OSHAWA COURT FILE NO.: CR-18-14666-00AP

DATE: 20191113

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

DAVID WANNAMAKER

Appellant

I. Ericson Skelton, for the Respondent

P. Norton, for the Appellant

HEARD: April 24, 2019

DAWE J.

[1] In August 2015 the Appellant was charged with impaired driving and refusing to provide a breath sample. The Crown elected to proceed summarily, and the Appellant was tried in the Ontario Court of Justice before Adamson J. (“the trial judge”), who on September 14, 2017 found the Appellant guilty on both counts. The Appellant was sentenced on January 18, 2018 and released on bail pending appeal on January 24, 2018. He appeals to this court against his convictions only.

[2] The Appellant’s grounds of appeal can be grouped together under two main headings. First, in relation to the impaired driving charge, he argues that the trial judge misapprehended the defence medical evidence regarding the extent to which the symptoms of the Appellant’s uncontrolled diabetes could have resembled signs of impairment by alcohol. Success on this ground of appeal would entitle the Appellant to a new trial on the impaired driving charge but would not affect his conviction on the refuse charge. The Crown disputes that the trial judge made the error alleged.

[3] Second, the Appellant advances several closely connected Charter grounds. First he argues that the trial judge, who found a breach of the Appellant’s s. 10(b) Charter rights after he was brought to the breath room, erred by declining to exclude under s. 24(2) the evidence seized by the police. This includes the evidence that the Appellant refused to provide a breath sample, without which the Crown would have no case on the refuse charge. The Appellant argues in the alternative that the trial judge erred by finding that the Appellant had committed the actus reus of the refuse offence, notwithstanding the s. 10(b) breach he had identified. Success on either of these arguments would entitle the Appellant to an acquittal on the refuse charge.

[4] The Appellant also seeks to have all of the police observations and video recordings excluded under s. 24(2). He argues that the trial judge relied on this evidence to find as fact that he had been driving while impaired by alcohol, and accordingly submits that if this evidence is excluded a new trial should be ordered on the impaired driving charge.

[5] The Crown responds to these latter grounds both by disputing that the trial judge made the alleged errors, and also by arguing that the trial judge erred by finding a breach of the Appellant’s s. 10(b) Charter rights in the first place.

[6] When this appeal was heard in April 2019 I invited the parties to provide me with written submissions on the issue of whether the record established a breach of the Appellant’s s. 10(b) rights at an earlier point in his detention than the s. 10(b) breach found by the trial judge. I received written submissions from both counsel on this issue in August, 2019.

I. The Evidence

[7] On the evening of August 15, 2015 a civilian witness named Kerry Baker saw the Appellant driving eastbound on Highway 401 in Oshawa. She thought he was driving erratically. Shortly after the Appellant’s vehicle exited the highway at Liberty Street in Bowmanville Ms. Baker called 911. She followed his truck to a nearby gas station, where he parked.

[8] PC Carlo Kenny responded to the 911 call and arrived at the gas station shortly after 8:00 p.m. with his partner. He approached the Appellant’s truck and asked the Appellant if he had been drinking, which the Appellant denied. PC Kenny observed that the Appellant was sweating and that his face was flushed and his eyes were glassy. He also saw some unopened beer cans on the front passenger seat. PC Kenny initially testified that he smelled a strong odour of alcohol on “[the Appellant’s] body and his breath”, but in cross-examination purported to identify this odour more specifically as the smell of beer.

[9] PC Kenny decided that he had grounds to arrest the Appellant for impaired driving and proceeded to do so. When he advised the Appellant of his right to counsel and asked the Appellant if he understood, the Appellant initially replied: “No, I don’t understand nothing”. However, when PC Kenny asked the Appellant if he wanted to call a lawyer the Appellant responded that he did. According to PC Kenny, when the Appellant was asked if he had the name of a lawyer he replied “Tim Murphy”, adding that this lawyer had an office in Oshawa. However, the Appellant testified that he actually gave PC Kenny the name “Jim Murphy”. PC Kenny then asked the Appellant if he wanted a call arranged with duty counsel and the Appellant replied: “No”.

[10] Another officer read the Appellant a breath demand, after which PC Kenny drove him to 17 Division in Oshawa. The Appellant was brought inside the station and booked at 8:36 p.m. There was some confusion when the desk sergeant could not find a listing for any Oshawa lawyer named “Tim Murphy”, but the Appellant eventually provided a phone number that the sergeant confirmed was the listed number for an Oshawa lawyer named “James Murphy”. The sergeant asked the Appellant whether he wanted to speak to duty counsel in the event that Mr. Murphy did not call back in a timely fashion, and the Appellant replied: “I do not, no”.

