ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-032-00AP
DATE: 2015/08/06

B E T W E E N:

HER MAJESTY THE QUEEN

Brian Bencze, for the Appellant

Appellant

• and -

MATTHEW VERNON

Adam Little, for the Respondent

Respondent

HEARD: June 9, 2015

Ellies J.

REASONS FOR DECISION

[1] The Crown appeals from the acquittal of the respondent on a charge of operating a motor vehicle while the concentration of alcohol in his blood exceeded 80 milligrams per 100 milliliters. The acquittal resulted when the trial judge excluded evidence of breath samples taken from the respondent, after he found that the respondent’s s. 10(b) Charter right to counsel had been infringed.

[2] The Crown argues that the trial judge erred in holding that the respondent’s right to counsel was violated when the arresting police officer failed to wait longer than one minute after the respondent had left a message at his lawyer’s office before the officer placed a call to duty counsel, with whom the respondent later spoke.

[3] In the alternative, the Crown argues that the trial judge erred in excluding the breath sample evidence under s. 24(2) of the Charter because he failed to consider certain factors and took into account other factors he should not have considered.

[4] As I will explain, I believe that the appeal should be dismissed. In the circumstances of this case, the trial judge did not err in holding that the police ought to have advised the respondent that he had a right to wait a reasonable amount of time for his counsel of choice to call back. Further, the trial judge correctly identified two other failures on the part of the arresting officer regarding the implementational component of s. 10(b) that support his finding of a breach.

[5] While it is true that the trial judge failed to consider the minimally intrusive nature of the breath samples and the reliability of that evidence in his analysis under s. 24(2) of the Charter, his finding that the breach was a serious one is amply supported by the record. In my view, the seriousness of the breach requires that the evidence be excluded in order to protect the reputation of the justice system, despite the nature of that evidence.

BACKGROUND

[6] The respondent was arrested in McKeller Township at 6:45 p.m. on Sunday, February 17, 2013, for impaired operation of a motor vehicle. At 6:56 p.m., he was advised of his right to retain and instruct counsel, including the right to telephone any lawyer he wished, as well as the right to free advice from a Legal Aid lawyer. When asked if he understood these rights, he replied that he did and that his lawyer was John Carruthers, on Main Street, in Markham.

[7] The respondent and the arresting officer arrived at the police station at 7:23 p.m. At 7:30 p.m., the officer called Mr. Carruthers and left a message on the answering service at his office. A minute later, at 7:31 p.m., the officer called duty counsel and left a message. Duty counsel called back at 7:44 p.m. The respondent was then advised by the officer that his lawyer had not called back and was offered an opportunity to speak with duty counsel, who was on the phone. The respondent accepted the offer and spoke with duty counsel from 7:45 p.m. to 7:57 p.m.

[8] The respondent expressed no concerns following his conversation with duty counsel. At 8:01 and 8:30 p.m., the respondent provided breath samples that showed he had more than the legal limit of alcohol in his blood.

[9] At trial, the respondent testified that he would have liked to have spoken to his own lawyer. Although the respondent was not aware whether Mr. Carruthers had any expertise in criminal law, he had been the respondent’s civil lawyer for over ten years and the respondent had “100 per cent” confidence in his abilities. The respondent testified that the officer gave him very little time to decide whether to speak to duty counsel, that it was basically a “yes or no” question, and that, as he knew he should speak to a lawyer and one was on the phone, he did so.

[10] The trial judge held that the respondent’s right to counsel under s. 10(b) of the Charter had been breached. After referring to the decisions in R. v. Vizzari, 2012 ONCJ 394, 263 C.R.R. (2d) 309 and R. v. Ho, [2011] O.J. No. 3524 (C.J.), the trial judge wrote at paras. 67 to 69 of his reasons:

[67] What is very similar [in] these two decisions of the Ontario Court of Justice, which obviously I’m not bound by, to our case at bar is the fact that the informational component of section 10(b) of the [Charter] has not been met. It is unrealistic to expect that someone who has had no prior involvement in the criminal justice system to know [sic] that he must express some dissatisfaction about the advice he received from duty counsel or to know that he can insist on waiting to speak to a lawyer of his choice.

[68] In the case at bar, I find that … Constable Catcher failed to properly inform Mr. Vernon that he had a right to wait a reasonable amount of time for his counsel of choice to call before providing the breath sample. He further failed to wait a reasonable amount of time for counsel of choice to call back before contacting duty counsel. Finally, the police did not take all reasonable steps necessary to attempt to contact the counsel of choice. Constable Catcher specifically said that he was not expecting a reply from his message at the lawyer of choice’s office as this was Sunday night of a long weekend. The police did not attempt to find or provide Mr. Vernon the opportunity to try to find the lawyer[’s] residential phone number or to find other ways of contacting the lawyer of his choice.

