COURT FILE NO.: CR-18-1066-AP
DATE: 2019 06 10
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
G. Hendry for the Respondent Crown
Respondent
- and -
DATHAN MACMILLAN
A. Little for the Appellant
Appellant
HEARD: February 19, 2019
REASONS FOR JUDGMENT
[On appeal from the judgment of The Honourable Mr. Justice P. Renwick dated May 4, 2018, reported at 2018 ONCJ 384]
D.E. HARRIS J.
[1] The appellant appeals his driving “over 80” conviction.
[2] At trial, the Crown conceded a violation of the Section 10(b) Charter right to counsel. After stopping the appellant’s vehicle, the police noticed the odour of alcohol and made a roadside-approved screening device (“ASD”) demand for a breath sample under s. 254(2) of the Criminal Code, R.S.C., 1985, c. C-46. The test was not administered for a considerable period of time because the device was not on the scene and had to be brought from the police station. The right to counsel was not given by the police in the intervening period.
[3] Despite the Charter violation, the trial judge ruled that the breath readings proving the offence ought not to be excluded. The appellant was convicted.
[4] Upon appeal, counsel for the appellant argues additional Charter breaches supplementing the Section 10(b) breach conceded by the Crown at trial.
[5] Ultimately, the appellant attacks the trial judge’s decision under Section 24(2) of the Charter not to exclude the breath readings. Adding the new complaints of Charter breaches, the appellant contends that the breathalyzer readings should be excluded and the accused acquitted.
An Overview of the Evidence
[6] Two police officers in separate cruisers working in tandem were running licence plates from cars in a parking lot on their computers. A registered owner of one of the cars came up with an outstanding arrest warrant in Alberta, albeit with a radius restricted to execution in that province. Once the appellant got in the car and started driving, the officers stopped him to investigate the warrant. Upon speaking to the appellant, it was confirmed that he was the registered owner. In addition, P.C. Zara observed a strong odour of alcohol coming from the vehicle.
[7] The focus of the investigation turned abruptly from the warrant to drinking and driving. However, at the same time, the police were still interested in the Alberta arrest warrant. They were investigating both matters simultaneously.
[8] The appellant was asked to get out of his car. P.C. Zara discerned that the odour of alcohol detected in the vehicle was coming from the appellant’s mouth. Indications of impairment were noted as well.
[9] At 5:30 p.m., three minutes after pulling the car over, P.C. Zara made an ASD demand under Section 254(2) of the Code for a breath sample “forthwith” based on suspicion of alcohol in the body. The officers only anticipated a brief delay. Upon it being discovered that there would be a longer delay than initially expected, a caution was given that anything the appellant said could be given in evidence.
[10] P.C. Wilmot coordinated the ASD delivery. Other officers were on other calls and it was a shift change. An officer was asked to bring an ASD from the station. Because of the delay, it was decided to meet the other officer and obtain the ASD from him. It was not clear how this would save any time. The ASD arrived at the scene at 5:58 p.m. The appellant failed the ASD test. The right to counsel was finally given at 6:02 p.m., the caution at 6:03 p.m. and the breath demand on the basis of reasonable grounds to believe he was driving over the legal limit at 6:04 p.m.
[11] The appellant was upset by the time delay and the heat. It was August 1. The officer testified that part of his training was that if there was an ASD delay he was to provide the caution but not the right to counsel. The thinking was that because of the “usual fluidity and quickness in a detention for an ASD”, rights to counsel did not need to be given. By the time of trial, his training had changed but in what respect was not made clear.
[12] P.C. Zara testified that the right to a lawyer was not in his train of thought. The right to a lawyer came only subsequent to arrest, in his view. In retrospect, P.C. Zara accepted that a delay of a half an hour, as it turned out to be, would require rights to counsel.
[13] The Crown elicited in re-examination that if P.C. Zara had given the right to counsel, there would have been no place for the appellant to consult a lawyer in private. Because of the risk of flight, he could not get far enough away to permit the appellant to make a private cell phone call.
[14] The officer and appellant left the scene at 6:07 p.m. and arrived at 12 Division at 6:20 p.m. The first breathalyzer test was at 7:05 p.m. and the second at 7:25 p.m. Both readings were over the legal limit.
