R. v. Turcotte, 2015 ONSC 3077
COURT FILE NO.: 13-141 (Cornwall)
DATE: May 14, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
Respondent
– and –
Julie Turcotte
Appellant
Jennifer Burke, for the Respondent
Tyler Botten, agent for James Foord, for the Appellant
On appeal from the decision of Justice Peter Adams, Ontario Court of Justice,
at Cornwall, dated November 30, 2012
ABRAMS, J.
Introduction
[1] The Appellant appeals her conviction of driving “over 80” following a trial.
[2] The Appellant was acquitted of one count of impaired driving, which was dismissed mid-trial based on an absence of evidence.
[3] The Appellant’s only ground of appeal is that the trial judge erred in finding that the arresting officer’s failure to provide her with a “Prosper”[1] warning did not lead to a breach of her rights under s.10(b) of the Charter of Rights and Freedoms.
Standard of Review
[4] The standard of review requires that an appellate court should not interfere merely because it would have reached a different result and should only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result.[2]
[5] The application of a legal standard to the facts of a case is a question of law and subject to review for correctness.[3]
[6] The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion.[4]
[7] The standard of review on a summary conviction appeal requires that deference be given for findings of credibility and findings of fact.[5]
Trial Judge’s Decision
[8] In the trial judge’s reasons for decision, he articulated the following findings of fact, beginning at paragraph 37, specifically:
In this case, I find that:
(a) First, the police fulfilled their duty and acted diligently and the Prosper issue is not necessary to consider;
(b) Second, as a result, there was no breach of s. 10(b);
(c) On the remainder of the evidence, there is a finding of guilt on the charge of over .08.
Summary of the Facts
[9] The facts giving rise to this appeal are not substantially in dispute.
[10] The Appellant was arrested on February 3, 2012, for the offences of impaired driving and driving over .08.
[11] The primary issues was whether the Appellant’s right to counsel pursuant to s. 10(b) of the Charter of Rights and Freedoms had been infringed.
[12] Trial counsel raised two concerns regarding s. 10(b):
(i) The officers failed to meet their implementational duty by not making sufficient efforts to locate a residential number for the lawyer who the Appellant asked to speak with, a Mr. McGillivary; and
(ii) The officers failed to meet their informational duty once the Appellant changed her mind about contacting counsel, by neither providing a further warning nor holding off from obtaining samples without the Appellant’s clear waiver of her right to counsel.
[13] The arresting officer, Constable McKenna, testified that he was a police constable with the Ontario Provincial Police (O.P.P.), and at the time of trial had been so employed for six years.[6]
[14] On the evening of February 3, 2012, Constable McKenna was on duty and was conducting a RIDE program, with Constable Baker, in South Dundas Township.[7]
[15] At 10:28 p.m., Constable McKenna performed a routine stop of the Appellant’s vehicle. Upon speaking with the Appellant, Constable McKenna detected an odour of alcohol emanating from her breath. In response to the officer’s questions, the Appellant said she had “one beer”, that she had consumed “at least an hour” prior to the stop.[8]
[16] Based on the Appellant’s admission and the odour of alcohol detected, Constable McKenna formed a reasonable suspicion the Appellant had alcohol in her blood. He read the Appellant the approved screening device demand at 10:29 p.m. and asked her to accompany him to his cruiser.[9]
[17] The Appellant complied with the request, and was seated in the rear of Constable McKenna’s cruiser. She provided a sample at 10:34 p.m., registering a “fail” on the screening device.[10]
[18] Constable McKenna arrested the Appellant for operating a motor vehicle with over 80 mg. of alcohol in 100 mL of blood at 10:35 p.m. She was immediately read her rights to counsel.[11] Constable McKenna provided the full text as follows:
You are under arrest for operating a motor vehicle with the blood alcohol exceeding 80 mg. of alcohol in 100 mL of blood. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from our Legal Aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance, 1-800-265-0451 is a number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now. Do you understand?[12]
[19] The Appellant responded that she understood. Constable McKenna asked, “Do you wish to call a lawyer now?” to which the Appellant respondent, “Yeah, I guess.”[13]
[20] The Appellant told Constable McKenna that she did not know any lawyers. When Constable McKenna advised her that he could assist in locating the name of a lawyer, the Appellant responded, “Not sure, I need to talk to my friend.”[14]
[21] At 10:38 p.m., Constable McKenna read the Appellant the Intoxilyzer demand and Constable Baker conducted a pat down search of the Appellant. During his subsequent search of the Appellant’s vehicle, Constable McKenna located her cell phone and provided it to her.[15]
[22] At 10:50 p.m., Constable McKenna left the scene with the Appellant in his custody. At 10:58 p.m., they arrived at the Morrisburg detachment. During the drive, the Appellant made some efforts to contact her boyfriend, and she received a text message with the name and number of a lawyer.[16]
