R. v. Ouimet, 2015 ONSC 3135

COURT FILE NO.: 13-188

DATE: May 15, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Respondent

– and –

Andre Ouimet

Appellant

Isabelle Blanchard, for the Applicant

Tyler Botten, agent for James Foord, for the Appellant

On appeal from the decision of Justice B. E. McPhee, Ontario Court of Justice,

at Cornwall, dated September 18, 2013

ABRAMS, J

Introduction

[1] The Appellant was convicted following a trial for failing to provide a sample of his breath, contrary to Section 254(5) of the Criminal Code.

[2] The Appellant appeals the conviction. This appeal raises two issues:

(i) Did the trial judge err in finding the Appellant’s s. 10(b) Charter rights were not violated on the basis that there was “no reasonable opportunity to consult with counsel” prior to complying with the approved screening demand; and

(ii) Did the trial judge err in concluding that the Appellant’s s. 10(b) Charter rights were not violated on the basis that the Appellant’s response of “yeah, yeah” to the officer’s question on exercising his right to counsel “did not convey a desire to speak to counsel”? That is to say, that “yeah, yeah” meant “no”.

Standard of Review

[3] 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.[^1]

[4] The application of a legal standard to the facts of a case is a question of law and subject to review for correctness.[^2]

[5] 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.[^3]

[6] The standard of review on a summary conviction appeal requires that deference be given for findings of credibility and findings of fact.[^4]

Trial Judge’s Decision

[7] In the trial judge’s Reasons for Judgment, he articulated the following:

Here Mr. Ouimet, in my view, did not convey a desire to speak to counsel and more importantly, in my view, there was no reasonable opportunity to consult with counsel prior to compliance with the approved screening device demand… In my view, Mr. Ouimet was being coy with the officer in failing to understand the demand...[^\5]

Summary of the Facts

[8] The facts giving rise to this appeal are not substantially in dispute.

[9] On September 7th, 2010, Constable Collins was working the nightshift for the Cornwall Police.[^6]

[10] He was advised by his dispatch that an on-duty RCMP officer, Constable Ouellette, had come across a collision in the area of Brookdale Avenue and First Street West at 10:41 p.m.[^7]

[11] Constable Collins arrived on scene at 10:46 p.m. He observed a blue 2003 Mercedes with license plate AACK 436 facing eastbound on First Street West. Constable Ouellette advised Constable Collins that he observed the vehicle attempt to go the wrong way down the one-way street and conducted a traffic stop. He advised that he observed front end damage to the vehicle.[^8]

[12] The Appellant, the lone occupant, was in the driver’s seat of the vehicle, which was still running when Constable Collins arrived.[^9]

[13] Constable Collins approached the vehicle and asked the Appellant to return to his cruiser so they could discuss what happened with the vehicle in relation to the collision. The Appellant complied.[^10]

[14] Constable Collins placed the Appellant in the rear of the vehicle. As he began questioning the Appellant, he detected an odour of an alcoholic beverage and observed that the Appellant’s speech was slightly slurred. When asked if he had consumed any alcoholic beverages that night, the Appellant replied “maybe”.[^11]

[15] Constable Collins requested a roadside screening device he brought to his location.[^12]

[16] At 10:50 p.m., Constable Collins read the Appellant his rights to counsel as contained on his duty card as follows:

You are detained, it is my duty to inform you you have the right to retain and instruct counsel without delay. You have the right to telephone anybody you wish. You have the right to free legal advice from the legal aid lawyer. You are- if you charged with an offence, you may apply to the Ontario Legal Aid plan for assistance. 1-800-265-0451 and 1-800-561-2561 are the toll free numbers that will put you in touch with legal aid duty counsel for free legal advice right now. Do you understand? Do you wish to call a lawyer now?[^13]

[17] The Appellant responded, “yeah, yeah” to the two questions.[^14]

[18] Constable Collins testified that the Appellant responded to his questions in a “dismissive tone”. Thus, he took no steps to advance the Appellant’s request to counsel.[^15]

[19] Constable Collins did not ask the Appellant if he had a cellular phone with him.[^16]

[20] The approved screening device arrived “shortly” thereafter; Constable Collins did not note the time of its arrival. He turned the device on and read the Appellant the screening demand at 10:54 p.m.[^17]

