Court File and Parties

COURT FILE NO.: 7939/19 DATE: 2019-12-12

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Appellant

• and -

RICKI-LEE TOULOUSE Respondent

Counsel: Robert Skeggs, Counsel for the Appellant Anthony Orazietti, Counsel for the Respondent

HEARD: December 11, 2019

BEFORE: Varpio J.

REASONS ON APPEAL

OVERVIEW

[1] This is an appeal of a successful Charter application to exclude evidence as a result of breaches of the accused’s section 8 and 10(b) Charter rights. Kwolek J. excluded breath room evidence which led to an acquittal on the s. 255 CCC charge the accused was facing. Kwolek J. found that breaches allegedly occurred at the roadside and in the station.

[2] With respect to the roadside breaches the trial judge indicated that the breaches were minor. My interpretation of his reasons is that they had minor impact and, as such, the breaches did not lead to an exclusion of the breath room evidence. In my view, the appeal rises and falls on the breaches that he found occurred at the station.

ANALYSIS

[3] On December 19, 2015 at 2:58 a.m., the accused was stopped by police while she was driving. She was ultimately arrested for “Over 80” but not charged with same.

[4] The driver indicated that she wished to speak with a lawyer, whose name she could not remember. The police assisted her with determining the lawyer’s name by, inter alia, showing her a list of names.

[5] At 3:58 a.m., she indicated the name of the specific counsel with whom she wished to speak. Sometime thereafter, the lawyer’s number was called by police and that number was called six times. It appears that the number located was an office number. On one of the calls, the lawyer indicated that the answering machine indicated that, if the call was urgent, that the caller should hit “0”. The police officer hit “0” and left a message.

[6] The lawyer did not call or respond to the message left.

[7] At 4:43 a.m., police advised the accused that they would wait a further half hour for the lawyer to call. At 4:54 a.m., the police called legal aid and left a message. Duty counsel called back at 5:02 a.m. and spoke with the accused.

[8] At all times, even after speaking with duty counsel, the accused indicated clearly that she wished to speak with her lawyer of choice. On the application, the police could not recall whether they searched for another contact number other than the lawyer’s business number that they had.

[9] The trial judge excluded the accused’s ultimate breath room refusal because the accused asked for a specific counsel after being read her rights.

[10] At paras. 93 to 97 of his reasons, the trial judge stated:

Calling the one number repeatedly, as described in this case, without seeking an additional contact number, or at least confirming at the time and making a note whether the number was in fact an after-hours number, the court finds, did not satisfy the implementational requirements of a right to counsel as set out in the case law and particularly in Maciel, Vlasic, and Shameer-Ali. Certainly, the test in Willier that the applicant should be diligent in asserting her right to counsel of her choice was satisfied by the applicant repeatedly and forcefully requesting her right to counsel of choice even after she spoke briefly to duty counsel.

The applicant was diligent in asserting her desire to speak to counsel. Was she diligent enough in pursuing or searching for another number? Relying on the comments of Justice Stropobolous in Maciel, if the police force takes the responsibility of taking control of the phone or other source of communication rather than allowing access by the accused to a “real phone” or “smart phone” or computer to make her own searches, it was incumbent on the police force to make reasonable inquiries to allow the accused access to her counsel. I find the police did not make reasonable inquiries to find such a number and did not properly memorialize or record what efforts they did in fact make.

The court therefore finds that there was in fact a s. 10(b) Charter breach of the applicant’s right to counsel of choice as the police did not act reasonably in implementing her Charter rights to counsel and charged her with failure to provide a breath sample when her basis for such refusal was reasonably asserted – “I wish to wait for my lawyer to call back.”

Given my finding that the implementational aspect of the applicant’s s. 10(b) right was violated, I would submit the length of the delay is largely irrelevant to the court’s analysis. If the right to counsel was not properly implemented, no delay would be adequate.

In this case, there was no urgency. The officer told the applicant she could wait another 30 minutes for her lawyer to call back, but then called duty counsel about ten minutes later. This demonstrated a laissez faire attitude by the police officer regarding the applicant’s right to speak to her counsel of choice.

[11] As was conceded by both counsel, the standard of review per the Nelson (City) v. Mowatt, 2017 SCC 8 at para. 38 is whether the trial judge made a palpable and overriding error in his determination that the police did not make reasonable inquiries to implement the accused’s 10(b) rights as per R. v. Prosper (1994), 1994 CanLII 65 (SCC), 92 C.C.C. (3d) 353 at para. 34.

[12] As was made clear at para. 16 of R. v. Canavan, 2019 ONCA 567, “[a]bsent palpable and overriding error, the trial judge’s findings on this issue [police efforts to enable reasonable inquiries] are entitled to deference”.

