COURT FILE NO.: SCA 9574
DATE: 2019-12-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
JEFFREY FISK
Respondent
M. Michaud, Counsel for Appellant
B. Smart, Counsel for the Respondent
HEARD: November 21, 2019
The HonouRABLe Mr. Justice d.j. gordon
REASONS FOR DECISION
[1] The Crown appeals from the acquittal of the respondent on a charge of operating a motor vehicle with a blood alcohol concentration over 80 milligrams in 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code.
[2] The focus of this appeal is with the informational and implementational duties of police officers pursuant to section 10(b), Canadian Charter of Rights and Freedoms.
[3] Should the Crown succeed on its appeal, the respondent challenges the rejection by the trial judge of his Bolus drinking defence.
Background
[4] In the evening of July 22, 2017, Mr. Fisk and his spouse left licensed premises in Kitchener. Shortly thereafter, his vehicle was stopped by police officers involved in the RIDE program. Mr. Fisk, the operator of the vehicle, was requested to provide a breath sample into an appropriate screening device. The resulting reading was a “fail”. Mr. Fisk was arrested and transported to the police station.
[5] Subsequent breath samples revealed an excess blood alcohol concentration resulting in the charge before the court. The two readings were 110 and 100.
[6] At trial, the respondent presented a Charter application. The trial judge reviewed the evidence, made findings of fact and applied the legal principles as he understood them to be at the time. He concluded the section 10(b) rights of Mr. Fisk had been breached and the intoxilyzer readings must be excluded under section 24(2) of the Charter. In result, Mr. Fisk was found not guilty.
Section 10(b) - Evidence
[7] Two police officers were involved in the investigation. Constable Miller, the arresting officer, had approximately seven months police experience at the time of the events. This was her first drinking and driving case. Constable McKenna was assigned as the “coach officer” to Constable Miller. He had been a police officer for about three years.
[8] In response to Constable Miller’s demand for a roadside breath sample, Mr. Fisk asked to speak to a lawyer. Following arrest, he continued to assert his right to speak to counsel. At the police station, Constable Miller read his rights to counsel, caution and breath demand in the usual manner.
[9] A number of phone calls were made in response to the request of Mr. Fisk to speak to a lawyer. At his direction, a call was made to his spouse to obtain the name of a lawyer in Guelph. The officer made a call to the law firm but not answered, given the late hour, with no after hours number provided. The spouse was contacted again. The officer was provided with the name of “Legal Shield”, apparently an insurance company that provided legal services or referrals. A call to that organization revealed that neither Mr. Fisk nor his spouse were members of that insurance plan.
[10] Constable McKenna then spoke to Mr. Fisk, saying “So, since you do not have a lawyer anymore, do you want to speak to duty counsel?” Mr. Fisk replied “Well, since Legal Shield isn’t going to come through, sure, whatever.” Duty counsel was called. A conversation took place.
[11] The interview room was audio and video recorded. While alone, Mr. Fisk was observed talking out loud, trying to prompt himself to remember the name of the organization he wanted to contact. At one point he spoke of his wallet, that was in possession of the police officers. The wallet was not provided to him.
[12] At trial, Mr. Fisk advised he wanted to obtain advice from a lawyer of choice, not duty counsel. Duty counsel, he said, was his “last option”. He was not satisfied with the advice or information provided by duty counsel.
[13] The issue of a lawyer’s directory was canvassed at trial. A directory was available in the police station but not in the detention or interview room.
[14] Constable Miller did not offer the directory to Mr. Fisk, saying she had not been trained to do so. The officer understood the directory was an option but only if there was a specific request from the detained person.
[15] Constable McKenna reported his training in a different manner. He understood his duty was to do everything possible to assist the individual in contacting a lawyer, including providing the lawyer’s directory. He was unable to explain why he did not do so for Mr. Fisk, despite acknowledging Mr. Fisk legitimately wanted to speak to counsel of choice.
[16] Mr. Fisk said he would have used the directory had it been provided. He did not request to see it as he was not aware it was available.
[17] Constable Miller agreed with the proposition that unless the detained person knew the name of a lawyer, or requested to see the lawyer’s directory, the only option was to speak to duty counsel.
Section 10(b) – Legal Principles
[18] The guiding principles pertaining to the duties of police officers following arrest, pertaining to section 10(b), in general, are not in dispute. Such have been addressed by the Supreme Court of Canada on a number of occasions, including: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236; R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37; and R. v. Taylor, 2014 SCC 50.
[19] Bartle defined the informational and implementational duties of police officers. Prosper identified specific circumstances expanding the duties where a detainee was unsuccessful in contacting counsel and then purported to waive the right to counsel. Willier, in addressing the diligence onus on a detainee, recognized the right to wait a reasonable time for counsel to call back or to call another lawyer.
[20] Other appellate decisions have considered the issue, as it arises in this case, as to whether police officers have additional duties in other circumstances. In this regard, appellant’s counsel relies on R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.); R. v. Ferose, 2019 ONSC 1052; and R. v. Ruscica, 2019 ONSC 2442, which also referred to R. v. Zoghaib, [2005] O.J. No. 5947, affirmed 2006 CanLII 8025 (Ont.C.A.). Respondent’s counsel identified R. v. Traicheff, 2010 ONCA 851; and P. v. Vernon, 2015 ONSC 3943, affirmed 2016 ONCA 211.