[21] The Appellant stated that he did not understand the demand. Constable Collins prepared the screening device. At 10:58 p.m., he requested that the Appellant provide a sample; the Appellant stated that he did not understand. At 10:59 p.m., Constable Collins explained the procedure. The Appellant again indicated that he did not understand the explanation. At 11:02 p.m., Constable Collins made a third demand, to which the Appellant responded “no”.[^18]

[22] The Appellant was arrested at 11:05 p.m. for refusing to provide a sample into the screening device. He was read his rights to counsel and cautions. At this point, he again stated that he understood. He was handcuffed. His father arrived and the Appellant was released to his custody.[^19]

[23] The Appellant was released by way of appearance notice at 11:45 p.m. and give notice of a 90-day administrative suspension.[^20]

[24] Constable Cloutier was working the night shift on September 7th, 2010.[^21]

[25] He received a dispatch all at 10:48 p.m. that Constable Collins needed a roadside device. He attended the scene, arriving at 10:51 p.m., and turned the screening device over to Constable Collins. Constable Cloutier had no interaction with the Appellant.[^22]

Issues

[26] I intend to deal with the issues in the reverse order, specifically:

(i) Did the trial judge err in concluding that the Appellant’s s.10(b) Charter rights were not violated on the basis that the Appellant’s response of “yeah, yeah” to the officer’s question on exercising his right to counsel “did not convey a desire to speak to counsel”? That is to say, that “yeah, yeah” meant “no”; and

(ii) Did the trial judge err in finding the Appellant’s s.10(b) Charter rights were not violated on the basis that there was “no reasonable opportunity to consult with counsel” prior to complying with the approved screening demand?

Law

Informed Waiver (Prosper Warning)

[27] In addition to the informational duty, s.10(b) of the Charter imposes two implementation duties on state authorities: to provide a detainee with a reasonable opportunity to exercise his or her right to counsel; and to refrain from eliciting evidence until the reasonable opportunity has been provided.[^23]

[28] Once a detainee has been informed of his right to counsel indicates a desire to exercise that right, these implementation duties are triggered.[^24]

[29] A detainee is free to waive his or her right to counsel. The standard for an informed waiver of that right is very high. For such a waiver to be valid, it must be clear the detainee understands what he or she is giving up in the circumstances. The burden of establishing an unequivocal waiver rests on the crown.[^25]

The Position of the Appellant

[30] The Appellant contends that what is clear from the Reasons for Judgment is that the trial judge considered the Appellant’s assertion (“yeah, yeah”) and found that the words spoken “did not convey a desire to speak to counsel”. The Appellant contends that it was an error to conclude that no right to counsel breach occurred, in all of the circumstances.

[31] In effect, the trial judge adopted the officer’s assumption that the Appellant had not asked to speak to a lawyer. The Appellant asserts that this amounts to a finding that the Appellant waived his right to counsel based merely on the tone he used to deliver what could equally be viewed as an affirmative response. The Appellant contends that this falls short of the high standard for an informed waiver of the right to counsel in accordance with Prosper.

The Respondent’s Position

[32] The Respondent contends that for Prosper to apply, the Appellant would have had to assert a desire to contact counsel, be diligent in his attempts to contact counsel and subsequently refuse to contact counsel. The Respondent asserts that these are the circumstances in which the obligation to “hold off” would be triggered. Thus, the Respondent contends that there was no desire to contact counsel asserted by the Appellant. Accordingly, Prosper does not apply in the circumstances.

Analysis

[33] Regrettably, there is little in the trial judge’s Reasons for Judgment to animate why he came to the conclusion that the Appellant did not convey “a desire to speak to counsel”. Rather, the trial judge’s conclusion rests on Constable Collins mere assumption that the Appellant waived his right to counsel based on the tone that he used when he said “yeah, yeah”.

[34] Upon being advised of his right to counsel by Constable Collins, the Appellant responded “yeah, yeah”. Thereafter, Constable Collins took no steps to confirm the Appellant’s apparent implicit waiver of his right to counsel. Put another way, Constable Collins took no steps to confirm his assumption, such as asking follow-up questions of the Appellant in this regard.