[13] Earlier in his reasons, the trial judge quoted para. 47 from R. v. Maciel, 2016 ONCJ 563 (Ont. S.C.) which states:

In a jurisdiction like Peel, where the police have assumed the responsibility to contact counsel of choice, I think it sensible to outline the sort of steps that should be undertaken to obtain counsel’s contact details in order to satisfy the reasonable diligence standard. In my view, common sense suggests that at a minimum this should include:

• Asking the person in custody if they have a telephone number, or know anyone who has a telephone number, for the lawyer they want to contact;

• Giving the person in custody access to their cellular phone or smart phone, where they advise that they have the lawyer’s number stored on such a device;

• Conducting an Internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or e-mail address for the lawyer, and calling, texting, and/or e-mailing these;

• Using the Internet to search any available online directories, for example Canada 411, CanadianLawList, or the Law Society of Upper Canada’s Paralegal and Lawyer Directory.

• Using any available conventional paper based directories, both for lawyers and for phone numbers more generally (i.e. The White or Yellow Pages).

[14] The Crown submits that the trial judge adopted and applied “minimum standards” described in Maciel. The Crown argues that there are no specific minimum steps that a police force must take.

[15] Paragraphs 93 and 94 of the trial judge’s reasons set out that the trial judge relied upon Maciel to find that “[c]alling the one number repeated, as described in this case, without seeking an additional contract number, or at least confirming at the time and making a note whether the number was in fact an after-hours number, did not satisfy the implementational requirements of a right to counsel as set out in the case law and particularly in Maciel, Vlasic, and Shameer-Ali”. The trial judge, however, did not specifically indicate that Maciel required him to find that the police had to adhere to the minimum standards/steps described in paragraph 47 of Maciel.

[16] The plain reading of para. 94 of the trial judge’s reasons clearly sets out that he is relying upon Maciel to state that it is “incumbent on the police force to make reasonable inquiries”. I agree with this specific proposition and leave the discussion of paragraph 47 of Maciel for another day.

[17] The Crown also submitted that the fact that the police left a message in the lawyer’s “urgent” inbox means the trial judge committed a palpable and overriding error. I disagree. There was no evidence that dialing “0” led to an after-hours answering service. In fact, it is possible that by dialing “0” the police left a message for the lawyer’s assistant. Accordingly, this ground of appeal does not succeed in so far as the trial judge was not required to consider this point given the lack of evidence.

[18] In this case, on the issue of enabling reasonable inquiries, the trial judge noted that the police failed to make reasonable efforts due to their failure to: (1) determine whether they only had an office number; and (2) record the efforts undertaken. As per Canavan, this cannot be seen to be an overriding and palpable error and, as such, I do not interfere with this finding.

[19] With respect to section 24(2) of the Charter, recent cases have spoken to the importance and impact of s. 10(b) Charter breaches in situations where the failure to provide rights to counsel resulted in exclusion of evidence: Maciel; R. v. Mhlongo, 2017 ONCA 562, [2017] O.J. 3439 (Ont. C.A.). Accordingly, even if I was to find that the trial judge’s view of multiple breaches is incorrect,[^1] the nature of the s. 10(b) breach in this case must be seen to be serious.

[20] As for the impact of the s. 10(b) breach, the trial judge found that

the nexus between the accused being charged was directly related to a violation of her Charter rights [sic]. This is not an impaired driving case – this is a case of the accused being charged with not providing a breath sample in spite of the fact that the court has found reasonable efforts were not made to implement her right to speak to counsel.

[21] Given the accused’s continued insistence on counsel of choice, the timing of breach and the accused’s refusal to provide a sample, the trial judge was entitled to make this finding because it was grounded in evidence. This finding does not therefore constitute a palpable and overriding error.

[22] As per R. v. McGuffie 2016 ONCA 365 at para. 63:

If the first and second inquiries make up a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.

[23] Ergo, even if I were to have found the trial judge was incorrect in his findings regarding the roadside breach, the evidence would be excluded under s. 24(2) in any event because the first two prongs of the Grant analysis point strongly in favour of exclusion. The curative proviso under s.686(1)(b)(iii) of the Criminal Code of Canada would therefore be engaged in so far as “no substantial wrong or miscarriage of justice” would have occurred as a result of the putative error. I have no reason to overturn the trial judge’s findings.

[24] Appeal dismissed. I thank both counsel for their submissions.

Varpio J.

Released: December 12, 2019

[^1]: I am not making any specific finding in this regard as an analysis of the roadside breach holdings is superfluous to this appeal.