined to do so. The booking Sergeant advised the Appellant that he would be allowed to make reasonable use of the telephone. He was then again asked questions regarding his drinking that evening, which he answered, saying he consumed three glasses of wine forty-five minutes to an hour before being picked up. When the parading process was finished, P.C. Nasim testified that he took the Appellant to use the washroom, and then directly from the washroom to see the breath technician.

22At no time was the Appellant provided an opportunity to make reasonable use of telephone prior to being escorted into the breath room. Nor did the police do anything to facilitate the Appellant making contact with counsel of his choice or with duty counsel.

23In the breath room at 2:04 a.m., P.C. Stradza, the Qualified Breath Technician, asked The Appellant: "You declined to speak with duty counsel?", to which he replied: "Yes". During the breath testing process, P.C. Stradza elicited further statements with respect to the Appellant's alcohol consumption that evening. At no point did the Appellant speak with a lawyer. The Appellant blew 119 at 2:11 a.m. and 109 at 2:33 a.m. He was charged with “driving over 80” and released.

IV. ANALYSIS

A. Violation of s. 10(b)

24In R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at page 192, Chief Justice Lamer summarized the duties imposed on the police by virtue of s. 10(b) as follows:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity.

25In this case, the Trial Judge correctly found that there was no problem with the first of these obligations. P.C. Nasim advised Mr. Hart of his right to counsel twice. When the Appellant was paraded before the booking Sergeant, P.C. Nasim confirmed that he had been advised of his right to counsel and that he understood it, and the Appellant indicated that he had understood these rights. Finally, the Appellant told the breath technician that he had declined to speak to duty counsel.

26However, there is a problem with the second of these obligations. When parading the Appellant, P.C. Nasim did not mention the fact that when he was advised of his right to counsel, the Appellant had replied: “I mean I would like to.” Consequently, the booking Sergeant merely confirmed that the Appellant could make reasonable use of the phone while he was at the station. However, the Appellant was not provided with a phone or the opportunity to speak to Duty Counsel before seeing P.C. Stradza, the breath technician.

27Here the Trial Judge made several errors. First, she found that P.C. Nasim’s belief that the Appellant did not want to speak to counsel was objectively reasonable. In reaching this conclusion, she focused her analysis on his earlier comment: “I don’t know” or I don’t, no”, as well as the Appellant’s subsequent “conduct and utterances”. But while the Trial Judge acknowledged that the Appellant had said: “I mean I would like to”, she failed to consider this as an unequivocal request to speak to counsel. Nor did she mention P.C. Nasim’s acknowledgement in cross-examination that this statement could not be an unequivocal refusal to speak to counsel. Despite the Appellant’s subsequent reference to speaking with his secretary, this was an unequivocal request to speak to counsel, and thus P.C. Nasim’s understanding that the Appellant did not want to speak to counsel cannot be objectively reasonable. Secondly, the Trial Judge said that the Appellant “confirmed with the booking officer that he did not want to speak to a lawyer but had expressed the desire to speak to his assistant.” In fact, neither the Appellant nor any of the officers spoke of anything beyond whether he understood his rights to counsel. Thirdly, she was critical of the Appellant for not being “diligent in the exercise of that right.” But the question of whether an accused person was reasonably diligent in exercising the right to counsel does not arise until he is given reasonable opportunity to exercise the right. This did not occur in this case.

28In my view, the Appellant’s statement to P.C. Nasim was an unequivocal request to speak to counsel and it gave rise to a duty on the police to facilitate to access to a lawyer. While the booking Sergeant told the Appellant that he would be permitted reasonable use of the telephone while at the police station, nothing more was done. This constitutes a clear violation of the Appellant’s s. 10(b) rights.

