COURT FILE NO.: CR-19-1000006500AP

DATE: 20200214

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GIROLAMO COMMISSO

Appellant

Cara Sweeny, counsel for the Crown/Respondent

Gregory Lafontaine, counsel for the Appellant

HEARD: January 24, 2020

M.A. CODE J.

REASONS FOR JUDGeMENT

A. OVERVIEW

[1]

Overview

The Appellant Girolamo Commisso (hereinafter, the Appellant or Commisso) was charged in Toronto in a two count Information with driving a motor vehicle while “over 80” and with violating the terms of a prior release on bail requiring that he not have “care or control” of a motor vehicle “with a blood alcohol concentration above zero”. The Crown proceeded summarily on both of these counts, which were charged contrary to s. 253(1)>(b) and s. 145(3) of the Criminal Code. The Appellant was convicted on both counts after a relatively lengthy trial before Chapin J. of the Ontario Court of Justice where evidence was heard during three days and submissions were heard on a fourth day. On July 9, 2019 Commisso was sentenced to fines totaling $1,500, a one year license suspension, and one year probation.

2There was no real issue at trial as to the merits of the two offences charged. In relation to the s. 145(3) bail offence, the Crown proved that Commisso had been arrested and charged in York Region on October 19, 2016 with driving while “over 80”. He was released on an undertaking requiring that he “not have care or control of a motor vehicle with a blood alcohol concentration above zero”. He last appeared in court on this York Region charge on January 19, 2018 and was remanded to November 18, 2018. As a result, the charge and its terms of bail were still outstanding when Commisso was arrested in Toronto on May 12, 2018 and was again charged with driving while “over 80” and with violating the York Region terms of bail.

3As to the merits of the Toronto “over 80” charge, the initial arrest occurred at 1:18 a.m. which was shortly after the time of driving. Over three hours later, at 4:24 a.m. and 4:47 a.m., Commisso provided two breath samples with Intoxilyzer readings of 134 and 121. A Centre of Forensic Sciences expert extrapolated from these readings and testified that Commisso’s blood alcohol concentration at the time of driving would have been between 135 and 190 mgs of alcohol in 100 milliliters of blood. The above period of about three hours delay, between the arrest at the time of driving and the subsequent Intoxilyzer testing at the police station, gave rise to a number of Charter of Rights issues. These Charter issues were raised during the trial on the merits, as part of blended proceedings. Commisso did not testify, either on the Charter Motion or on the trial of the merits.

4The Appellant raised three main Charter arguments at trial: first, that the roadside demand for an ASD sample was not “forthwith”, as required by s. 254(2)(d), resulting in a s.8 Charter violation because the demand was unlawful; second, that implementation of Commisso’s Charter right to counsel was delayed unreasonably; and third, that Commisso’s initial arrest for violating the terms of his York Region bail meant that his s. 10(b) Charter right to counsel (in relation to that s. 145 offence) had to be implemented before he could be called upon to provide breath sample evidence pursuant to an ASD roadside demand. Chapin J. agreed with Commisso’s first two Charter arguments, finding violations of both s. 8 and s. 10(b). However, she rejected the third Charter argument. Furthermore, she rejected the s. 24(2) remedy sought by Comisso and ruled that the Intoxilyzer evidence was admissible.

5Commisso appealed against conviction only and raised three grounds of appeal. First, he renewed the one Charter argument that Chapin J. had rejected, concerning whether the arrest for the s. 145 bail offence, which triggered Commisso’s Charter right to counsel, had the effect of suspending any roadside ASD investigation into alleged drinking and driving. Second, Commisso argued that Chapin J. erred in her s. 24(2) analysis of the gravity of the Charter violations by failing to grasp the systemic aspect of the s. 10(b) delays. Third, Commisso argued that Chapin J. erred in her s. 24(2) analysis concerning the impact of the Charter violations on Commisso’s s. 10(b) rights by failing to consider the psychological effects of delaying implementation of his right to counsel.

6After hearing oral argument on January 24, 2020, I reserved judgement. These are my reasons for judgement.

B. FACTS

[7]

Facts

In summary, the relevant facts were that Commisso was observed driving an SUV in the downtown “Entertainment District” of Toronto at about 1:10 a.m. on May 12, 2018. It was early on a Saturday morning. He was driving east on King Street West near Spadina Avenue and had stopped abruptly in front of a nightclub. He began to yell and scream at the taxi drivers who were parked in this area, trying to get them to move. He then made two quick U-turns, before returning to his original position in front of the nightclub and parking in a space that had been vacated by one of the taxis. He was driving a little faster than normal when parking and almost backed into a rickshaw. His rear passenger side wheel mounted the curb and it remained there after he came to a stop.

8The officer who made these observations, P.C. Girgis, was on bicycle patrol in the area with a police “bike team”. It was very busy with lots of vehicles and pedestrians in the street. P.C. Girgis approached Commisso, who had exited his SUV. There was a strong odour of alcohol emanating from Commisso’s breath. The officer obtained Commisso’s name and date of birth, radioed this information to the police despatcher, and learned that Commisso was subject to an undertaking that required a zero BAC when driving. At this point, at 1:18 a.m., P.C. Girgis arrested Commisso for the s. 145 offence and informed him of his s. 10(b) Charter right to counsel in relation to that offence. Commisso replied that he understood his rights, that he had a lawyer, and that he wished to speak to the lawyer. He did not give the lawyer’s name but said that he would provide it. P.C. Girgis advised Commisso that he would arrange for a call to his lawyer “as soon as we arrive at the station and I could afford him his privacy”.

9P.C. Girgis testified that he handcuffed Commisso upon arrest and made sure that his SUV was secure. Commisso sat on the roadside curb. Other officers on the “bike team” made radio calls at 1:20 a.m., requesting an ASD to take breath samples and requesting a police car or wagon to transport the accused. These other officers were also “keeping an eye on the crowds” while P.C. Girgis kept his focus on Commisso and his SUV. In terms of implementing his s.10(b) rights immediately at the roadside, while making these radio calls and waiting for the ASD and a police car, P.C. Girgis explained that Commisso was “in handcuffs at this point” and people were “yelling and swearing” at the officers and “challenging” them. He described this kind of environment as a “regular occurrence in the entertainment district”. He testified:

I knew that it would be impossible to afford him privacy at that point, not even in the back of a scout car, because at this point we were on bikes, we were roadside. We were surrounded by hundreds of people, hundreds, lots of intoxicated people, and I knew that I would be providing him that opportunity as soon as I could, which would have been at the station.

10The legal mistake that P.C. Girgis made, which resulted in the violation of s. 8 of the Charter, is that he did not promptly make an ASD demand. He had smelled alcohol on Commisso’s breath, he had observed him driving, and one of the other police officers on the “bike team” had called for an ASD to be brought to the scene of the arrest. However, P.C. Girgis never made an ASD demand during the time that he had Commisso under arrest and in his custody on the street in front of the nightclub. P.C. Girgis had been a police officer for seven years. He explained that when P.C. Perino arrived at the scene of the arrest on King Street West (as will be summarized below), P.C. Girgis briefed P.C. Perino “on what happened”, in terms of the earlier arrest, and then P.C. Perino “took over and did the breath demands”. P.C. Girgis testified that, “I don’t have much experience dealing with breath demands” whereas P.C. Perino is “much more proficient” in this particular area of police work.

11P.C. Perino testified that he was nearby in the vicinity of the “Entertainment District” when he heard the radio dispatcher call for an officer with an ASD to attend at the scene of an arrest at King Street and Spadina Avenue. He did not have an ASD but he is trained as a “Standard Field Sobriety Test Administrator”. He thought that he might be able to help by administering these field sobriety tests, which relate to impaired driving and not “over 80”. When he arrived at the scene, he saw Commisso seated on the south curb of King Street in handcuffs. Police training is that standard field sobriety tests are “no longer an option”, once a person has been arrested and is in custody. It is impossible to perform the tests when restrained by handcuffs. P.C. Perino stood by and waited for the ASD to arrive. He was briefed by P.C. Girgis about the odour of alcohol and the prior arrest.

12When the ASD arrived at the scene in a marked police car, P.C. Perino advised the arresting officers that he was “accredited to operate an ASD” and could administer a breath sample. At 1:35 a.m., he proceeded to the north side of King Street with Commisso and stood at the front of the marked police car, so that they were both “on camera”. He then made the ASD demand at 1:37 a.m. in front of the police car “dash cam”. This was the initial ASD demand and it was made 19 minutes after Commisso’s arrest at 1:18 a.m. for breach of an undertaking. P.C. Perino satisfied himself that the ASD was both working and calibrated properly. He then blew a test sample. After explaining the process of providing a sample and inserting a new mouthpiece, P.C. Perino had Commisso provide a breath sample at 1:39 a.m. It registered “fail”. The initial arresting and custodial officer, P.C. Girgis, stood by and watched while P.C. Perino carried out the above ASD processes.