Raising New Issues Upon Appeal
[15] At trial, the defence did not argue the Section 10(b) breach with respect to the outstanding warrant stop, although it was a circumstance referred to in the Charter notice. Nor was it argued that since the demand was invalid, the ASD test and the subsequent breathalyzer testing constituted violations of Section 8. In addition, although the defence did raise an arbitrary detention Section 9 breach premised on the initial stop and detention, it was not argued that it extended all the way up to the appellant’s release from the police station. It is evident that this would have been unsuccessful as the trial judge found there was no Section 9 breach for the original stop.
[16] It is unquestionably unfortunate that not all of the Charter breaches argued on appeal were previously raised at trial. The trial judge did not have the benefit of the full argument mounted in this court. Finality of the process is an important value in the appellate process, particularly in our resource strapped jurisdiction. On this appeal, the scrutiny of the police officers’ engagement with the appellant has taken on quite a different hue. Nonetheless, the appellant has a right to reviewability (R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Farinacci. 1993 CanLII 3385 (ON CA), [1993] O.J. No. 2627, 109 D.L.R. (4th) 97, 86 C.C.C. (3d) 32 (C.A.), at paras. 25-26) and must be allowed, within the parameters of the pertinent authority, to reformulate his approach.
[17] It remains the function of the raising of new issues upon appeal jurisprudence to regulate which new arguments should be allowed and which should not. The Crown, concedes the appellant’s right to raise Section 8 and the extended Section 9 argument for the first time on appeal. He also concedes an original violation of the Section 9 right, contrary to the trial judge’s decision, and does not strongly contest the Section 8 violation. The one matter he does oppose is the raising of the Section 10(b) issue arising from the stop for the outstanding warrant.
[18] I disagree with his argument. On balance, the authorities support permitting the issue to be raised in the circumstances of this case: see R. v. Guidon, 2015 SCC 41, [2015] 3 S.C.R. 3, at para. 22; R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579 (S.C.C.), at para. 16, per L'Heureux-Dubé J. (dissenting in part); R. v. Brown, 1993 CanLII 114 (SCC), [1993] 2 S.C.R. 918, at pp. 923-924, L'Heureux-Dubé J., dissenting; R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 37-50, leave to appeal to SCC refused, 2017 CarswellOnt 1606; Kaiman v. Graham, 2009 ONCA 77, 245 O.A.C. 130, at para. 18; and R. v. R. (K.), 2009 ONCA 156, 246 O.A.C. 96, at paras. 6-8.
[19] The test for raising a new issue upon appeal comes down to whether there is significant prejudice or injustice to the Crown. In this case, there is no substantial impediment. The record is complete; the Crown is not significantly detrimented by not being able to advance additional evidence or argument; and the Charter violation is manifest on the record. Both police officers were questioned about the issue. There was nothing to be added from an evidentiary point of view. It is impossible to imagine how there could be any dispute with respect to unexamined evidence or factual issues.
[20] There is no rational tactical reason why the defence would have foregone arguing the issue: R. v. Stirling 2011 ONSC 5429, 22 M.V.R. (6th) 213, at para. 49. Moreover, to fixate on the value of finality in this instance would be pointless. Other Charter violations are raised for the first time and the Crown does not oppose the appellant raising them. The new Section 10(b) issue provides important context and is complimentary to the appellant’s other arguments. Lastly, the issue has merit and highlights an important aspect of the police conduct in this case. It is appropriate that the discretion be exercised to permit this issue to be raised.
The Section 10(b) Issue Arising out of the ASD Delay
[21] The law is clear and the trial judge acknowledged that the 31 minute delay in administering the test brought about a Section 10(b) violation. This was the case even though the need to wait 15 minutes for mouth alcohol to dissipate following R. v. Bernshaw, (1994) 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.) reduced the total effective delay to 21 minutes.[^1]
[22] Although the trial judge did not specify the underpinnings of the breach, they have been identified in a long-line of case law. The screening device breath demand provision in Section 254(2) of the Criminal Code stipulates that the sample is to be given “forthwith”, interpreted to mean after a brief time, if not immediately, following the demand. That did not happen here as the device was not available. The authorities leave no doubt that the demand became invalid because the breath sample could not be obtained promptly: R. v. Grant, 1991 CanLII 38 (SCC), [1991] 3 S.C.R. 139, at p. 150; R. v. Côté, (1992), 1992 CanLII 2778 (ON CA), 6 O.R. (3d) 667 (C.A.), at para. 10; R. v. George (2004), 2004 CanLII 6210 (ON CA), 187 C.C.C. (3d) 289 (C.A.), at paras. 27-30; R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at paras. 13-15, 29-36, R. v. Beattie 2009 ONCJ 456, 89 M.V.R. (5th) 170, at paras. 17-17-24.
