COURT FILE NO.: 1951/17 (Sarnia)
DATE: 20190124
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
James McCoy
Appellant
Melanie B.E. Nancekievill, for the Crown
Robert Morris, for the Applicant
HEARD: October 31, 2018
On appeal from the judgment of the Honourable Justice D. Austin of the Ontario Court of Justice dated September 18, 2017.
REASONS ON SUMMARY CONVICTION APPEAL
Campbell J.:
Introduction
[1] The appellant, James McCoy, was convicted September 18, 2017, by the Honourable Justice D. Austin of the Ontario Court of Justice of operating a motor vehicle with over 80 milligrams of alcohol in his blood contrary to s. 253(1)(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. He appeals his conviction.
[2] The appellant states that the learned trial judge was correct in concluding there was a breach of his rights guaranteed pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms (right to counsel). However, he submits that the trial judge erred in concluding that an analysis undertaken pursuant to s. 24(2) of the Charter dictated that the results of the breath test he provided should not be excluded from evidence.
Summary of Facts
[3] At the opening of trial, counsel for the appellant filed, with the consent of counsel for the respondent, an agreed statement of facts which was marked as Exhibit 1 to the proceeding. That statement is set out at p. 7 of the appellant’s appeal book.
[4] The appellant’s factum includes references to the agreed statement of facts. It also includes references to the appellant’s oral evidence at trial and the evidence of two police officers who testified. In the factum of the respondent it is stated that the Crown generally agrees with the summary of the appellant’s evidence as set out in the appellant’s factum. I will endeavour to succinctly set out the relevant facts.
[5] On January 6, 2017, at 11:09 p.m., the appellant was operating his motor vehicle in Grand Bend. He was stopped in a R.I.D.E. program. He was asked to and did provide a sample of his breath into an approved screening device. The device registered a fail. The appellant was arrested and read his rights to counsel from the force issued card. The agreed statement of facts states at that point the applicant “did not wish to call legal counsel.”
[6] The appellant was taken to the Grand Bend detachment of the Ontario Provincial Police (“OPP”) for breath tests. In the booking area, there is a large laminated wall poster of the Charter of Rights. The arresting officer testified that, at this point, he refers to the poster and reiterates the accused’s rights. Below that poster was a list of lawyers with telephone numbers. There was also telephone numbers for duty counsel, taxi services, and other police forces.
[7] Upon his initial detention and initially again at the detachment office, the appellant declined the opportunity to call a lawyer. Approximately one hour after arriving at the detachment office, he was handed over to the breath technician. That officer also explained the accused’s rights to him and he was once again directed to the wall poster that included the list of lawyers.
[8] At that point, the appellant advised he would like to speak to a lawyer, specifically William Kennedy. Mr. Kennedy’s name was included on the list. The appellant advised the technician that he had Mr. Kennedy’s number on his cell phone and asked that he be allowed to use his personal phone. The appellant was given his phone and placed in a private booth where he contacted Mr. Kennedy. He spoke to him for approximately five minutes (12:20 a.m. to 12:25 p.m.). After the call, the appellant provided two samples of his breath which resulted in readings of 190 milligrams of alcohol in 100 millilitres of blood.
[9] In addition to Mr. Kennedy’s contact information, the list of lawyers also contained the names of two deceased lawyers, retired lawyers, and lawyers who had moved out of the area. In total, there were nine lawyers listed who were no longer practising law. Mr. Kennedy was one of those lawyers no longer practising. He had been placed on indefinite suspension by the Law Society of Upper Canada in December of 2014.
[10] In the appellant’s evidence he explained that he used the services of Grand Bend lawyer Michael Forrester for his commercial affairs. The only other lawyer he knew in Grand Bend was William Kennedy. He did not know how long Mr. Kennedy had been practising in Grand Bend and had never used him for any legal matters. It was his impression that Mr. Kennedy was experienced in criminal law. He knew people in Grand Bend that had utilized his services.
