CITATION: R v. Lima, 2017 ONSC 2224

COURT FILE NO.: SCA(P) 1695/16

DATE: 2017 04 10

ONTARIO

SUPERIOR COURT OF JUSTICE

(SUMMARY CONVICTION APPEAL COURT)

B E T W E E N:

HER MAJESTY THE QUEEN

H. Gluzman, for the Crown

• and -

MANUEL LIMA

G. Henderson, Counsel for Manuel Lima

HEARD: Friday April 7, 2017

REASONS FOR DECISION

(On appeal from the decision of Justice Ready

Dated June 24, 2016)

(I) Overview

1On January 29, 2015, the driver of a white pickup truck struck another vehicle and then left the scene of the accident. The appellant was seen a few kilometres away from the accident about thirty minutes later. He was driving a similar truck. After being detained for about thirty minutes, Mr. Lima was charged with: (1) failing to remain at the scene of an accident; and (2) driving with an excess of 80 mgs of alcohol in 100 mls of blood.

2A blended trial and ss. 8, 9 and 10(b) Charter voir dire was conducted. While ss. 9 and 10(b) Charter breaches were found, the request for exclusion of the breath results was dismissed on the basis that “nothing materially really flowed” from the breaches and there was no need for a remedy. Mr. Lima was acquitted on the fail to remain and convicted on the over 80. He appeals his conviction.

3For the reasons that follow, the appeal is granted and an acquittal entered.

(II) The Underlying Facts for the Fail to Remain and Over 80

4At just after 8:20 p.m., a white pickup truck struck a car. The victim told the police that he saw two men in the truck and that the driver was a white male wearing a black toque. The truck’s licence plate was provided to the police.

5At 8:54 p.m., Mr. Lima was found alone in a white pickup truck with the same licence plate number as the one involved in the accident. He was stopped and detained in the backseat of a police cruiser. He failed a roadside screening test and was later found to have 171 and 151 milligrams of alcohol in 100 ml of blood.

6The sole question on the fail to remain charge was whether Mr. Lima was driving the truck when it was involved in the accident. While the victim provided in-dock identification, saying that Mr. Lima was the truck driver who hit him, the trial judge concluded that it would be dangerous to convict on this basis alone. Mr. Lima was wearing a baseball hat when he was arrested. The trial judge found that Mr. Lima’s hat was fundamentally different than the toque described by the victim. She also observed that there was no evidence as to the registered owner of the truck. In the end, the trial judge had a reasonable doubt as to whether Mr. Lima was the driver at the time of the collision. She acquitted on this count.

7The over 80 count was defended on the basis of the Charter voir dire, through which the appellant sought the exclusion of the breath test results. Upon dismissing the s. 24(2) application to exclude the breath results, Mr. Lima was convicted on the over 80 count.

(III) The Grounds of Appeal

(i) Overview

8The legal issues raised by the appellant can be distilled as follows:

(a) The trial judge erred in failing to find that Mr. Lima was arbitrarily detained in the back of the police cruiser;

(b) The trial judge erred in failing to find that the breath demand was not made forthwith;

(c) The trial judge erred in failing to find that a s. 10(b) breach arose from the police failure to ensure that Mr. Lima had an adequate opportunity to consult with counsel; and

(d) The trial judge was correct to find a ss. 9 and 10(b) breach, but erred in failing to exclude the breath results under s. 24(2).

(ii) Arbitrary Detention and “Forthwith” are Raised for the First Time on Appeal

9The first two issues raised by the appellant can be quickly disposed of. The trial judge was not asked to find that Mr. Lima was arbitrarily detained in the back of the police cruiser. Nor was she asked to find that the breath demand was not made forthwith.

10Unless the record “fairly” supports an appellate court’s consideration of an issue raised for the first time on appeal, and it is in the interests of justice to consider the issue, appellants should not be permitted to raise new issues on appeal: K.M. v. H.M., 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, at para. 54; R. v. Zvolensky, 2016 ONCA 947, at para. 5; R. v. Mahmood, 2011 ONCA 693, at para. 66. In this case, it is neither fair nor in the interests of justice, to decide the issues advanced for the first time on appeal.