29There is also a problem with the third of these obligations. The Appellant expressed his desire to speak to counsel at 12:51:43. However, at 1:02:03, P.C. Nasim asks the Appellant questions about where he was drinking. After cautioning the Appellant about his right to silence at 1:05:00, at 1:05:42 P.C. Nasim then questions the Appellant about his pattern of drinking that night. P.C. Nasim asks some further questions of the Appellant at 1:18:43. The booking Sergeant, who admittedly was not told of the Appellant’s desire to speak to counsel, also questioned the Appellant about his pattern of drinking that evening. Commencing at 2:04:40 the breath tests are administered and, after the second test, P.C. Stradza asked the Appellant about his alcohol consumption that night.

30The Trial Judge ruled that there was no duty on the police to hold off on their investigation because the Appellant “did not clearly communicate his wish to speak to a lawyer.” In this regard, the Trial Judge made no reference to the Appellant’s unequivocal request to speak to counsel. This was clearly an error. As mentioned above, the Appellant’s request to P.C. Nasim to speak to counsel was unequivocal and consequently there is an obligation on the police to refrain from taking further investigative steps to elicit evidence. This was violated by P.C. Nasim, the booking Sergeant and P.C. Stradza all of whom asked the Appellant questions about his drinking that evening. This constitutes a further violation of the Appellant’s s. 10(b) rights.

B. Section 24(2)

31The Trial Judge did not have to consider s. 24(2) of the Charter as she had not found any violation of s. 10(b). On appeal, the Appellant seeks to have both the utterances of the Appellant as well as the results of the breath tests excluded due to the violation of s. 10(b). However, I note that at trial, defence counsel did not initially bring a s. 10(b) application. When he finally did, defence counsel clarified that he was seeking only to exclude the utterances of the Appellant and not the results of the breath tests. The application was argued on this basis and I do not think it is appropriate to grant Charter relief on appeal where it was not sought at trial. Certainly, it is not obvious that the foregoing violations of the Appellant’s s. 10(b) rights would necessitate excluding the results of the breathalyzer tests. Thus, I shall restrict my consideration of s. 24(2) to the issue argued at trial, i.e. whether or not the Appellant’s statements should be excluded.

32The approach to s. 24(2) was reformulated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.). At para. 71 of Grant the majority said the following:

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.

33With respect to statements of the accused, the Supreme Court said in Grant at paras 91, 92 and 98:

However, as a matter of practice, courts have tended to exclude statements obtained in breach of the Charter, on the ground that admission on balance would bring the administration of justice into disrepute.

The three lines of inquiry described above support the presumptive general, although not automatic, exclusion of statements obtained in breach of the Charter.

In summary, the heightened concern with proper police conduct in obtaining statements from suspects and the centrality of the protected interests affected will in most cases favour exclusion of statements taken in breach of the Charter, while the third factor, obtaining a decision on the merits, may be attenuated by lack of reliability. This, together with the common law's historic tendency to treat statements of the accused differently from other evidence, explains why such statements tend to be excluded under s. 24(2).

34I will consider each of the Grant factors in turn.

(1) The Seriousness of the Charter-Infringing State Conduct

35This first stage of the s. 24(2) analysis is explained at paras. 72 to 74 of Grant in the following terms:

The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.

This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led to the breach. The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.

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.

36The Charter-infringing state conduct in this case flowed from the failure of the police to facilitate the Appellant’s contact with counsel and their continued investigation. This stemmed from P.C. Nasim’s failure to hear what the Appellant requested and consequently his failure to alert his colleagues to the fact that the Appellant had asked to speak to counsel. It appears from P.C. Nasim’s cross-examination that he may not have heard the Appellant’s request until the in car recording was played to him in Court. Moreover, this request was made in the context of P.C. Nasim’s raising the issue of counsel after he believed that the Appellant had already declined counsel. But if P.C. Nasim was having trouble hearing the Appellant, he should have sought to clarify his answers. He failed to do so. While P.C. Nasim’s behaviour cannot be characterized as a deliberate breach of the Appellant’s s. 10(b) rights, it is at least a result of his carelessness and this in turn gave rise to the further violations by the booking Sergeant and P.C. Stradza.