[23] In George, the Ontario Court of Appeal held that a shorter delay than in the case at hand (18 minutes as opposed to 21 minutes) did not comply with the Criminal Code.
[24] Justice LeDain held in R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, at p. 653, that the words “forthwith” and “roadside” (“roadside” has since been removed from Section 254(2)) implied that there is no opportunity to exercise the right to counsel before giving an ASD breath sample pursuant to the Section 254(2) demand. However, this inroad into the obligation to give the s. 10(b) right “without delay” as the language stipulates was justified under Section 1 of the Charter as a reasonable limitation. The vital role of the ASD in increasing detection and deterrence of drinking and driving stands as a necessary qualification to the s. 10(b) immediacy requirement.
[25] However, if the demand is invalid, as this one was because the sample was not taken “forthwith”, the Section 1 justification for holding Section 10(b) in abeyance evaporates. Section 10(b) must be analyzed apart from the ASD demand provision: R. v. Grant, 1991 CanLII 38 (SCC), [1991] 3 S.C.R. 139, at pp. 149-50. Following the general approach to detention and the “without delay” requirement in s. 10(b), the right must be given more or less immediately: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 42, also see R. v. Jacyniak, 2011 ONCJ 32, 9 M.V.R. (6th) 136, at para. 14. As it was not, a Section 10(b) violation occurred in this case.
[26] There is one more aspect that must be explored. P.C. Zara testified that as the delay became longer, he did not contemplate permitting the appellant to call a lawyer. He believed that in this situation, the Section 10(b) right should only be given after arrest.
[27] That is incorrect. The George case written in 2004 by Justice Gillese stands for the proposition that if there is a delay in administering the ASD, the police should turn their minds to allowing the detainee to call a lawyer if feasible:
56 … Where an officer is in a position to require that a breath sample be provided by the detainee before the detainee has any realistic opportunity to consult counsel, the detainee does not have the right to delay the production of the breath sample in order to consult counsel by virtue of the ready availability of a telephone. However, where an officer is not in a position to require that a breath sample be provided immediately after a demand for such a sample, the court, in determining whether the detainee had a realistic opportunity to consult counsel during the period of delay, must consider the ready availability of a telephone as a relevant factor in making that determination. [Emphasis Added.]
[28] George was placed before the trial judge but was only referred to in passing in his reasons for judgment. Counsel argued that the officer should have given the rights to counsel when the delay started to lengthen. The appellant could then have made a cell phone call to exercise the right. Counsel said that it was a failing of the officer’s training and the trial judge appeared to agree.
[29] In this day and age, almost everyone owns a cell phone. The appellant had one: see R. v. MacMillan, 2018 ONCJ 384, at para. 16. At the time of Thomsen in 1988, cell phones were comparatively rare. It was still a number of years before they were compact enough to fit into a pant or coat pocket. It was probably for this reason that, until George in 2004, the drinking and driving jurisprudence did not discuss in much detail the role cell phones could have in implementing the right to counsel.
[30] The officers in this case, seeing that the delay was becoming excessive, should have reverted to the George alternative. Advising the appellant of his right when it became apparent the test could not be administered promptly should have been followed by an invitation to use his cell phone to contact counsel. The original stale ASD demand would still have been invalid, but other measures could then have been taken.
The Section 10(b) Breach Based on the Detention for the Arrest Warrant
[31] The appellant was pulled over and detained because the officers had information that the owner of the car he was driving was wanted in Alberta. It turned out, after investigation, that the appellant was the owner. While the purpose of the detention was more or less immediately superseded by the drinking and driving investigation and detention, the officers testified that throughout the time waiting for the ASD to arrive, they were still asking the appellant questions and investigating the arrest warrant issue.