[69] In reviewing the totality of the circumstances of this case and by applying the ratios of the jurisprudence noted above, I am satisfied that the defendant, Matthew Vernon, was not given a reasonable time to consult his counsel choice and that the defence has established a breach of section 10(b) of the [Charter] on a balance of probabilities.

[11] Turning to s. 24(2) of the Charter, the trial judge first set out the governing principles from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. He then held as follows, at paras. 72 to 74 of his reasons:

[72] The right of the defendant to consult counsel of choice is one of the most basic rights enshrined in the [Charter]. In my view, the breach is therefore a serious one and more than a trivial violation. We must not forget that Mr. Vernon was able to speak to duty counsel; he did not complain [about] this advice and in fact understood same since he refused to answer some questions and do a sobriety test. In view of this, the impact of the breach is not as high as it might be in other cases however, it can hardly be deemed minimal. Mr. Vernon did have a 10 year relationship with Mr. Carruthers in which he had 100% confidence in his advice.

[73] It is clear that … impaired drivers are a menace to our society and places [sic] everyone’s safety in jeopardy. Parliament has enacted legislation to address these issues by giving extra powers to the police to investigate and detect impaired drivers. In view of these extra powers, the police must be held to a high level of compliance.

[74] When I balance all the relevant factors in this matter I am satisfied that the defence has established that inclusion of the breathalyser readings, given the nature of the violation, would bring the administration of justice in disrepute and I will therefore exclude the blood alcohol readings.

[12] In the result, the respondent was acquitted of all charges, including the “over 80” charge.

ISSUES

[13] This appeal gives rise to two main issues:

(1) Did the trial judge err in finding that the respondent’s right to counsel under s. 10(b) of the Charter was breached?

(2) If not, did the trial judge err in excluding the breath sample evidence under s. 24(2) of the Charter?

ANALYSIS

Did the Trial Judge Err in Finding a Breach of Section 10(b)?

[14] The Crown submits that the trial judge committed three errors in finding a breach of the respondent’s Charter right to counsel. In particular, the Crown argues that the trial judge erred:

(1) by finding a breach of the informational component of s. 10(b);

(2) by holding that the police had a duty to inform the respondent that he had a right to wait a reasonable amount of time for counsel of choice to call back; and

(3) by finding that the police had failed to fulfill the implementational component of s. 10(b).

(1) Breach of the Informational Component

[15] Section 10(b) of the Charter is comprised of two components: an informational component and an implementational component: see R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, at p. 192. Ordinarily, the informational component only requires the police to inform a detainee of his right to retain and instruct counsel without delay and to inform the detainee of the availability of Legal Aid and duty counsel: see Bartle; R. v. Devries, 2009 ONCA 477, 95 O.R. (3d) 721, at paras. 21-23 and 28; and R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 29-30.

[16] Counsel for the respondent concedes that these aspects of the informational component of s. 10(b) were satisfied in this case.

(2) Failing to Inform the Respondent of His Right to Wait

[17] Both parties to this appeal treat the trial judge’s finding in para. 67 of his reasons regarding a breach of the informational component as a separate one from his finding in para. 68 that the police failed to advise the respondent of his right to wait for counsel of choice to call back. Therefore, I have done likewise in these reasons. However, I believe that the trial judge was referring to the same thing when he wrote that the informational component of s. 10(b) had been breached and when he wrote that the officer ought to have informed the respondent that he had a right to wait a reasonable period of time.

[18] The Crown submits that there is no duty on the police to go beyond the information required by Bartle. The respondent agrees, but argues that the trial judge’s reference to a breach of the informational component of s. 10(b) was a “slip of the pen”, borrowing a line from Iacobucci J.’s majority decision in R. v. St. Pierre, 1995 135 (SCC), [1995] 1 S.C.R. 791, at para. 39, where he stated: “This last sentence must surely be considered something of a ‘slip of the pen’”. I am not persuaded that the trial judge’s reference to a breach of the informational component was a slip of the pen, for two reasons.

[19] First, in the same paragraph in which he held that the informational component had been breached, the trial judge twice made reference to knowledge on the part of a detainee. As I set out earlier, he wrote:

It is unrealistic to expect that someone who has had no prior involvement in the criminal justice system to know [sic] that he must express some dissatisfaction about the advice he received from duty counsel or to know that he can insist on waiting to speak to a lawyer of his choice. [Emphasis added.]

[20] Second, in the immediately following paragraph, the trial judge sets out his finding that the officer failed to “properly inform” the respondent that he had a right to wait a reasonable amount of time for his lawyer to call back.

[21] These references to knowledge and information make it impossible, in my view, to conclude that the trial judge inadvertently referred to the informational component, as opposed to the implementational component, of s. 10(b). However, in my view, the trial judge was correct in finding that the police breached the informational component in the particular circumstances of this case where the officer so quickly resorted to duty counsel without informing the respondent of his right to wait a reasonable period of time for counsel of choice to call back.