[11] At 8:50 p.m. PC Kenny called the phone number the Appellant had given to the sergeant, which the sergeant had verified to be James Murphy’s number, and left a voice mail message. He made a second call to this number at 9:00 p.m. Although PC Kenny was still under the impression that lawyer he was calling was named “Tim Murphy”, he eventually acknowledged at trial that he had probably been mistaken about the name. It was undisputed that the number he called was actually that of the Oshawa lawyer James Murphy.

[12] According to PC Kenny, at some point between 9:00 and 9:05 p.m. he spoke to the Appellant to report that Mr. Murphy had not yet called back. He testified:

After advising [the Appellant] that Tim [sic] Murphy hasn’t called back, I asked him if he wanted to speak with duty at which point he said he would.

However, PC Kenny made no notes of this conversation. He acknowledged in cross-examination that he did not have “100 percent” recall of what he and the Appellant actually said to one another, and explained:

All I know is in my years of policing, if I ask somebody if they want to call a lawyer and they say yes, call this person, if that doesn’t work out then, or they don’t call back, I will then ask do you want to call duty counsel, do you want me to call duty counsel, that way I’m still giving them, providing them with some sort of legal [sic].

PC Kenny denied the suggestion put to him that the Appellant had never actually indicated that he wanted to speak to duty counsel.

[13] In his own testimony the Appellant initially denied ever being told that the police had put in a call to Mr. Murphy, but later acknowledged that he had indeed been informed of this. However, the Appellant maintained that he never expressed to the police any wish to speak to duty counsel.

[14] At 9:05 p.m. PC Kenny called duty counsel. He received a call-back five minutes later, at 9:10 p.m. The Appellant was then taken to the phone room and had a brief conversation with duty counsel that ended by 9:15 p.m. Although the Appellant initially testified at trial that he had no recollection of speaking to duty counsel, he eventually acknowledged that he had done so.

[15] PC Kenny took the Appellant from the phone room to the breath room and at 9:19 p.m. turned him over to the breath technician, PC Ryan Shaw. Events in the breath room were recorded on video. Immediately after he was brought to the breath room the Appellant told PC Shaw: “I want a phone call”. On further questioning from PC Shaw, the Appellant indicated that he thought PC Kenny had tried unsuccessfully to reach Mr. Murphy and confirmed that he had just spoken to duty counsel. However, the Appellant added that he now wanted to call Adam Holzmann, whom he described as a friend who was also a lawyer. When PC Shaw asked for Mr. Holzmann’s phone number the Appellant said that he had it stored in his cell phone, which the police had previously seized from him.

[16] PC Shaw relayed the Appellant’s request to PC Kenny, instructing PC Kenny to confirm that Mr. Holzmann was a lawyer and to find his phone number. However, PC Shaw did not tell PC Kenny that the Appellant had Mr. Holzmann’s phone number stored on his cell phone.

[17] PC Kenny was unable to find a phone number for Mr. Holzmann. He did not check the Appellant’s cell phone, nor did he report the results of his unsuccessful search for a phone number to PC Shaw.

[18] Meanwhile, PC Shaw instructed the Appellant about how to blow into the testing apparatus. At this point the Appellant indicated that he would not provide a breath sample. At some point before 9:30 p.m. PC Shaw charged the Appellant with the refusal offence.

[19] The Appellant testified that when he told PC Shaw he would not provide a breath sample he meant to convey that he would not do so until he had had a chance to speak to a lawyer of his own choosing, explaining: “I was not satisfied with duty counsel. I wanted my own lawyer”. The Appellant acknowledged that his friend Adam Holzmann is not actually a lawyer and admitted that he had lied to the police about this, but explained that he had wanted to speak to Mr. Holzmann because he “knows a lot of lawyers”.

[20] The Appellant testified further that for some time prior to his arrest he had been experiencing occasional bouts of dizziness and confusion. On the evening of August 15, 2015 he had been at work from 6:00 a.m. to 7:30 p.m. and had not consumed any alcohol that day. He had been driving home when he began to experience a severe headache and to sweat heavily. Thinking he was about to pass out, he exited the highway and stopped at the gas station to buy some food and some orange juice, which was something he drank profusely at the time.

[21] The Appellant’s family physician, Dr. Mark Azzopardi, testified that several months later, in December 2015, he diagnosed the Appellant as suffering from severe uncontrolled type 2 diabetes. The symptoms Dr. Azzopardi observed the Appellant experiencing in December 2015 included grogginess, poor brain function, unsteadiness and red eyes. Although he could not say definitively whether the Appellant had been suffering from similar symptoms in the summer of 2015, Dr. Azzopardi explained that in December 2015 the Appellant’s blood sugar levels had been severely elevated. He explained further that people with uncontrolled type 2 diabetes generally experience “several months of elevated sugars” before their condition is diagnosed. The Appellant’s spouse testified that she had observed the Appellant with symptoms consistent with Dr. Azzopardi’s diagnosis since the spring of 2015.