37I regard this as a very close call as there was no deliberate police conduct that violated the Appellant’s s. 10(b) rights. But at the same time, P.C. Nasim’s negligence cannot be equated with good faith. Indeed, to permit violations of s. 10(b) simply on the basis of an assertion that the police officer did not hear the detainee’s request, could eviscerate the right to counsel. Given that P.C. Nasim could have easily clarified what the Appellant had said, I find that this branch of the Grant analysis favours the exclusion of the Appellant’s utterances to the police.

(2) The Impact of the Breach on the Charter-Protected Interests of the Accused

38This second stage of the s. 24(2) analysis is explained at paras. 76 to 77 of Grant in the following terms:

This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.

To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests.

39The right to counsel is of central importance to the criminal justice process. It is centrally important to an accused's ability to make an informed exercise of his right to silence and to make an informed choice whether or not to participate in an investigation by providing information against himself. The impact on the Appellant's Charter-protected interests was significant. If he had been permitted to speak to counsel he would have been advised not make these utterances to the police. Consequently, I find that this branch of the Grant analysis favours the exclusion of the Appellant’s utterances to the police.

(3) Society's Interest in the Adjudication of the Case on its Merits

40The third branch of the s. 24(2) analysis is the least complex and is explained in Grant at paras. 79 to 84:

Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-20. Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained (see R. v. Wray, 1970 CanLII 2 (SCC), [1971] S.C.R. 272) is inconsistent with the Charter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.

This said, public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.

The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to "balance the interests of truth with the integrity of the justice system": Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 57, per Iacobucci J. The court must ask "whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial": R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47, per Doherty J.A.

The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. ... The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

It has been suggested that the judge should also, under this line of inquiry, consider the seriousness of the offence at issue. ... In our view, while the seriousness of the alleged offence may be a valid consideration, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. Yet, as discussed, it is the long-term repute of the justice system that is s. 24(2)'s focus. As pointed out in Burlingham, 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206, the goals furthered by s. 24(2) "operate independently of the type of crime for which the individual stands accused" (para. 51). And as Lamer J. observed in Collins, "[t]he Charter is designed to protect the accused from the majority, so the enforcement of the Charter must not be left to that majority" (p. 282). The short-term public clamour for a conviction in a particular case must not deafen the s. 24(2) judge to the longer-term repute of the administration of justice. Moreover, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.

41It cannot be said that utterances of an accused are necessarily reliable and would not mislead a trier of fact. Indeed, in this case the Appellant acknowledged that he lied to the police when he described his pattern of drinking that evening. These statements are also not affirmative evidence of the Appellant’s guilt. At best, these statements can be taken as proof that the Appellant would lie to police in an attempt to extricate himself from the situation he was in. Thus, I find that this branch of the Grant analysis favours the exclusion of the Appellant’s utterances to the police. In reaching this conclusion, I am supported by the Supreme Court’s comments in Grant about the fact that statements are presumptively and usually excluded.

(4) Conclusion re s. 24(2)

42For the foregoing reasons, the statements of the Appellant to the police should be excluded.

C. Other Alleged Errors of the Trial Judge

43Given my ultimate conclusion about the need for a new trial, it is not necessary for me to address the Appellant’s other grounds of appeal.

V. CONCLUSION

44The Appellant’s statements were central to the Trial Judge's rejection of his testimony under R. v. W.D. Her first observation in her analysis of the Appellant's credibility was:

In a case such as this where the defendant has admitted that he was not truthful or forthright with the police about his drinking pattern or quantity consumed, it would only be prudent for the trial judge to carefully consider his evidence to determine if it is credible, or if it is capable of raising a reasonable doubt.

45In a decision that turned on the Trial Judge's assessment of the Appellant's credibility, that testimony was subjected to a greater level of scrutiny than it would have been had the Appellant's statements to police not been improperly admitted into evidence. It is therefore not possible to say that the outcome would have been the same notwithstanding the breach of the Appellant's right to counsel. Thus a new trial must be ordered.

Ducharme J.