[22] In R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, the Supreme Court of Canada held that, in certain circumstances, there is an additional informational component beyond those I have set out above. In particular, the court held, at p. 274, that where a detainee is diligent, but unsuccessful, in his or her efforts to reach a lawyer and subsequently declines an opportunity to consult with counsel, the police must advise the detainee that he or she can wait a reasonable period of time for counsel to call back. This is now commonly referred to as the “Prosper warning”.

[23] The additional informational component articulated by the Supreme Court in Prosper is based on the principle that, in order for a detainee to validly waive the right to counsel, the waiver must be an informed one, and must be voluntary. In delivering the majority decision, Lamer C.J. wrote, at pp. 274-275:

Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Ross, at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high: Clarkson v. The Queen, 1986 61 (SCC), [1986] 1 S.C.R. 383, Manninen, and Evans. As I said in Bartle, at pp. 192-94 and 206, a person who waives a right must know what he or she is giving up if the waiver is to be valid…

[24] The Crown argues that the trial judge in this case was wrong to hold that a Prosper warning was required, where the respondent spoke to duty counsel after trying to contact counsel of choice. It relies on the subsequent decision in Willier, in which the Supreme Court held that a Prosper warning is only necessary where a detainee who is unable to reach counsel chooses not to contact any lawyer (paras. 38-39).

[25] In my view, Willier is not applicable in this case. The court in Willier distinguished Prosper on the basis that there was no issue of waiver in Willier, as there was in Prosper. This is entirely understandable, given the facts in Willier. In that case, following his arrest, the police informed the accused of his right to counsel and facilitated a brief telephone conversation with duty counsel. The next day, the accused was offered another opportunity to contact counsel and left a message on the lawyer’s answering machine. Afterwards, the police offered him an opportunity to contact another lawyer, which he declined. The police then advised the accused that it was unlikely his lawyer would be available until the next day and offered to contact Legal Aid, which offer the accused accepted. The police waited approximately 50 minutes after the accused spoke with the Legal Aid lawyer before initiating an investigative interview. At the beginning of the interview, the police confirmed Mr. Willier’s prior consultations with Legal Aid, re-informed him of his right to retain and instruct counsel, and offered him another opportunity to contact a lawyer before continuing with the interview, which he declined.

[26] In those circumstances, the Supreme Court found that the accused exercised his right to counsel by choosing to speak with a Legal Aid lawyer. After referring to the decision in Prosper, McLachlin C.J.C. and Charron J., on behalf of the majority in Willier wrote, at para. 39:

The circumstances of this case are not analogous. The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10(b) right. Instead, unsuccessful in contacting Mr. Royal, he exercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with a Prosper warning, and its absence fails to establish a Charter breach. [Emphasis added.]

[27] Importantly, the Supreme Court in Willier specifically held that the accused’s decision to contact duty counsel had not been the result of coercion. At para. 43, the majority wrote:

Considering the circumstances of this case as a whole, the majority of the Court of Appeal correctly found that Mr. Willier did not suffer a violation of his s. 10(b) right to counsel. In no way did the police interfere with Mr. Willier's right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait, Cst. Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr. Willier was not told that he could not wait to hear back from Mr. Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise. [Emphasis added.]

[28] The Crown argues that the facts in the case at bar are similar to those in Willier, in that the trial judge made a finding of fact that the respondent chose to speak to duty counsel. I am unable to agree.

[29] The Crown refers to para. 61 of the trial judge’s reasons, in which he stated:

Mr. Vernon testified that while in the holding cells at the detachment, he was advised that there was no response from his lawyer and asked if he wanted to speak to duty counsel. [Emphasis added.]

[30] I do not accept that the trial judge made a finding of fact in this paragraph. Instead, he was referring to the evidence that was adduced before him. Alternatively, if he did find as a fact that the respondent was asked if he wanted to speak to duty counsel, it is clear from the same paragraph, and from the result at trial, that he also found as a fact that the respondent thought he had no other options. The trial judge continued:

He mentioned that he had very little … time to make a decision. It was basically a yes or no question that had to be answered immediately. He testified that he did not understand his rights. He knew that he had to talk to a lawyer and as duty counsel was on the phone, he thought he had no other options.

[31] The trial judge’s finding that the respondent thought he had no choice but to speak to duty counsel is well supported by the transcript. The respondent testified as follows, at pp. 307-308 of the transcript:

Q. Okay. And if you hadn’t spoken to duty counsel, what would have been your alternative?

A. I guess just sit there until John called.

Q. Okay. And would that have been your preference?

A. Most likely.

Q. Okay. And when you say John, who do you mean?

A. John Carruthers.

Q. Okay. And were you allowed to wait for Mr. Carruthers to call back?

A. A short period of time...

Q. Okay?

A. … yes.

Q. And in between you being made aware that Mr. Carruthers had been contacted and you’re speaking to duty counsel, are you in a position to say how much time elapsed?