[23] The Appellant showed Constable McKenna the text message she received indicating the name, James McGillivary, and a phone number. Constable McKenna placed the Appellant in a holding cell at 11:02 p.m. and called the number provided. Receiving no response, he left a voicemail message indicating he had someone under arrest who wished to speak with him.[17]
[24] After leaving a message for Mr. McGillivary, Constable McKenna took further steps to locate Mr. McGillivary’s residence phone number. Using the Google.com search engine, Constable McKenna located the same business number he had already called. His search of the Yellow Pages revealed an advertisement for Mr. McGillivary containing the same number. The detachment lawyer list contained no number at all for Mr. McGillivary. [18]
[25] Constable McKenna knew that Mr. McGillivary is based in Ottawa. He conceded that at the time he did not think to call the Ottawa Police to inquire about a residential number from their list for Mr. McGillivary. Nor did Constable McKenna call 411 directory assistance to inquire about a residential phone number for Mr. McGillivary.[19]
[26] Constable McKenna advised the Appellant he wasn’t able to locate another number for Mr. McGillivary. She replied “That’s okay.” Constable McKenna advised her of the list of lawyers who are members of the Stormont, Dundas and Glengarry Law Association. The following exchange ensued:
Appellant: “Do I have to call a lawyer?”
Constable McKenna: “No.”
Appellant: “Can I call him tomorrow?”
Constable McKenna indicated that she could.
Appellant: “Okay, I’ll just do that. I don’t need to talk to him right now.”
Constable McKenna: “Okay, well, if you change your mind and you want to talk to any lawyer let me know, okay?”
Appellant: “Okay.”[20]
[27] Constable McKenna testified that he believed the Appellant was satisfied with his initial attempts to reach Mr. McGillivary. He was also satisfied that the Appellant understood her rights and was aware of the other options available to her before deciding not to speak with a lawyer. He did not recall the Appellant asking him to consult any other sources for a number and she did not ask to call her friend again.[21]
[28] Constable McKenna could not comment on the Appellant’s mindset in relation to the importance of speaking with counsel prior to breath testing. He viewed the Appellant’s question “Do I have to call a lawyer?” as an honest question and took it to mean that she was not sure if she needed to call a lawyer or not.[22]
[29] Constable McKenna interpreted the Appellant’s response, “That’s okay” to mean that she no longer wished to call a lawyer and that she was thereby abandoning her original request, or waiving her right to counsel. When asked in cross-examination whether he then advised the Appellant of both her right to a reasonable opportunity to contact a lawyer, and of the officer’s obligation to hold off taking evidence from her until she had that opportunity (the “Prosper warning”) Constable McKenna confirmed he did neither and that he had never heard of such an obligation.[23]
[30] At 11:43 p.m. the Appellant was transferred to the custody of Constable Geurts for the purpose of conducting breathalyzer test. At 12:20 a.m. the Appellant was returned to the custody of Constable McKenna. The Appellant was served with a Promise to Appear and other documentation at 12:51 a.m. before being released from the detachment.[24]
[31] Constable McKenna noted no physical indicia of impairment from the Appellant, and did not form an opinion as to whether her ability to operate a motor vehicle was impaired by alcohol. The Crown conceded at trial that the evidence was insufficient to support a conviction on the charge pursuant to s.253 (a) of the Criminal Code and the trial judge made a finding of not guilty on that count mid-trial.[25]
[32] Constable Geurts had been advised by Constable McKenna that the Appellant did not want a lawyer when she arrived at the detachment, and that he had previously read her rights to counsel. Constable Geurts read the Appellant the breathalyzer demand, provided a secondary caution, and re-read her rights to counsel using language virtually identical to the language used by Constable McKenna.[26]
[33] Constable Geurts asked the Appellant, “Do you wish to call a lawyer now?” to which she responded, “No, I will call a lawyer tomorrow.” He then obtained breath samples from the Appellant with readings of 120 mg and 106 mg alcohol in 100 mL of blood at 11:51 p.m. and 12:13 a.m., respectively.[27]
[34] The trial judge found that both officers took sufficient good faith steps to assist the Appellant in contacting counsel, thereby fulfilling their implementational duties under s.10(b) of the Charter. As a result, the trial judge found no s.10(b) breach occurred.[28]
[35] The trial judge further held that, because both officers acted diligently in fulfilling their duties, it was not necessary for him to consider the Prosper issue.[29]
[36] Having found no charter breach occurred, on the evidence provided by the breath samples taken from the Appellant, the trial judge was satisfied beyond a reasonable doubt of the Appellant’s guilt of s.253(b) offence.[30]
Issue
[37] Did the trial judge err in finding that the arresting officer’s failure to provide the Appellant with a Prosper warning did not lead to a breach of her rights under s.10(b) Charter of Rights and Freedoms?