13By this point, a police “court wagon” had arrived on the scene. It is used in the “Entertainment District” to transport intoxicated persons. It was described as a “big van with compartments”. P.C. Perino moved Commisso to the wagon and read him the breathalyzer demand at 1:41 a.m. He also arrested Commisso for the offence of “over 80” and read him the standard s. 10(b) Charter caution in relation to this new “over 80” charge. Commisso replied that he understood the caution and that he wished to call his lawyer. He provided the lawyer’s name as “Greg Lafontaine”. P.C. Perino had inquired as to the nearest breath testing facility with a qualified technician and was told that it was Traffic Services at 9 Hanna Avenue. He advised Commisso that the police “would make efforts to put him in contact with Mr. Lafontaine”. P.C. Perino told Commisso that if he did not have Mr. Lafontaine’s phone number, they would look it up in the Ontario Law Directory. Once again, the original arresting and custodial officer, P.C. Girgis, stood by and watched while P.C. Perino completed the above steps relating to the new “over 80” charge. A video-recorded tape of these events was played at trial.

14At this point, the “court wagon” left the scene with Commisso in one of the individual compartments. The various officers also left the scene. P.C. Perino returned to his previous duties. P.C. Girgis bicycled back to his division station, left his bicycle there, and then drove a police car to the Traffic Services station so that he could complete his duties in relation to the arrest of Commisso. He testified that Commisso “was still our accused, our arrested party, and the wagon was simply there to transport him for us”. In particular, P.C. Girgis explained that he attended at the Traffic Services station because he was still responsible for “further investigation forms … the accused calling his lawyer, parading the individual”.

15The officer who drove Commisso in the “court wagon”, from the scene of the arrests to the Traffic Services station, was P.C. Byun. He testified that the “court wagon” is used “in the entertainment district for the purpose of transporting prisoners”. He was advised that Commisso had failed an ASD test and that he was under arrest for both “over 80” and for failing to comply with an undertaking. The “court wagon” left the scene at 1:49 a.m. and arrived at the Traffic Services station nine minutes later at 1:58 a.m.

16P.C. Byun testified that upon arrival at the Traffic Services station there was “another car in front of us that was parading” another prisoner and so “we just stood by waiting until they were done”. Only one police vehicle can enter the “sally port” at one time and the gate to the “sally port” was closed. They waited until 2:54 a.m. when P.C. Girgis took custody of Commisso and paraded him before the officer in charge of the station. P.C. Byun explained that the period of delay, while waiting outside the “sally port” after arrival at the station, was entirely due to the time that it took for “the car in front of us”, as they were “booking somebody”. There are cameras in the area and the transporting officers would have made a call to say “we’re here”. As a result, the booking officers would have known that P.C. Byun was waiting with the “court wagon”. He felt that there was nothing he could do to “get them to hurry up” because “if there’s a body there [in the booking area], they have to go through whatever it is they have to go through to book that body. I don’t know how … the staff sergeant could have expedited the situation”.

17As to whether he could have facilitated a phone call between Commisso and counsel, while they were waiting, P.C. Byun testified as follows:

Number one, there’s no private area in the wagon in which he would have been able to speak. We can pretty much hear conversations that go on within the wagon. I wouldn’t be comfortable allowing him to make any kind of phone call from within the wagon. I don’t have a phone that he can access within the wagon to make a call, so, no, it would not have been possible … There was no, in my opinion, suitable place for him to speak to anybody.

18In terms of the frequency of this kind of delay, P.C. Byun testified that, “on weekends it is quite normal. I mean it’s not the first time I’ve waited in line is my point, when parading a prisoner with the wagon”. There have been occasions when he has been told to take a prisoner to another station, because the station where he has arrived is too busy. The fact that he was not told to go to another station meant that “they’re going to handle us eventually”.

19The other member of the “bicycle team”, who had been providing “back-up” to P.C. Girgis at the scene of the arrests, was P.C. Wong. They both returned to their division station on their bicycles, left their bicycles at the station, and then drove a police car to the Traffic Services station. P.C. Girgis and P.C. Wong took custody of Commisso from the transporting officers at 2:52 a.m. inside the “sally port”. They paraded him before the booking sergeant at 2:54 a.m. A video tape of Commisso’s booking procedures was played at trial. After the booking, they did a “pat down search” and placed Commisso in “an interview room” at 3:07 a.m. This “interview room” is “similar to a cell”.

20During the booking and parading process, when Commisso was again advised of his rights, he repeated his request to speak to a specific lawyer and gave the lawyer’s name as “Greg Lafontaine”. After placing Commisso in the interview room, P.C. Wong looked up Greg Lafontaine’s phone number and placed a call to the number at 3:15 a.m. The call went to voicemail but the message provided a cell phone number that could be used in emergencies. P.C. Wong called this second number at 3:19 a.m. and it again went to voicemail. P.C. Wong left messages at both numbers with his name, phone number, the reason he was calling, and the client’s name.

21During the period when P.C. Wong was waiting for a response to his calls to Mr. Lafontaine’s office, P.C. Girgis made a call at 3:32 a.m. to a friend of Commisso’s named “Vladimir”. Commisso had requested this call. P.C. Girgis reached Vladimir on the phone and then let him talk to Commisso. At 3:35 a.m., P.C. Wong received a call back from Mr. Lafontaine’s office. The caller, Ricardo Golec, is a lawyer in Mr. Lafontaine’s law firm. He asked a few questions about the case, which P.C. Wong answered. Then from 3:39 a.m. to 3:57 a.m., Commisso spoke to Mr. Golec in a “private booth” or “private room”, as it was described. At 3:57 a.m., Commisso knocked on the door, advised the police that his call to counsel was over, and handed the phone back to P.C. Wong. At 4:06 a.m., Commisso asked if he could speak to his friend Vladimir again. P.C. Wong placed this further call and allowed Commisso to speak to Vladimir in the “private telephone room”. P.C. Wong explained that they “generally … provide arrested parties reasonable use of the phone”.

22At 4:13 a.m., Commisso again knocked on the door and indicated that he was finished speaking to Vladimir. At this point, Commisso was taken into the breathalyzer room. It was 4:14 a.m. and he provided the first breath sample at 4:24 a.m., after various inquiries and instructions from the breathalyzer technician. The reading was 134. He provided the second sample at 4:47 a.m. and the reading was 121. A video tape of the breathalyzer room procedures was played at trial. I have already summarized the evidence of the C.F.S. expert (at para. 3 above), extrapolating the Intoxilyzer readings back to the time of driving. I will not repeat that summary. Included in the inquiries made by the breathalyzer technician between 4:14 a.m. and 4:24 a.m. were questions as to whether Commisso had spoken to counsel of choice and whether he was satisfied with that conversation. Commisso replied affirmatively to these questions. Counsel at trial, Mr. Lafontaine, conceded that “there’s no issue that my office gave competent advice”.

23In cross-examination, P.C. Wong testified that he was not advised of any delays by the transporting officers at 3:52 a.m., when he and P.C. Girgis met with them inside the “sally port” and took custody of Commisso. P.C. Wong then went on to give somewhat confusing opinion evidence about delays in general, at various stages when police are processing prisoners. He initially appeared to describe delays that can occur during the booking process, as follows:

… the amount of delay wouldn’t surprise me in today’s sort of age where we have to ask lots of questions during the booking hall, and it’s on camera, there’s lots of procedures to follow, and searches take time, and there’s more questions after the search, so it’s typical to wait up to an hour from the time you arrive … There’s manpower issues with sergeants that have to book, but they also have to parade officers for duty and do other tasks, so sometimes there’s a delay there.

He then appeared to relate these delays that “sometimes” occur during the booking process to subsequent delays in getting a phone call to counsel, testifying as follows:

They all receive a phone call at the station once they’re booked in and searched, so that there’s no weapons or drugs or items on them. So it does take a while, and unfortunately, that’s the way we provide the service of phone calls.

He then appeared to describe earlier delays that can occur at the “sally port”, as follows:

It’s a combination of procedures. The booking process takes a long time, so if we’re first in line, second in line, third in line, it could be a busy night; there could be staffing issues; there could be another issue at the station which it’s delaying, you know, they could be booking somebody out of the same sally port, so the same sally port that we book in is the same one that prisoners are released from.

Finally, he returned to discussing delays in getting a phone call to counsel, testifying as follows:

… typically in one division there’s only one private room for counsel, so if somebody’s in there for 20 minutes, that delays everybody else from using the phone. There’s lots of reasons why, the hour sort of an estimate of typically how long it takes to get a-- phone call. … I would say more an hour from the time they arrived until the time they have their phone call.