[11] The appellant testified that in November of 2016 he met Mr. Kennedy at a local bar and discovered that evening they had a mutual interest in sports. They exchanged phone numbers. Over the weeks that followed, they saw each other approximately four or five times to watch sports. The accused testified he was not aware that Mr. Kennedy was suspended from the practice of law. In cross-examination he explained that Mr. Kennedy did not seem interested in the practice of law so he did not talk to him much about his profession. Rather, while they were watching sports, they discussed other subjects.
[12] The appellant agreed that at the roadside and when he was first taken to the detachment office, he was given an opportunity to contact counsel. He declined. However, once he was brought into the breath room, he decided that he did want to seek legal advice. It was at that point that he was shown the list and recognized the name of Mr. Kennedy as someone he knew. He agreed that he used his own contact number and phone to call Mr. Kennedy.
[13] The appellant also testified he saw the name of a Mr. Robb on the list but believed he was not practising. He had made no inquiry of the police about Mr. Robb’s status and settled on calling Mr. Kennedy in part because he was from Grand Bend and someone he knew.
[14] In cross-examination the appellant agreed that Constable Robert Van Wolde, the officer in charge, offered to him resources such as a phone book or the internet to search for a lawyer. The appellant agreed he did not accept the constable’s offer.
[15] The appellant testified that had he known Mr. Kennedy was suspended or could not give him legal advice, he would have gone back to the officer and asked to see the list again. The appellant acknowledged when asked by the police if he was satisfied with the legal advice he received he had responded affirmatively.
[16] Constable Van Wolde outlined the circumstances that brought the appellant before the court. Upon the appellant’s arrest, he provided him with the standard instructions with respect to counsel and the availability of legal aid. He confirmed that after the appellant was transported to the Grand Bend detachment of the OPP. He was taken to the booking area where there is a large laminated wall poster that sets out a person’s “Charter Rights”. The appellant stated he understood his rights and declined the opportunity again to speak to counsel.
[17] Constable Van Wolde explained that underneath the large poster setting out a person’s rights is a letter sized piece of paper with a list of Lambton County legal aid lawyers. He observed the appellant look at the list but he did not see the appellant examine it in detail.
[18] Constable Van Wolde testified that he knew Mr. Kennedy as a lawyer practising in the Sarnia court house. He said he had trials with Mr. Kennedy and as of January 7, 2017, he was not aware of his status with the law society. He further testified he did not know if Mr. Kennedy’s indefinite suspension had been proven at trial but in his mind he was aware that he was still practising law. He believed Mr. Kennedy’s privileges for billing legal aid had been put on hold. He also stated that had he received information that Mr. Kennedy was a suspended lawyer, he would have informed the appellant of that fact. He would have then provided him with “any other opportunity” to contact another lawyer.
[19] In cross-examination, the officer testified he did not know if the list was out of date or not. He acknowledged that since the appellant was charged, a revised list had been sent to the Crown’s office and that he put it on the wall beside the old list. When asked why he put the new list beside the original list, he replied, “the more, the better. If we can put more numbers and facilitate rights to counsel more easily then, ya. If this is an updated list then let’s put it up.” He said he did not take the old list down because he did not know there was a problem with it.
[20] Constable Van Wolde presented the appellant to Constable Rick Scott in the breath testing room. Constable Scott testified. He was the qualified breath technician who dealt with the appellant. In the course of dealing with him, the appellant asked to speak to Mr. Kennedy. Constable Scott did not recognize the name. He did not assist the appellant in contacting the lawyer. In cross-examination, Constable Scott testified that the appellant was asked questions to complete the alcohol influence report after speaking to Mr. Kennedy. The appellant answered some of those questions.
[21] At the conclusion of the evidence and oral submissions, Justice Austin reserved her decision. On September 18, 2017, she made her ruling.