[32] An individual can only be detained once. There cannot be multiple detentions. But there can be more than one reason for detention. That was the case here. While under Thomsen, Section 10(b) can be suspended because of the necessity to administer the ASD, there is generally no similar latitude for other criminal investigations. In this case, while there was some initial justification for delaying the informational component of Section 10(b) with respect to the ASD delay, after the appellant had been identified, there was no such justification for delaying it with respect to the outstanding arrest warrant.
[33] The same issue arose in Grant (1991). The appellant was stopped for suspicion of driving disqualified but subsequently confined in the police car for driving under the influence. The court held that the “initial detention triggered Mr. Grant’s s. 10(b) rights, and the requirement for a Charter warning did not come to an end when the officer subsequently demanded a breath sample”: at p. 151.
[34] Similarly, in this case, detention by virtue of the warrant began when the appellant was stopped and it was confirmed that he was the registered owner. It did not end when a breath demand was made. The right to counsel for the warrant detention should have been given immediately. Not to provide it constituted a violation of s. 10(b).
The Section 9 Violation
[35] The Crown concedes that the trial judge erred in not finding a Section 9 violation flowing from the ASD delay. I agree.
[36] The trial judge held that just because the detention was prolonged due to the ASD delay, it did not become arbitrary: see MacMillan, at para. 8. The Crown, in conceding error, points to R. v. Barclay, 2018 ONCA 114, 404 C.R.R. (2d) 349. In that case, the police had a tip the appellant was carrying marijuana in his luggage. After he was put under investigative detention, a sniffer dog was requested but did not arrive for almost two hours. The Court of Appeal held that an investigative detention must be brief. In Barclay, it was not and, therefore, the detention became arbitrary: see paras. 32-36.
[37] In the case at hand, examined under the rubric of investigative detention, the initial detention for investigation of the warrant transformed into a detention for drinking and driving. Once the police made the ASD demand, this became an additional foundation for detention. When a failure to comply with the “forthwith” requirement – through no fault of the appellant – invalidated the demand, the detention became arbitrary.
[38] This was definitively established some years ago by the Supreme Court. In Woods, Justice Fish speaking for the court alluded to the fact that if the ASD demand is not complied with “forthwith”, three Charter violations, including Sections 8 and 9, 10(b) will be occasioned:
15 Section 254(2) authorizes roadside testing for alcohol consumption, under pain of criminal prosecution, in violation of ss. 8, 9 and 10 of the Canadian Charter of Rights and Freedoms. But for its requirement of immediacy, s. 254(2) would not pass constitutional muster.
29 The "forthwith" requirement of s. 254(2) of the Criminal Code is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and the infringement of the right to counsel, notwithstanding ss. 8, 9 and 10 of the Charter.
[39] Conceptually, once the Section 254(2) ASD demand was invalidated because of the delay in producing the machine, the detention imposed by the police lost its legal justification: R. v. Yanka, 2011 ONSC 405, 8 M.V.R. (6th) 36, at paras. 51-52. A police detention without a valid basis is unlawful and hence arbitrary: R. v. Le 2019 SCC 34, [2019] S.C.J. No. 34, para. 124. The purpose of Section 9 to protect –"individual liberty from unjustified state interference”--is implicated: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 20, 54.
The Section 8 Violation
[40] As mentioned in Woods in the quote above, the same analysis leads to the conclusion that an invalid ASD demand followed by providing a sample into the ASD constitutes an unreasonable search or seizure: also see Jacyniak, at para. 14.
The “Cascading” Section 8 and Section 9 Breaches
[41] It necessarily follows that everything after the invalid Section 254(2) demand and test was unlawful. The arrest, the breathalyzer demand, and the accompanying detention till the end of the police contact with the appellant were contrary to Sections 8 and 9 of the Charter. So too was the procedure and results of the breath samples provided by the appellant at the police station. This, again, is confirmed by Justice Fish’s reasons in Woods.
[42] Although I agree with the appellant’s counsel that these duplicate breaches were committed, careful measure of them must be taken. These were strictly derivative. The violations all emanated from the invalid ASD demand and results. And in every case in which this occurs, unless the police recognize the problem and take other steps, there will be the same concatenation of Charter breaches.
[43] In concrete terms, the arbitrary detention extended beyond the roadside through the dealings at the police station. The appellant was also subjected to the breathalyzer procedure at the station. In the Section 24(2) analysis to be undertaken, the gravity and effect of these breaches will have to be assessed.