[35] To reiterate, a detainee is free to waive his or her right to counsel. The standard for an informed waiver of that right is very high. For such a waiver to be valid, it must be clear the detainee understands what he or she is giving up in the circumstances. The burden of establishing an unequivocal waiver rests on the crown.[^26]

[36] By simply concluding that Constable Collins was correct in his assumption that the Appellant waived his right to counsel based on the tone he used when he said the words “yeah, yeah”, with nothing more to animate the decision-making process, the trial judge failed to instruct himself as to whether a Prosper analysis was necessary. Had the trial judge so instructed himself, it 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 concluding that the Appellant’s 10(b) Charter rights were not violated on the basis that the Appellant’s response “yeah, yeah” meant “no”, and that he did not want to exercise his right to counsel. The Appellant may have actually been flippant, cavalier, dismissive and even annoying in his dealings with the officer, but tone of speech and attitude cannot, in the absence of further inquiry, be used to lower the high standard required for a clear and unequivocal waiver of an accused’s right to counsel.

No Reasonable Opportunity to Consult with Counsel.

Law

[37] When a person is detained by police, s.10(b) of the Charter imposes a duty to inform the detainee of his right to retain and instruct counsel “without delay”, which has been interpreted to mean “immediately.”[^27]

[38] A lawful demand is one that is made forthwith. Where a demand does meet the forthwith requirement, the detainee’s s.10(b) Charter right is engaged and the detainee must be advised of his or her right to counsel “without delay”.[^28]

[39] The term “forthwith” in s. 254(2) of the Criminal Code has been interpreted to mean “immediately” or “without delay”. This is measured against the time at which the officer making the demand had formed a reasonable suspicion that the detainee was operating a motor vehicle with alcohol in his or her blood. In effect, the demand must be made as soon as the suspicion is formed, subject to some flexibility.[^29]

[40] Our Court of Appeal has established that a court assessing the immediacy requirement in s. 254(2) of the Criminal Code must consider the following five things:

(i) The analysis must be done contextually, with regard to the balance between the interest of public safety and an individual’s Charter rights;

(ii) Whether the demand was made promptly upon forming the suspicion;

(iii) Whether the time from formation of the reasonable suspicion to the making of the demand to the detainee’s response to the demand is no more than is reasonably necessary to enable the officer to discharge his s. 254(2) duties;

(iv) All the circumstances, including delay caused by the absence of the ASD, the need to ensure an accurate result, or safety concerns; and

(v) Whether the police could realistically have fulfilled their obligation to implement the detainee’s s.10(b) Charter rights before requiring a sample.[^30]

[41] Whether the detainee has had a reasonable opportunity to consult counsel is not the only criteria in assessing whether the demand was made “forthwith”. To conclude that a demand was made forthwith solely on the basis that both the demand and the response took place before a realistic opportunity to counsel existed is an error.[^31]

[42] Further, where a realistic opportunity to consult counsel exists, but the detainee has not been accorded that opportunity before the demand is made and the detainee responds by providing a sample or refusing to do so, the “forthwith” requirement is not met.[^32]

[43] To assess whether the delay between forming a suspicion and making a demand fails to meet the immediacy requirement, all circumstances surrounding the delay must be considered. In circumstances involving no extenuating circumstances, delays of four and six minutes have been held not to be “forthwith”, leading to a s.10(b) Charter violation.[^33]

The Position of the Appellant

[44] The Appellant contends that Constable Collins had formed a reasonable suspicion that the Appellant was operating a motor vehicle with alcohol in his blood by 10:48 p.m., when he requested an approved screening device. Constable Collins read the Appellant the screening demand six minutes later, at 10:54 p.m. The Appellant asserts that this period of delay is directly relevant to the question of whether the “forthwith” requirement was met and therefore whether a s.10(b) Charter breach occurred.

[45] The Appellant contends that the trial judge did not clearly consider the question of whether the demand was made “forthwith” as part of his analysis. Instead, he focused on the absence of a “reasonable opportunity to consult with counsel”. Finding, as he did, that no such opportunity existed, the trial judge ruled that no breach had occurred. In all of the circumstances, the Appellant contends that this is, in effect, the error the Court of Appeal sought to correct in R v. Quansah.