Trial Judge’s Reasons
[22] In her findings of fact, Justice Austin noted that the list of local lawyers that was provided by the OPP as of the offence date was extremely outdated. It contained many names of lawyers who were either no longer practising criminal law or practising at all. She found this created the issue at play.
[23] The trial judge further found there is no duty upon police to provide a list of local lawyers. However, once a list was provided, it was reasonably expected that it would be updated from time to time to reflect lawyers who could be available for the advice needed by detainees. Mr. Kennedy was not a practising lawyer capable of providing legal advice in the eyes of the Law Society of Ontario.
[24] The trial judge found while the appellant did not receive legal advice from a licenced lawyer, the issue was not straightforward. The appellant testified that his knowledge of Mr. Kennedy pre-dated his attendance at the OPP station that night. He knew Mr. Kennedy as a local lawyer who, generally speaking, practised in the criminal field. He had met Mr. Kennedy socially prior to that evening and had his contact information stored in his cell phone. Therefore, the appellant did not use the outdated list for the contact information of Mr. Kennedy. He used his own phone to contact him and a number he had saved in that phone.
[25] The trial judge noted that neither the appellant nor the police were aware of Mr. Kennedy’s status or lack of status as a practising lawyer. She accepted that Mr. Kennedy did not make it clear that he was no longer practising and not supposed to give legal advice. She concluded:
In these unusual circumstances, in my view, to the extent that the grossly outdated list provided by the police either thwarted, frustrated or misled a detainee’s access to legal counsel, then there can be found a breach of the detainee’s right to counsel as a result.
[26] The trial judge reiterated that in this case while the appellant may have glanced at the list, on the totality of the evidence it was not Mr. Kennedy’s name on the list that prompted the call but the appellant’s personal and prior knowledge of him. Therefore, she concluded that the breach must be seen as minor and technical in the course of conducting a s. 24(2) analysis.
[27] The trial judge then conducted the analysis pursuant to s. 24(2) of the Charter. The trial judge did not expressly refer to R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. She did consider the seriousness of the Charter breach, the impact on the Charter-protected interests of the accused, and society’s interest in adjudication of the case on its merits.
[28] In considering the seriousness of the breach, she found providing an outdated list of lawyers in some circumstances could be significant but here, there was “a minor nexus” as a result of what occurred. The police dealt with the appellant’s right to counsel respectfully and accommodated his request promptly. She found they acted in good faith. She concluded that the conduct in this case was inadvertent and minor.
[29] With respect to the impact of the breach, she concluded that while the appellant was misled about Mr. Kennedy’s status and did not have consultation with a practising lawyer, the “nexus” between the breach and the result was tenuous. She emphasized that the appellant’s choice of Mr. Kennedy as counsel to call came primarily from his general knowledge of Mr. Kennedy and his personal connection to him. She concluded the police could not be faulted for Mr. Kennedy’s failure and the impact of the state conduct was minor.
[30] With respect to the third factor, she found society’s interest in adjudication of drinking and driving matters is high. Ultimately, she concluded that when she weighed all the factors, the breach did not warrant exclusion of the evidence.
[31] In summary, the trial judge noted that there is no obligation on the police to prepare and display a list of local lawyers who are available to provide legal advice to detainees. When they do, it is important to take responsibility to ensure the list is maintained and up to date. The trial judge noted the police’s obligation is not to have a “perfectly accurate list but to take reasonable steps to update a list”. She appeared to accept that was not done in this case. In her summary she reiterated that she found the breach to be minor and have occurred in circumstances of good faith.
Position of the Parties
Appellant’s Position
[32] The appellant accepts that he has the burden to persuade the court that there is reason to interfere with a trial judge’s decision pursuant to s. 686(1)(a) of the Criminal Code. In this instance, it is submitted that the trial judge made a wrong decision on a question of law.