11There is an insufficient evidentiary record upon which to base any factual findings that might inform the legal issues raised for the first time. For instance, had the issues regarding arbitrary detention and “forthwith” been raised at trial, the parties could have elicited evidence regarding the grounds upon which the investigative detention occurred, why things took as long as they did, the reasons for why the appellant was placed in the back of the police cruiser, and so on. These are important factual questions informing the legal analysis the court is now called upon to perform. The lack of evidence on these points makes it impossible to conduct a proper legal analysis, one that would be fair to the parties and the administration of justice.

12No reasons have been given as to why the appellant should be permitted to raise these issues for the first time on appeal. The request is dismissed.

(iii) The Police Provided an Adequate Opportunity to Consult with Counsel

13The appellant’s first language is Portuguese. Mr. Lima was put in touch with a Portuguese-speaking duty counsel for eleven minutes before entering the breath room. Once in the breath room, Mr. Lima confirmed that he had spoken with duty counsel. The breath technician asked if he had understood the conversation, to which Mr. Lima responded “more or less”. When asked what he meant, Mr. Lima responded “because my Portuguese and English, and she told me”. At this point, the officer quite correctly stopped Mr. Lima and told him not to say what the lawyer had said. The officer then inquired if the appellant had understood the conversation. Mr. Lima replied, “yes”.

14The trial judge reviewed this exchange in her reasons. She said that, while Mr. Lima’s first response was “ambiguous”, he eventually acknowledged that he had understood duty counsel. The trial judge correctly maintained that if Mr. Lima was dissatisfied with the advice he had received, he should have said so and voiced his concern. She concluded that there was no requirement on the police to do anything further. I agree.

15While the appellant argues that R. v. Badgerow, 2008 ONCA 605, at para. 46, required the officer to make further inquiries to ensure Mr. Lima was satisfied that his right to counsel had been met, particularly bearing in mind the ambiguous answer given, I do not agree. The trial judge made a finding of fact in this case. It is owed deference by this court. She found as a fact that, while Mr. Lima’s first answer was ambiguous, his second answer was clear. The officer’s final question, as to whether Mr. Lima had understood the conversation with counsel, was answered in the affirmative. In these circumstances, there was no ambiguity left and the police were under no obligation to do anything further.

16Moreover, I simply note that the trial judge’s finding of fact in regard to Mr. Lima’s understanding is well supported by the evidence. His first language is Portuguese. The police were well aware of this fact and commendably put him in touch with a Portuguese-speaking lawyer. Mr. Lima did not testify on the s. 10(b) voir dire, on which he held the onus, and there is no evidence supporting his purported lack of clarity. This ground of appeal fails.

(iv) The Section 24(2) Issue

(a) Overview

17The appeal succeeds on this ground alone.

(b) Factual Backdrop

18Mr. Lima was first stopped at 8:54 p.m. Cst. Campbell initially ran some computer checks while the appellant was left in the truck. By 9:05 p.m., Mr. Lima was told he would be detained in relation to the hit and run. He was patted down and then placed in the locked rear of the police cruiser. While he was cautioned that he was not obliged to say anything, the appellant was not afforded his right to counsel.

19Once Mr. Lima was locked in the back of the police car, Cst. Campbell returned to the truck so that he could look for damage. He was unable to find any. By 9:10 p.m., Cst. Campbell called an officer at the scene of the fail to remain. He was given further instructions about where he might find the damage on the truck.

20About ten minutes into Mr. Lima’s investigative detention, and still while he was locked in the back of the police cruiser, Cst. Campbell returned to the police car and started asking him some questions about the fail to remain. It is at this point that the officer noticed, for the first time, that there was an odour of alcohol on Mr. Lima’s breath.

21Cst. Campbell made a breath demand at 9:24 p.m. and a roadside screening device was used at 9:28 p.m. After he registered a fail, Mr. Lima was arrested for failing to remain and over 80. It was not until 9:33 p.m., almost 30 minutes after he had been first placed in the back of the police cruiser, and following his arrest, that Mr. Lima was informed of his right to counsel.

(c) The Reasons

22The trial judge concluded that there was a s. 9 Charter breach arising from the arrest on the fail to remain. She emphasized that there were insufficient grounds upon which to make the arrest because Cst. Campbell had been unable to determine whether the truck had been involved in the accident and Mr. Lima had been the driver.

