COURT FILE NO.: CR-17-10000035-00AP CR-17-10000072-00AP

DATE: 20180522

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CELIO DE ANDRADE SILVAJUN

Counsel:

M. Mandel, for the Respondent

C. Da Cruz, for the Appellant

HEARD: 16 April 2018

BEFORE: S.A.Q. Akhtar J.

On appeal from the conviction and cross appeal from the sentence imposed by Justice Malcolm McLeod of the Ontario Court of Justice.

FACTUAL BACKGROUND

Introduction

[1] On 30 December 2015, the appellant was stopped by the police, and investigated during a RIDE programme. A breath demand was issued, the appellant failed and was arrested.

[2] As his first language was Portuguese, the appellant was assisted by an officer who could speak the same language, and advised of his right to counsel. The appellant initially indicated that he wished to speak to his wife, Malika McGregor, who was a lawyer but later clarified this statement by explaining that she did not practise criminal law.

[3] The police agreed could speak to Ms. McGregor, and informed him that he would also be put in touch with duty counsel. He nodded in agreement and thanked them.

[4] Police efforts to contact Ms. McGregor were unsuccessful because the appellant furnished incorrect details. After the appellant provided a second phone number, the police tried again. However, their attempts were again fruitless as this number also proved incorrect.

[5] The police were, however, able to contact a Portuguese speaking duty counsel who spoke with the appellant. He made no complaints about the advice given.

[6] Moreover, prior to providing breath samples, the appellant told the breath technician that he had spoken to duty counsel and made no suggestion that anything improper had occurred. When asked, he confirmed that he had exercised his right to counsel.

[7] The breath readings showed an alcohol content of 150 mg. per 100 ml. of blood and 146 mg. per 100 ml. of blood. As a result the appellant was charged with driving with a blood alcohol content in excess of .08 mg. per 100ml of blood (the Over 80 charge).

The Reasons of the Trial Judge

[8] The trial judge found that the police had difficulties calling Ms. McGregor because the numbers provided by the appellant were incorrect. It was also unclear whether police received Ms. McGregor’s correct contact details prior to the appellant’s call with duty counsel.

[9] The judge found nothing to suggest that the police could have done more to contact Ms. McGregor. It was the appellant’s failure to provide the right phone number that prevented communication.

[10] Significantly, the judge found that since Ms. McGregor was not a criminal lawyer, s. 10(b) of the Charter did not apply. He also found that there was no evidence that the appellant wished to speak to Ms. McGregor to facilitate access with a criminal lawyer.

[11] Finally, the judge noted the appellant’s conversation with the breath technician and his agreement that the conversation with duty counsel fulfilled the exercise of his right to counsel.

[12] For these reasons, the judge found that the appellant’s s. 10(b) rights had not been violated.

[13] Even if there had been a Charter breach, the judge held that the breath samples would not be excluded by s. 24(2) of the Charter as, on balance, the admission would not bring the administrati0n of justice into disrepute.

[14] As the evidence was admissible, the judge found the appellant guilty of the Over 80 charge. However, for reasons that are a mystery, the judge failed to deliver a verdict on the charge of driving while impaired.

[15] Finally, when passing sentence, the judge chose not to impose the mandatory driving prohibition as set out in s. 259(1) of the Criminal Code to compensate the appellant for a finding that his detention constituted a breach of s. 9 of the Charter. Instead, he made an order placing the appellant on a period of probation for 12 months.

Grounds of Appeal

[16] Both parties appeal the decision in the following manner:

1. The defence appeal against conviction arguing that the breath results were obtained in violation of the appellant’s s. 10(b) rights. The defence argues that these results should have been excluded from evidence resulting in an acquittal of the Over 80 charge.

2. The Crown cross-appeals the judge’s failure to render a verdict on the impaired driving charge and asks that a new trial be ordered on that charge alone.

3. Finally, the Crown appeals against sentence arguing that the trial judge erred by not imposing the statutorily prescribed driving prohibition.

THE RIGHT TO COUNSEL APPEAL

Legal Principles

[17] Section 10(b) of the Charter provides that every detainee has the right to retain and instruct counsel. The section has two components: informational and implementational.

[18] The first component requires the police to inform the detainee of their right to retain and instruct counsel without delay, and of the availability of duty counsel; the second obliges the police to provide the detainee a reasonable opportunity to exercise that right once the detainee has indicated a desire to do so: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173.

[19] Once the right is exercised, the police are under an obligation to refrain from questioning until the detainee has had an opportunity to speak to counsel.

[20] The right to counsel is triggered immediately upon arrest or detention: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41. A detainee must exercise those rights with due diligence. Failure to do so will result in the suspension of the police duty to refrain from questioning: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, at pp. 10-11; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 35; R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at paras. 13-14; R. v. Van Binnendyk, 2007 ONCA 537, 227 O.A.C. 24, at para. 9; R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.), at paras. 6-9.