… And that’s my experience, that an hour sort of seems like it’s standard time from arrest to phone call, sort of, to see the process through, … if I encountered that one-hour window, and I wouldn’t question why there was a delay because in my opinion that is not extraordinary delay.

C. ANALYSIS

[24]

Analysis

As summarized above at paras. 4 and 5, the Appellant submits that Chapin J. made three errors. The first alleged error concerns whether the police were obliged to “hold off” from making any demands for incriminating evidence (such as the s. 254(2) ASD demand), once Commisso was under arrest for the s. 145 offence and had asserted his s. 10(b) Charter right to speak to counsel. Chapin J. dismissed this argument. If the Appellant is correct on this point, the ASD test results would have been obtained in violation of s. 10(b) of the Charter. The second and third alleged errors concern the trial judge’s s. 24(2) analysis. The Appellant submits that Chapin J. minimized both the gravity of the Charter violations and their impact on the Appellant’s Charter protected interests (the first and second sets of Grant factors) due to her failure to consider, or her erroneous consideration, of various circumstances that will be discussed below.

25I will address these three grounds of appeal in the order set out above.

(i) The s. 10(b) duty to “hold off” and whether it applies to the roadside ASD demand in this case

[26]

The s. 10(b) duty to “hold off” and whether it applies to the roadside ASD demand in this case

It is settled law that the s. 10(b) Charter right to counsel has three distinct aspects, as explained by Lamer C.J.C. in R. v. Bartle (1994), 1994 64 (SCC), 92 C.C.C. (3d) 289 at 301 (S.C.C.), speaking for the majority:

This court has said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:

(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).

(See, for example, Manninen, at pp. 391-2; R. v. Evans (1991), 1991 98 (SCC), 63 C.C.C. (3d) 289 at pp. 304-5, and Brydges, at pp. 340-1.) The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature of implementation duties and are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel.

27It is the third duty (“to refrain from eliciting evidence…”) that is at issue in relation to Commisso’s first ground of appeal. He submits that he had “triggered” this “implementation” duty, upon his arrest at 1:18 a.m. for breach of an undertaking, and that the ASD demand at 1:37 a.m. amounted to “eliciting evidence” in contravention of the third duty.

28This third s. 10(b) duty, to “refrain from eliciting evidence” until the detainee has had an opportunity to exercise his right to counsel, came to be referred to as the “obligation to hold off”. See, e.g., R. v. Prosper (1994), 1994 65 (SCC), 92 C.C.C. (3d) 353 at 375, 389, and 397 (S.C.C.) where the exact meaning and duration of the “holding off” period became the subject of some controversy in the various judgements of the Court. The origins of this third duty are found in the early Charter jurisprudence. The root case is R. v. Manninen (1987), 1987 67 (SCC), 34 C.C.C. (3d) 385 at 392 (S.C.C.) where Lamer J., as he then was, stated on behalf of the majority:

Further, s. 10(b) imposes on the police the duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel…For the right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence.

29Manninen was a case where the police had questioned the accused and elicited an incriminating statement, after he had requested access to counsel and before the police had facilitated such access. Shortly after Manninen was decided, the issue arose again in R. v. Ross and Leclair (1989), 1989 134 (SCC), 46 C.C.C. (3d) 129 at 136 (S.C.C.). The factual context was different as the police had placed the two accused in an identification line-up before they had been able to reach counsel. Lamer J., as he then was, stated the following on behalf of the majority:

The police were mistaken to follow such a procedure. As this court held in Maninnen, the police have, at least, a duty to cease questioning or otherwise attempting to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. In my view, the right to counsel also means that, once an accused or detained person has asserted that right, the police cannot, in any way, compel the detainee or accused person to make a decision or participate in a process which could ultimately have an adverse effect in the conduct or an eventual trial until that person has had a reasonable opportunity to exercise that right. In the case at bar, it cannot be said that the appellants had a real opportunity to retain and instruct counsel before the line-up was held. Nor can it be said that there was any urgency or other compelling reason which justified proceeding with the line-up so precipitously.

30The above qualification in Ross on the duty to refrain from eliciting incriminating evidence (to the effect that it does not apply in cases of “urgency or other compelling reason”) had also been acknowledged in R. v. Manninen, supra at p. 392 where Lamer J. stated:

Of course, there may be circumstances in which it is particularly urgent that the police continue with an investigation before it is possible to facilitate a detainee’s communication with counsel. There was no urgency in the circumstances surrounding the offences in this case.

In other words, both Manninen and Ross acknowledged that there could be certain limits on the duty to “hold off”. These limits were eventually clarified, particularly in the subsequent case law relating to roadside breath testing.

31The language describing the third s. 10(b) duty in Manninen and Ross is sufficiently broad to include an ASD demand pursuant to s. 254(2). The Court in Manninen referred to “the duty to cease questioning or otherwise attempting to elicit evidence from the detainee” [emphasis added]. The Court in Ross repeated this description of the test and went on to specify that asking the accused to make any “decision” or participate in any “process which could ultimately have an adverse effect in the conduct of an eventual trial” was included in the duty to “hold off” [emphasis added]. This broad description of the third s. 10(b) implementation duty could certainly include an ASD demand.

32However, neither Manninen or Ross involved statutory powers of compulsion like s. 254(2), nor did they involve drinking and driving offences. Furthermore, the Court had already addressed the relationship between s. 10(b) of the Charter and powers of compulsion used in drinking and driving cases in an earlier decision, namely, R. v. Therens (1985), 1985 29 (SCC), 18 C.C.C. (3d) 481 at 487, 491, and 506-7 (S.C.C.). That case involved a breathalyzer demand pursuant to then s. 235(1) [which became s. 254(3) at the time of the present offence]. At the time of Therens, s. 235(1) required that the breathalyzer demand be made “forthwith or as soon as practicable” and the sample had to be provided “then or as soon thereafter as is practicable”. The evidentiary presumption in s. 237(1) related to use of breath sample evidence at trial [s. 258(1) at the time of the present offence] required the samples to be taken “as soon as practicable after the time” of the alleged offence and “in any event not later than two hours after that time”. The various judgements of the Court in Therens held that this statutory language relating to breathalyzer demands was sufficiently flexible to allow for the exercise of s. 10(b) rights. The Court contrasted it with the more demanding language for roadside testing in s. 234.1 [the equivalent of s. 254(2) that is at issue in the present case]. Estey J., speaking for four members of the Court, stated:

I am in agreement that the respondent-defendant was “detained” within the meaning of s. 10 of the Canadian Charter of Rights and Freedoms when the police officers administered the breathalyzer test under s. 235 of the Criminal Code. That section of the Criminal Code clearly anticipates a delay in some circumstances for the administration of this test. This is in contrast to s. 234.1(1) of the Code. In the former section, the Code provides that the peace officer may “by demand made … forthwith or as soon as practicable” require such person to provide samples “then or as soon thereafter as is practicable”. Section 234.1(1) requires that the person driving the motor vehicle “provide forthwith such a sample of his breath”.

… As noted above, action under s. 235 by the respondent need only be taken “as soon as practicable”. We are not here faced with a proceeding under s. 234.1 which may raise different issues.

Le Dain J., speaking for two members of the Court on this issue, stated:

Section 235(1) and the related breathalyzer provisions of the Criminal Code do not expressly purport to limit the right to counsel. Such a limit, if it exists, must result by implication from their terms or operating requirements. For example, the Saskatchewan Court of Appeal in Talbourdet, supra, found that such a limit resulted from the requirement under s. 234.1(1) of the Criminal Code that a sample of breath be provided "forthwith" into a roadside screening device. The court held that this requirement precluded contact with counsel prior to compliance with a s. 234.1(1) demand. In the case of a s. 235(1) demand, the implications from the terms and operating requirements are somewhat different.

This two‑hour operating requirement does not, as in the case of the "forthwith" requirement of a s. 234.1(1) demand, preclude any contact at all with counsel prior to the breathalyzer test. The right, at the time of the detention effected by a s. 235(1) demand, to be informed of the right to retain and instruct counsel without delay is not, therefore, subject to a limit prescribed by law within the meaning of s. 1 of the Charter. Whether the two‑hour operating requirement of s. 237(1) imposes a justified limit on the nature or extent of the access to counsel that may be afforded in particular circumstances is something that need not be considered in this case.