The Position of the Respondent

[46] The Respondent contends that the “forthwith” issue was never raised or explored at trial and thus this issue is not properly before the Court on appeal.

[47] I disagree. It seems clear to me that the trial judge was alive to the “forthwith” issue, as he said at the top of page 5 in his Reasons for Judgment: “…more importantly in my view, there was no reasonable opportunity to consult with counsel prior to compliance with the approved screening device demand.” Put simply, the trial judge was considering whether this was a “forthwith” demand, but concluded that it was more important to focus on the question of whether there was a reasonable opportunity to consult with counsel prior to compliance with the approved screening device demand.

[48] In any event, the Respondent contends that based on a fulsome review of the evidence, there was no breach of the “forthwith” component because of the “tight timelines”. Put simply, there was no delay.

Analysis

[49] Six minutes passed between when Constable Collins formed a reasonable suspicion that the Appellant was operating a motor vehicle with alcohol in his blood (when he requested an approved screening device) and when Constable Collins read the screening demand.

[50] The trial judge did not advert, in his Reasons for Judgment, to the five things touching upon the immediacy requirement in s.254(2) of the Criminal Code, as articulated in Quansah by the Court of Appeal.[^34]

[51] Rather, the trial judge considered what he concluded to be the only and most important question: whether there was a reasonable opportunity to consult with counsel prior to compliance with the approved screening device demand.

[52] To recall, whether the detainee has had a reasonable opportunity to consult counsel is not the only criterion in assessing whether the demand was made “forthwith”. To conclude that a demand was made forthwith solely on the basis that both the demand and the response took place before a realistic opportunity to counsel existed is an error, the error the Court of Appeal sought to correct in Quansah.

[53] Had the trial judge undertaken the analysis contemplated in Quansah, on the evidence before the Court, he may have found that the screening demand was not made “forthwith”, and that, in the absence of a valid demand, the Appellant’s right to counsel was breached. Having failed to instruct himself in accordance with Quansah, as he did, the trial judge committed the error raised by the Appellant.

Section 24(2) – Should the Evidence Obtained as a Result of the Charter Breach be Excluded?

[54] Having found that a breach of the Appellant’s right to counsel occurred, the Court must go on to consider whether the Appellant’s statements to Constable Collins should have been excluded in accordance with the balancing of the criteria established by the Supreme Court of Canada in R. v. Grant, specifically:

(i) The seriousness of the Charter-infringing state conduct;

(ii) The impact of the breach on the Charter-protected interest of the accused; and

(iii) Society’s interest in the adjudication of the case on its merits.[^35]

[55] The Respondent contends, that, given the “superordinate” importance of the right to counsel under s. 10(b) of the Charter, conscripted evidence obtained in violation of such a right is frequently excluded. Further, although the former exclusionary rule no longer dictates the result on a post-Grant analysis, the traditional fundamental importance of the right to counsel elevates the seriousness of a breach of that right.[^36]

[56] The Appellant contends that the duty to inform a detainee of his right to counsel without delay is not new. Moreover, the interplay between the suspension of the right to counsel during a roadside investigation and a corresponding demand made pursuant to Section 254(2) is a live issue in nearly every such case. Thus, as the Appellant asserts, Constable Collins should have known his Charter obligations during a routine impaired driving investigation. This is behaviour from which the Court should be concerned to disassociate itself, which weighs in favour of exclusion of the evidence.[^37]

[57] 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(b) Charter 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. Thus, as the Appellant contends, the impact on these interests also favours exclusion of the evidence in this case.[^38]

[58] The Appellant admits that the evidence collected was both reliable and central to the Crown’s case, which may weigh in favour of inclusion. However, the Appellant asserts that society’s interest in the adjudication of this matter on its merits cannot alone trump the other two Grant criteria.

[59] The Respondent contends that if the Court finds that the trial judge erred in determining that there was no s. 10(b) Charter breach, upon completing an analysis under Grant, the evidence should not be excluded.

[60] The Respondent contends that the officer was acting in good faith by providing the Appellant his right to counsel on two occasions and could not have, in the circumstances, anticipated that there would be enough time for the Appellant to reasonably consult with counsel.

[61] The Respondent contends that the impact of the breach on the Appellant was minor and essentially technical in nature, which would not undermine the public’s confidence in the rights provided to them pursuant to the Charter.