Was the Appellant’s Right to Counsel Breached?

[21] The right ensures that a detainee obtains legal advice from counsel without delay and before any questions or evidence is elicited from them.

[22] S. 2 of the Criminal Code defines counsel in the following way:

counsel means a barrister or solicitor, in respect of the matters or things that barristers and solicitors, respectively, are authorized by the law of a province to do or perform in relation to legal proceedings;

[23] Here, there is no dispute that Ms. McGregor was not a lawyer. I am in agreement with the case law from the Ontario Court of Justice which indicates that the s. 10(b) right does not extend to requests to speak to a non-lawyer. See, for example: R. v. Bukin, 2018 ONCJ 137; R. v. Mazzuchin, 2016 ONCJ 38; and R. v. Gownden, 2008 ONCJ 719. As a result, I find that the failure to speak to Ms. McGregor could not amount to a s. 10(b) breach.

[24] The argument that Ms. McGregor might have found a lawyer for the appellant is also a red herring. The police were unable to reach her not due to lack of effort but because the appellant failed to provide accurate contact details.

[25] However, Mr. Da Cruz, on behalf of the appellant, advances an additional argument. He suggests that the police breached the appellant’s right to counsel when they discovered Ms. McGregor was not a lawyer and failed to apprise the appellant of that fact or that they were unable to reach her.

[26] In these circumstances, says Mr. Da Cruz, the police were obliged to provide a warning in accordance with the directions given in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, where at para. 44, the court explained:

In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.

[27] I disagree and find that the Prosper warning has no application to this case.

[28] In Willier, the court dealt with the failure of the police to give a Prosper warning when the accused failed to make contact with his lawyer of choice. There, the appellant, arrested for murder, was given his right to counsel following which the police facilitated a brief conversation with Legal Aid. The appellant made an attempt to call a specific lawyer the next day but was unsuccessful and left a voice message on his phone. When asked whether he wished to speak with another lawyer, the appellant said that he would wait to hear from his original lawyer. When told that his lawyer might not call back until the next day, and reminded of the availability of duty counsel, the appellant chose the latter and spoke to duty counsel for a second time. Shortly afterwards, the police questioned him.

[29] On appeal, Willier argued that his s. 10(b) right had been breached and that he should have been given a Prosper warning. The Supreme Court of Canada rejected this claim and explained its reasoning at para. 39:

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]

[30] The same thing happened here.

[31] The trial judge found that the police made reasonable efforts to contact Ms. McGregor. The evidence more than supports this finding: two officers, PC Brisebois and PC Eslaschuk, testified that they attempted to use the contact numbers given to them by the appellant to call his wife. They were unsuccessful in doing so because of the incorrect information given to them by the appellant.

[32] At the same time, the booking video reveals that, when paraded, the booking sergeant told the appellant that in addition to trying to contact his wife, he would also call duty counsel. To the trial judge, the appellant appeared to agree to this course of action. This was confirmed when the appellant was asked by the breath technician about his opportunity to speak to counsel. The conversation proceeded as follows:

Q. The officer read you rights to counsel. Did you understand?

A. I spoke with a lawyer.

Q. I understand. You exercised your rights and spoke with Duty Counsel?

A. Yes, I spoke with a lawyer.

[33] After that exchange the appellant provided two breath samples.

[34] As in Willier, after indicating his desire to exercise his right to counsel, the appellant did just that by speaking to duty counsel. Again, like Willier, after the appellant had done so, there was no further obligation to provide him with a Prosper warning.

[35] I agree with Crown counsel that this case bears a similarity to R. v. Littleford (2001), 2001 CanLII 8559 (ON CA), 147 O.A.C. 123 (Ont. C.A.), where, after the police had failed to contact the accused’s counsel of choice, he was informed that duty counsel was available and duly consulted with that lawyer. The trial judge found no breach of the right to counsel and the Court of Appeal for Ontario agreed. At paras. 7-8 of the decision, the court wrote:

The appellant argues that his s. 10(b) rights were violated because he expressed the wish to speak to his own lawyer, and was not given a reasonable opportunity to do so. The basis for this submission is his assertion that after a perfunctory attempt was made by the officer to reach that lawyer, the officer immediately contacted and put the appellant in touch with duty counsel, contrary to his wishes and therefore contrary to his rights.

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. 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. [Emphasis added]

[36] I find that the appellant acted in much the same way as described by the court in Littleford.

[37] The police did what they could to contact Ms. McGregor but were unsuccessful through no fault of their own. They did, however, manage to get in touch with duty counsel and the appellant willingly spoke to them. Far from raising a concern about the advice before providing the samples, when the appellant was asked if he had exercised his right to counsel, he responded in the affirmative agreeing that he had spoken to a lawyer.