33The Court in Therens signaled that the inter-relationship between s. 10(b) and s. 1 of the Charter, and the operating requirements of the s. 234.1 roadside breath testing provisions with their “forthwith” requirement, would be the subject of some future decision. Neither Manninen or Ross addressed that issue. The case that did subsequently address the issue was R. v. Thomsen (1988), 1988 73 (SCC), 40 C.C.C. (3d) 411 (S.C.C.). That case involved s. 234.1 [s. 254(2)] roadside breath demands and the Court held that their operational requirements amounted to a s. 1 reasonable limit on the accused driver’s s. 10(b) Charter rights. Le Dain J. gave the judgement of the unanimous Court and stated:

In R. v. Talbourdet (1984), 1984 2573 (SK CA), 12 C.C.C. (3d) 173 (Sask. C.A.), to which I referred in Therens, Cameron J.A., in agreeing with the Crown that s. 234.1(1) imposed a limit on the right to retain and instruct counsel, appears to have attached particular importance to the requirements in s. 234.1(1) that the sample of breath be provided “forthwith” (a word which he italicized) as precluding prior consultation with counsel before complying with a s. 234.1(1) demand. In our reasons for judgment in Therens, both Estey J. and I, in comparing s. 234.1(1) and s. 235(1), also attached importance to the fact that Parliament chose to use the word “forthwith” without qualification in s. 234.1(1) but the words “forthwith or as soon as practicable” and “then or as soon thereafter as is practicable” in s. 235(1). In the end, however, it was the two-hour operating limit under s. 237(1) for the breathalyzer test that was seen as affording a possibility of contact with counsel prior to compliance with a s. 235(1) demand.

… [in R. v. Seo (1986), 1986 109 (ON CA), 25 C.C.C. (3d) 385 (Ont. C.A.), the Court] came to the conclusion that there was an “implicit limitation” on the right to counsel prescribed by s. 234.1(1) arising from the operational nature and purpose of a s. 234.1(1) demand, as revealed by the s. 1 material that was before the Ontario Court of Appeal. The considerations that led Finlayson J.A. to this conclusion are reflected in the following passages from his reasons for judgment at pp. 408-10:

Two things are apparent from the above studies. The first is that the incident of impairment and the most effective time for law enforcement is in the late evening and early morning when the realistic probability of a detained person being able to contact “forthwith” a knowledgeable lawyer to obtain advice is very low. Secondly, there has to be a fair degree of urgency in the taking of the breath sample because the longer it is delayed, the lower the blood-alcohol content of the detained person becomes because of metabolism.

In my opinion, when the need for, and purpose of, the roadside screening device (A.L.E.R.T.) is looked at in the context of the seven volumes of material submitted by the Crown, it is evident that the section, as drafted, does not permit a detained person, subject to a demand, to retain and instruct counsel before complying with such demand. The right to retain counsel is incompatible with the effective use of this device on a random basis with the purpose of demonstrating a police presence so as to convince the driving public that there is a high probability of detection in the event that they drive after drinking.

These observations emphasize what, as a practical matter, is implied by the words “forthwith” and “roadside” in s. 234.1(1). That there is to be no opportunity for contact with counsel prior to compliance with a s. 234.1(1) demand is, in my opinion, an implication of the terms of s. 234.1(1) when viewed in the context of the breath testing provisions of the Criminal Code as a whole. A s. 234.1(1) roadside screening device test is to be administered at roadside, at such time and place as the motorist is stopped, and as quickly as possible, having regard to the outside operating limit of two hours for the breathalyzer test which it may be found to be necessary to administer pursuant to s. 235(1) of the Code.

The important role played by roadside breath testing is not only to increase the detection of impaired driving, but to increase the perceived risk of its detection, which is essential to its effective deterrence. In my opinion the importance of this role makes the necessary limitation on the right to retain and instruct counsel at the roadside testing stage a reasonable one that is demonstrably justified in a free and democratic society, having regard to the fact that the right to counsel will be available, if necessary, at the more serious breathalyzer stage.

34Seventeen years after the decision in Thomsen, the issue was once again before the Court in R. v. Orbanski; R. v. Elias (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.), albeit in a slightly different context. Rather than roadside ASD demands, the two cases involved roadside sobriety tests and questioning about alcohol consumption, prior to complying with s. 10(b) Charter rights. The Court held that general police powers “to stop drivers and check their sobriety”, found in the common law and in provincial Highway Traffic Acts, include the power to request roadside sobriety tests and to inquire about alcohol consumption. The Court re-affirmed Thomsen and held that the operational requirements of these analogous roadside police powers constituted s. 1 reasonable limits on the accused’s s. 10(b) Charter rights. Charron J. gave the judgement of seven members of the Court and stated (at paras. 38 and 52):

An example of a limitation of the s. 10(b) Charter right to counsel resulting implicitly from the operating requirements of a statute can be found in Thomsen. In that case, Le Dain J. for the Court held that, when interpreted in the context of the two-hour time limit within which a breathalyzer test was to be administered, s. 234.1(1) of the Criminal Code, (now s. 254(2)), implied that the rights of a roadside detainee under s. 10(b) were to be abridged (Thomsen, at pp. 652-53). This limit was found to be constitutional.

It is important to keep in mind that compliance with s. 10(b) requires not only that detainees be informed of their right and of the means available to exercise it, but that they be provided with a reasonable opportunity to exercise the right to retain and instruct counsel. The question is whether there was an implied limit on such right in these cases. In Thomsen, this Court held that the exercise of the right to counsel was incompatible with the operational requirements underlying the demand for a sample for analysis in a roadside screening device made pursuant to s. 234.1(1) of the Criminal Code (now s. 254(2)). In determining that there was an implicit limitation on the right to counsel prescribed by s. 234.1(1), the Court adopted the reasoning of Finlayson J.A. in R. v. Seo (1986), 1986 109 (ON CA), 25 C.C.C. (3d) 385 (Ont. C.A.), and concluded as follows, at p. 653:

That there is no opportunity for contact with counsel prior to compliance with a s. 234.1(1) demand is, in my opinion, an implication of the terms of s. 234.1(1) when viewed in the context of the breath testing provisions of the Criminal Code as a whole. A s. 234.1(1) roadside screening device test is to be administered at roadside, at such time and place as the motorist is stopped, and as quickly as possible, having regard to the outside operating limit of two hours for the breathalyzer test which it may be found to be necessary to administer pursuant to s. 235(1) of the Code.

In my view, it logically follows from Thomsen that a limit on the right to counsel is also prescribed during the roadside screening techniques utilized in these cases. If a limit on the right to counsel is prescribed during compliance with a s. 254(2) demand for a sample for analysis in the roadside screening device, then the limit must necessarily be prescribed during the screening measures preceding the demand, conducted with the very objective of determining whether there is a reasonable suspicion justifying the demand. Similarly, the limit must necessarily be prescribed during the screening measure that is the functional equivalent to the roadside screening device, namely, a technique conducted with the very objective of determining whether there are reasonable and probable grounds justifying a s. 254(3) demand for a breath or blood sample.

35Charron J. went on to emphasize that these roadside police powers, to investigate drinking and driving without complying with s. 10(b) of the Charter, are proportional limits on s. 10(b) rights because the evidence cannot be used to prove the accused’s guilt at trial (at paras. 58-9):

Finally, the limitation meets the proportionality test. As the Crown concedes, the evidence obtained as a result of the motorist’s participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer’s suspicion that the driver might be impaired. It cannot be used as direct evidence to incriminate the driver: see R. v. Milne (1996), 1996 508 (ON CA), 107 C.C.C. (3d) 118 (Ont. C.A.) at pp. 128-31; R. v. Coutts (1999) 1999 3742 (ON CA), 136 C.C.C. (3d) 225 (Ont. C.A.); R. v. Ellerman, 2000 ABCA 47, [2000] 6 W.W.R. 704 (Alta. C.A.); and R. v. Roy (1997), 1997 10524 (QC CA), 117 C.C.C. (3d) 243 (Que. C.A.). The rationale for this limitation was first set out in Milne and is founded on the purpose of the s. 10(b) right to counsel. This Court described the purpose of the right to counsel in R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, in these words, at p. 191:

The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen, 1987 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self‑incrimination and to assist him or her in regaining his or her liberty: Brydges, 1990 123 (SCC), [1990] 1 S.C.R. 190 at p. 206; R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, at pp. 176-177; and Prosper 1994 65 (SCC), [1994] 3 S.C.R. 236.

As noted by Moldaver J.A. in Milne, at p. 131, it is not difficult to find proportionality in so far as the liberty interest of the detained motorist is concerned because roadside screening techniques “take but a little time and cause only minor inconvenience to the motorist”. He stated, however, that “the same cannot be said about the ‘risk of incrimination’ component if, in fact, the motorist can be compelled to create self-incriminating evidence that can later be used at trial” (p. 131). I agree with this conclusion.

In each case before the Court, the impugned evidence was adduced at trial solely to confirm the police officers’ grounds for making the breathalyzer demand. Each driver was informed and given the opportunity to exercise his s. 10(b) right upon arrest and before he was requested to provide incriminating evidence through breath samples. The abridgment of the s. 10(b) right was strictly confined for the purpose of roadside screening and was constitutional.