[21] Zoghaib and Ruscica involved the defence position a phone book or directory ought to have been provided by the police officer. In both cases, the submission was rejected, there being no factual basis to so conclude, and a determination any misunderstanding by the detainee was not communicated to the police.
[22] Traicheff and Vernon present different facts. Both decisions emphasize the need to wait a reasonable time for the detainee’s lawyer to call. In Vernon, the police officer quickly made a referral to duty counsel. The court determined default to duty counsel was insufficient to meet the duty. Traicheff adds that if the lawyer does not call back, the police officer should ask if the detainee would like to consult another lawyer or provide a telephone directory to see if another phone number could be found for his lawyer.
[23] The underlying premise in section 10(b) is that whether the detainee chooses to consult counsel of choice, or to consult duty counsel, or to waive the right to legal advice, the decision must be an informed one. Once a detainee chooses to seek advice, the right to counsel becomes the right to access to counsel. The duty is on the police officers to provide information and then to facilitate contact with a lawyer.
[24] As I read the caselaw, police officers may have additional duties at the informational and implementational stage. But such only arise if the facts of the case so warrant.
Trial Decision on Section 10(b)
[25] At paras. 40-43, the trial judge provided the following analysis and determination:
[40] With respect to the right to counsel issue, Mr. Fisk clearly ad consistently indicated that he wished to speak to counsel. He also made it clear that duty counsel was not counsel of choice. Faced with the situation, the police, in good faith, made a number of telephone calls to Mr. Fisk’s wife, a friend of Mr. Fisk, a law firm in Guelph and Legal Shield. All of those efforts were fruitless. Given the fact that Mr. Fisk clearly wanted to speak with counsel of choice, and that police were unable to connect him with either of his two choices, the court’s focus is on the strange decision by both officers not to make Mr. Fisk aware of the lawyers directory in police possession, or any other resources such as a telephone book.
[41] In reviewing the video of the interview room, the critical point is when Constable McKenna enters the room to advise Mr. Fisk that he is not a member of Legal Shield. As indicated, Constable McKenna said: “so, since you do not have a lawyer any more, do you want to speak with duty counsel”? Mr. Fisk’s response is: “well, since Legal Shield isn’t going to come through, sure, whatever”. I find that the exchange between Constable McKenna and Mr. Fisk was understandably interpreted by Mr. Fisk as an indication that duty counsel was the last resort if he wanted to speak to a lawyer. I find that in presenting the choice in that fashion, Mr. Fisk’s right to make meaningful choices about the exercise of his right to counsel was breached.
[42] In coming to that conclusion, I note that Constable Miller’s evidence that she was never trained to provide a detainee with what she referred to as the lawyer’s book, or a telephone book, unless the person specifically requested it. The attitude seemed to be that those resources should remain a secret unless the detainee raised the possibility of their existence. I also note Constable McKenna’s evidence that he was trained to provide a detainee with the lawyer’s directory, but in this case, inexplicably did not. In spite of good faith efforts on the police to put Mr. Fisk in touch with any lawyer that he could name, there appears to be a lack of understanding of the nature of the right to counsel and the significance of counsel of choice on the part of the police officers. It would not have been onerous at all for the police to simply make Mr. Fisk aware of the fact that there was a directory of lawyers who practiced criminal law complete with after-hours contact numbers available should he wish to review it if they were unable to reach the lawyers he named. Indeed, Constable McKenna was trained to do so.
[43] I find that Mr. Fisk was channeled to the advice of duty counsel in an unconstitutional fashion.
Section 10(b) - Analysis
[26] Crown counsel accepts the findings of fact made by the trial judge, save for the characterization of some matters. In particular, he challenges the reference to a telephone book or lawyers directory as being a “secret”. In my view, nothing turns on this characterization. The resources may not be a secret in general; however, in this case it was, the existence of same not being communicated to Mr. Fisk. Constable McKenna reported being trained to provide the lawyer’s directory to a detainee. He was unable to explain why such did not occur in this case.
[27] The existence of lawyer’s directory nearby the detention room at the police station appears to be in compliance with prior judicial decisions, such as Traicheff. It is of some concern the two police officers received different training as to the use of such resources.
[28] Regardless, the findings of fact by the trial judge lead to the conclusion the police officers had a further duty to provide information and facilitate access to counsel. Despite their good efforts in contacting the spouse of Mr. Fisk and in making two attempts to contact counsel of choice, nothing further was done. Mr. Fisk was not asked if he wanted another lawyer. Nor was he provided with the resources to find a phone number. Mr. Fisk, as the trial judge found, wanted to speak to counsel of choice. As in Vernon, default to duty counsel does not correct the section 10(b) breach.
[29] On the findings of fact in this case, I am not persuaded the trial judge made an error in law or in principle.