[38] As in Littleford, the appellant did not testify on the voir-dire, at trial to contradict that evidence or express any dissatisfaction with what had occurred.

[39] Accordingly, I find nothing in the evidence to suggest the trial judge was in error when finding the appellant’s s. 10(b) rights had not been breached.

[40] See also: R. v. Ghaznavi, 2011 ONSC 5686, 244 C.R.R. (2d) 114, at paras. 55-56; R. v. Ponnuthurai, 2015 ONSC 8104, at paras. 57-58.

[41] In light of the above, I find it unnecessary to address the appellant’s s. 24(2) argument.

[42] For the foregoing reasons, the appellant’s appeal is dismissed.

THE CROWN APPEAL

[43] The Crown appeals on two discrete issues: failure to deliver a verdict and sentence.

Failure to Deliver a Verdict

[44] First, Ms. Mandel, on behalf of the Crown, submits that the trial judge failed to deliver a verdict on the alternative charge of driving while impaired contrary to s. 253(1)(a) of the Criminal Code. The trial judge found that doing so would be a waste of time and unnecessary. Instead, he entered a stay without ever finding the respondent guilty of the offence. This ground of appeal is conceded by Mr. Da Cruz who agrees that a verdict should have been rendered by the judge.

[45] In my view this is an appropriate concession. The trial judge was bound by appellate authority in this matter: see, R. v. Moodie, [1993] O.J. No. 2053 (S.C.A.C.), at paras. 5-8, where Langdon J. noted that the rule in Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729 is a rule against multiple convictions and a conditional stay could only be entered once the trial court had found the accused guilty of both charges.

[46] Accordingly, I allow the Crown’s appeal on this ground and remit the matter back to the trial judge to render a verdict although in light of the result, although given the result on the Over 80 appeal, the Crown may wish to consider the value of proceeding with the matter.

Sentence

[47] At the conclusion of the trial, and after having found the respondent guilty of the “Over 80” offence, the trial judge also found that the police had breached the appellant’s s. 9 Charter rights by “overholding” him in detention for approximately six hours. This breach occurred due to confusion and lack of staffing in the police station.

[48] As a consequence, the trial judge chose not to impose the minimum 12 month driving prohibition stipulated in s. 259(1) of the Criminal Code using s. 24(1) of the Charter as his justification for not doing so. There is no dispute that the driving prohibition is part of the sentencing process. The prohibition has been described as particularly significant in driving cases since “driving is the core of the criminal conduct being addressed and at the core of the harm caused and potential harm created”: R. v. Rawn, 2012 ONCA 487, 294 O.A.C. 261, at para. 48.

[49] Ms. Mandel argues that the trial judge had no power to impose a penalty below the minimum, absent a finding that the penalty section was unconstitutional. Mr. Da Cruz, in response, cites the obiter comments of Lebel J. in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, and the decision of the Supreme Court of Canada in Doucet-Boudreau v. Nova Scotia (Department of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, as the basis for the judge’s use of s. 24(1) to craft the remedy that he did.

[50] In Doucet-Boudreau, a case involving the protection of minority language rights, the Supreme Court of Canada accepted the use of s. 24(1) the Charter to fashion a remedy that was “appropriate and just in the circumstances” even when a judge’s power might be circumscribed by statute and/or common law. At paras. 52-59, of the decision, the court set out the criteria to be applied in determining the appropriate s. 24(1) remedy. However, as noted, Doucet-Boudreau was not a criminal case involving the imposition of sentence.

[51] By contrast, R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, was such a case. There, the court rejected the use of s. 24(1) to apply constitutional exemptions to mandatory minimum sentences. At paras. 62-64, the court wrote:

It is argued that s. 24(1), while normally applicable to government acts, can also be used to provide a stand-alone remedy for the unconstitutional effects of mandatory minimum sentence laws. The wording of s. 24(1) is generous enough to permit this, it is argued, conferring a discretion on judges to grant "such remedy as the court considers appropriate and just in the circumstances".

The jurisprudence of this Court allows a s. 24(1) remedy in connection with a s. 52(1) declaration of invalidity in unusual cases where additional s. 24(1) relief is necessary to provide the claimant with an effective remedy: R. v. Demers, [2004] 2 S.C.R. 489, 2004 SCC 46. However, the argument that s. 24(1) can provide a stand-alone remedy for laws with unconstitutional effects depends on reading s. 24(1) in isolation, rather than in conjunction with the scheme of the Charter as a whole, as required by principles of statutory and constitutional interpretation. When s. 24(1) is read in context, it becomes apparent that the intent of the framers of the Constitution was that it function primarily as a remedy for unconstitutional government acts.