Section 24(2)
[44] Trial judgments with respect to the exclusion of evidence are owed deference--R. c. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 44, 89--but not “when an appellate court reaches a different conclusion on the breach itself”: R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, at para. 184, per Justice Karakatsanis in dissent but no disagreement from the majority on the point. Also see R. v. Le, at para. 138; R. v. Wong 2015 ONCA 657, 329 C.C.C. (3d) 466, at para. 55.
[45] In this instance, the Section 10(b) breach for the warrant detention was not argued at trial. The trial judge did not have the benefit of the demonstration of the subsequent breaches either. All told, the additional Charter breaches have shifted the foundation of this case and a new Section 24(2) analysis is required.
The Trial Judge’s Section 24(2) Reasons
[46] To summarize, the trial judge held that Section 10(b) being a fundamental right, this breach was serious but on the lower scale of seriousness. In finding that the seriousness of the violation did not favour exclusion under Grant (2009) the trial judge said:
22 … I have considered the effect of this violation, the technical nature of this infringement, the good-faith efforts of the police, the police failure to fully appreciate the scope of the s. 10(b) obligation, and the context of this investigation in order to assess the seriousness of this breach.
23 … Courts have recognized a need to suspend the exercise of one's right to counsel in drink-driving investigations given the ordinarily brief nature of the investigation, the importance of detecting drunk drivers … and the general lack of a realistic opportunity to consult counsel before a breath screening can take place. In this situation, the expected delay was exceeded for reasons beyond the officers' control (bad traffic), and even if the officer had … been cognizant of his obligation to afford the right to counsel, there was no immediately available room within which to afford the defendant a private area to exercise this right;
i. I find that Constable Zara was knowledgeable about the Charter; his decision not to transport the defendant to the police station in order to perform the ASD screening and his reasoning for same was sound. Constable Zara demonstrated a remarkable appreciation for the defendant’s liberty rights;
ii. I find that Constable Zara intended to respect the defendant’s Charter rights, as evidenced by his decision to caution the defendant from providing inculpatory admissions, by holding off any further investigations during the ASD retrieval period, and by maintaining the least amount of restriction of liberty possible;
iii. The period of time within which the defendant’s Charter right was breached was not excessive. Factoring in the time the police would have been required to wait given the defendant’s admission of mouth alcohol, the abrogation of the right to counsel occurred over a 21 minute period;
iv. But for the rush hour traffic, the delay occasioned by the retrieval of the ASD would have been much less and likely before there was any realistic opportunity to exercise the right to counsel; and
v. The breach occurred in the context of a highly regulated public activity and the defendant is presumed to know as a motorist that he must comply with a breath demand. As well, the defendant’s bodily integrity was not at risk and the defendant’s liberty was only minimally disturbed. [Emphasis added; footnotes omitted]
[47] With respect to the impact of the infringement, the trial judge again referred to the officer giving the appellant the caution, as he had stated at para. 23(ii) above with respect to the seriousness assessment: see para. 24. No other comments were made with respect to the impact of the breach.
[48] The trial judge concluded with respect to s. 24(2),
25 In the end, when I consider the good faith efforts of Constable Zara, the reason for the Charter violation (bad traffic prevented the ASD from arriving within a reasonable period of time and before any realistic opportunity to consult counsel), the fact that the defendant was arrestable in another jurisdiction, the minimally intrusive nature of breath sampling, and the nature of the defendant's detention, I am not satisfied on a balance of probabilities that the long-term effect of the admission of breath samples in these circumstances would erode public confidence in the justice system given a heightened communal interest in curbing drunk driving and having trials proceed on their merits. [Emphasis added]
The Seriousness of the Violations
[49] From the trial judge’s perspective, an unexpected traffic jam impeding the delivery of the ASD was solely responsible for the breach of the appellant’s right to counsel. The delay was not excessive and was dictated by the nature of roadside testing. The appellant could not in any case have exercised his right to counsel even if it had been provided to him. The breach was technical and the police were acting in good faith.
[50] There is considerable appeal to this position. It is somewhat surprising that a 21-minute delay in administering the ASD could lead to breathalyzer evidence being excluded and the accused acquitted. But, with respect, the trial judge’s analysis was incomplete. And some of it flew in the face of the authoritative and long-standing case law in the area.