Law
[38] When a person is detained or arrested by police, s.10(b) Charter of Rights and Freedoms imposes both informational and implementational duties on the authorities who have custody of that person.[31]
[39] Police have an obligation to take steps to ensure that a detainee understands her right to counsel. Where a detainee indicates she does not understand her right, police cannot merely rely on a mechanical repetition of the wording of the right.[32]
[40] Where a detainee who has asserted and diligently attempted to exercise her right to counsel has been unsuccessful and indicates she has then changed her mind, an additional informational duty is imposed on police. This duty is to explicitly inform the detainee of two things:
(i) Her right to a reasonable opportunity to contact counsel; and
(ii) The police obligation to hold off from obtaining incriminating evidence until she has had that reasonable opportunity to exercise her right. This dual obligation is commonly referred to as a “Prosper warning”.[33]
[41] The purpose of the warning is to ensure that the detainee understands that her unsuccessful attempts to reach counsel do not exhaust her s.10(b) right; the warning also ensures that her decision to waive that right is fully informed. Given the level of control police exercise over a detainee at the local detachment, their duty to fulfill s.10(b) obligations is a substantial one.[34]
[42] The standard required for a formal, informed waiver of the right to counsel is very high. For such a waiver to be valid, it must be clear the person understood what she was giving up in the circumstances. The burden of establishing an unequivocal waiver rests on the crown.[35]
Position of the Appellant
[43] The Appellant contends that she asserted her right to counsel. After attempts to contact her counsel of choice were unsuccessful, she asked Constable McKenna whether she had to call a lawyer, and whether she could call Mr. McGillivary in the morning. Constable McKenna testified that the former question suggested some uncertainty on the Appellant’s part.
[44] The Appellant contends that her comments to Constable McKenna fell short of the high standard required for a fully informed, clear waiver of her right to counsel. The Appellant asserts that having indicated her change of mind in these circumstances, she should have been given a Prosper warning. Neither officer provided one.
[45] In his Reasons for Decision, the trial judge simply indicated that it was not necessary for him to consider the Prosper issue. The Appellant contends that it was an error for the trial judge not to consider the issue of a Prosper warning based on the evidence adduced.
[46] The Appellant further contends that though the trial judge may have been correct in holding that the officers fulfilled the implementational component of their s.10(b) duty, he did not address the officer’s failure to fulfill their additional, informational duty outlined in Prosper.
Position of the Respondent
[47] The Respondent contends that the Appellant was not reasonably diligent in all of the circumstances thus triggering a Prosper warning. Rather, the Respondent asserts that the inference to be drawn is that the Appellant was going to wait to speak to counsel of choice the next day and was not taking the opportunity to consult with other counsel.
Analysis
[48] Regrettably, there is little in the trial judge’s Reasons for Decision to animate why he came to the conclusion that he did not need to consider the Prosper issue, other than to say that the police fulfilled their duty and acted diligently. The conclusion stands in stark contrast to the analysis undertaken by Harris J. of the Ontario Court of Justice in R v. Delaney [2014] ONCJ 844. Beginning at paragraph 19 under the subheading “Reconciling the Police Duties and Reasonable Diligence on the Part of the Accused”, Harris J. begins:
…when the police cannot reach counsel of choice, and the defendant indicates he has changed his mind and no longer wants legal advice, the “Prosper duties” must be complied with and an unequivocal waiver obtained—and only then will a defendant’s failure to avail himself of duty counsel amount to a failure to exercise reasonable diligence.