[22] Dr. Azzopardi explained further that persons with uncontrolled diabetes are unable to use glucose for energy and instead process fats, which results in the production of ketones. This causes them to “have an odd smell about them”, similar to the smell of acetone. Dr. Azzopardi explained that while he could distinguish between the smells of acetone and alcohol, he was “not sure if any people, like laypeople, could”. He testified further that people with very high blood sugar levels “[g]enerally … aren’t very sweaty” and are “often very dry and dehydrated”.

II. GROUNDS OF APPEAL

A. Misapprehension of the evidence of Dr. Azzopardi

[23] The Appellant’s non-Charter based defence on the impaired driving charge was that the officers who dealt with him at the scene of his arrest and at the police station had mistaken his symptoms of uncontrolled type 2 diabetes as signs that he was impaired by alcohol. The trial judge recognized that it was the Crown’s burden to disprove this possibility beyond a reasonable doubt. He stated:

What the officers observed could potentially be interpreted either way with two notable exceptions. Dr. Azzopardi’s opinion was that the medical condition in question would not likely result in sweating. [The Appellant’s] evidence was that it occurred spontaneously, along with the other symptoms. [The Appellant] was sweating profusely. Dr. Azzopardi also likened the smell of diabetic ketones to that of nail polish remover. He said that it was an unusual smell. [The Appellant’s spouse] described it as “weird”. PC Kenny smelled beer. That is not weird or unusual and does not smell in any way like nail polish remover. I accept PC Kenny’s evidence on this point. And, when taken together with the symptoms observed, I find that [the Appellant’s] impairment by alcohol was proved beyond a reasonable doubt. I emphatically reject [the Appellant’s] evidence on these points. The other evidence of diabetes is too vague and too unreliable to raise a reasonable doubt.

[24] The Appellant argues that the trial judge misapprehended Dr. Azzopardi’s evidence by mistakenly treating the doctor’s evidence as ruling out the possibility that a person exhibiting symptoms of uncontrolled diabetes would sweat heavily. According to the Appellant, Dr. Azzopardi’s evidence was actually:

…that sweating was not generally something he would expect to see as a regular symptom of diabetes on its own; however, it was possible, especially if the Appellant would have been subject to other stimuli, such as fear.

The Appellant also notes that it is common for people to perspire heavily in August even if they are not intoxicated by alcohol.

[25] While the Appellant is correct that Dr. Azzopardi did not entirely rule out the possibility that the Appellant could possibly sweat heavily while also experiencing symptoms of uncontrolled type 2 diabetes, Dr. Azzopardi did not treat sweating as an entirely neutral diagnostic factor. Rather, he explained in his evidence in chief that persons with type 2 diabetes:

…are unable to take glucose or sugar up to utilize. This is particularly important in terms of people’s fluid status. They are very thirst[y] and they pee out sugar.

This was the basis for his further observation that:

Generally, people that have very high sugars aren’t really sweaty. They’re often very dry and dehydrated.

Dr. Azzopardi elaborated on this point in response to questions from the trial judge, explaining that the Appellant’s profuse sweating on August 15, 2015 was:

...inconsistent with very high blood sugar. People can sweat because of nerves or anxiety or other things, but that would be inconsistent with someone who had a sugar of 25 or 30, which is very high.

To be clear, we don’t expect patients to sweat. In diabetic, ketoacidosis when they’re critically ill because in fact they’re very dehydrated.

Dr. Azzopardi went on to explain further:

I would expect someone who is … calm and found to probably be dehydrated at that point…. I can’t speculate, you know, being pulled over by the police and being interrogated and being nervous. I can’t say what that would do to someone if their sugar was a certain level. That’s just beyond my ability to speculate.

[26] In summary, Dr. Azzopardi’s evidence was: (i) that sweating itself is not a symptom of uncontrolled type 2 diabetes; (ii) that a person experiencing severe symptoms of uncontrolled type 2 diabetes would probably not sweat profusely, because he or she would probably be dehydrated; but that (iii) Dr. Azzopardi could not rule out the possibility of such a person sweating for other reasons, such as anxiety.

[27] In my view, there was nothing inaccurate about the trial judge’s statement that “Dr. Azzopardi’s opinion was that the medical condition in question would not likely result in sweating.” It was also open to the trial judge to accept PC Kenny’s evidence that he could identify the Appellant as smelling specifically of beer, and to conclude as he did that the officer would have been able to tell the difference between the odour of beer and the odour of acetone.

[28] Accordingly, I am not persuaded that the trial judge’s finding of fact that the Appellant was impaired by alcohol was compromised by any reversible reasoning error or misapprehension of the evidence. I accordingly would not give effect to this ground of appeal.