[51] “Good faith” as used by the trial judge in this case, is a dual-faceted finding. The underlying, primary finding is one of fact. In this case, the trial judge made plain that the basis for his good faith conclusion was the administration of the primary caution. The standard for challenge of this part of the trial judge’s conclusion, as it is a pure finding of fact, is palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 3-18. No quarrel can be had, and none was taken by the appellant, with the factual premise of the trial judge’s finding.
[52] However, applying the Section 24(2) jurisprudence to this finding of fact and concluding that it demonstrates “good faith”, is a legal finding. “Good faith” is a term of art. The trial judge’s conclusion must therefore withstand scrutiny on a correctness standard: R. v. Le, at para. 23.
[53] “Good faith” is often a major point of discussion in the Section 24(2) seriousness of the breach analysis: e.g. R. v. Grant (2009), at paras. 74-75; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at paras. 43-44; R. v. Le, at paras. 143-148; R. v. Szilagyi 2018 ONCA 695, 365 C.C.C. (3d) 461, at paras. 55-65. After initially being mentioned in R. v. Collins 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, 1987 CarswellBC 94, at paras. 46, 49 (Carswell), the Supreme Court of Canada in R. v. Duarte 1990 CanLII 150 (SCC), [1990] 1 S.C.R. 30, 1990 CarswellOnt 77, at para. 65 per LaForest J. (Carswell) used good faith for the first time in the context of reasonable police reliance on the law as they believed it to be.
[54] With respect, the police error here, although it might appear at first blush to be innocuous enough, was not made in “good faith” as that term has been developed. Good faith errors must be reasonable and must be non-negligent: see R. v. Buhay, 2003 SCC 30; [2003] 1 S.C.R. 631, at paras. 59-64; R. v. Mann, 2004 SCC 52; [2004] 3 S.C.R. 59, at para. 55. This one was not. The obligations incumbent on the police have been entrenched for over 25 years, going back to Grant in 1991. Once the delay began building, the officer should have recognized the problem and taken other steps.
[55] For the same reason, with respect, describing the breach as “technical” was an error. The police conduct was negligent when measured – as it must be – against the well-developed law on ASD delay. This was far removed from the reliance on previous case law or other authority which has been found to be indicative of good faith.
[56] The recent Supreme Court of Canada judgment in R. v. Omar, 2019 SCC 32 is distinguishable. In a 4:3 oral decision, the dissenting reasons of Justice Brown in the Court of Appeal were substantially adopted by the majority. Justice Brown had held, in a nutshell, that the trial judge was justified in finding that the police were acting in good faith because there is a lack of certainty concerning the point where psychological detention is reached: R. v. Omar, 2018 ONCA 975, 144 O.R. (3d) 1, at paras. 81-106.
[57] No such uncertainty exists in this case. The case law leaves no doubt since at least the time of Grant (1991), if not Thomsen in 1988 that the ASD had to be administered promptly both to comply with the clear wording of the demand and to not land afoul of Section 10(b).
[58] Furthermore, the police, following George, should have given the right to counsel and offered an opportunity to contact counsel by cell phone. This has been the law since 2004 and has been followed in a number of other cases in this province: see e.g. R. v. Murphy (2005), 16 M.V.R. (5th) 245 (Ont. S.C.), at paras. 9-10; R. v. Ruck, 2013 ONCJ 527, 53 M.V.R. (6th) 323, at paras. 27-28, 39; R. v. Parkes, 2007 ONCJ 43, at para. 39; R. v. Mulroy, [2006] O.J. No. 5176 (C.J.), at paras. 16-17; R. v. Styra, 2006 ONCJ 113, at paras. 1-2, 5; R. v. McKernan, 2005 ONCJ 509, at paras. 38-42; and R. v. Muscat, 2005 ONCJ 415, 28 M.V.R. (5th) 179, at paras. 66-70.
[59] The right to counsel ought to have been given, and the appellant should have had the opportunity to use his cell phone to speak to a lawyer.
[60] The trial judge found, at paragraph 23 of his reasons, that there is generally no opportunity to consult with counsel in these type of situations and, furthermore, in this case, there was no place in which to allow the appellant privacy to speak to counsel.