23The trial judge also concluded that there had been a s. 10(b) breach arising from the failure to inform Mr. Lima of his right to counsel at the time that he was investigatively detained on the fail to remain. The breach is obvious on its face. In R. v. Suberu, 2009 SCC 33, at paras. 37 and 41, the majority concluded that when an individual is detained, s. 10(b) of the Charter requires that the individual be permitted to retain and instruct counsel without delay and to be informed of this right. Barring concerns for public or officer safety, or limitations as prescribed by law and justified under s. 1 of the Charter, the police must inform a detainee of his or her right to retain and instruct counsel and facilitate the right “immediately upon detention”.

24The appellant’s complaint is directed at the s. 24(2) analysis emerging from the ss. 9 and 10(b) conclusions. The trial judge concluded that it was clear “nothing materially really flowed” from the breaches. She held:

Even though there is a 10(b) breach, there is no need of a remedy here. In other words, there is nothing to exclude. In addition, the 10(b) breach did not lead to the production of any evidence involving the over 80 offence…

In respect to the fail to remain count… there is no need of a remedy as the breach did not produce any evidence that would have affected the accused on the fail to remain, or even, for that matter, on the over 80 count.

(d) The Positions of the Parties

25The appellant says that the trial judge erred by failing to conduct a s. 24(2) inquiry. He says that her conclusion that there was no connection between the breaches and the evidence supporting the over 80 conviction is flawed. He maintains that the trial judge took an overly technical approach to causation and that she failed to appreciate that there was a contextual, temporal and causal connection between the breaches and the evidence in this case.

26The Crown responds that, while the reasons could have been longer, the trial judge conducted a s. 24(2) analysis. It is argued that her reasons reflect reliance on the discoverability doctrine and that the trial judge simply found that the breath results were discoverable with or without the Charter breaches. The Crown argues that because the trial judge found the breath results were discoverable, there was no need to conduct a further s. 24(2) analysis. While her reasons were admittedly slim, they were sufficient.

(e) Causal, Temporal and Contextual Connections

27While I agree that the discoverability doctrine has survived the R. v. Grant, 2009 SCC 32 analysis, I disagree that the reasons given for dismissing the s. 24(2) application for exclusion have anything to do with the doctrine of discoverability.

28The discoverability doctrine is not and cannot be dispositive of a Grant analysis. It is nothing more than a means by which to assess the “actual impact of a breach on the protected interests of the accused”: Grant, at para. 122. It focuses in on the second prong of the Grant analysis and assesses the “strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence”: Grant, at para. 122. In other words, discoverability is nothing more than a factor to be taken into account in some cases when calibrating the impact of a breach on the Charter-protected interests at play under the second prong of a Grant analysis. This is not what occurred in this case.

29The finding that “nothing materially flowed” from the breaches, meaning that there was “no need of a remedy”, had nothing to do with the doctrine of discoverability. Rather, it was an expression used to identify the view that the breath results were not “obtained in a manner” that infringed the appellant’s rights because “nothing materially flowed” from the breaches. Based on the view that the impugned evidence was unconnected to the Charter breaches, no Grant analysis occurred.

30Justice Laskin recently addressed the meaning of “obtained in a manner” and the basis upon which a connection between a Charter breach and evidence can be made. Section 24(2) of the Charter does not demand a strict cause and effect, in the sense that the impugned evidence must arise directly from the Charter breach. The “obtained in a manner” requirement under s. 24(2) should be granted a broad and liberal interpretation. As Laskin J.A. put it in R. v. Pino, 2016 ONCA 389, at para. 56:

A generous approach to the ‘obtained in a manner’ requirement makes good sense because this requirement is just the gateway to the focus of s. 24(2) – whether the admission of the evidence would bring the administration of justice into disrepute. And, as the trial judge in the appeal before us acknowledged, the addition of ‘contextual’ to ‘causal’ and ‘temporal’ as connections, ‘loosened’ the ‘obtained in a manner’ requirement.

31At a minimum, there are clear contextual and temporal connections between the breath samples and the Charter breaches in this case. Mr. Lima was placed in the back of the police cruiser and detained, without the right to counsel, when the alcohol on his breath was noticed for the first time. Without the odour of alcohol on his breath, Mr. Lima would not have been asked to provide a breath sample into the roadside screening device. Without this request, he would not have provided the breath samples upon which his over 80 conviction rested.

