Court File and Parties
BARRIE COURT FILE NO.: 10-080AP DATE: 20200130 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – MEGAN MCELWAIN Appellant
Counsel: S. Tarcza, for the Crown/Respondent L. Daviau, Counsel for the Appellant
HEARD: December 9, 2019
Reasons for Decision
On appeal from the decisions of The Hon. Mr. Justice J. J. Douglas Dated October 23, 2018 and February 14, 2019
McCARTHY, J.
The Appeal
[1] The Appellant appeals from the convictions entered by Justice J. J. Douglas of the Ontario Court of Justice on charges of failing or refusing to provide a breath sample pursuant to s. 254(5) of the Criminal Code, RSC 1985, c. C-46 (the “Code”), and impaired driving pursuant to section 253 (1) (a) of the Code.
Background
[2] At approximately 8:44pm on the evening of July 30, 2017, following police receipt of a 911 call from a concerned third party, the Appellant was pulled over by police while operating her motor vehicle on Highway 26 in Minesing. The traffic officer observed the Appellant crying, yelling and in a state of upset; the officer detected the odor of alcohol on the Appellant’s breath. After the Appellant failed a roadside breath test, the police made a demand for a breathalyzer test. The Appellant was arrested and charged with impaired driving. Upon being read her rights to counsel, the Appellant expressed that she wished to contact a lawyer, Bryan Skolnik. She was then taken to police station at 9:25pm. Once at the police station, there followed a prolonged interaction between police and the Appellant both inside and outside the breath room. This interaction featured: police attempting to reach Mr. Skolnik and the Appellant’s ex-boyfriend; the Appellant twice declining to speak with duty counsel; the Appellant’s reiteration that she wished to speak with a lawyer; a renewed effort by police to reach Mr. Skolnik; contact made with a Mr. John Corrigan, who was not a lawyer; and finally at approximately 10:16 pm, the Appellant’s one minute conversation with duty counsel which she reported to police had been a waste of time. After repeated attempts to have the Appellant provide a breath sample had failed, the process was terminated, and the Appellant was charged with failing to provide a breath sample. The Appellant was then afforded a second opportunity to speak with duty counsel.
The Voir Dire and the trial proper
[3] A main issue at trial was the violation of the Appellant’s section 10 (b) rights to counsel. A voir dire was held over 2 days. On September 19, 2018, the trial judge found that the Appellant’s rights under s. 10(b) the Canadian Charter of Rights and Freedoms (“the Charter”) had been infringed during the period of detention, investigation and arrest by the failure of police to respond to the Appellant’s request for legal advice. Nevertheless, on October 23, 2018 the trial judge, after conducting the requisite analysis under s. 24(2) of the Charter, declined to exclude the evidence obtained in the breath room which included a breath room video and the evidence of the breathalyzer technician. Following the trial proper on February 14, 2019, the trial judge entered convictions on both counts.
The Appellant’s Position
[4] The Appellant raises four grounds of appeal:
i. the trial judge erred by speculating about the type of legal advice that the Appellant might have received had she been afforded her requisite s. 10 (b) rights; ii. the trial judge erred in finding that duty counsel trumped the right to counsel of choice; iii. the trial judge misapprehended the evidence; iv. there was insufficient evidence upon which to enter the conviction on impaired driving.
The Crown’s Position
[5] The Crown contends that it was open to the trial judge on the evidence before him to make the findings and draw the conclusions that he did. Deference ought to be given to the trial judge’s finding of facts. The trial judge’s finding of a s. 10(b) Charter breach turned on such a finding of facts; so too did his decision not to exclude the breath room evidence pursuant to s. 24(2).
[6] The trial judge correctly engaged in the three-part analysis as set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and considered all the evidence in doing so. He concluded that the breach in question was not very serious; that society is more particularly interested in a trial on merits and that the admission of the evidence would not bring the administration of justice into disrepute. The trial judge fashioned a remedy for the Charter breach: he ordered the local Crown Attorney to advise senior local police officers about deficiencies in the practice of compliance with section 10 (b) [particularly assisting persons with seeking to locate counsel of their choice]. The trial judge also went on to ameliorate the penalty by granting the Appellant a conditional discharge on the offence of refusing to provide a breath sample.
Analysis
[7] For the reasons set out below, I find that the trial judge erred in law by speculating on the type of legal advice that the Appellant might have received had she been able to contact counsel of her choice.