[61] This was P.C. Zara’s evidence. In other words, the inability to provide a necessary component of the right to counsel – privacy – led to the conclusion that the right itself could not be accommodated. Skepticism should be the first response to this argument. Excuses that it was just too onerous to provide the suspect his rights, particularly when it is a fundamental right which hangs in the balance, ought not to find uncritical acceptance.
[62] This is a prime example. The excuse given by the officer was weak. Although many people talking on cell phones in public appear to desire the whole world to enjoy their end of the conversation, this does not mean that an individual cannot, when the need arises, lower their voice. In addition, the officer, accepting the obvious at other parts of his evidence, agreed that the appellant was not a flight risk. If the appellant spoke in a normal voice, the physical distance to ensure privacy could easily have been afforded.
[63] The trial judge did not have the benefit of the finding of the Section 10(b) breach for stopping the appellant to investigate the arrest warrant. It is often said that multiple breaches have a greater seriousness than a single breach. That is true here. While the trial judge accepted that unforeseen traffic circumstances may have been responsible for the ASD Section 10(b) breach, the same cannot be said for the warrant breach once the accused was identified. To give the right to counsel with respect to this detention ought to have been second nature for the police officers.
[64] With respect, several of the trial judge’s more general conclusions are not found anywhere in the voluminous case law on point and have little weight. The length of the ASD delay has never been a significant factor on the exclusion of evidence issue nor should it be. Here, it was clear that the delay violated the “forthwith” time frame. It was not a close call; it was conceded by the Crown.
[65] The trial judge observed that driving is a highly regulated activity and this mitigated the impact of the initial stop: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 30. However, this has no bearing on the seriousness of the deprivation of the right to counsel. The same can be said of the presumption relied upon by the trial judge that a driver knows that he must provide a breath sample. This has no pertinence to the Section 10(b) and Section 9 breaches nor the interests they are designed to protect. Moreover, as explained below, in fact, the appellant had no legal obligation to provide a sample.
[66] The continuing Section 8 and 9 breaches add some seriousness to the police conduct. The Section 8 invasion of privacy on both the ASD and the breathalyzer are of some significance but should not be assigned undue weight. The Supreme Court in Grant (2009) at para. 111, specifically singled out breath samples for drinking and driving investigations as an example of a minimally intrusive invasion of privacy. The Ontario Court of Appeal echoed this conclusion in the case of R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224, at paras. 29-31.
[67] The trial judge held with respect to the Section 9 breach – which he rejected but nevertheless assumed for the purpose of the Section s. 24(2) analysis – that the police were sensitive to the appellant’s liberty, as they let him wait outside his vehicle and the detention was “somewhat detached”: MacMillan, at para. 13. The trial judge also noted that he had access to his phone (paras. 13, 16). I agree this is a factor on the Section 9 breach.
[68] The trial judge also found that the seriousness was mitigated because the detention, by virtue of the outstanding warrant information, began lawfully. I cannot accept the logic of this, particularly in view of the finding on appeal that the police ought to have given the appellant his Section 10(b) right with respect to the detention.
[69] The seriousness of the Section 9 violation is based principally on its duration. The state interference with the appellant and his right to be left alone was not merely momentary. It extended until the appellant was released from the station. There is also the incidental aspects of being in police custody. After the appellant was arrested, he would have been handcuffed, searched, and been required to remain in police custody until his release. This is not trivial: see R. v. Leonardo 2009 ONCJ 507, 89 M.V.R. (5th) 289, at para. 29; R. v. Looknath [2010] O.J. 4352 (O.C.J.), at para. 41.
[70] In conclusion, the arbitrary detention in this case was not minor nor insubstantial.
The Impact of the Charter Violations
[71] When examining the impact of the Section 10(b) violation and the assumed Section 9 violation, the trial judge commented that there was some mitigation by reason of the police officer abstaining from eliciting incriminating evidence and reading the appellant the primary caution. With respect, this should not have been accorded much significance. Statements made by the appellant could not have been used substantively and could only bolster the grounds for the breathalyzer: R. v. Coutts (1999) 1999 CanLII 3742 (ON CA), 136 C.C.C. (3d) 225, 25 C.R. (5th) 362 (C.A.); R. v. Milne (1996), 1996 CanLII 508 (ON CA), 107 C.C.C. (3d) 118 (Ont. C.A.), leave to appeal refused (1996), 97 O.A.C. 159 (note) (S.C.C.).