[33] It was the appellant’s position that he did not receive legal advice from a licenced lawyer. Notwithstanding his evidence that he was satisfied with the advice, the advice he received does not constitute proper legal advice as provided by s. 10(b) of the Charter. Counsel argued that the trial judge misapprehended the evidence on this issue and was unduly deferential to the conduct of the police. Further, she failed to consider the “systemic or institutional” impact of the state conduct. Therefore, she erred in her analysis in the seriousness of the breach when considering the first and second element of the Grant inquiry. As a result of these errors, her decision was wrong in law.
[34] Specifically counsel for the appellant argued that the trial judge erred in concluding the nexus between the role of the state and the Charter breach was tenuous and played a small part. He submitted that in coming to this conclusion, the trial judge misapprehended the evidence, particularly that the appellant declined to contact counsel on two occasions. On the third occasion, when taken to the breath room, he was shown a list and recognized the name of William Kennedy. At this point he determined that he would call that lawyer. The list was the catalyst that led the appellant to contact Mr. Kennedy. Had he known that he was not authorized to practice law, he would have looked at the list again and selected someone else to contact. Simply put, he relied on the list.
[35] When considering the seriousness of the breach, the trial judge concluded that in some circumstances, providing an out-of-date list of lawyers might be significant. However, in this particular case the trial judge concluded there was only a minor nexus to the result that occurred. Counsel argued that the trial judge diminished the seriousness of the police conduct to a point of insignificance. Counsel emphasized the systemic nature of the breach. He submitted that the court should not reward or implicitly encourage a police service’s failure to live up to Charter standards.
[36] In considering the third factor, counsel referred to the decision of Justice Veldhuis in the Alberta Court of Appeal decision of R. v. G.T.D., 2017 ABCA 274, 355 C.C.C. (3d) 341. Justice Veldhuis’ dissent was relied on by the majority of the Supreme Court of Canada in their decision: see R. v. G.T.D., 2018 SCC 7. In her decision, Veldhuis J. acknowledged that the third factor of admitting a statement facilitated toward admission of the statement. However, she commented it was not the linchpin of the Crown’s case. In this matter, counsel for the appellant argued that even if the third factor favoured inclusion, the other two factors heavily weighed against admission.
Crown’s Position
[37] Crown counsel argued that the s. 24(2) analysis was correct. In this instance the admission of the evidence in the proceeding would not bring the administration of justice into disrepute. The trial judge did not err in her statement or application of the law.
[38] It was submitted that the Charter violation was not egregious. The intrusion was not severe. The collection of a breath sample is relatively non-intrusive.
[39] In weighing the Grant factors, counsel argued that providing an outdated list of lawyers in this particular case was not significant. The police dealt with the appellant and his rights respectfully, promptly and in good faith. The finding of the trial judge that the Charter-infringing conduct was minor or technical, was proper.
[40] Crown counsel submitted when considering the Charter-protected interests (the detainees right to counsel), the police action had only a minor nexus with the result. The trial judge found that the appellant contacted Mr. Kennedy primarily as a result of his prior connection with him and the fact that he had Mr. Kennedy’s contact information on his phone. In the context of the collection of breath samples, there was minimal intrusion upon the appellant’s privacy, bodily integrity and human condition. This favoured admission.
[41] A consideration of the third element of Grant would militate towards admission. The evidence was reliable and critically important to the Crown’s case. When the court considered and weighed all of the factors, counsel submitted that the trial judge considered and weighed appropriately all of the factors. Crown counsel submits the trial judge made no error of law and there is no basis for appellate intervention.
Standard of Review
[42] The Ontario Court of Appeal recently described the relevant standard of review on a s. 24(2) Charter analysis in R. v. Szilagyi, 2018 ONCA 695, at para. 41:
The trial judge’s decision on whether to exclude evidence under s. 24(2) of the Charter is a discretionary decision to be accorded significant deference on appeal. However, appellate intervention is warranted where the trial judge erred in law in her application of the legal test or principles, failed to consider relevant factors or circumstances that could affect whether admitting the evidence would bring the administration of justice into disrepute, or made an unreasonable determination. In such a case, the appellate court is entitled to conduct a fresh analysis of the Grant factors. [Citations omitted.]