36As a result of the above line of authority, it is settled law that s. 10(b) Charter rights are not engaged when the police are carrying out various roadside investigative tests and inquiries relating to drinking and driving, including an ASD breath sample demand pursuant to s. 253(2). Accordingly, the third s. 10(b) duty (“to refrain from eliciting evidence …”) does not apply in relation to an ASD demand because s. 10(b) of the Charter is effectively suspended when the police are carrying out this kind of roadside screening. The Appellant does not dispute this general state of the law. He simply submits that the police should have proceeded with the ASD demand first, when they stopped Commisso on King Street West just before 1:18 a.m. Having chosen instead to arrest Commisso for breach of an undertaking, an offence contrary to s. 145 of the Criminal Code, and Commisso having asserted his s. 10(b) right to counsel when cautioned by the police, the Appellant submits that the third duty set out in Manninen and Ross was now engaged. As a result, Commisso was “immune from evidence-gathering”, as the Appellant’s counsel put it, until he had an opportunity to speak to counsel.

37There is little or no authority supporting the Appellant’s argument on this point. As a matter of logic and criminal law policy, it appears to make little sense because it places an accused like Commisso, who is alleged to have committed additional offences (beyond drinking and driving), in a better position than an accused who is only alleged to have been drinking and driving. It also attaches undue significance to the exact order in which the police proceed when investigating an accused who has allegedly committed multiple offences. Finally, it ignores the fact that the ASD results cannot be used in “evidence” at trial.

38I will address the above four concerns about the Appellant’s argument in the order set out above. Beginning with its novelty and lack of authority, the Appellant filed a book containing a substantial number of decided cases that touch on this issue. They all involved accused who were being detained and investigated for a drinking and driving offence, but also for some other offence (often possession of drugs or obstruction of the investigating police officer or simply on outstanding arrest warrants). In some cases the drinking and driving investigation (usually involving an ASD demand) proceeded first. In other cases the drinking and driving investigation was deferred until after the accused had been arrested and cautioned in relation to the other offence or offences (as in the present case). Some of these cases are more helpful than others but none has held that a prior arrest for some other offence (for which the accused has asserted his s. 10(b) rights) has the effect of preventing the police from making a lawful ASD demand. See: R. v. Vautour (1987), 1987 3949 (NL CA), 29 C.R.R. 268 (Nfdl. C.A.); R. v. Abouhamad (1988), 5 W.C.B. (2d) 382 (Alta. C.A.); R. v. Buyco (2010), 94 M.V.R. (5th) 118 (Alta. Prov. Ct.); R. v. Good (2007), 57 M.V.R. (5th) 116 (Alta. Q.B.); R. v. Michener (2013), 301 C.C.C. (3d) 285 (Alta. Prov. Ct.); R. v. Miller (2013), 109 W.C.B. (2d) 664 (Alta. Prov. Ct.); R. v. Scott, 2016 ABPC 226, [2016] A.J. No. 1035 (Alta. Prov. Ct.); R. v. Gunn (2015), 121 W.C.B. (2d) 24 (Ont. C.J.); R. v. Johnston, [2017] B.C.J. No. 292 (B.C. Prov. Ct.).

39This long line of authority, most of it at the trial level, has consistently held that when a drinking and driving investigation overlaps with another Criminal Code (or Highway Traffic Act) investigation, and when the accused is arrested and cautioned and has asserted his right to counsel in relation to the non-drinking and driving investigation, the law requires the following:

• first, the police must comply with the informational component of s. 10(b) in relation to the charge (or warrants) on which the accused has been arrested;

• second, the police are entitled to proceed with a parallel or over-lapping drinking and driving investigation by making a lawful ASD demand, pursuant to s. 253(2), and need not “hold off” on this investigation pending implementation of the accused’s asserted s. 10(b) rights in relation to the previous charge on which he has already been arrested; and

• third, the police must “hold off” on eliciting any incriminating evidence to be used at trial in relation to the previous charge on which the accused has been arrested.

40Morgan J.A., speaking for the Newfoundland Court of Appeal in R. v. Vautour, supra at pp. 272-3 C.R.R., held that it is the third duty set out above that is the most important, presumably because it protects against self-incrimination in relation to the offence for which the accused has been arrested:

It seems reasonably clear that the constable saw no need to arrest the respondent upon discovery of the alleged drugs, as he would normally have done, in that the respondent was already detained in relation to an investigation under s. 236 of the Criminal Code. Whether or not the constable intended to lay a charge under the Narcotic Control Act is irrelevant. What is of importance is that the constable continued his investigation into the suspected s. 236 offence and made no attempt to solicit any information from the respondent with respect to the drugs.

41The many Alberta authorities relating to this issue, cited above, have stressed that the police must comply with the first duty, that is, the informational component of s. 10(b) in relation to the offence on which the accused has been arrested, even though the police are continuing with a parallel drinking and driving investigation. For example, in R. v. Michener, supra at pp. 300-1 C.C.C., Henderson J. stated:

Based on the authorities, I conclude that where a motorist is under arrest or detention for an offence unrelated to impaired driving, police have a duty to comply with the informational component of s. 10(b) in relation to the offence for which the motorist was arrested or detained. If, subsequent to this initial arrest or detention, police form the grounds to make an ASD breath demand in accordance with s. 254(2) a further detention occurs. However, the right of the motorist to consult with counsel is suspended until after the ASD sample is taken, provided that the requirements of s. 254(2) are satisfied, including, in particular, the requirement that the ASD breath sample is taken “forthwith.”

See, in this regard, R. v. Grant (1991), 1991 38 (SCC), 67 C.C.C. (3d) 268 at 277-8 (S.C.C.). The Alberta authorities have also continued to stress the importance of the third duty, emphasized by the Newfoundland Court of Appeal in Vautour. For example, in R. v. Miller, supra at para. 48, the accused was arrested for mischief and asserted her s. 10(b) right to counsel before the officer made an ASD demand. Pharo J. held that the police were entitled to proceed with the ASD demand but that:

Of course, Ms. Miller was still entitled to her right to counsel for the mischief charge, and the police were required to hold off on any further investigation on the mischief charge until she consulted counsel, which she did when she was taken to the police station.

See also: R. v. Gunn, supra at para. 40.

42Given the consistent line of authority summarized above, counsel for the Appellant conceded that his first ground of appeal has never succeeded in any of the decided cases. Indeed, it has been repeatedly rejected. His submission is that none of the above authority is binding on this Court (which is correct) and that the basic principles of law set out in Manninen, Ross, and Prosper about the duty to “hold off” are binding and should be applied in this case.

43Leaving aside lack of authority, my second concern with the Appellant’s argument relating to this first ground of appeal is that it is contrary to logic and sound criminal law policy. For example, it seems irrational that an accused who has been drinking and driving and is involved in a serious accident, and who then flees from the scene of the accident, and who then engages in a course of dangerous driving before the police are able to stop the car, cannot be investigated for drinking and driving in the usual way if the police first arrest the accused for dangerous driving and leaving the scene of an accident (contrary to ss. 249 and 252), and if the accused asserts his s. 10(b) rights to counsel. The same accused involved in the same serious accident, who remains at the scene, is undoubtedly subject to timely roadside breath testing pursuant to s. 253(2). The Appellant’s argument places the more aggravated form of drinking and driving in a privileged position, and makes it much more difficult to investigate, when compared to the less aggravated form of drinking and driving. In R. v. Scott, supra at para. 158, Williams J. made much the same point, noting that an accused who obstructs a police investigation of his drinking and driving and is arrested for that offence (contrary to s. 129), should be in no better position than an accused who does not obstruct and who complies with an ASD demand:

I agree that from a public policy perspective an accused cannot be allowed to avoid providing a sample of his breath simply because they have also committed a further criminal offence of obstructing or resisting the peace officer who is attempting to carry out that breath demand. … Applying the reasoning in Buyco, I do not accept Cst. Unger had a duty to provide the accused an opportunity to contact counsel immediately at the roadside respecting the obstruction charge, prior to the provision of a breath sample pursuant to a lawful ASD demand. His s. 10(b) rights were properly suspended at the roadside pursuant to a lawful s. 254(2) breath demand. As a result, I find no violation of the accused’s s. 10(b) Charter rights.

44The well established criminal law policy that is at stake here is the one set out in Thomsen and in Elias and Orbanski, derived substantially from the Court of Appeal decision in R. v. Seo (1986), 1986 109 (ON CA), 25 C.C.C. (3d) 385 (Ont. C.A.). That policy has been set out above in the lengthy quotes from those cases and I will not repeat it. It is concerned with the danger posed by drinking and driving and the need to facilitate timely and proportionate roadside investigations in these cases. It cannot be correct that more aggravated forms of drinking and driving (for example, those that include ss. 249 and 252 offences), or that drinking and driving offences that are followed by obstruction (contrary to s. 129), cannot be investigated in the same way as drinking and driving simpliciter. They are all subject to the same public policy that justifies timely and proportionate roadside screening of the driver for excessive alcohol consumption.