[49] Further, at paragraph 22:
The essence of Prosper is the fact that it sets out the fundamental principles that marshal our understanding of the Charter right to counsel. The central concepts are clearly stated: (1) Courts must ensure that the Charter-protected right to counsel is not too easily waived, and (2) Given the importance of the right to counsel… the standard required for an effective waiver of the right to counsel is very high: “Clarkson v The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, Manninen, and Evans, and (3) The evidentiary presumption under s.258(1)(d) of the Code, which provides that readings taken within two hours of an alleged offence are proof of the blood alcohol level at the time of the offence, is not a sufficiently “urgent” factor to override a detainee’s right to counsel under s. 10(b), and (4) It is now well accepted that s. 10(b) serves to protect the privilege against self-incrimination, a basic tenet of our criminal justice system which has been recognized by members of this Court to be a “principle of fundamental justice” under s.7 of the Charter: R. v. P.(M.B.), 1994 CanLII 125 (SCC), [1994] 1 S.C.R. 555, and R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229.
[50] Further, at paragraph 23:
In my respectful opinion, somewhere along the jurisprudential trail many of the s. 10(b) principles had a tendency to be lost in a “blended analysis of the overall situation” and police duties and the diligence of the accused have a tendency to become jammed together. For example, in R. v. Richfield 2003 CanLII 52164 (ON CA), [2003] O.J. No. 3230 (C.A.) the Ontario Court of Appeal considered the question of “reasonable diligence:” and concluded that:
- The appellant, upon being informed that the lawyer that he had asked the police to call had not called back, did not ask to make a further call to his counsel of choice or to another counsel. When asked if he wished the assistance of duty counsel, the appellant indicated that he did not. The appellant was not reasonably diligent in exercising his right to counsel in the circumstances. The fact that the police could have made greater efforts earlier does not detract from the appellant’s own lack of diligence at a later stage in exercising his right to counsel.
[51] Further, at paragraph 24:
As well, in R. v. Blackett, [2006] O.J. No. 2099 (S.C.J.) Ferguson J. dealt with police duties and diligence in the following commentary:
- It seems inescapable that the appellate courts have decided that, where duty counsel is available, the scope of the police duty to facilitate contact with counsel of choice is minimal. It would appear from the decision in Richfield that a good faith perfunctory effort by the police to locate counsel of choice is sufficient to “suspend the correlative duties on the police” if it is followed by an offering of access to duty counsel and the failure of the accused to take advantage of duty counsel.
[52] Further, at paragraph 25:
At first blush, these oft-quoted paragraphs seem to proceed on the basis that a minimalist, perfunctory approach to s.10(b) was all that was required and that the Prosper duties and an unequivocal waiver were no longer necessary. In fact, the above cases are entirely consistent with the Supreme Court jurisprudence. It is noteworthy that in both Richfield and Blackett the accused requested counsel of choice and when counsel was not available, the accused were offered duty counsel, which they refused, and continued to insist on counsel of choice. (See also R. v. Van Binnendyk, 2007 ONCA 537, R. v. Boyce, 2005 CANLII 19776 (Ont.S.C.), -- decisions that followed Richfield in which accused steadfastly insisted on their own unavailable counsel). These Courts quite properly found that the accused were not being reasonably diligent in exercising their right to counsel. That is a much different set of circumstances from those in which accused change their minds and no longer wish to exercise their right to counsel. That classic scenario continues to be governed by the Supreme Court jurisprudence and the traditional high standards required for an effective informational/waiver process will still be required to ensure an accused knows what it is that he or she is actually giving up.