[43] The appellant acknowledged that he has the burden of proof and must persuade the court that there is reason to interfere with what occurred in the Ontario Court of Justice. As noted in this instance, it was submitted that the trial judge made a wrong decision on a question of law.
Issues
[44] The appellant and respondent stated the issues somewhat differently. In my view, the issues to determine are:
Did the trial judge in conducting her 24(2) analysis err in law in the application of the legal test by failing to consider relevant factors or circumstances, or make an unreasonable determination?
If the trial judge’s 24(2) analysis is based on an error in law, should I find the results of the breath test should be excluded after conducting my own 24(2) analysis?
Discussion
Was the trial judge’s 24(2) analysis an error?
[45] Crown counsel began her factum by noting that the trial judge found that the appellant’s Charter rights had been infringed. However, the factum continued that while no appeal was taken from that finding, the Crown did not necessarily agree with that aspect of the trial judge’s finding. No appeal was taken from the trial judge’s finding that the appellant’s Charter rights were breached. In my view, it is not appropriate for me to consider in these reasons the issue of whether the appellant’s Charter of Rights were infringed. As no appeal was taken from the trial judge’s finding on that issue, there was not any argument before me with respect to that finding.
[46] In this case, it is the accused’s rights pursuant to s. 10(b) that were infringed. The trial judge found:
In these unusual circumstances, in my view, to the extent that the grossly outdated list provided by the police either thwarted, frustrated or misled a detainee’s access to legal counsel, then there can be found a breach of the detainee’s right to counsel as a result.
[47] The trial judge found as a fact that while the appellant may have glanced at the list, on the totality of the evidence the appellant’s choice to contact Mr. Kennedy was informed by his prior knowledge of him. This breach, the trial judge concluded, was minor and technical and informed the 24(2) analysis.
[48] Section 10(b) of the Charter imposes certain duties on the police – the first duty is informational and the second and third are implementational. The Supreme Court summarized these obligations on the police in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 29:
(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).
[49] The informational duty to advise the detainee of the availability of legal aid and duty counsel extends beyond mechanical provision of the information. The police must facilitate a detainee’s understanding of those rights when the detainee desires to exercise them: see Willier, at para. 31. Here there was a breach relating to the informational duty which led to a failure in the implementation of the right to counsel.
[50] The exercise of the right to counsel must be meaningful. For example, an accused must have an appreciation of the jeopardy they are facing: see R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 152-53.
[51] In this instance, the accused initially declined to seek legal advice. It was only after he was brought into the breath room, reminded of his rights under the Charter and saw the list of lawyers that he concluded that he wanted to speak to counsel. By his evidence, he considered two: Mr. Robb who he believed to be suspended and from Sarnia; and Mr. Kennedy who he believed to be entitled to practise from Grand Bend and a person known to him. He selected Mr. Kennedy.
[52] As noted, the police have duties with respect to implementation of those rights. The detainee must be diligent in exercising his or her rights. In some circumstances, a detainee may be forced to contact other counsel. A reasonable period of time to contact counsel depends on the circumstances such as the seriousness of the charge and the urgency of the investigation.
[53] Counsel for the appellant emphasized that breathalyzer result are conscripted evidence. The Supreme Court of Canada in Grant considered this issue. At para. 65 the court stated:
This general rule of inadmissibility of all non-discoverable conscriptive evidence, whether intended by Stillman or not, seems to go against the requirement of s. 24(2) that the court determining admissibility must consider “all the circumstances”. The underlying assumption that the use of conscriptive evidence always, or almost always, renders the trial unfair is also open to challenge. In other contexts, this Court has recognized that a fair trial “is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused”: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562, at para. 45. It is difficult to reconcile trial fairness as a multifaceted and contextual concept with a near-automatic presumption that admission of a broad class of evidence will render a trial unfair, regardless of the circumstances in which it was obtained. In our view, trial fairness is better conceived as an overarching systemic goal than as a distinct stage of the s. 24(2) analysis.