[8] Having found the breach of the s. 10 (b) right to counsel, and in the course of his s. 24(2) Grant analysis on October 23, 2018, the trial judge reasoned as follows (as found at pp. 7, 8 and 9 of the transcript):
While a breach was temporarily connected to a refusal, no counsel could have lawfully provided her with advice that said ‘Pretend to provide a sample’, which is what the allegation here is. There might be some very odd circumstances where counsel, based on information, might concede what we say, there are no reasonable and probable grounds, and you are not obligated to provide a sample, but there would never be a circumstance where an honest counsel could conceivably say ‘Fake it’.
Hence, while a positive relationship with counsel of choice might go a very long way in convincing a reluctant person to cooperate, or very occasionally assert a refusal, it, in no event, could promote the behaviour the Crown asserts was shown by the accused here.
Respecting the impact on the protected interests of the accused, this is difficult to assess. It is alleged that the accused was an impaired driver seeking to avoid a criminal consequence of that conduct, tried to feign compliance with the test to improver her legal position. Speaking to counsel would not have suggested this course of action.
On the other hand, speaking to counsel might have dissuaded her from such foolishness. In R v Rezanoff, that court considered that, with counsel, he might not have refused, and avoided that charge at last. Justice Jackson saw this as a serious….[indiscernible]. In R v Sumo, that court says the same thing. Respectfully, I disagree.
The accused, in this context, is an obviously intelligent, and articulate person. While very upset over the unexpected turn of events with her boyfriend, whom she, nonetheless, requested to call, she knew full well what her circumstances were, and knew what her jeopardy was.
While the advice of a personal counsel that may or may not have, and established a professional relationship with, would have obviously, been a factor she would have considered. She in no sense, could be characterized as someone adrift, and totally unfamiliar, uncontrollable circumstances with no idea of what to do.
In my view, little would have changed if she had actually had some time to speak to private counsel.
[9] The Supreme Court of Canada stated in R. v. Bartle, [1994] 3 SCR 173, at para. 63, as follows:
Although the scope of available legal advice in the impaired driving context is necessarily limited, one must be mindful of the fact that this Court has clearly stated in the past that, where the right to counsel has been infringed, it is improper to speculate about the nature of the advice that a detainee would have received and whether the evidence would have been obtained had the right not been infringed: Strachan, per Dickson C. J., at p.1002; and Elshaw, at pp. 43-44.
[10] The principle in question had been previously stated by the Supreme Court in R. v. Black, [1989] 2 S.C.R. 138 at p. 153: “…it is improper for a court to speculate about the type of legal advice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed.”
[11] The Crown argues that in finding the breach and engaging the remedy, the trial judge simply reviewed all alternatives that may have been available to the Appellant. He did not opine as to how the nature of legal advice that might have been received would affect the outcome of the case nor come to erroneous conclusions that affected his ultimate analysis.
[12] With the greatest of respect, I disagree. I find that the trial judge did exactly what the Supreme Court has stated that a judge must not do -- he speculated on the type of legal advice that the Appellant was likely to have received and its impact on the outcome of the case. To put it more accurately perhaps, he speculated on the type of advice that the Appellant was unlikely to receive; he found that the Appellant/detainee was never going to receive legal advice to the effect that she should pretend to provide a sample or fake doing so. The trial judge went on to conclude that, “…little would have changed if she had actually had some time to speak to private counsel.” This rather forgets the possibility that the advice that she received might well have been to offer the breath sample. This would have avoided the failure to provide a breath sample charge and left open the possibility of the Appellant being able to challenge the breath sample readings and/or impaired charges on technical or other grounds. The Court in Bartle made it clear that there is sufficient scope for legal advice to a detainee who has received a breathalyser demand pursuant to s. 254(3) (a) of the Code to say that courts must not speculate about the nature of the advice and whether it would have made any difference to the outcome of the case.
[13] I find that by engaging in that speculative exercise, the trial judge failed to pay heed to the Bartle principle. By doing so, the trial judge allowed his s. 24(2) reasoning on the seriousness of the breach and the impact of the breach on the Appellant to become infected by the consideration of prohibited factors (i.e. the “little would have changed” line of reasoning).
[14] Accordingly, I find that the trial judge, having found a breach of the Appellant’s right to counsel under s. 10 (b), went on to commit reversible legal error in his s. 24(2) analysis.
[15] The remedy here must be to send the matter back for a new trial at the OCJ. Because the s. 24(2) analysis necessarily involves a consideration of all the evidence which a trial judge hears at a Charter voir dire (which would include findings of credibility and weight), it is just and appropriate that the Grant analysis be conducted by a judge of first instance. For that reason, a new trial is necessary.
[16] Given that the appeal and order for a new trial has been granted on the first ground of appeal, it is not necessary for me to determine the matter on the other grounds of appeal.
Disposition
[17] Accordingly, the appeal is allowed. The matter is remitted to the Ontario Court of Justice for a new trial.