The highly discretionary language in s. 24(1), "such remedy as the court considers appropriate and just in the circumstances", is appropriate for control of unconstitutional acts. By contrast, s. 52(1) targets the unconstitutionality of laws in a direct non-discretionary way: laws are of no force or effect to the extent that they are unconstitutional.

[52] Thus the court confined the use of s. 24(1) to acts committed by the government rather than individual statutes mandating a minimum sentence.

[53] In 2010, the court, in Nasogaluak, decided that there was no need to use s. 24(1) when arriving at the appropriate sentence in the circumstances of that case. At para. 64, however, Lebel J., writing for a unanimous court remarked:

A few final comments about the position of the Charter in relation to the sentencing process are in order. Like other legal processes, the sentencing system remains subject to the scrutiny of the Charter and its overarching values and principles. Although, as we have seen above, the proper interpretation and application of the sentencing process will allow courts to effectively address most of the situations where Charter breaches are alleged, there may be exceptions to this general rule. I do not foreclose, but do not need to address in this case, the possibility that, in some exceptional cases, sentence reduction outside statutory limits, under s. 24(1) of the Charter, may be the sole effective remedy for some particularly egregious form of misconduct by state agents in relation to the offence and to the offender. In that case, the validity of the law would not be at stake, the sole concern being the specific conduct of those state agents. [Emphasis added]

[54] It is worth noting that Lebel J.’s comments were made in obiter and, in any event, left the question open.

[55] The issue was raised more clearly in R. v. Donnelly, 2016 ONCA 988, 345 C.C.C. (3d) 56, where the sentencing judge imposed a 21 month conditional sentence after the offender had pleaded guilty to the offence of making child pornography. In doing so, the judge imposed a sentence below the statutorily prescribed minimum based on his findings of a series of Charter breaches that occurred whilst the offender was in custody. The court reversed the sentence finding that there were no breaches of the offender’s Charter rights and, significantly, in the context of this case, that the judge had erred in finding that Nasogaluak had decided that s. 24(1) could be used to impose a sentence below the mandatory minimum in exceptional cases.

[56] At paras. 153-4, citing Nasogaluak, Watt J.A. writing for a unanimous court, stated:

[A]s a general rule, invocation of s. 24(1) of the Charter is neither necessary nor useful to achieve an appropriate reduction of sentence to account for any harm flowing from unconstitutional acts of state agents after the offence charged. Sentencing judges must exercise their discretion within the parameters of the Criminal Code complying with statutory minimums and other provisions which prohibit certain sentencing dispositions in respect of the offence: Nasogaluak, at para. 5.

In a similar way, the restraints just mentioned apply where the remedial power of the court under the Charter is invoked. Sentence reductions outside statutory limits do not generally constitute an "appropriate" remedy within s. 24(1) unless the constitutionality of the relevant statutory limit itself is challenged: Nasogaluak, at para. 6.

[57] The court also noted that Lebel J.’s comments were not a decision that s. 24(1) could be used to reduce sentence but simply a suggestion that the question remained open: Donnelly, at para. 159. The court pointed out that this suggestion was seemingly at odds with the decision in Ferguson. At para. 167, the court concluded:

However, in exercising his discretion under the sentencing scheme for which Part XXIII provides, a trial judge must exercise that discretion within the parameters of the Criminal Code. The sentence imposed must comply with the statutory minimums (absent a successful constitutional challenge to them) and other provisions, for example, s. 742.1(b), which prohibits conditional sentences of imprisonment for those convicted of offences which carry a minimum term of imprisonment.

[58] In my view, the appellate authorities cited above clearly indicate that absent a formal constitutional challenge to a section imposing a mandatory minimum sentence, a sentencing judge has no authority to impose a sentence below the stipulated minimum. Such a practice is prohibited by both Ferguson and Donnelly. The comments in Nasogaluak are obiter and, at their highest, indicate that the possibility remains open in exceptional circumstances. The binding authority of Ferguson, however, remains paramount. In that light, cases decided pre-Donnelly, such as R. v. Cheema, 2016 ONCJ 193, 355 C.R.R. (2d) 209, which did not have the benefit of the Court of Appeal’s reasons, should not be followed.

[59] Given my conclusion, it follows that the judge in this case erred by imposing a driving prohibition below the minimum prescribed in the Criminal Code.

[60] The Crown’s appeal is accordingly allowed and a 12 month driving prohibition is imposed, in addition to the sentence imposed by the trial judge.

S.A.Q. Akhtar J.

Released: 22 May 2018

COURT FILE NO.: CR-17-10000035-00AP CR-17-10000072-00AP

DATE: 20180522

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CELIO DE ANDRADE SILVAJUN

REASONS FOR JUDGMENT

S.A.Q. Akhtar J.