[54] The trial judge characterized the breach as minor and technical. While I agree that some breaches are more serious than others, the breach of the accused’s 10(b) rights either at the information or implementation stage must be considered in the circumstances of the case. In my view, that contextual analysis remains important throughout the totality of a 24(2) analysis.
[55] In R. v. Schmautz, 1990 CanLII 134 (SCC), [1990] 1 S.C.R. 398, at p. 423, the court found that although the appellant’s right to counsel was breached, the breach was minor in the circumstances as it had not been shown that Charter compliance would have triggered a different reaction in the circumstances. In R. v. Harper, 1994 CanLII 68 (SCC), [1994] 3 S.C.R. 343, at p. 354, Lamer C.J. noted regarding s. 10(b) and s. 24(2) that the “evidence before me establishes on a balance of probabilities that the accused would not have acted any differently had the police fulfilled their informational duty…. the breach of his 10(b) rights was a minor one”.
[56] These cases can be distinguished from the one before me. Here, the trial judge found that the police have no duty to provide a list but if one is provided, it is reasonable to take steps to update the list. Here, the list was badly out of date. The trial judge also found the appellant did not receive legal advice from a licenced lawyer. She noted that the appellant complained at trial about the advice he received but did not complain to the police at the station. However, in her reasons for judgment, the trial judge did not appear to consider the appellant’s testimony that had he been advised by Mr. Kennedy that he was suspended, he would have gone back to the officer and asked to see the list once again. Therefore, she did not consider whether the appellant would have acted differently in the circumstances had Charter compliance been implemented.
[57] The trial judge also found the police acted in good faith. I conclude she conflated the lack of bad faith with good faith as was pointed out in Szilagyi, at paras. 55-57, and in R. v. Omar, 2018 ONCA 975, at paras. 45-46. These two concepts are distinct. In addition, good faith errors must be reasonable: see R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44.
[58] The trial judge found that the police were under no obligation to maintain a list but once they did, they had a reasonable obligation to keep it up to date. Here, the list was badly out of date and remained out of date up to the point of trial. That is, the list with inaccurate information apparently continued to remain posted in the detachment office alongside an up-to-date list. This systemic failing is not indicative of good faith nor is it reasonable.
[59] It would appear the trial judge found that the police being cooperative in allowing the accused to use his own cell phone was indicative of good faith. Further, it would appear the multiple suggestions or reminders to the accused that he had a right to counsel was also seen as good faith. However, all of that is tainted by the accused being directed on at least two occasions to an inaccurate and indeed misleading list of lawyers.
[60] I find that in conducting the 24(2) analysis the trial judge made an error in law. In my view, she gave undue weight to a particular circumstance. That is, her finding that the breach was minor and technical.
[61] In my view, the seriousness of the breach is only one of the factors to be weighed and balanced in conducting analysis pursuant to s. 24(2). The trial judge failed to properly consider in her analysis her finding that the OPP failed in their duty to provide a detainee with an up-to-date list and whether the detainee would have acted differently. I also found she conflated a lack of bad faith with good faith, in particular given she found it would have been reasonable to take steps to update the list and the failure to do so was thus unreasonable.
Section 24(2) Analysis
[62] Both counsel structured their factum and oral argument on the basis of the principles set out in R. v. Grant. That is, they accepted Grant to be the applicable law. The area of disagreement is the conclusion that should flow from the balancing of the Grant factors.