45My third concern is that the Appellant’s argument attaches undue significance to the exact order in which the police proceed, when investigating both a drinking and driving offence and some other offence. The phenomenon of multiple offences arising out of the same set of facts, resulting in parallel or over-lapping investigations, is commonplace. The Appellant’s submission is that the police must always proceed first with the drinking and driving investigation, if they wish to utilize s. 253(2) roadside ASD powers in a timely way.

46This argument has two fundamental flaws. First, it ignores the fact that there will often be sound law enforcement reasons to immediately arrest for a subsequent offence, such as obstruct police, leaving the scene of an accident, dangerous driving, possession of drugs or firearms, or breach of an undertaking, as in the present case. In all these cases, the investigating officer will generally have direct evidence of the subsequent offence and will immediately have a basis to arrest. On the other hand, drinking and driving offences almost always require further investigation before the grounds to arrest may eventually emerge. It makes sense from a law enforcement perspective to immediately arrest and take control of the accused, where grounds to arrest exist, and then carry on investigating other offences. Second, from the perspective of protecting the rights of the accused, it is important not to delay making an arrest where sufficient grounds already exist. The arrest triggers important informational duties, set out in ss. 10(a) and 10(b) of the Charter, which immediately inform the accused of the present extent of his/her jeopardy and the existence of certain rights. There may well be cases where it makes sense to proceed first with the ASD demand, and delay any arrest for some other offence, as the Appellant submits. For example, if the arrest for some other offence is going to involve protracted investigative procedures resulting in significant delays (such as lengthy or difficult searches incident to arrest), the “forthwith” requirement in s. 253(2) may be compromised. However, I reject the suggestion that the police must rigidly and invariably carry out a drinking and driving investigation involving an ASD demand before making any other arrest.

47Finally, my fourth and last concern with the Appellant’s argument in relation to the first ground of appeal is that it ignores the fact that the ASD results cannot be used in “evidence” at trial. The duty to “hold off”, as explained in the leading cases cited above, prohibits the police from “eliciting evidence” or “attempting to elicit evidence” or “eliciting incriminatory evidence”, until an arrested accused has had a reasonable opportunity to speak to counsel [emphasis added]. See: R. v. Manninen, supra at 392; R. v. Ross and Leclair, supra at 136; R. v. Bartle, supra at 301; and R. v. Prosper, supra at 375. In upholding the ASD demand process as a “reasonable limit” on s. 10(b) rights, the Supreme Court in R. v. Orbanski; R. v. Elias, supra at paras. 58-9, followed the Court of Appeal decision in R. v. Milne (1996), 1996 508 (ON CA), 107 C.C.C. (3d) 118 at 128-131 (Ont. C.A.). Both decisions hold that the ASD results “cannot be used as direct evidence to incriminate the driver”, as Charron J. put it, or as “self-incriminating evidence that can later be used at trial,” as Moldaver J.A. (as he then was) put it. These decisions hold that ASD results “can only be used as an investigative tool to confirm or reject the officer’s suspicion” concerning drinking and driving [emphasis added].

48There is no dispute in the present case that Commisso’s ASD test result was only used in the limited manner permitted by Elias and Orbanski and by Milne. It was not used as “evidence” at trial and was only used as an “investigative tool” by P.C. Girgis. Accordingly, the use of the ASD test result falls squarely within the s. 1 justification for limiting Commisso’s s. 10(b) rights.

49For all these reasons, I cannot accept the Appellant’s first ground of appeal. There was no duty to “hold off” from making a roadside ASD demand. As a result, there were no Charter violations beyond the two s. 8 and s. 10(b) violations found by the trial judge.

(ii) The trial judge’s s. 24(2) analysis relating to the gravity of the two Charter violations

[50]

The trial judge’s s. 24(2) analysis relating to the gravity of the two Charter violations

The trial judge analysed the first set of relevant factors in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1 (S.C.C.), relating to the seriousness of the Charter violations, as follows:

In this case, there were some aggravating factors, given that the demand was not lawful and there was a lengthy delay in the implementation of Mr. Commisso’s right to counsel. In my view, the officers, however, were not deliberately withholding Mr. Commisso’s right. There seemed to be a lack of understanding of the importance of implementing the right to counsel as quickly as possible.

However, it is my view that the evidence here does not rise to the level of a systemic problem within the Toronto Police Services. The circumstances were somewhat unique, given that it was an extremely busy night and certainly the entertainment district can be a dangerous place for police.

In my view, the conduct here should be placed in the middle of the spectrum. This is because the officer[s] should have done more, but were not deliberately withholding Mr. Commisso’s right to counsel. This factor favours exclusion of the evidence.

51The s. 8 violation found by the trial judge concerned the “forthwith” requirement in s. 254(2)(b). The case law has interpreted “forthwith” as having two aspects: first, it requires the demand to be made “promptly” by the officer, once “reasonable suspicion” has been formed; and second, it requires a breath sample to be provided by the accused “immediately” or “without delay”, although some “short delay” that is “reasonably necessary” may be allowed. See: R. v. Quansah (2012), 2012 ONCA 123, 286 C.C.C. (3d) 307 (Ont. C.A.); R. v. Walsh, 2019 ONSC 2337. The trial judge found a failure to comply with the first requirement, resulting in a s. 8 Charter violation.

52The Appellant does not submit that this s.8 violation, concerning the first aspect of the “forthwith” requirement, was serious. In oral argument, counsel conceded that he would not have brought the present appeal if the s.8 violation stood alone. I agree with this concession. It is clear that P.C. Girgis’ failure to make the “forthwith” demand at 1:18 a.m., once he had formed the requisite “reasonable suspicion”, was due to inexperience and lack of expertise or training in drinking and driving investigations. This is a relatively complex and specialized area of statutory law and not all police officers (let alone lawyers and judges) have mastered it. Furthermore, it was a technical violation of s.8 because the “bike team” officers did make a prompt radio call at about 1:20 a.m. requesting that an ASD be brought to their roadside location. It appears that the ASD arrived shortly before 1:35 a.m. and P.C. Perino (who had been trained in use of the ASD) then made the demand at 1:37 a.m. The Appellant Commisso provided a timely breath sample at 1:39 a.m., once the formal demand was made, thus complying with the second aspect of the “forthwith” requirement. In R. v. Jennings (2018), 2018 ONCA 260, 45 C.R. (7th) 224 at para. 26 (Ont. C.A.), the Court held that not all s. 8 violations relating to roadside ASD testing are “per se a serious breach” of Charter rights and that the first set of Grant factors requires “some examination of the police conduct and a determination of where it fits on a spectrum from mere technical breaches at one end to bad faith violations at the other”. In that case, there had been three failures to follow “best practises” set out in the ASD police manual. These kind of technical violations were held by the Court to “favour admission of the evidence”. The Appellant does not dispute that the same kind of analysis would apply to the s.8 violation in the present case.

53The focus of the Appellant’s argument concerning the seriousness of the Charter violations was, therefore, not on the s. 8 violation but on the delay in implementing the s. 10(b) right to counsel. The trial judge made a number of relevant findings in this regard, at the initial violation stage of her analysis. She held that the s. 10(b) breach was due to a series of delays in implementing Commisso’s right to counsel, beginning with P.C. Girgis when he was waiting at the roadside for the ASD to arrive, continuing with P.C. Perino after he had completed the ASD test and was putting Commisso in the “court wagon”, and concluding with P.C. Byun when he was waiting outside the “sally port” in the “court wagon”. She characterized these three separate periods of delay, where the officers did not attempt to facilitate access to counsel, as not “intentional” but, nevertheless, exhibiting a failure by the three officers to “turn their minds” to implementing Commisso’s s. 10(b) rights. She also acknowledged that the delays, especially those at the roadside, were partly explained because “it was a busy night and the entertainment district can be hazardous for officers”.

54When the trial judge turned to her s. 24(2) analysis and the first set of Grant factors, as set out above in the passage quoted from her Reasons, she elaborated on these earlier findings made at the s. 10(b) violation stage. She held that the officers “were not deliberately withholding” s. 10(b) rights from Commisso. Rather it was a case involving “a lack of understanding of the importance of implementing the right to counsel as quickly as possible”. Furthermore, there were some extenuating circumstances because it was “an extremely busy night and certainly the entertainment district can be a dangerous place for police”. As a result, she held that the s.10(b) violations did “not rise to the level of a systemic problem” and were situated “in the middle of the spectrum” of gravity. She concluded that this factor “favours exclusion of the evidence”.