Section 24(2) - Principles
[30] The criteria in a section 24(2) analysis was prescribed by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The court is required to consider:
(i) the seriousness of the Charter breach;
(ii) the significance of the impact of the infringements; and
(iii) the societal interest in a trial on the merits.
This is said to be a balancing exercise in determining whether the admission of the evidence would bring the administration of justice into disrepute.
Section 24(2) – Trial Decision
[31] The trial judge, in his reasons, spoke at length regarding the principles in Grant. Thereafter, in paras. 49-52, he addressed the relevant criteria, saying:
The Seriousness of the State Conduct in Violating the Charter
[49] In examining the seriousness of the state conduct, including the nature of the police conduct which led to the discovery of the evidence, the court must consider the need to preserve public confidence in the justice system and the need to ensure conformity to the rule of law. Would the admission of the evidence send a message that the court effectively condone breaches of citizens’ rights by failing to dissociate itself from the fruits of the unlawful conduct? As part of that analysis, the more severe, deliberate or reckless the state conduct is, the greater the need will be for the court to dissociate itself from that conduct. If the state conduct involves inadvertent or trivial violations of the rights of an accused, the existence of good faith on the part of the police, or exigent circumstances such as the need to prevent the destruction of evidence, those factors will favour admission of the evidence.
Impact of the Charter Violations
[50] This heading calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right which was infringed. The impact of the breach may range on a spectrum from technical and fleeting to profoundly intrusive. The more serious the impact on the protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights are of little actual protection to citizens, encouraging public cynicism and thereby bringing the administration of justice into disrepute.
The Societal Interest in Adjudication on the Merits
[51] This aspect of the inquiry reflects society’s collective interest in ensuring that those who break the law are brought to trial and dealt with according to the law. Society generally expects that a criminal trial will be adjudicated on its merits. This aspect of the analysis examines whether the truth seeking function of the trial process would be better served by the admission of the evidence, or by its exclusion. The reliability of the evidence obtained by the Charter breach is a factor, as is the significance of the evidence to the case for the Crown. The seriousness of the offence is also part of the considerations.
[52] The fact that evidence obtained in breach of the Charter may facilitate the discovery of the truth in the adjudication of the case on its merits is weighed against factors pointing to the exclusion in order to balance the interests of truth with the integrity of the justice system. In other words, does the vindication of the specific Charter violation by excluding the evidence extract too great a toll on the truth seeking goal of a criminal trial?
[32] The trial judge, at paras. 53-56, presented his conclusions, as follows:
CONCLUSIONS
[53] The Charter breach in this case is serious. Given the vulnerability of any detainee, the right to counsel is a fundamental protection. The importance of that protection should be known to all police officers. While the officers made good faith attempts to contact the lawyers named by Mr. Fisk, their failure to understand their informational obligations is a serious breach of a basic right which cannot be condoned by the court.
[54] In my view, the fact that Mr. Fisk ultimately had an eight minute conversation with duty counsel as a result of the failure of police to inform him of the right to access the information that he needed to choose counsel does not mitigate the breach of his right to counsel. As pointed out in Manuel, supra for the right to counsel to have value, the recipient of the advice must believe that they can trust the person giving the advice and the advice given. The ability to choose counsel fosters trust in the advice received. To be deprived of the right to choose is a significant deprivation of the right to counsel. This factor therefore also favours exclusion of the evidence.
[55] Given the societal costs of drinking and driving, the reliability of the BAC readings, and the fact that the Crown’s case rests upon that evidence, this factor favours admission of the evidence and adjudication on the merits. However, in the final balancing of the factors, including the need to deter police practices which risk consistently undermining the scope of the Charter right, the case for excluding the evidence is compelling.
[56] The evidence obtained in contravention of Mr. Fisk’s right to counsel is excluded, and there will be a finding of not guilty.
Section 24(2) - Analysis
[33] Having regard to the findings of fact, in my view the trial judge appropriately considered the Grant factors. The section 10(b) breach, he said, was serious. I agree. Excluding the evidence was appropriate, having regard to the principles in R. v. Noel, 2019 ONCA 860.
[34] I am not persuaded there is an error in law or in principle. The decision of the trial judge is entitled to deference.
Bolus Drinking
[35] Given my decision on the Charter issues, a determination of the Bolus drinking defence is not required. Had I granted the Crown appeal, I would have directed a new trial and permitted this issue to be raised.
[36] There was evidence of consumption of alcohol prior to leaving the licensed premises. The trial judge inferred such occurred at a normal pace. However, the toxicologist who provided opinion evidence was not asked to address the evidence of Mr. Fisk. Her opinion was based on the assumption there was no consumption of large quantities of alcoholic beverages within 15 minutes prior to the event. A common sense inference must be based on the evidence. The trial judge may have been correct in rejecting Bolus drinking. But that matter, in my view, ought to have been put to the toxicologist.
Summary
[37] For the above reasons, the Crown’s appeal is dismissed.
D.J. Gordon J.
Released: December 10, 2019
COURT FILE NO.: SCA 9574
DATE: 2019-12-10
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
JEFFREY FISK
Respondent
REASONS FOR DECISION
D.J. Gordon J.
Released: December 10, 2019