[63] In Grant, the Supreme Court identified three factors a trial judge is to examine and weigh in deciding whether to admit evidence that was obtained by police conduct that breached the appellant’s Charter rights. They are:
The seriousness of the Charter-infringing state conduct that breached the appellant’s Charter right;
The impact of the breach on the Charter-protected interests of the appellant; and
Society’s interest in adjudication of the charge on its merits.
See: Szilagyi, at para. 42.
Seriousness of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)-Infringing Conduct
[64] Crown counsel acknowledged that a breach of the right to counsel may potentially be seen as a serious infringement. However, the Supreme Court in Grant, at para. 74, acknowledged that violations can vary in seriousness:
At one end of the spectrum, admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on public confidence in the rule of law and risk bringing the administration of justice into disrepute.
[65] Here, the trial judge found that while the police had no obligation to provide a list of counsel, if they did so, they had an obligation to ensure it was accurate and they failed to fulfil that obligation. Even up to the time of trial, the out-of-date list remained posted in the same place. Alongside of it was an up-to-date list.
[66] The investigating officer testified that even as of the date of trial he did not know that Mr. Kennedy was not authorized to practice law. He added he would advise a person that there was an issue with respect to his ability to practise law but would allow a detained person to call him.
[67] The trial judge concluded that the breach – providing an out of date list – had a minor nexus to the result. She emphasized that the police were respectful of the appellant’s right to counsel and accommodate his request to speak to Mr. Kennedy by allowing him to use his own cell phone and contact information.
[68] Counsel for the appellant emphasized that the conduct of the state in this particular instance was systemic. In doing so, he referenced R. v. G.T.D. In that case, at issue was the standard form of caution read by members of the Edmonton Police Services to detainees. The caution ended with the question, “Do you wish to say anything?” Justice Veldhuis’s reasons observed that in oral argument counsel for the respondent advised the court that the Edmonton Police Service continued to use that caution. Veldhuis J. found that the systemic nature of the breach made it more serious than an isolated incident. As noted previously, her dissent was adopted by the majority of the Supreme Court of Canada.
[69] In my view, the accused’s right to counsel is a core right. A breach of that right in the circumstances as found by the trial judge in my view should not be considered at the minor end of the spectrum. The list was badly out of date. There was no evidence of any effort by the police to keep the list up to date. When an up-to-date list was eventually provided, it was placed beside the out-of-date list.
[70] It did not appear to be argued nor did the trial judge consider whether the accused would have acted differently had the police fulfilled their informational duty.
[71] In R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 211, the court noted that the Crown with respect to a 24(2) analysis in 10(b) cases should “bear the legal burden (the burden of persuasion) of establishing, on the evidence, that the s. 24(2) applicant would not have acted differently had his s. 10(b) rights been fully respected”. Here, the trial judge did find that the accused was denied the opportunity to speak to qualified legal counsel, and the accused testified had he known Mr. Kennedy was suspended he would have looked at the list and selected another lawyer. In my view, it was not established the evidence would have been obtained irrespective of the s. 10(b) breach.
[72] This was a systemic failure of the police’s informational duty leading to a failure of the accused’s ability to implement his right to counsel. I conclude that the consideration of the first Grant factor militates towards exclusion of the evidence.
The Impact of the Breach on the Charter-protected Rights of the Accused
[73] In Grant, the court stated that this inquiry calls for an evaluation of the extent to which the breach actually undermined the interest protected by the right infringed. The court noted, at para. 76:
The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.
[74] In determining the seriousness of the breach, courts are required to look to the interests engaged by the infringed right and to consider the extent to which the violation impacted those interests.
[75] Crown counsel argued that here, the right which was intended to be protected was the right of detainees to have an opportunity to be informed of their rights and obligations under the law and to apply and obtain advice on how to exercise those rights. Here, the appellant may have been misled about Mr. Kennedy’s status but it was the appellant’s own choice as to contact Mr. Kennedy. That choice was based on his knowledge of and connection to him prior to his detention. Further, the breach related to the admission of a breath test which is mildly intrusive in reference to decisions dealing with s. 8 violations.