B. The Charter issues

[29] The trial judge found that the Appellant’s s. 10(b) Charter rights were breached by the failure of the breath technician to hold off on demanding that the Appellant provide a breath sample until PC Kenny had followed through with his attempts to contact Mr. Holzmann, whom the Appellant had falsely stated was a lawyer. However, the trial judge concluded that the evidence of the Appellant’s refusal to provide a breath sample should nevertheless be admitted under s. 24(2), in large part because Mr. Holzmann was not actually a lawyer.

[30] The trial judge also declined to find any breach of the Appellant’s s. 10(b) rights at the earlier point in the detention when, according to PC Kenny, the Appellant changed his mind and accepted PC Kenny’s offer to arrange a call with duty counsel. As discussed above, on PC Kenny’s evidence this conversation occurred some time between 9:00 p.m. and 9:05 p.m., which was some fifteen or twenty minutes before the Appellant was taken to the breath room and turned over to PC Shaw. However, PC Kenny made no notes of this conversation, and the Appellant denied in his testimony that he had ever expressed any wish to speak to duty counsel.

[31] The trial judge resolved this evidential dispute by concluding that the Appellant had failed to meet his burden of establishing a breach of his s. 10(b) rights at this point in his detention. The trial judge stated:

[P.C. Kenny’s] failure to note [the Appellant] being told about the efforts to reach Mr. Murphy and the options available are more troubling. However, I must also remember that the evidence in this area goes to the Charter application, where the onus lies upon the applicant on a balance of probabilities, and the effect of these deficiencies thus hinges in large measure on what I make of [the Appellant’s] evidence.

The trial judge proceeded to find the Appellant to be an entirely incredible witness and “completely rejected” his evidence, noting that the Appellant had repeatedly lied to the police and had “carried this behaviour into the courtroom”. On the issue of the Appellant speaking to duty counsel, the trial judge stated:

[The Appellant] swore in an affidavit that he could not recall speaking to duty counsel. He reiterated that position under oath in court. When pressed on this issue in cross-examination he first responded by reminding us all that “nobody knows but me” what happened in the phone room. He then eventually said, so what, let’s go with what you say. Only when I reminded him of his duty to tell the truth did he admit that he did speak to duty counsel. This revealed the outright lies both in his affidavit and his evidence. That these lies were made transparently in furtherance of his applications in this trial makes them doubly troubling. If I perceived an advantage in it for [the Appellant], I would not believe a word he said to me. In the context of this trial, this means that his evidence is completely rejected.

[32] While the trial judge was entitled to take this dim view of the Appellant’s testimonial credibility, his reasons in my view disclose that he erred his allocation of the burden of proof. The trial judge was correct that Appellant bore the overall burden of demonstrating that his s. 10(b) rights were infringed. However, since it was undisputed that the Appellant had initially asserted his s. 10(b) right to obtain advice from a specific private lawyer, it became the Crown’s burden to prove that the Appellant had then waived this right by agreeing to speak to duty counsel instead of his counsel of choice. The trial judge’s rejection of the Appellant’s evidence did not establish that the opposite of what he said was true. Rather, the trial judge had to consider whether he affirmatively accepted PC Kenny’s evidence on this point and whether, on the facts as he found them, the Crown had met its burden of establishing a valid waiver. Because the trial judge reversed the burden of proof, he never addressed or resolved these key factual issues.

[33] As a starting point, it is well-settled law that detainees’ rights under s. 10(b) of the Charter include the right to consult with their counsel of choice, provided that this can be done within a reasonable time. As Lamer J. (as he the then was) explained in his majority reasons in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3 at p. 11:

Accused or detained persons have a have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.

It was undisputed in this case that when the Appellant initially asserted his s. 10(b) rights he repeatedly asked to speak to a specific private lawyer, Mr. Murphy, and that he also repeatedly declined the police suggestion that he speak instead to duty counsel. In so doing, the Appellant was expressly invoking not just his s. 10(b) right to speak with a lawyer, but his further s. 10(b) right to consult with his counsel of choice.

[34] It is also well established that even though detainees bear the overall burden of establishing a breach of their s. 10(b) Charter rights, this only requires that they demonstrate that they properly asserted their rights but that their request to speak to counsel went unfulfilled. If the Crown seeks to justify this non-fulfilment by arguing that a detainee waived his or her s. 10(b) rights, the burden of establishing a valid waiver shifts to the Crown. As Lamer C.J.C. explained in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236 at pp. 274-75:

Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Ross, at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high.

In my view, this general rule that the Crown bears the burden of establishing a valid s. 10(b) waiver applies to all aspects of the s. 10(b) right, including a detainee’s right to consult with his or her counsel of choice.