A. Ah – it was right away.

Q. Okay

A. He came back and he said, “I can’t get a hold of Mr. Carruthers, come talk to duty counsel”.

Q. Okay?

A. And it was right away, like, it was instant.

Q. Okay. And again, at that point, what choice, if any, did you feel you had?

A. At that point I didn’t have any choice.

Q. Okay, and why was that?

A. I wasn’t given an option, and nor did I know I had an option.

[32] This is a very different case than Willier. Here, immediately after leaving a message for the respondent’s lawyer, the arresting officer contacted duty counsel. Within 15 minutes of leaving that message, the respondent was provided with what seemed to him to be the only reasonable chance that he would get to speak to a lawyer. Although the officer testified that he would have allowed the respondent to speak to his lawyer of choice, had he called, the trial judge held that it was not clear whether this was explained to the respondent (para. 64).

[33] Although not specifically articulated by him, I believe that the trial judge was concerned with the waiver of the respondent’s right to obtain legal advice from counsel of his own choosing. That was one of the issues in Vizzari, to which the trial judge made specific reference in support of his finding that the police had a duty to advise the respondent of his right to wait a reasonable period of time for counsel of choice to call. I cannot see how the trial judge was wrong to conclude that there was no valid waiver where the conduct of the police left the respondent believing that he had no choice but to speak to duty counsel when, in fact, he did.

(3) Failure to Fulfill the Implementational Component of Section 10(b)

[34] The Crown’s allegation that the trial judge erred by finding that the police had failed to fulfill the implementational component of s. 10(b) of the Charter encompasses two aspects of the trial judge’s decision: (1) his finding that the police failed to wait a reasonable period of time; and (2) his finding that the police failed to take all reasonable steps necessary to attempt to contact counsel of choice. I will deal with each finding separately.

(A) Failure to Wait

[35] The implementational component of s. 10(b) imposes two duties on the police where a detainee expresses a desire to speak with counsel. The first duty is to provide the detainee with a reasonable opportunity to exercise the right to speak to a lawyer. The second duty is to cease questioning or otherwise attempting to elicit evidence from the detainee until he or she has had that opportunity: see R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1241-1243; and Willier, at paras. 29-30.

[36] In Willier, the Supreme Court summarized the law that applies where an accused chooses to contact a particular lawyer as follows, at para. 35:

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: [R. v. Black, [1999] 2 S.C.R. 138]. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, 1989 134 (SCC), [1989] 1 S.C.R. 3; and Black…

[37] As it did with respect to the informational component of s. 10(b), the Crown relies on Willier in arguing that the trial judge erred in finding a breach of the implementational component because the respondent in this case chose to speak to duty counsel rather than to wait for his lawyer to call back. I have already explained why the Crown cannot succeed on the ground that the respondent exercised a choice.

[38] The Crown also relies on Willier in support of its submission that, in order to establish a violation of his right to counsel of choice under s. 10(b), the respondent had a positive obligation to express dissatisfaction with the advice he received from duty counsel and to make further requests to speak to counsel of choice. I disagree.

[39] There were two arguments advanced on behalf of the appellant accused in Willier. One was the argument dealing with the Prosper warning, which I have addressed. The second was that his s. 10(b) right had been breached because of the inadequacy of the advice he received from duty counsel: see Willier, at para. 3.

[40] In disposing of the second argument, the Supreme Court in Willier did not hold that an accused must express dissatisfaction with the legal advice he or she received in order to establish a breach of s. 10(b) based on the failure of the police to wait a reasonable amount of time for counsel of choice. Instead, as the following passage demonstrates, the court held that an accused will have a difficult time complaining about the adequacy of the advice he received, as opposed to the adequacy of the efforts made by the police to allow him to obtain it, in circumstances where he expresses no concern with the advice he received at the time, instead expresses satisfaction with it, and fails to testify at the voir dire. At para. 42, the majority wrote in Willier:

As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier's conversations with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate. Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning. Mr. Willier is not entitled to express such satisfaction, remain silent in the face of offers from the police for further contact with counsel, remain silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and then seek a finding that the advice was inadequate because of its brevity. A s. 10(b) Charter breach cannot be founded upon an assertion of the inadequacy of Mr. Willier's legal advice.

[41] In support of its submission that a detainee must express dissatisfaction with the advice of duty counsel, the Crown also relies on the decision in R. v. MacDonell, 2011 ONSC 3495, 237 C.R.R. (2d) 259, at para. 69, in which the Ontario Superior Court of Justice held that “[t]here is a positive obligation upon [an accused] to indicate diligently and reasonably that the advice he [or she] received was inadequate”. In arriving at that conclusion, however, Annis J. relied in part on Willier which, as I have indicated, does not support the imposition of such an obligation as a precondition to a finding that s. 10(b) has been breached where an accused is denied the right to counsel of choice.