[76] In support of the Crown’s position on this issue, reference was made to R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721. In Manchulenko, the court found that “each case requires” a fact-specific evaluation of all the circumstances to determine whether the balance settles in favour of exclusion or admission. The court noted generally reliable evidence obtained by “less egregious and invasive intrusions” may be admitted. However, the court left the question open.
[77] Counsel also referred to R. v. Guenter, 2016 ONCA 572, 350 O.A.C. 318. I find that decision is distinguishable. There the court found that the officer’s failure to make a demand as soon as practicable was “an inadvertent, simple error ‘and nothing more’.” I do not find that that is a situation that exists here.
[78] Neither of these cases required a fresh s. 24(2) Charter examination by the appellate court nor in my view do they support the proposition that the breach of the accused’s rights in these circumstances is minor.
[79] It is difficult to conclude that the breach in this situation was fleeting and technical. In these circumstances, the consideration invites speculation as to the value of the advice the appellant received versus the value of the advice he might have received. Temporally, the infringement was brief. However, I would not describe it as technical.
[80] An accused person in these circumstances has limited opportunity to speak to counsel. He is required to provide a sample of his breath within a reasonable time or face the jeopardy of being charged with the offence of refusing to provide that breath sample. I cannot assume that the advice he might have received would not have had a significant impact on the outcome. In my view, it is highly likely that the accused would have contacted another lawyer. Section 10(b) of the Charter provides the accused has the right to retain and instruct counsel without delay and be informed of that right. There is also an implementation aspect of that right which requires that the police provide a detainee a reasonable opportunity to exercise their right.
[81] I am of the view that the impact of the Charter-infringing conduct favours exclusion. The accused was effectively deprived of a fundamental liberty by the state’s provision of outdated and misleading information and complete lack of effort to provide accurate and up-to-date information. It is not sufficient to say that the appellant had other resources and may have contacted Mr. Kennedy because he was known personally to him. He was in police custody and was not in possession of his cell phone or any other device until after reviewing the list with Mr. Kennedy’s name on it. The fact remains that the appellant was provided a list of lawyers that was badly out of date that led him to contact someone who was not licenced to practise law.
[82] In my view, the second factor favours exclusion of the evidence.
Society’s Interest in the Adjudication of the Case on its Merits
[83] This inquiry considers the truth-seeking function of the criminal process. Important considerations include the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of offence at issue: Grant, at paras. 80-84. Counsel acknowledged that this stage of the analysis usually favours admission in cases involving bodily samples. This, in part, relates to the reliability of that evidence. In this case, the breath sample is relevant, reliable and is, to quote the Crown, “relevant, reliable and critically important to the Crown’s case.” It is clear without it there would be no conviction.
[84] While this may generally favour admission into evidence, society also has an interest in having its citizens’ Charter rights protected. There is significant value in the rule of law in the certainty of that rule and it is the long-term repute of the justice system that is 24(2)’s focus: see Grant, at para. 84.
[85] The words of Doherty J.A. in R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 63, are instructive:
In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [Citations omitted.]
[86] The evidence obtained only became available after a breach of the accused’s right to counsel under the Charter and the first two inquiries push towards exclusion of the evidence. Nonetheless, it is clear that the evidence obtained is real, tangible, and in fact critical to the Crown’s case and the determination of the matter on its merits. Society has a strong interest in adjudicating drinking and driving offences on the merits. This factor favours admission of the evidence.
Conclusion
[87] Section 24(2) requires a weighing and balancing of the factors. It is not simply a series of boxes to be ticked. When I weigh and consider the factors set out in 24(2), I conclude that the evidence ought to have been excluded. Therefore, the accused is entitled to acquittal. The finding of guilt will be set aside and a verdict of not guilty will be recorded.
Scott K. Campbell
Justice
Released: January 24, 2019