[72] A similar argument was made in R. v. Le that no inculpatory statement during the time of the Charter violation was gathered and that mitigated the Charter violations. The majority of the court rejected the argument, writing (at para. 154), “With respect, we do not see these considerations as compelling nor as properly accounting for the harm effected in this case.”
[73] In this case, the appellant was denied the right to the advice of a lawyer which would have served both purely functional purposes--whether he should or should not provide a sample into the ASD--and also provided him with psychological assurance in his legal predicament.
[74] From a functional perspective, legal advice would have informed the appellant that because of the delay, the ASD demand was invalid and compliance was not legally required. Justice Monahan emphasized this in R. v. Nithiyananthaselvan, 2016 ONCJ 426, 361 C.R.R. (2d) 224, at para. 72 (also see R. v. Vijayam, 2010 ONCJ 537, 5 M.V.R. (6th) 256, at para. 25). The absence of this advice had a crucial impact on the appellant. There was a cause and effect relationship between the breach of the right to counsel and the obtaining of the evidence used to convict the appellant. This substantially increases the impact of the breach: R. v. Grant (2009) at paras. 122, 137.
[75] Even if there had not been a cause and effect relationship, this would still be a breach with deleterious consequences. In R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, 92 C.C.C. (3d) 289, at paras. 55, 56, 62, and 63, Chief Justice Lamer emphasized that it would be wrong to speculate about the nature of counsel’s advice if the breach had not occurred.
[76] This position has now evolved further. In R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 80, Justice Doherty said at para. 80 “Access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law.” In R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, 366 C.C.C. (3d) 103, at para. 45, he added that the advice of counsel is a “lifeline” for individuals faced with the daunting prospect of police detention.
[77] Faced with subjection to the unchecked investigative power of the state, there is comfort in knowing that there is a skilled professional in the accused’s corner to counteract the advantages enjoyed by the police. The Supreme Court of Canada has suggested that the opportunity to consult with counsel has independent, free-standing value: see R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 41; also see R. v. Steele, 2014 ONCJ 583, 319 C.C.C. (3d) 254, at para. 57.
[78] To sum up, in this instance, there were two Section 10(b) breaches, not just one. Neither were obscure nor difficult to identify. The police should have known their Charter obligations. There were unjustified invasions of privacy by the two unreasonable and unlawful requirements to provide breath samples into the ASD and the breathalyzer. The Section 9 arbitrary detention further exacerbated the effect on the appellant.
Conclusion
[79] The third Grant factor, society’s interest in the admission of the evidence and an adjudication on the merits, inclines as it generally does in favour of admission of the evidence. Here, the evidence is undoubtably reliable. Without it, the appellant must be acquitted. However, the seriousness of the police conduct, all told, and the impact of the breaches on the appellant, both line-up in favour of exclusion. The long-term reputation of the administration of justice supports exclusion. In these circumstances, the third factor fades into comparative insignificance: McGuffie, at para. 63.
[80] In summary, exclusion must follow by reason of the duties on the police to facilitate counsel in these circumstances being well-established, the failure to offer the appellant an opportunity to use his cell phone to call a lawyer and the causal connection between the breach of the right to counsel and obtaining the ASD sample. Advice from counsel would have imparted to the appellant that the demand, because of the lapse of time, was no longer valid. The additional Section 8 and Section 9 breaches supplement both the seriousness and the impact of the police conduct.
[81] The acquittal of a guilty man is unfortunate but not too onerous a price to pay for the vindication of the Charter rights at issue. The breathalyzer readings are excluded. The appeal is allowed, the conviction set aside and an acquittal is entered.
[81]
D.E. HARRIS J.
Released: June 10, 2019
COURT FILE NO.: CR-18-1066-AP
DATE: 2019 06 10
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
DATHAN MACMILLAN
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of The Honourable Mr. Justice P. Renwick dated May 4, 2018, reported at 2018 ONCJ 384]
D.E. HARRIS J.
Released: June 10, 2019
[^1]: According to the appellant, Listerine was used by him 5 minutes before the stop. The police, following Bernshaw, were obligated to wait an additional 10 minutes before administering the ASD test.