[53] Further, at paragraph 26:
A number of jurists have recognized this distinction such as Beninger J. in R. v. Bourgeois, supra, where he makes the following ruling:
The Crown states that the accused failed to exercise due diligence in contacting a lawyer. R. v. Richfield, supra, states that an accused person must be reasonably diligent in exercising their right to counsel. An important consideration in R. v. Richfield was the availability of duty counsel, the use of which was not pursued by the accused in that case. In this case, Mr. Bourgeois was adamant in rejecting the availability of duty counsel services. However, in R. v. Richfield, there were significant efforts made by police to facilitate the right to counsel for the accused. I distinguished the facts in this case from R. v. Richfield, in that a) there is a change of mind by this accused which triggers the Prosper requirements… (See also R. v. Bell, 2008 ONCJ 151 (Ont. C.J.); R. v. DesRosiers, 2005 ONCJ 212 (Ont. C.J.); R. v. Spurrell 2012 ONCJ 576 (Ont.C.J.) to the same effect).
[54] Further, at paragraph 27:
The final point to be made is that when an individual finds himself (or herself) in a police division under arrest and in detention, the relationship between the individual and the police is not a level playing field. It stands to reason that a person in custody for the first time, under the influence of some level of alcohol and being required to make some very stressful choices about counsel and whether to provide a breath sample, is likely to feel quite overwhelmed. This is precisely why the Prosper informational/waiver process is so vitally important.
[55] Finally, earlier in his decision, Harris, J. makes the important distinction:
The only way that Prosper and all the “reasonable diligence” cases can be reconciled is by giving effect to the case authorities... and placing the police duties and the accused’s right to counsel obligations in their natural order. When counsel of choice cannot be reached after a reasonable waiting period, and an accused wishes to speak with alternate counsel, or duty counsel, an accused has to pursue that choice with reasonable diligence. Where an accused indicates that he or she has changed his or her mind and no longer wants legal advice, police must provide constitutionally sufficient information (the Prosper caution) in order to allow him or her to make a fully informed decision. This “additional information requirement” on police “ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up,” according R. v. Prosper. (emphasis added)
[56] Returning then to the circumstances in this case, the Appellant showed Constable McKenna the text message she received, indicating the name, James McGillivary, and phone number. Constable McKenna placed the Appellant in a holding cell at 11:02 p.m. and called the number provided. Receiving no response, he left a voicemail message indicating he had someone under arrest who wished to speak with him.[36]
[57] After taking further steps to locate Mr. McGillivary which, parenthetically, did not include checking with the Ottawa Police for a residential number for Mr. McGillivary, although Constable McKenna knew that Mr. McGillivary is based in Ottawa, Constable McKenna advised the Appellant that he was unable to locate another number for Mr. McGillivary. It was then that the Appellant replied, “That’s okay.” Constable McKenna then advised the Appellant of the list of lawyers who are members of the Stormont, Dundas and Glengarry Law Association, when this exchange ensued:
Appellant: “Do I have to call a lawyer?”
Constable McKenna: “No.”
Appellant: “Can I call him tomorrow?”
Constable McKenna indicated that she could.
Appellant: “Okay, I’ll just do that. I don’t need to talk to him right now.”
Constable McKenna: “Okay, well if you change your mind and want to talk to any lawyer, let me know, okay?”
Appellant: “Okay.”[37]
[58] Accordingly, the Appellant changed her mind when counsel of choice could not be reached after a reasonable waiting period. Thereafter, she chose not to speak with any of the lawyers on the list of lawyers who are members of the Stormont, Dundas and Glengarry Law Association, when presented with the list by Constable McKenna. Had she done so, that is when she would have had to pursue her choice with reasonable diligence. To the contrary, her response was, “Do I have to call an alternate lawyer?” to which Constable McKenna respondent, “No.” The Appellant then said, “Can I call him tomorrow?” to which Constable McKenna indicated that she could. Thus, the Appellant resolved to do just that, when she said, “Okay. I’ll just do that. I don’t need to talk to him right now.”
[59] In the circumstances, when the Appellant indicated that she had changed her mind and no longer wanted legal advice, Constable McKenna was required to provide constitutionally sufficient information (the Prosper warning) in order to allow the Appellant the opportunity to make a fully informed decision. This “additional informational requirement” on Constable McKenna’s part would have ensured that the Appellant would have known what she was actually giving up, according to Prosper. Regrettably, the “red flag” never went up, so to speak, for Constable McKenna, because admittedly he had no knowledge of the Prosper warning, although the case was decided in 1994 and he had been a member of the O.P.P. for approximately six years in 2012.