55The Appellant submits that the trial judge erred in failing to find a “systemic” problem, given the testimony of P.C. Byun and P.C. Wong. The trial judge is said to have failed to appreciate that the officers’ evidence was to the effect that the delays in this case were routine or “normal” on weekends in the “Entertainment District”. On a proper appreciation of the two officers’ evidence, the Appellant submits, there was a “systemic problem” and the s.10(b) violation was not at the mid-level of gravity but at the high end of the spectrum.

56I cannot accept this submission for a number of reasons. First, the trial judge did conclude that the first set of Grant factors “favours exclusion of the evidence”. The Appellant’s argument, at best, moves the calibration or degree of the gravity without substantially changing the result. Second, the violation of s. 10(b) found by the trial judge involved “all of the officers”, beginning with P.C. Grigis and P.C. Perino at the roadside and ending with P.C. Byun at the “sally port”. There is no serious dispute that any failures to implement s. 10(b) rights at the roadside were explained or attenuated to some degree by the volatile crowd in front of the nightclub and by the lack of privacy at this location (as set out above at para. 9). The trial judge’s findings of fact on this point are unimpeachable, concerning the “hazardous” or “dangerous” environment that had developed at the roadside around 1:18 a.m., when P.C. Girgis arrested Commisso. Third, the trial judge’s findings of fact, to the effect that the s. 10(b) delays were not “deliberate” or “intentional”, are inferences that reasonably arise from the evidence. I have summarized various aspects of the officers’ evidence above, showing the efforts that they made to implement Commisso’s s. 10(b) rights at the police station, as well as their recognition that they were the officers who were responsible for arranging a phone call to his lawyer of choice (see paras. 8-9, 13-14, and 20-21 above). This body of evidence supports the trial judge’s finding that the s. 10(b) violations were not “deliberate” but rather were due to a “lack of understanding” or a failure to “turn their minds” to the s. 10(b) issue at three particular stages in the chronology of events that night.

57The fourth and last reason for rejecting the Appellant’s argument about the first set of Grant factors relates to the evidence of an alleged “systemic problem”. I have already summarized P.C. Byun’s and P.C. Wong’s evidence concerning this issue (at paras. 15-18 and 23 above). In my view, P.C. Wong’s evidence on this point was confusing and unhelpful. He gave little more than a series of personal and generalized opinions about various kinds of delays that sometimes arise in criminal cases. In the end, his opinion seemed to be that a period of one hour, between arrest and getting a phone call to counsel, was fairly typical in most criminal cases due to various causes of delay. That kind of generalized opinion from a single junior officer was of little value and did not begin to raise concerns about a “systemic problem” having arisen in this particular case.

58P.C. Byun’s evidence, on the other hand, was somewhat more helpful because he was clearly referring to delays outside the “sally port”, when transporting prisoners on busy weekends. This was a relevant period of delay in the present case. It appears that P.C. Byun had to wait from 1:58 a.m., when the “court wagon” first arrived at the station, until 2:52 a.m. when the wagon was inside the “sally port” and the arresting officers took custody of Commisso. This 54 minute period of delay was described by P.C. Byun as “quite normal” on weekends, in the sense that “it’s not the first time I’ve waited in line” [emphasis added]. In my view, this kind of imprecise anecdotal evidence does not justify or require the Crown or the Court to enter into an inquiry concerning broad “systemic” issues. In particular, the kind of “systemic” issues that the Appellant seeks to infer from the present record, such as lack of staffing, lack of resources, or mismanaged deployment of staff and resources at downtown Toronto police stations on busy weekends, would require a much more sophisticated body of evidence, likely including some expert analysis as well as evidence from some senior manager. No such evidence was available from P.C. Wong and P.C. Byun. In order to determine whether there was a “systemic problem” in this case, there would also have to be some evidence about the particular prisoner who was ahead of Commisso that night, and why that earlier case had taken 54 minutes during the booking process. P.C. Byun made it clear that he knew nothing about the particular prisoner who was ahead of him or about any complexities or difficulties in that particular booking process. He simply knew that it was this earlier case that had caused the 54 minute delay in Commisso’s case. See, in this regard: R. v. Carey (2006), 2006 32745 (ON CA), 83 O.R. (3d) 49 (C.A.). On the present record, there was an insufficient basis in the evidence to justify or require a proper inquiry into the existence or non-existence of a “systemic problem”.

59For all these reasons, the ground of appeal concerning the gravity of the two Charter violations must be dismissed. The trial judge made reasonable findings that the s. 10(b) violation was not intentional, that it was explained or attenuated to some degree, that it was not systemic, and that it was in the mid-level of gravity.

(iii) The trial judge’s s. 24(2) analysis relating to the impact of the two Charter violations

60The trial judge analysed the second set of Grant factors, relating to the impact of the violations on Commisso’s Charter-protected interests, as follows:

At Paragraph 76 of Grant, the Supreme Court set out that this inquiry calls for:

An evaluation of the extent to which the breach actually undermined the interest protected by the right infringed, the impact of a Charter breach may range from fleeting and technical to profoundly intrusive.

In this case, the impact on Mr. Commisso’s right to counsel certainly was not fleeting, and resulted in his being detained for 2 hours and 21 minutes before he was able to contact counsel. However, discoverability of the evidence, although not determinative, is a factor to consider under this line of inquiry. See Regina v. Cote, [2011] SCC 46. In this case, Mr. Commisso would have had to comply with the instrument demand. I do not have any reason to think that he would have refused to comply had he spoken with counsel at an earlier stage. I also note that the collection of breath samples from an approved instrument has long been recognized by the courts as a relatively non-intrusive procedure, which has a slight impact on the Charter protected interest of a motorist. See Regina v. Rehill, 2015 ONSC 6025, [2015] OJ 5068.

Mr. Commisso did not testify on the application. In my view, there was some impact on Mr. Commisso’s Charter protected interests, but I would characterize it as being towards the less serious end of the spectrum, which, in my view, favours admission of the evidence.

61Once again, the focus of the Appellant’s argument in relation to this last ground of appeal was not on the s. 8 violation. The Appellant conceded, in light of the Court of Appeal’s recent decision in R. v. Jennings, supra at paras. 27-32, and the authorities cited therein, that the trial judge did not err in characterizing the seizure of a roadside ASD breath sample as a “relatively non-intrusive procedure which has a slight impact on the [s. 8] Charter protected interest of a motorist”. This s. 8 Charter violation, standing alone, undoubtedly favoured admission of the evidence because of its minimal impact, as the Court held in Jennings. Also see: R. v. Rehill (2015), 2015 ONSC 6025, 89 M.V.R. (6th) 215 at paras. 33-7 (Ont. S.C.J.).

62The Appellant made two main submissions in support of his argument concerning the trial judge’s analysis of the second set of Grant factors, both relating to the s. 10(b) violation. First, he submitted that the trial judge failed to consider the psychological impact of delaying Commisso’s access to legal advice. Second, he submitted that the trial judge erred in her “discoverability” analysis by speculating as to whether Commisso would have received any different legal advice at an earlier stage in the chronology of events that night.

63It is the first of the above two arguments that was emphasized by counsel. He relied heavily on a recent line of s. 10(b) authority that has stressed the “psychological value of access to counsel without delay”, and not just the need for substantive legal advice: R. v. Rover, 2018 ONCA 745; R. v. Noel, 2019 ONCA 860; R. v. Khan, 2019 ONSC 2617. Also see: R. v. Miller, 2019 ONSC 7417.

64In my view, these authorities are distinguishable from the present case on their facts. In Rover, the accused was arrested on serious drug charges (including possession of fentanyl for the purpose of trafficking) at 10:41 p.m. in the evening. He immediately asserted his s. 10(b) rights, stating that he wished to speak to his lawyer. The police deliberately denied the accused access to counsel for the next six hours due to a routine policy of suspending s. 10(b) rights when a search warrant is being executed (in this case, at the accused’s home). It was 5:45 a.m. the next morning before the accused was allowed to speak to counsel. The last three hours of this delay was particularly inexcusable because the police had obtained a search warrant and had the accused’s house secured by 2:55 a.m. Accordingly, even the police officers’ own overly broad policy (which was lacking in any case-specific criteria) no longer justified delaying the exercise of s. 10(b) rights. On this particularly bad set of facts, the Charter violation was held to be “very serious” and it pointed “very strongly toward exclusion”. It also had “a significant negative impact” on the accused’s s. 10(b) interests. He was not only denied access to timely legal advice in relation to a search of his home and his arrest on serious drug charges but there was also “significant psychological impact brought to bear on the appellant by holding him without explanation and access to counsel for hours”. These negative impacts of the Charter violation were held to “also point, although less strongly, to exclusion”. In the result, the evidence was excluded.