[42] The Crown also relies in support of its submission on the decision of the Ontario Court of Appeal in R. v. Littleford (2001), 2001 8559 (ON CA), 147 O.A.C. 123 (C.A.). In Littleford, the police called duty counsel immediately after leaving a message at the office of the accused’s counsel of choice. The trial judge held that this seemed to satisfy the accused, who (like the accused in Willier) did not testify at the voir dire with respect to the Charter breach. As a result, the accused’s Charter application was dismissed and he was convicted. The Court of Appeal upheld the accused’s conviction.

[43] In my view, Littleford does not stand for the proposition for which it is advanced by the Crown. Rather, Littleford stands for the proposition that no breach of the accused’s Charter rights were proven as a result of the accused’s failure to complain or to continue to ask to speak to counsel of choice, not that no breach occurred. At paras. 8-9, the Court of Appeal wrote:

On a Charter motion, the onus is on the accused person to prove a breach of his or her Charter rights on a balance of probabilities. The difficulty with the appellant’s position in this case is that he did speak to duty counsel before taking the breathalyzer test. He neither raised any concern at the time, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights [sic]. The Trial Judge made a finding that speaking to duty counsel “seemed to satisfy him at the time.” There is no basis on the record to disturb that finding.

In those circumstances, the appellant has not met the onus of proving a breach of s. 10(b) of the Charter…

[44] In summary, I conclude that there is no positive obligation on a detainee to express dissatisfaction with the advice of duty counsel or to continue to request an opportunity to speak with counsel of choice in order to establish a breach of that right under s. 10(b). Indeed, in my view, it would be improper to impose such an obligation where, as here, the validity of any waiver of the right is in issue. Absent the type of circumstances that were present in Willier, where it was held that the detainee had simply chosen to speak to another lawyer rather than waive his right to counsel of choice, the onus is on the Crown to establish a valid waiver. To impose the obligation urged upon the court by the Crown would be to reverse that onus. Instead, evidence that a detainee failed to complain, seemed satisfied or no longer asked to speak to counsel of choice after speaking with duty counsel is simply evidence to be considered on the issue of waiver, where that issue arises.

[45] In my view, the trial judge in the case at bar made no error in concluding that the police failed to provide the respondent with a reasonable opportunity to speak with counsel of choice, despite the fact that the respondent did not express dissatisfaction with the advice he received or request a further opportunity to speak with his lawyer. Unlike the accused in Littleford, the accused in this case did testify at the voir dire with respect to the s. 10(b) issue and, as I have indicated, the trial judge accepted his evidence that he felt he had no choice but to speak with duty counsel.

[46] Further, there was no urgency requiring the respondent to give up on counsel of choice. Based on the trial judge’s finding regarding the time of driving, at para. 48 of his reasons, the arresting officer still had anywhere from 24 to 39 minutes before the two-hour time period set out in s. 258(1)(c)(ii) of the Criminal Code elapsed at the time he presented the respondent with the fact that duty counsel was on the phone.

(B) Failure to Facilitate

[47] Since it was first recognized, the duty of the police to provide a detainee with a reasonable opportunity to exercise the right to retain and instruct counsel has included a duty to facilitate contact with counsel: see Manninen, at p. 1242. The Crown does not dispute this. However, the Crown argues that the duty to facilitate does not require the police to take all reasonable steps.

[48] It is true that the police do not need to exhaust all reasonable possibilities in fulfilment of the duty to facilitate contact with counsel: see R. v. Winterfield, 2010 ONSC 1288, 93 M.V.R. (5th) 34, at para. 62. However, I share the trial judge’s view that they must do more than they did in this case. The police did nothing apart from leaving a message on the voice mail of the respondent’s counsel of choice. In essence, they “defaulted to duty counsel”. That is not enough.

[49] In R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont. S.C.), Durno J. allowed an appeal from a trial judge’s decision that an accused’s right under s. 10(b) had not been infringed where the police contacted duty counsel, and not counsel of choice, because the accused did not have his lawyer’s number readily available. In holding that the duty of the police to facilitate contact with counsel of choice included permitting the accused to phone a friend or relative to obtain contact information for counsel of choice, Durno J. held, at para. 21, that, “[t]he availability of duty counsel 24 hours a day cannot be used to trump a detainee’s right to counsel of choice”.

[50] In R. v. Zaidi (2007), 2007 44833 (ON SC), 164 C.R.R. (2d) 271 (Ont. S.C.), at paras. 45-46, Langdon J. held that the efforts of the police to facilitate a detainee’s communication with his lawyer of choice were “grossly inadequate” where the police simply “defaulted” to duty counsel a mere 40 seconds after leaving a call back number on a pager.