[35] The Crown points out that in R. v. Willier, 2010 SCC 37 a majority of the Supreme Court of Canada distinguished situations where a detainee “declines any opportunity to consult with counsel” from cases where “a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another”,[^1] including duty counsel. The Willier majority held that in this latter situation the police are not obliged to give detainees a so-called Prosper warning – that is, an explicit statement “inform[ing] the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then”.[^2] In their joint majority reasons, McLachlin C.J.C. and Charron J. explained that “[t]he 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”.[^3]

[36] While I agree with the Crown that Willier can be read as suggesting that the standard for establishing a valid waiver of the s. 10(b) right to speak to a particular lawyer may be less onerous than the standard for waiving the broader right to speak to any lawyer, I do not understand Willier to have changed the basic rule that the burden of establishing a valid waiver of any aspect of the s. 10(b) right is borne by the Crown. To the contrary, McLachlin C.J.C. and Charron J. expressed their agreement[^4] with the majority reasons of the Alberta Court of Appeal, which had accepted that “[t]he burden of proving waiver is on the Crown” but had concluded that on the facts of Willier, “[o]n any objective standard, the Crown [had] discharged its burden to show a waiver”.[^5] McLachlin C.J.C. and Charron J. did not suggest that the Alberta Court of Appeal majority had misallocated the burden of proof on this issue.

[37] Likewise, in R. v. Vernon, 2015 ONSC 3943, Ellies J. treated it as the Crown’s burden to establish a valid waiver of the detainee’s s. 10(b) right to seek advice from his counsel of choice. The Ontario Court of Appeal denied the Crown’s application for leave to appeal from this decision.[^6]

[38] In the case at bar, it was undisputed that the Appellant initially told the police he wanted only to speak to his own lawyer, Mr. Murphy, and refused their offers to instead put him in contact with duty counsel. However, according to PC Kenny, the Appellant later changed his mind and agreed to speak to duty counsel instead of continuing to wait for a return call from Mr. Murphy. Since it was only around 9:00 p.m. and less than fifteen minutes had passed since PC Kenny had left his first voice mail message for Mr. Murphy, it would not have been unreasonable for the Appellant to have given Mr. Murphy additional time to check his messages and call back.[^7] In these circumstances, the question of whether the Appellant made a valid waiver of his s. 10(b) right to seek advice from his counsel of choice was in my view squarely engaged.

[39] This waiver issue had two aspects, both of which required the trial judge to make findings of fact. First, the trial judge had to decide whether the Appellant had indeed made the choice to speak to duty counsel rather than wait for Mr. Murphy to call back. PC Kenny claimed that the Appellant made this choice, but he made no notes of this alleged conversation.

[40] Second, if the trial judge accepted PC Kenny’s evidence on this point, he had to then go on to consider whether any ostensible waiver by the Appellant of his right to speak to his counsel of choice was sufficiently well-informed to be valid. As I have discussed, the Crown bore the burden of persuasion on both of these points.

[41] The trial judge erroneously approached the waiver issue as if was the Appellant’s burden to affirmatively prove that he did not waive his right to speak to his counsel of choice. He then relied on his misallocation of the burden to resolve the factual dispute between the Appellant and PC Kenny against the Appellant, on the basis that the Appellant was not a credible witness.

[42] If the trial judge had properly placed the burden of establishing a valid s. 10(b) waiver on the Crown, his rejection of the Appellant’s testimony would not have been dispositive. Rather, he would have had to go on and consider whether he affirmatively accepted PC Kenny’s evidence that the Appellant had chosen to speak to duty counsel, and, if so, whether he was also satisfied that the Appellant knew enough about his options to make this ostensible choice amount to a valid waiver of his previously-asserted choice to speak only to his own preferred lawyer.

[43] The trial judge made no findings on either of these critical factual questions. He accepted PC Kenny’s testimony on some other disputed points, such as whether the Appellant smelled of beer. However, he also described PC Kenny’s failure to make notes of his conversation with the Appellant in the cells as “troubling”. I do not know whether the trial judge would have ultimately accepted the officer’s evidence about this conversation if he had recognized the need to make an affirmative finding of fact about it. For my own part, I am not in a position to properly assess the credibility or reliability of PC Kenny’s testimony myself, based on a paper record.

[44] Without any findings of fact about what actually happened when PC Kenny spoke with the Appellant in the cells, I cannot determine whether the Appellant’s s. 10(b) rights were breached at this point during his detention. Moreover, since these findings of fact would potentially be highly relevant to the first branch of the Grant inquiry, I cannot properly assess the impact of any such breach on the s. 24(2) exclusion analysis.

[45] Accordingly, I am satisfied that the trial judge’s misallocation of the burden of proof on the waiver issue was an error of law that led to his failing to make key findings of fact that bear on both the s. 10(b) and s. 24(2) Charter issues. Since I cannot conduct my own Charter analysis without these findings of fact or properly make my own factual findings, this error can only be remedied by directing a new trial, unless either of the Appellant’s convictions can be upheld by the operation of the curative proviso.