[60] When the Appellant found herself under arrest and in detention, the relationship between her and the police was not a level playing field. At very least, by Constable McKenna’s admission, the Appellant was confused regarding her right to counsel.[38] The Appellant was under the influence of some level of alcohol, which Constable McKenna knew to be the case because he smelled alcohol on her breath and she registered a fail on the roadside screening device. In very similar circumstances, Harris J., in Delaney, supra, pointed out: “This is precisely why the Prosper informational/waiver process is so vitally important.”
[61] Thus, coming full circle, by simply concluding that the police fulfilled their duty and acted diligently, with nothing more to animate the decision-making process, the trial judge failed to instruct himself as to whether a Prosper analysis was necessary, which would have resulted in his consideration of whether the high standard for a formal, informed waiver of the Appellant’s right to counsel had been met. In all of the circumstances, the trial judge erred in finding that the arresting officer’s failure to provide the Appellant with a Prosper warning did not lead to a breach of her rights under s. 10(b) of the Charter of Rights and Freedoms.
Is the Evidence of the Intoxilyzer Readings Supporting the Conviction Admissible Pursuant to [s. 24(2)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
[62] Having found that the Appellant was indeed entitled to a Prosper warning, thus resulting in a violation of her s. 10(b) right to counsel, should the evidence obtained as a result of the breach have been excluded?
[63] A determination of whether the evidence should be excluded under s. 24(2) of the Charter requires an application of the analysis established by the Supreme Court in R. v. Grant, 2009, SCC 32, which involves a three part process of balance and assessment of the following:
The seriousness of the Charter-infringing state conduct;
The impact of the breach on the Charter-protected interest of the accused; and
Society’s interest in the adjudication of the case on its merits.
[64] The Respondent contends that, even if under the circumstances Constable McKenna was required to provide the Appellant with a Prosper warning and failed to do so, his good faith to ensure her right to counsel militates in favour of the breach not being serious. Rather, the breach was a technical one having regard to the minimally intrusive nature of breath samples. Finally, the public has a strong interest in having cases, such as this, adjudicated on their merits.
[65] As the Appellant contends, the duty to provide a Prosper warning has been clearly spelled out for nearly twenty years. Constable McKenna testified that he had no knowledge of that duty. To that end, as Harris, J. said in Delaney, supra, at page 12, para 32: “However, ignorance of Charter standards must not be rewarded and negligence or wilful blindness cannot be equated with good faith. Moreover on, at para. 34, Harris, J. said:
While good faith may reduce the need for the court to disassociate itself from the police conduct, a major gap in the officer’s training resulting in a lack of appreciation of Charter standards must not be rewarded. The Prosper requirements have existed for some twenty years and should be well known and well recognized by the police who are called upon to uphold those standards. There is no question this Charter-infringing conduct was serious.
[66] Though perhaps not a flagrant breach, this misconduct amounts to a serious infringement of the Appellant’s Charter rights. Constable McKenna should have known his conduct was not Charter compliant, which places his conduct here in the category of behaviour from which the court should be concerned to disassociate itself. This weighs in favour of exclusion of the evidence. [39]
[67] The Appellant contends that the second prong of the Grant analysis is concerned with the impact on the Appellant’s Charter-protected interest. The issue of the intrusiveness of breath samples was considered directly by the Supreme Court in R. v. Bernshaw, where the majority of the court rejected the view that the taking of such samples was an inconvenience that could be justified on the rarity of obtaining false results.[40]
[68] The Appellant further contends that in R. v. Bartle, the Supreme Court made clear the causal connection between incriminating evidence obtained from a s. 10 violation and the impact on the protected interest of trial fairness. One cannot speculate about what the accused might have done had the right not been infringed. For the purpose of considering the effect of admitting the evidence, courts assume the incriminating evidence would not have been obtained but for the Charter breach. Accordingly, as the Appellant asserts, the impact on these interests also favours exclusion of the evidence in this case.[41]
[69] As the Respondent contends, the evidence collected was both reliable and central to the Crown’s case, which weighs in favour of inclusion. However, society’s interest in the adjudication of this matter on its merits cannot alone trump the other two Grant criteria. As the majority in Prosper concluded:
Neither the undeniable good faith of the police, nor the relative seriousness of the drinking and driving offence with which the Appellant was charged can compensate for the adjudicative unfairness which I find admission of the evidence would produce.
