Court File and Parties

COURT FILE NO.: SCA9106 DATE: 2018-06-25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen, Respondent v. Willio Louidon, Appellant

BEFORE: Mr Justice Ramsay

COUNSEL: Leila Mehkeri for the Crown; Eric Uhlmann for the Appellant

HEARD: June 22, 2018 at Kitchener

Endorsement

1Appeal under s.813 of the Criminal Code from the conviction made by Mr Justice Rommel Masse on January 23, 2017.

2On March 19, 2016 the appellant was driving a tractor trailer on Highway 401 in Waterloo Region. Having been informed that a truck of similar description to that of the appellant was weaving in the three lanes of the highway, Provincial Constable Dekker stopped the appellant and found him at the wheel of the vehicle. A strong odour of alcohol was coming from the cabin. The officer had the appellant get into his patrol car and demanded a breath sample for the screening device. After a few insufficient attempts the appellant provided a suitable sample and failed the test. Thereupon followed his arrest, the taking of breath samples for the approved instrument and results of 108 and 99 mg of alcohol in 100 ml of blood.

3At the trial the defence objected to the evidence of these results on the ground that the appellant’s rights under sections 9 and 10 of the Charter had been infringed. The trial judge admitted the evidence, which led inevitably to a conviction for driving with excessive blood alcohol contrary to s.253 (1) (b) of the Code. The appeal is based solely on the decision under s.24 (2) of the Charter to admit the evidence of the breath tests in spite of the breach of the appellant’s rights under s. 10(b).

The arrest

4The appellant failed the screening test and was arrested at 12:56. Constable Dekker, who speaks only English, informed the appellant of his right to counsel and asked him whether he understood. The appellant said “No, I speak French.”

5At 12:58 Constable Dekker gave the demand for breath samples for the approved instrument under s.254 (3) of the Code, still in English. He was in possession of a card that had the demand and the right to counsel in French, but he was not able to read it aloud. He could have given it to the appellant to read himself, but he did not think to do so. He chose to send for a bilingual police officer.

6The appellant and Constable Dekker arrived at the police station at 13:20. The appellant was placed into a cell. The qualified technician arrived at the station at 13:47. He was ready to take samples at 14:00. Provincial Constable Morin arrived at the station two minutes later, at 14:02. Having come from Guelph, he must have hurried. Between 14:05 and 14:15 Constable Morin gave the appellant his right to counsel, asked whether he wanted to call a lawyer, got a negative response, read the demand for breath samples and administered the usual cautions, all in French.

7Constable Morin acted as interpreter with the qualified technician. The tests were done at 14:34 and 14:56. They revealed the aforementioned blood alcohol levels. After the necessary paperwork was done the appellant was driven to the Kitchener bus station to continue his trip home to Montreal.

The decision at trial

8The defence argued at trial, correctly, that the right to be informed “without delay” of the right to counsel arises immediately upon detention. The infringement of this right flowed from the delay of one hour and nine minutes between 12:57 and 14:05. The judge accepted that the delay amounted to a breach, but he admitted the evidence under s. 24(2) of the Charter after undertaking the analysis required by R. v. Grant, 2009 SCC 32.

9With respect to the breach, I might not have come to the same conclusion. R. v. Manchulenko, 2013 ONCA 543 deals with the implementational component of s. 10 (b) rather than the informational component but to me it seems understood that even though the police have a duty to hold off taking samples until the detained person’s rights are observed, a delay does not deprive them of the right to take samples permanently. Once the rights are observed, taking samples does not breach them.

10However the appeal turns on the judge’s application of the Grant analysis. The judge began by summarizing the three factors:

a. The seriousness of the state’s conduct in breaching the right;

b. The effect of the violation on the Charter rights of the accused; and

c. Society’s interest in a decision on the merits.

11He went on:

La violation en espèce n’était pas grave. Les agents de police ont toujours agi de bonne foi. Ils étaient soucieux de protéger le plus que possible les droits de monsieur Louidon. L’agent Dekker a agi de façon raisonnable en demandant l’aide d’un agent bilingue comme interprète. Le problème est que ça a pris trop longtemps …

La violation était le résultat de circonstances imprévues et non le résultat de gestes délibérés de la police.

La gravité de l’empiètement sur les intérêts protégés par le droit transgressé est peu importante. Les agents de police n’ont fait aucun effort de recueillir des éléments de preuve incriminant contre l’accusé que lorsque l’accusé avait été informé en français de son droit à l’assistance d’un avocat. Le délai dans la communication du droit à l’assistance d’un avocat n’a eu aucun impact réel sur l’exercice des droits du détenu.

De toute façon le détenu, une fois informé de ses droits a renoncé à son droit à l’assistance d’un avocat, préférant d’attendre le résultat du test.

Les résultats des analyses des tests d’éthylomètre sont fiables. Les prises d’échantillons d’haleine ne sont pas intrusives et l’atteinte n’a que peu d’effet important sur la vie privé, intégrité corporelle et la dignité de l’accusé.

12After weighing society’s interest, he decided not to exclude the evidence.

The argument on appeal

13The appellant submits that the judge’s analysis of the first two elements of the Grant test is flawed:

a. First, the police conduct was more serious than the judge thought. After the delay in the arrival of the bilingual officer there was no consideration of whether there might have been a more efficient way to respect the appellant’s rights. Constable Dekker could have shown the card to the appellant, used an interpreting service available by telephone or drawn the appellant’s attention to the bilingual sign on the door facing his cell.

b. Secondly, the judge’s observation that the police did not gather any evidence before informing the appellant of his rights was in error because the appellant’s waiver of his right to counsel would not necessarily have occurred if he had been informed without delay at the time of his arrest. The conclusion that there was no impact on the exercise of the rights is speculative.

Analysis

14With respect to the application of s. 24(2) of the Charter, the Crown reminds me that deference is due to the decision of the trial judge. If the judge considers the correct factors, an appeal court should exercise considerable restraint: Grant, para. 86.

15First, the judge’s finding that the police had chosen the best way to proceed is fully explained in his reasons, manifestly reasonable and was plainly available to him on the evidence. Furthermore, it is in conformity with binding precedent. Reading from a card in similar circumstances is not sufficient: R. v. Vanstaceghem, [1987] O.J. No. 509 (CA). The conclusion that the telephone interpreter service was not always available within a reasonable time was well supported on the evidence. Equally reasonable was the finding that use of a civilian interpreter to explain legal notions gives rise to a risk of misunderstanding.

16Secondly there is nothing speculative about the absence of the delay’s impact on the appellant’s exercise of his rights. The appellant was well aware of his right to counsel from the time of his lodging in the cell a little after 13:20. In any case the argument presumes without any basis for doing so that exercise of the right to counsel would have prevented the police from taking samples afterwards.

17R. v. Guenter, 2016 ONCA 572 supports the judge’s comments on the reliability and non-intrusive nature of the production of the evidence in question. The decision in R. v. Jennings, 2018 ONCA 572 points out that the Supreme Court in Grant chose the taking of a breath sample as the definitive example of a non-invasive search, even though it is accompanied by the usual incidents of arrest.

18The judge was quite right that any infringement of the appellant’s rights had little effect. Taking this consideration together with the state’s conduct and society’s interest in a decision on the merits it is difficult to find fault with the decision to admit the evidence.

Order

19The appeal is dismissed.

J.A. Ramsay J.