[46] During oral argument I invited counsel to provide written submissions on the question of whether PC Kenny had any informational duties that he had to discharge before any ostensible waiver by the Appellant of his s. 10(b) right to counsel of choice could be treated as valid. Since PC Kenny acknowledged in his testimony that he had neither notes nor any independent recollection of what he actually said to the Appellant, if PC Kenny did have an affirmative duty to convey any information to the Appellant as a precondition for the Appellant making a valid waiver of his s. 10(b) rights, the Crown would not be able to establish that the officer complied with this duty in this case.

[47] However, on further consideration I have decided that it would be better for me not to decide the appeal on this basis, for several reasons. First, if I were to find a breach of the Appellant’s s. 10(b) Charter rights on the ground that PC Kenny failed to carry out some positive informational duty, I would still be unable to conduct a proper Grant analysis without any factual findings about what actually did take place when he spoke to the Appellant in the cells. If there must be a new trial to address s. 24(2), there is much to be said for also leaving it to the new trial judge to determine whether and to what extent the Appellant’s s. 10(b) rights were breached.

[48] Second, the existence or non-existence of an affirmative police duty to inform detainees of their options before proposing that they speak to duty counsel instead of their counsel of choice may not ultimately be a live issue at a new trial. If the new trial judge is not satisfied that the Appellant affirmatively agreed to speak to duty counsel in the first place, the question of whether any such agreement on his part constituted a valid and adequately informed waiver of his s. 10(b) right to counsel of choice will not arise. In these circumstances, it would be contrary to the principle of judicial economy for me to address a potentially unnecessary legal question in this appeal.

[49] Third, the question of the scope of police informational duties in s. 10(b) cases raises difficult and contentious questions of law and policy that have been extensively debated in the recent jurisprudence. It would in my view be better for these issues to be resolved in a case where, unlike here, there is unambiguous evidence about what the police actually did and did not tell the detainee about his or her options.

[50] I also do not think that I can properly resolve this appeal on the basis of the Appellant’s alternate argument that the s. 10(b) breach found by the trial judge to have occurred in the breath room precludes any finding that the Appellant committed the actus reus of the refusal offence.

[51] The Appellant has a sound legal basis for this argument. As Code J. explained in R. v. Mandryk, 2012 ONSC 3964 at para. 65, the case law has:

… consistently interpreted the actus reus of the offence enacted in s. 254(5) in a flexible and fair manner, such that the element “fails or refuses to comply” is not applied in a way that would be inconsistent with the accused’s right to counsel. These cases hold that where the accused seeks access to counsel’s advice, either shortly before or shortly after an initial refusal to comply with the s. 254(3) demand, then the initial indication of the accused’s intentions is treated as provisional. It is only after access to counsel that the initial provisional indication becomes final.

However, the Crown’s response to this argument is to submit that trial judge erred by finding any breach of the Appellant’s s. 10(b) rights in the breath room. Essentially, the Crown’s position is that the Appellant’s telephone conversation with duty counsel exhausted his s. 10(b) rights, and thereby made his refusal in the breath room a “final” refusal.

[52] In my view, the Crown’s argument is inextricably intertwined with the question of whether the Appellant validly waived his s. 10(b) right to consult with his counsel of choice. If the Appellant did not waive this aspect of his s. 10(b) right – either because he never agreed to speak to duty counsel, or because his ostensible choice to give up his right to speak to his counsel of choice was inadequately informed – the defence would have a strong argument that his subsequent refusal to provide a breath sample was not a criminal offence, as per Mandryk. However, if the Appellant did waive his right to get legal advice from his counsel of choice, the Crown’s position that there was no further breach of his s. 10(b) rights in the breath room following the Appellant’s consultation with duty counsel would have considerable force. In this scenario, Mandryk would seemingly be inapplicable.

[53] Since I do not believe the issue of waiver can satisfactorily be resolved on the existing trial record, it follows that question of whether the Appellant committed the actus reus of the refusal offence must also be resolved at a new trial, subject to the possible application of the curative proviso.

[54] In summary, I am satisfied that the trial judge made an error of law by putting the burden on the Appellant to prove that he did not waive his s. 10(b) right to consult with counsel of choice, rather than properly placing the burden on the waiver issue on the Crown. This error resulted in the trial judge not making critical findings of fact, which I cannot make myself, and without which I cannot conduct my own proper s. 10(b) and 24(2) Charter analyses. Moreover, the question of whether the Appellant committed the actus reus of the refusal offence by refusing to blow in the breath room is in my view inextricability intertwined with the s. 10(b) waiver issue. For these reasons, I am satisfied that unless one or both of the Appellant’s convictions can be salvaged by applying the curative proviso – a question I will now turn to – there must be a new trial.