[70] On balance, the circumstances here favour exclusion of evidence obtained by a process involving serious infringement of a fundamental right. Conduct that fails to meet longstanding Charter standards should not be sanctioned.
Conclusion
[71] An order shall issue setting aside the Appellant’s conviction and ordering a new trial, before a new judge of the Ontario Court of Justice.
The Honourable Mr. Justice B.W. Abrams
Released: May 14, 2015
CITATION: R. v. Turcotte, 2015 ONSC 3077
COURT FILE NO.: 13-141 (Cornwall)
DATE: May 14, 2015
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
– and –
Julie Turcotte
Appellant
REASONS FOR JUDGMENT
Abrams, J.
Released: May 14, 2015
[1] R. v. Prosper 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236
[2] Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235
[3] R. v. Shepherd [2009] S.C.C. 35, para 20
[4] R. v. Burns, 1994 CanLII 127 (SCC), [1994] S.C.J. No. 30 (SCC)
[5] R. v. Gagnon [2006] S.C.C. 17, at paras 10 and 19 (SCC)
[6] Trans., Proceedings at Trial, p.3, lines 12-22
[7] Trans., Proceedings at Trial, p. 4, lines 17-19, 26-27
[8] Trans., Proceedings at Trial, p.5, lines 17-14
[9] Trans., Proceedings at Trial, p.5, lines 20-27
[10] Trans., Proceedings at Trial, p.5, lines 27-32; p.6, lines 29-31
[11] Trans., Proceedings at Trial, p.7, lines 1-9
[12] Trans., Proceedings at Trial, p.7, line 28 to p.8, line 8
[13] Trans., Proceedings at Trial, p.8, lines 5-8
[14] Trans., Proceedings at Trial, p.8, lines 11-15
[15] Trans., Proceedings at Trial, p.9, lines 9-13, 26-28; p. 10, lines 15-17
[16] Trans., Proceedings at Trial, p.11, lines 8-12, 28-29; p. 12, lines 3-8
[17] Trans., Proceedings at Trial, p.12, lines 26-30; p. 13, lines 11-14, 26-30
[18] Trans., Proceedings at Trial, p.14, lines 7-11, 18-21; p. 15, lines 13-15
[19] Trans, Proceedings at Trial, p.27, lines21-27; p.30, lines 19-18
[20] Trans., Proceedings at Trial, p.17, lines 2-3, 11-15; p.19, lines16-29.
[21] Trans., Proceedings at Trial, p.19, lines 1-10; p.23, lines 1-11.
[22] Trans., Proceedings at Trial p.32, line 29; p.33, line 6.
[23] Trans., Proceedings at Trial, p.36, lines 11-16, 24-32; p.37, lines 1-14
[24] Trans., Proceedings at Trial, p.20, lines 27-29, p.21, lines 14-24
[25] Trans., Proceedings at Trial, p.22, lines 7-10, 20-21; p.38, lines 28-31; p.39, lines 11-15
[26] Trans., Proceedings at Trial, p.41, lines 29-31; p.43, lines 21-31
[27] Trans., Proceedings at Trial, p.43, lines 23-26, 30-31
Certificate of Qualified Technician, Appeal Book, Tab 7
[28] Reasons for Decision at paras. 46-50
[29] Reasons for Decision at para. 37
[30] Reasons for Decision at para. 52
[31] R v Prosper, supra at para. 34
[32] R v Willier, (2010) 2 S.C.R.429 at para 31
[33] R v. Prosper, supra, at paras. 42-43
R v. Willier, supra, at para 32
[34] R v. Willier, supra, at para 32
R v. Bourgeious, 2009 ONCA 336 at para. 23
[35] R v. Prosper, supra, at paras. 44 and 59
[36] Trans., Proceedings at Trial, p. 12, lines 26-30; p. 13, lines 11-14, 26-30
[37] Trans., Proceedings at Trial, p. 17, lines 2-3, 11-15; p. 19, lines 16-29
[38] Trans., Proceedings at Trial, p. 33, lines 7-10
[39] R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, para. 22
[40] R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, para. 52
[41] R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, paras. 16-54