32We do not know what would have happened if, immediately upon detention, he had been afforded the right to counsel and availed himself of counsel. Perhaps the detention would have been shortened. Perhaps he would have said nothing. Perhaps the alcohol would not have been detected on his breath if he said nothing. At the end of the day, there is a temporal and contextual – perhaps even a causal – connection between the breaches and the impugned evidence. A Grant inquiry had to be conducted. It was an error in law to fail to conduct this analysis.

(f) The Grant Analysis

33Both counsel are in agreement that, if I find an error in respect to the approach taken in the court below, this court is well placed to conduct a s. 24(2) analysis. I will do so now.

34The failure to inform the appellant of his right to counsel constitutes serious Charter-infringing conduct. This is not a simple case where the police missed the mark by a few minutes. Mr. Lima was patted down. He was then detained in the back of a locked police cruiser for almost thirty minutes without being given the right to counsel. He was under investigation for a crime that had already occurred. He was being asked very specific questions about his potential involvement in that crime.

35When asked in cross-examination why he did not provide the appellant with his right to counsel, the officer said it was because “he was not under arrest”. The officer was expecting another officer to attend at the scene “shortly” and take over the investigation. He testified:

So I was not planning on having Mr. Lima in my custody for an extended period of time and I was expecting Cst. Reynolds to take over the fail-to-remain investigation once he arrived on the scene. I did not have the grounds to arrest Mr. Lima for the fail-to remain. At that point, again, I wasn’t a hundred percent sure that he was the driver of the vehicle.

36I read this passage as meaning that the detaining officer did not provide the right to counsel because he did not have the grounds to arrest and he was not thinking he would detain Mr. Lima for long. This shows a fundamental misunderstanding about when the right to counsel must be given. It is not at the time of arrest. It is at the time of detention. This has long been the law and, while Suberu clarified that, barring the exceptions mentioned above, the s. 10(b) right must be given immediately upon detention, the plain wording of s. 10(b) has been in existence since the Charter came into being: “Everyone has the right on arrest or detention” [emphasis added]. This was a clear violation of a long-standing and well-established rule: R. v. Harrison, 2009 SCC 34, at paras. 24-25; R. v. Paterson, 2017 SCC 15, at para. 44.

37Good faith cannot be claimed where a Charter breach is based on the actions of state actors who are oblivious to the law or who commit clearly unreasonable errors: R. v. Mann, 2004 SCC 52, at para. 55. This conduct rises to that level. Negligence in providing Charter rights cannot be construed as good faith errors: Grant, at para. 75.

38The seriousness of the police conduct is aggravated by the fact that two Charter breaches were found. I find that the police conduct is very serious and points in the direction of exclusion.

39As for the impact of the breach on the Charter-protected interest, I also find it is serious in nature. Without being afforded his right to counsel, Mr. Lima was patted down. He was then placed into the back of a locked police cruiser so that an officer could conduct a criminal investigation into an earlier hit and run. He was left there for over twenty minutes before the breath demand was given, all without a right to counsel.

40His liberty was highly impacted. During this period of time, without the informational or implementational components of the right to counsel having been given, he was asked many questions about his driving earlier in the evening. This was all done in the context of an ongoing criminal investigation and the questions were designed to determine if Mr. Lima was the man who had been involved in the hit and run. All questions were meant to elicit what could have been highly incriminating evidence.

41Without his right to counsel, Mr. Lima was patted down, locked up and questioned for a significant period of time. This had a serious impact on his Charter-protected interests. I find that this factor points toward exclusion.

42The third line of inquiry looks to society’s interest in adjudication of the case on its merits. Where the evidence is reliable, as with breath samples, and is critical to the Crown’s case, as it is here, then it will point toward inclusion. As in R. v. McGuffie, 2016 ONCA 365, at para. 63, though, where the first two lines of the Grant inquiry “make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility”.

43Given the seriousness of the multiple Charter breaches and the impact of those breaches, notwithstanding the indisputable seriousness of the crime of drinking and driving and the public’s undoubted interest in adjudication of cases on their merits, the evidence must be excluded. While the public can lose confidence in a justice system that excludes evidence, thereby precluding adjudication of cases on their merits, the public also maintains a vital interest in ensuring a justice system that is beyond reproach: Grant, at para. 84. In this case, for all of the reasons expressed above, I find that on balance the public interest is better served by exclusion.

(IV) Conclusion

44The appeal is granted and the breath results are excluded. Given that the Crown’s case for the over 80 offence rests on the admissibility of the breath results, an acquittal is entered.

Fairburn J.