C. Curative proviso

[55] Section 686(1)(b)(iii) of the Criminal Code, which is incorporated into the summary conviction appeal regime by s. 822(1), permits an appellate court that has found legal errors at trial to nevertheless dismiss a defendant’s appeal if “it is of the opinion that no substantial wrong or miscarriage of justice has occurred”. The curative proviso may be invoked in two situations: (1) when the evidence against the defendant is so overwhelming that he or she would inevitably be convicted at an error-free trial; or (2) when the appellate court is satisfied that the errors, viewed in context, did not affect the verdict. See, e.g., R. v. Khan, 2001 SCC 86 at paras. 29-31.

[56] I am satisfied that the Appellant’s conviction on the refuse charge cannot be salvaged by invoking the proviso. The trial judge’s reversal of the burden on the s. 10(b) waiver issue may have affected his decision to admit the breath room evidence under s. 24(2). This included the evidence that the Appellant had refused to provide a breath sample, which was essential to the Crown’s case on the refuse charge. Moreover, as I have discussed, the question of whether the Appellant’s refusal to provide a breath sample to PC Shaw was provisional or final also hinges on the resolution of the s. 10(b) waiver issue. For all of these reasons, a new trial must be ordered on this count.

[57] However, the question of whether the curative proviso can be applied to the Appellant’s conviction on the impaired driving charge is more complicated. The Appellant argues that if his s. 10(b) rights were breached, the exclusionary remedy under s. 24(2) could be applied to exclude not only the evidence obtained after the breach – that is, the police observations and video from the breath room, as well as the evidence of the Appellant’s breath room refusal – but also some or all of the evidence the police obtained before the breach. This latter evidence could potentially include PC Kenny’s testimony about what he saw, heard and smelled during his initial interaction with the Appellant in the parking lot, which the trial judge relied on to conclude that the Appellant was impaired by alcohol.

[58] While the Appellant is correct that evidence obtained by the police before a Charter breach can sometimes be excluded under s. 24(2) – see R. v. Pino, 2016 ONCA 389 – the Appellant did not seek at trial to have PC Kenny’s observations at the scene excluded on this basis. There are obvious problems associated with allowing the Appellant to rely on a more expansive exclusionary argument that is only raised for the first time on appeal. In any event, however, I do not think there is any realistic prospect in this case that PC Kenny’s observations of the Appellant at the scene would be excluded under s. 24(2) at a new trial.

[59] In R. v. Plaha, 2004 CanLII 21043, 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45, Doherty J.A. explained:

The jurisprudence establishes a generous approach to the threshold issue [under s. 24(2)]. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be “obtained in a manner” that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous.

In Pino, supra, Laskin J.A. held that there can sometimes be a sufficient “temporal” and “contextual” connection between the obtaining of evidence and a later Charter breach to trigger s. 24(2).

[60] However, Pino does not automatically sweep evidence that the police obtain prior to committing a Charter breach into the s. 24(2) hopper in every case. Rather, Laskin J.A.’s conclusion in Pino that there was a sufficiently strong contextual and temporal connection to offset the lack of any causal connection turned on the particular facts of that case. The police in Pino had found a quantity of marijuana during a search that infringed the accused’s s. 8 Charter rights, and within minutes had also breached her s. 10(b) rights by providing her with a deficient caution. This was then followed by a further s. 10(b) breach when they did not allow her to actually speak to counsel for another five and a half hours. Laskin J.A. found that there was a sufficiently strong temporal and causal link between these two s. 10(b) breaches and the earlier unreasonable search that led to the discovery of the evidence to engage s. 24(2), holding that “the common link between the evidence and the breaches [was] Ms. Pino’s arrest” (at para. 73).

[61] In contrast, in the case at bar there is no suggestion that the police did anything wrong when they initially detained the Appellant for investigation and then arrested him. The detention and arrest were supported by proper grounds and conducted in a reasonable manner, and PC Kenny fully complied with his s. 10(b) obligations at the scene. Even if the Appellant’s s. 10(b) rights were later breached at the station an hour later, the temporal and contextual link between this breach and PC Kenny’s pre-arrest observations of the Appellant at the scene would in my view be substantially weaker than the link identified in Pino.

[62] In any event, even if the pre-arrest police observations cross the threshold for consideration under s. 24(2), I do not think there is any realistic prospect this evidence would ultimately be excluded at trial. The complete absence of any causal connection between PC Kenny’s observations at the scene and his later possible breach of the Appellant’s s. 10(b) right to consult with counsel of choice would substantially weaken any argument that the second branch of the Grant analysis favoured exclusion of this evidence, and the third branch would weigh in favour of admission. Even if the s. 10(b) breach were found to be serious for the purposes of the first branch of the Grant inquiry, it is hard to see how it would rise to the level of seriousness of the breaches identified in Pino. In all the circumstances, I am satisfied that any court that found an infringement of the Appellant’s s. 10(b) rights at the police station would conclude that it could sufficiently disassociate itself from this breach by excluding only the evidence obtained after this breach, which was all the Appellant sought as a remedy at his original trial.