[51] In R. v. Richfield (2003), 2003 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.), at para. 11, the Ontario Court of Appeal held that the police may not have been “as diligent as they could have been in facilitating the appellant’s access to counsel of his choice” where they waited a full hour before offering the appellant the assistance of duty counsel, after leaving a message on the answering service of the counsel of choice.

[52] In MacDonell, referred to above, the police searched the Internet for one lawyer’s phone number, unsuccessfully tried to reach that lawyer, unsuccessfully tried to reach another lawyer at the request of the accused and unsuccessfully attempted to obtain after-hours numbers from another police source for the two lawyers. Then the police provided the accused with a telephone book and permitted him to speak for 50 minutes to a third lawyer, whom the accused managed to reach. Despite all of these efforts, the summary conviction appeal judge accepted the appellant accused’s submission that the police failed in their duty to facilitate access to counsel (para. 51).

[53] More recently, in R. v. Traicheff, 2010 ONCA 851, at para. 2, the Court of Appeal agreed with the following comments by the trial judge, who found a breach of the accused’s s. 10(b) Charter rights:

Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer’s name and another telephone number where he could be reached.

[54] Concerning these comments, the Court of Appeal wrote, at paras. 2-3:

We agree with these observations. Indeed, they reflect the Supreme Court of Canada’s decision in R. v. Willier [citations omitted] where at para. 41 McLachlin C.J.C. and Charron J. wrote that s. 10(b) requires the police to afford detainees not only a reasonable opportunity to contact counsel of their choice but as well to facilitate that contact.

Departing from the practice outlined by the trial judge is not a technicality…

[55] Most recently, in R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, the Supreme Court of Canada confirmed that active efforts must be made by the police to facilitate an accused’s contact with counsel. In discussing the efforts that the police ought to have made to facilitate contact between counsel and an accused who was in an emergency ward at a hospital, Abella J. wrote on behalf of the court, at para. 33:

Not everything that happens in an emergency ward is necessarily a medical emergency of such proportions that communication between a lawyer and an accused is not reasonably possible. Constitutional rights cannot be displaced by assumptions of impracticality. Barriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel. [Emphasis in original.]

[56] In my view, the trial judge in this case was correct in finding that the police failed to facilitate contact with the respondent’s counsel of choice.

Did the Trial Judge Err in Excluding the Evidence Under s. 24(2)?

[57] Alternatively, the Crown argues that the trial judge erred in excluding the evidence under s. 24(2) of the Charter by failing to consider three factors which he ought to have considered, and by considering two factors which he ought not to. As a result, the Crown submits that the trial judge’s ruling under s. 24(2) is not entitled to the deference required where the proper factors have been taken into account: see Grant, at paras. 86 and 126. For the sake of my analysis, I will begin with the factors that the Crown says the trial judge ought not to have considered.

[58] As a matter of convenience, I will reproduce again paras. 72 to 74 of the trial judge’s reasons, where he wrote:

[72] The right of the defendant to consult counsel of choice is one of the most basic rights enshrined in the [Charter]. In my view, the breach is therefore a serious one and more than a trivial violation. We must not forget that Mr. Vernon was able to speak to duty counsel; he did not complain [about] this advice and in fact understood same since he refused to answer some questions and do a sobriety test. In view of this, the impact of the breach is not as high as it might be in other cases however, it can hardly be deemed minimal. Mr. Vernon did have a 10 year relationship with Mr. Carruthers in which he had 100% confidence in his advice.

[73] It is clear that … impaired drivers are a menace to our society and places [sic] everyone’s safety in jeopardy. Parliament has enacted legislation to address these issues by giving extra powers to the police to investigate and detect impaired drivers. In view of these extra powers, the police must be held to a high level of compliance.

[74] When I balance all the relevant factors in this matter I am satisfied that the defence has established that inclusion of the breathalyser readings, given the nature of the violation, would bring the administration of justice in disrepute and I will therefore exclude the blood alcohol readings.

[59] As the trial judge correctly held, the analysis set out in Grant requires the court to consider three things under s. 24(2), namely:

(1) the seriousness of the Charter-infringing state conduct;

(2) the impact of the breach of the Charter-protected interests of the accused; and

(3) society’s interest in the adjudication of the case on its merits:

See Grant, at para. 71.

[60] It is clear from the paragraphs I have reproduced above that the trial judge considered all of these factors in his analysis.

[61] However, the Crown takes issue with the trial judge’s comments that the right to instruct counsel of choice is one of the “most basic rights enshrined in the Charter”. The Crown argues that the trial judge improperly placed this right on a hierarchy of Charter rights, thereby undermining his conclusion that the breach was a serious one.