[62] Finally, the Respondent contends that the public has a strong interest in having cases such as this adjudicated on their merits.

Analysis

[63] Though perhaps not a flagrant breach, this misconduct amounts to a serious infringement of the Appellant’s Charter rights. The officer should have known his Charter obligations during this routine impaired driving investigation. The conduct here is in the category of behaviour from which the Court should be concerned to disassociate itself. This weighs in favour of exclusion of the evidence.

[64] As the majority in Prosper concluded:

Neither the undeniable good faith of the police, nor the relative seriousness of the drinking and driving offences with which the Appellant was charged can compensate for the adjudicative unfairness which I find admission of the evidence would produce.[^39]

[65] 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

[66] 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 15, 2015

CITATION: R. v. Ouimet, 2015 ONSC 3135

COURT FILE NO.: 13-188

DATE: May 15, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen

Respondent

– and –

Andre Ouimet

Appellant

REASONS FOR JUDGMENT

Abrams, J.

Released: May 15, 2015

[^1]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235

[^2]: R. v. Shepherd [2009] S.C.C. 35, para 20

[^3]: R. v. Burns, 1994 127 (SCC), [1994] S.C.J. No. 30 (SCC)

[^4]: R. v. Gagnon [2006] S.C.C. 17, paras 10 and 19 (SCC)

[^\5]: Reasons for Judgment, p. 5, lines 1-13

[^6]: Trans., Proceedings at Trial, p. 3, lines 10-14; p. 4, lines 27-29

[^7]: Trans., Proceedings at Trial, p. 3, lines 22-28

[^8]: Trans., Proceedings at Trial, p. 4, lines 8-17

[^9]: Trans., Proceedings at Trial, p. 5, lines 1-15

[^10]: Trans., Proceedings at Trial, p. 5, lines 20-24

[^11]: Trans, Proceedings at Trial, P.6, 13-26

[^12]: Trans., Proceedings at Trial, p.6, lines 29-30

[^13]: Trans., Proceedings at Trial, p.13, lines 18-28

[^14]: Trans., Proceedings at Trial, p.14, line 4

[^15]: Trans., Proceedings at Trial, p.14, lines 11-12

[^16]: Trans., Proceedings at Trial, p.14, line 26

[^17]: Trans., Proceedings at Trial, p.7, lines 8-25

[^18]: Trans., Proceedings at Trial, p.7, lines 25-26; p.8, lines 20-25; p.9, 3-13

[^19]: Trans., Proceedings at Trial, p.10, lines 3-9; 23-28

[^20]: Trans., Proceedings at Trial, p.11, lines 21-31

[^21]: Trans., Proceedings at Trial, p.16, lines 30-32; p.17, line 2

[^22]: Trans., Proceedings at Trial, p.16, lines 30-32; p.17, lines 2, 5-8, 19

[^23]: R v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173 at para. 17

[^24]: R v. Bartle, supra, at para.17

[^25]: R v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236 at para. 45, 59

[^26]: R v. Prosper, supra, at para. 45, 59

[^27]: R v. Suberu 2009 SCC 33, [2009] 2 S.C.R. 460 at paras. 2, 38, 41

R v. Bartell, 1994 64 (SCC), [1994] 3 S.C.R. 173 at para. 16

[^28]: R v. Quansah, 2012 ONCA 128 at paras. 22-23

[^29]: R v. Quansah, supra, at paras. 25-28, 30

[^30]: R v. Quansah, supra, at paras. 45-49

[^31]: R v. Quansah, supra, at paras. 24, 35

[^32]: R v. Quansah, supra, at para. 34

[^33]: R v. McMurray, [2006] O.J. NO.3554 (S.C.J.)

R v. Kerr, [2010] O.J. NO.2222 (C.J.), aff’d [2011] O.J. NO. 6142 (S.C.J.)

[^34]: R v. Quansah, supra, at paras. 45-49

[^35]: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353

[^36]: R. v. McKane, 1987 6794 (ON CA), [1987] O.J. No. 557 (C.A.)

R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, at paras. 61-63

[^37]: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22

[^38]: R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, at paras. 16, 54

[^39]: R. v. Prosper, supra, p. 28 at para. 62