[63] Moreover, I am also satisfied that the trial judge would necessarily have found the Appellant guilty of impaired driving even if he had acceded to the Appellant’s request at trial that the breath room evidence be excluded under s. 24(2). In my view, this conclusion flows from both the structure and the substance of the trial judge’s reasons, and from the nature of the Appellant’s defence to the impaired driving charge that he advanced at trial.

[64] The trial judge organized his reasons by addressing the impaired driving charge before considering the Appellant’s Charter arguments. When discussing the evidence of the civilian witness Ms. Baker, he noted that her evidence about the Appellant’s poor driving and other actions was “capable of being corroborated by both the officers and the video evidence, if I rule it admissible”. He then stated:

Dealing with impairment first. [The Appellant] was observed by Kerry Baker to be driving all over the road. He can be observed on video, but he was also observed at the time, to be unsteady on his feet and slurring his words, even if only the limited words the officer first heard. He stank of alcohol. The symptoms portray him so comprehensively as drunk that his only possible defence is to accept them, but claim that they are due to something else. That something else is purported to be his diabetes.

As discussed above, the trial judge then dismissed this latter possibility on the grounds that the symptoms of uncontrolled diabetes described by Dr. Azzopardi were inconsistent with the observations made by PC Kenny at the scene. This included the officer’s evidence that the Appellant smelled distinctly of beer, which the trial judge specifically accepted. He concluded that he was satisfied beyond a reasonable doubt that the Appellant had been impaired by alcohol.

[65] Later in his reasons, after ruling that the breath room video was admissible under s. 24(2), the trial judge stated further:

I will add that my observations of [the Appellant] on video throughout his time with the police only enhance the initial pre-breach allegation conclusion, that this man was drunk. To a significant extent they corroborate both PC Kenny and Kerry Baker. He moves poorly, slurs his speech and has trouble making sense. His hand clapping amusement at PC Shaw’s little joke as he did the self-test only adds to the overall impression that he wasn’t feeling brutal at all, he was drunk.

However, when the trial judge’s reasons are read as a whole, I am satisfied that his observations about what can be seen on the breath room video were not essential to his findings of fact on the issue of impairment. As he noted, the Appellant had not seriously disputed that he had displayed signs of impairment at the scene, but had argued that these could have been caused by his diabetes. The trial judge found the Appellant to be an entirely incredible witness and concluded that the evidence of diabetes did not raise a reasonable doubt in his mind. He expressly noted during his analysis that the breath room video might be ruled inadmissible, and I am satisfied that he did not rely it at this stage in his analysis. His later comment, made after he had ruled the video was admissible, to the effect that the video confirmed his previously stated conclusion was in my view essentially surplusage.

[66] Accordingly, I am satisfied that even if the breath room evidence should have been excluded as a remedy for a breach of the Appellant’s s. 10(b) rights, this error did not affect the trial judge’s verdict on the impaired driving charge, and that this conviction can accordingly be upheld by applying the curative proviso.

III. Disposition

[67] In the result, the Appellant’s appeal is allowed in part. The appeal from conviction on the impaired driving charge, Count 1, is dismissed, but the Appellant’s appeal from his conviction on the refuse charge, Count 2, is allowed. This latter conviction is set aside and a new trial is ordered on this charge alone.

[68] The Appellant received concurrent sentences on each count of 120 days imprisonment, to be followed by probation for one year and accompanied by a three year driving prohibition. Setting aside the Appellant’s conviction on Count 2 automatically vacates his concurrent sentence on that count, but the sentence imposed on Count 1 remains in force and the Appellant’s global sentence remains unchanged. In these circumstances, the Crown may wish to consider whether re-prosecuting the Appellant on count 2 would be in the public interest.

_______________________ Justice J. Dawe

November 13, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

DAVID WANNAMAKER

REASONS FOR JUDGMENT

Dawe J.

Released: November 13, 2019

[^1]: R. v. Willier, supra at paras. 38-39 (italics in original).

[^2]: R. v. Willier, supra at para. 32; see also R. v. Prosper, supra at p. 274.

[^3]: R. v. Willier, supra at para. 39.

[^4]: R. v. Willier, supra at paras. 6, 20, 43.

[^5]: R. v. Willier, 2008 ABCA 126 at paras. 24, 57.

[^6]: R. v. Vernon, 2016 ONCA 211.

[^7]: In contrast, in R. v. Richfield, 2003 CanLII 52164, where the Ontario Court of Appeal concluded that a detainee had not been reasonably diligent by not taking up the police invitation to speak to duty counsel, it was after 2:00 a.m. and the police had waited over an hour for private counsel to call back.