[62] While it is correct to say that there is no hierarchy of Charter rights, I do not interpret the trial judge’s comments as saying that there is. I view his comments as meaning that the right to counsel is a straightforward, simple right, the scope of which should have been known to the officer in question and the breach of which is difficult to excuse or understand. This is the way in which I interpret similar comments by judges in the other cases to which the trial judge had been referred: see, for example, Ho, at paras. 36-37; Vizzari, at paras. 26-27; and R. v. Markovic, 2013 ONCJ 300, [2013] O. J. No. 2549, at para. 46.

[63] In all these cases, similar comments were made in support of findings that the breach of s. 10(b) was neither a trivial matter, nor a mere technicality. I believe that this is the sense in which the trial judge used the term “most basic” in this case. In that sense, he made no error in law, or in principle.

[64] The Crown also takes issue with the trial judge’s comments in para. 73 of his reasons concerning the “extra powers” given to the police regarding the investigation of impaired driving. Once again, this comment mirrors the language used in cases to which the trial judge had been referred: see Markovic, at para. 54; and R. v. Alfardo-Delgardo, 2014 ONCJ 33, [2014] O.J. No. 380, at para. 35.

[65] The Crown quite correctly submits that the s. 24 Charter analysis ought not to change where the police rely on one statutory or common law power, as opposed to another. However, I do not read the trial judge’s comments as indicating that he was holding the police to a different standard because of the powers they were exercising in detaining the respondent in this case. The trial judge did not say that he was holding the police to a “higher” level of compliance, only to a “high” level of compliance. In my view, the trial judge was again making reference to the fact that the breach in this case was not trivial or technical; that it was, instead, serious.

[66] In summary, the trial judge’s references to the basic nature of the right to counsel or the extent of the powers granted to the police in cases of this kind are not sufficient, in my mind, to undermine the result of his analysis under s. 24(2). I turn now to those factors that the Crown submits the trial judge failed to consider.

[67] The Crown argues that the trial judge failed to consider the following factors in his analysis:

(a) that the breach occurred in good faith;

(b) that the breathalyser tests were minimally intrusive in nature; and

(c) that the breathalyser results were reliable evidence.

[68] As the respondent concedes, all of these factors are relevant in the s. 24(2) analysis. Good faith is one of the factors to be considered when assessing the seriousness of the breach: see Grant, at para. 75. The minimally intrusive nature of the breath tests is a factor to be considered when assessing the impact of the breach on the accused: see Grant, at paras. 76 and 111. Finally, the reliability of the evidence to be excluded is a factor to be considered when assessing society’s interest in the adjudication of the case on its merits: see Grant, at para. 83.

[69] There is no dispute that the trial judge failed to mention these things. However, I believe that one of them – good faith – was implicitly considered by the trial judge in arriving at his conclusion that the breach in question was a serious one. In my view, the breach was serious enough to require exclusion, despite the nature and quality of the evidence.

[70] In Grant, the Supreme Court wrote about good faith breaches by the police as follows, at para. 75:

… “Good faith” on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith: R. v. Genest, 1989 109 (SCC), [1989] 1 S.C.R. 59, at p. 87, per Dickson C.J.; R. v. Kokesch, 1990 55 (SCC), [1990] 3 S.C.R. 3, at pp. 32-33, per Sopinka J.; R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 59. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[71] The parties disagree as to the onus relating to this aspect of the s. 24(2) analysis. The Crown submits that the accused must establish bad faith. The respondent submits that the Crown must establish good faith. I need not decide that issue because, clearly, the breach in this case did not occur in good faith, regardless of who bears what burden. The arresting officer testified as follows during cross-examination, at pp. 218 to 220 of the transcript:

Q. Okay. Now, let’s talk about the lawyer for a moment. You made a call to – this was a Sunday of a long weekend. Is that correct?

A. That’s correct, sir.

Q. And you made a call to 905-294-0666, which you’ve got in brackets a “B”…

A. Business.

Q. …is that correct? Okay?

A. Correct.

Q. And did you get that off a website?

A. Yes, sir.

Q. Okay. Did you ever search John Carruthers’ residence number?

A. No, I did not, sir.

Q. Okay. So you left a message at a lawyer’s office at 7:30 on a Sunday night of a long weekend and you expected a call back?

A. No, sir.

Q. Okay. So why didn’t you make any other efforts to find that lawyer’s name?

A. I made every attempt to contact him via the method that I deemed suitable, sir.

Q. Okay. So you deemed it suitable to call a lawyer’s office on a Sunday night of a long weekend at 7:30 at night?

A. Correct. It…

Q. And you knew there wouldn’t be any answer?

A. Yes. It notified his lawyer that his client was in custody and where he was currently being held.

Q. Okay. I’m going to suggest to you, sir, that was just paying lip service to his choice of lawyer. That’s my suggestion to you, sir?

A. That’s your suggestion, sir.

Q. Well, you could have done many other things, couldn’t you?

A. Like, what, sir?

Q. Look up his residence on the website to see if there was a residence, correct?

A. And how many John Carruthers are there going to be in the Province of…

Q. I don’t…

A. …Ontario?

Q. …know, sir. You knew, at least, that his office was in Markham. Is that correct?

A. That’s correct.

Q. You made no effort, did you?

A. No, I did not, sir.

Q. You didn’t look on the Law Society website, did you?

A. No, sir.

Q. And when you say that Mr. Vernon never complained about anything, you’re the one that suggested duty counsel to him, correct?

A. I don’t suggest it. If I can’t get a hold of the lawyer of his choice, my next call is to duty counsel.

Q. But you didn’t offer him a choice about that, did you?

A. No, sir. He wanted to speak to a lawyer. He got to speak to duty counsel.

Q. So you waited all of one minute for the lawyer to call back and then you called duty counsel. Is that correct?

A. Correct.

Q. That’s wasn’t much of an opportunity for the lawyer to call back. Is that correct?

A. At any point, if the lawyer calls back, Mr. Vernon would have been allowed to speak…

Q. Sir, you’re…

A. …to him.

Q. …not answering my question, that’s wasn’t much of an opportunity for the lawyer to call back, was it?

A. I think I did answer your question, sir.

Q. Well, it was one minute, sir?

A. Correct.

Q. Okay. And you knew that he wasn’t going to make the call back anyways?

A. If he returned his call then he would be connected to Mr. Vernon.

Q. Sir, you waited one minute on a Sunday night of a long weekend and left the message at a lawyer’s business number?

A. That’s correct, sir.

Q. You consider that a genuine effort to get in touch with the lawyer prior to the breath test?

A. Yes, sir.

[72] The police officer’s cavalier attitude towards the respondent’s right to counsel of choice in the present case is obvious even from the bland, white pages of the transcript. It is a fair inference that his demeanour while giving this testimony did nothing to improve the substance of his evidence in the mind of the trial judge.

[73] I agree with the respondent’s submission that the police officer in this case was not operating in the same kind of “circumstances of legal uncertainty” that were present at the time the Charter-infringing conduct occurred in cases like Grant, where the Supreme Court clarified the point at which an accused is detained by the police. As I have pointed out, the duty of the police to facilitate contact between a detainee and counsel has been clear since at least 1987, when Manninen was decided. The fact that the duty requires more than merely facilitating contact with duty counsel was made clear years before the arrest was made in this case. The Court of Appeal’s decision in Traicheff was released in 2010. The decisions in Kumarasamy and Zaidi were many years older than that.

[74] In my opinion, the absence of good faith in this case distinguishes it from the decision in R. v. Du, 2010 ONCA 703, 100 M.V.R. (5th) 21, upon which the Crown relies heavily. In Du, the summary conviction appeal judge upheld the trial judge’s finding that the accused’s Charter right to counsel had been breached in circumstances similar to those in the case at bar. However, the summary conviction appeal judge overturned the trial judge’s decision to exclude the breath sample evidence under s. 24(2). The Court of Appeal agreed with the summary conviction judge and dismissed the accused’s further appeal. Importantly, both the summary conviction judge and the Court of Appeal in Du made specific reference to the finding of the trial judge that the breach in that case occurred in good faith. That was not the situation here.

[75] Although the trial judge’s decision to exclude the breath evidence is not entitled to deference given his failure to consider both the minimally intrusive and reliable nature of the evidence, after considering those features, I believe that the evidence was properly excluded. In my view, admitting the evidence in the face of such an indifferent attitude on the part of the police would do more to bring the administration of justice into disrepute than would excluding it.

CONCLUSION

[76] Unlike the facts in Willier, the trial judge in this case found that the respondent felt he had no choice but to speak to duty counsel, rather than wait for his own lawyer to return his call. That finding was well supported on the evidence. In those circumstances, the trial judge was correct to find that the police had breached the informational component of s. 10(b).

[77] The trial judge was also correct to find that the implementational component of s. 10(b) was breached by the failure of the police to facilitate contact with counsel of choice and by their failure to wait a reasonable period of time before requiring the accused to decide whether to speak with duty counsel, instead.

[78] While the trial judge failed to consider the nature of the evidence in his s. 24(2) analysis, he was not wrong to conclude that the breach of the respondent’s right was a serious one in this case. In my view, the breach was so serious that the trial judge’s decision to exclude the evidence should be upheld.

[79] For these reasons, the appeal is dismissed.

Ellies J.

Released: August 6, 2015

COURT FILE NO.: CR-14-032-00AP
DATE: 2015/08/06

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
Appellant

– and –

MATTHEW VERNON
Respondent

REASONS FOR DECISION

Ellies J.

Released: August 6, 2015