65In Noel, the police executed a search warrant on the accused’s home by way of “dynamic entry” and immediately arrested him on drug trafficking charges. It was 10:28 p.m. in the evening. He asserted his s. 10(b) rights by asking to speak to a lawyer. At 11:10 p.m. the accused arrived at the police station but “no one took charge of facilitating his right to counsel”. At 1:25 a.m. an officer left a message with duty counsel to call but there was no evidence as to “whether duty counsel even called back” and whether the accused “ever succeeded in speaking to counsel”. There was “no evidence that anyone followed up to ensure contact [with counsel] occurred”. On these facts, the Court held that the approximately two and a half hour delay, between the accused’s arrival at the station and the first police attempt to call duty counsel on his behalf, together with the complete failure to confirm whether duty counsel ever called back, showed a “cavalier attitude” towards the accused’s s. 10(b) rights. The Court held that the gravity of the breach was exacerbated by the “troubling” fact that the police “could not provide any reasonable explanation for the delay”. In terms of the impact of the Charter violation, the Court held that “an arrest and the search of one’s home can raise urgent legal issues about the lawfulness of the arrest and the obligation to submit, as well as the validity of the search warrant and the scope of authority that the search warrant gives to the police … Detention also raises questions of immediate importance relating to the detainee’s rights during detention, including the right against self-incrimination”. Aside from being denied access to “immediate legal advice” on these issues, the accused was denied the psychological “reassurance” that access to counsel provides. The violation was held to be serious and the impact “was significant, not neutral”. The seized evidence was excluded.

66Finally, in Khan the accused was arrested at 1:20 p.m. in relation to an undercover drug transaction involving a number of persons and about one kilo of heroin. He immediately asserted his right to counsel by asking to speak to a particular lawyer. It was six hours later, at 7:20 p.m., that the phone call to counsel was finally facilitated. The police told the accused that they would call his lawyer when they got to the police station. They did not do this. Instead, they “left him in an interview room by himself for more than four hours”. There was no evidence explaining or attempting to justify various periods of the six hour delay. The officer at the station who was responsible for facilitating access to counsel for the six accused who were detained that day was not called as a witness. The trial judge concluded that there was “a complete disregard at an institutional level” for the accused’s s. 10(b) rights. In terms of the seriousness of the violation, Davies J. stated (at para. 41):

Here, at minimum, the police demonstrated a reckless disregard for the Charter rights of Mr. Khan on both an institutional and operational level. There are no extenuating circumstances that would attenuate the seriousness of the police conduct in this case. The Charter-infringing conduct is, therefore, very serious.

In terms of the impact of the Charter violation on the accused’s s. 10(b) interests, Davies J. applied the reasoning in Rover and concluded that it “was significant in the circumstances of this case because of the psychological pressure brought to bear on [the accused] as a result of the delay in allowing him to speak to counsel”. In this regard, Davies J. particularly relied on the fact that the police had told the accused he could speak to counsel “when he got to the police station” but he was then “left in an interview room by himself for more than four hours”. As a result, the first set of Grant factors was held to “strongly favour the exclusion of the evidence” and the second set of Grant factors “also points to the exclusion of evidence, although not as significantly as the first inquiry”. In the result, the evidence was excluded.

67In my view, the circumstances of the present case bear no resemblance to Rover, Noel, or Khan, in terms of either the first or second set of Grant factors, for the following reasons:

• First, the length of the period of delay was of a different order. In the present case, Commisso was arrested at 1:18 a.m. and the police began their efforts to find his lawyer’s phone number and to then call his lawyer at 3:07 a.m. In total, the period of delay by the officers in making efforts to implement Commisso’s right to counsel was less than two hours, compared to the six hours of delay in both Rover and Khan. In Noel, there was no evidence that the police ever did facilitate and implement access to counsel. They simply left a message with duty counsel, three hours after the arrest and two and a half hours after arriving at the station, and there was no evidence as to any response from duty counsel or any follow-up by the officers. In other words, the length of the period of delay appeared to be indefinite;

• Second, P.C. Girgis told Commisso at the time of the initial arrest that the police would facilitate a call to counsel “as soon as we arrive at the station”. At the time of the breathalyzer demand, P.C. Perino repeated, in P.C. Girgis’ presence, that the police would “make efforts to put [Commisso] in contact with Mr. Lafontaine”. P.C. Perino went on to tell Commisso that they would look up Mr. Lafontaine’s phone number in the Ontario Law Directory. The officers kept these undertakings and began their efforts to reach counsel, immediately after Commisso had been booked and paraded at the station. In other words, the officers told Commisso what he should expect, in terms of implementing his s. 10(b) rights, and then they fulfilled those expectations, in sharp contrast to what happened in Khan;

• Third, unlike the sparse and unexplained factual records in Rover, Noel, and Khan, there were explanations provided in the present case for certain periods of delay. For example, the volatile situation in front of the nightclub after the initial arrest, the lack of privacy at the roadside on a busy night in the “Entertainment District”, the lengthy delay at the “sally port” while booking, parading, and searching the prisoner who was in line ahead of Commisso, and the lack of privacy in the “court wagon”, all provided some explanations for certain delays in facilitating Commisso’s access to counsel between 1:18 a.m. and 3:07 a.m. In R. v. Taylor (2014), 2014 SCC 50, 311 C.C.C. (3d) 285 at paras. 24, 28, and 32 (S.C.C.), the Court stressed that s. 10(b) implementation duties require the police to facilitate access to counsel “at the first reasonably available opportunity”, that is, “at the earliest practical opportunity”;

• Fourth, the efforts made by the two arresting officers to assist Commisso in reaching counsel, as soon as the booking procedure was concluded, stood in dramatic contrast to the inaction and inattention exhibited by the officers in Rover, Noel, and Khan. P.C. Wong looked up the phone number for Mr. Lafontaine’s law firm, placed phone calls to two separate numbers (the law firm’s number and a late night emergency number), left phone messages at both numbers, answered questions about the case from the counsel who called back, and then provided the phone to Commisso in a private room. While P.C. Wong was making these efforts to reach counsel, P.C. Girgis facilitated two separate calls to a friend, at Commisso’s request, both before and after the call to counsel. In other words, Commisso was not left isolated and “incommunicado” in a room or cell at the police station, as Doherty J.A. put it in Rover, supra at para. 42;

• Fifth, Commisso wished to speak to his own lawyer (Mr. Lafontaine) in the middle of the night. In addition, it was early in the morning hours of a Saturday when he was arrested and he did not appear to know his lawyer’s phone number. In these particular circumstances, it would be reasonable to anticipate some time being required to facilitate a phone call to counsel of choice. In fact, it took from 3:07 a.m. to 3:39 a.m. for P.C. Wong to reach a lawyer from Mr. Lafontaine’s firm, answer his questions about the case, and then hand the phone to Commisso in a private room. Commisso then sought and received legal advice from the lawyer between 3:39 a.m. and 3:57 a.m. In other words, it took 50 minutes (from 3:07 a.m. to 3:57 a.m.), with the available resources and facilities that existed at the police station, in order to carry out all the necessary steps involved in reaching counsel of choice in the middle of the night and then consulting with that counsel. Speaking for the Court in R. v. Torsney (2007), 2007 ONCA 67, 217 C.C.C. 571 at para. 12 (Ont. C.A.), Moldaver J.A. (as he then was) made the following observations that are apposite in the present case:

On the record in this case, any attempt by the appellant to contact and consult counsel [at the roadside] within the space of six or seven minutes, at that time in the morning, would have been futile. The proof of that lies in the appellant’s attempt to contact a lawyer after he had been arrested at 2:43 a.m. and taken to the station pursuant to a breathalyzer demand. According to the evidence, at the station, it took the appellant “a lot of effort to get his phone call to his lawyer” and “he phoned more than one number to try to get through”. Nothing on this record leads us to believe that the situation would have been different had the appellant attempted to contact and consult with counsel at the roadside.

Commisso was under arrest at the roadside for 31 minutes (from 1:18 a.m. to 1:49 a.m.) and he was waiting outside the “sally port” in the “court wagon” for 54 minutes (from 1:58 a.m. to 2:52 a.m.). Any criticism of P.C. Girgis, P.C. Perino, and P.C. Byun, for failing to make efforts to facilitate a phone call to counsel of choice during either of these two time periods should be tempered somewhat by the reality that it took 50 minutes to successfully complete access to counsel at the station;

• Sixth, Commisso needed legal advice in relation to one significant step in the drinking and driving investigation, namely, whether to comply with the breathalyzer demand made by P.C. Perino pursuant to s. 254(3). He received this legal advice in an 18 minute phone call with counsel that ended at 3:57 a.m. He was then allowed a second phone call to his friend Vladimir. Finally, at 4:14 a.m. he was taken into the breathalyzer room. When asked by the breathalyzer technician, Commisso advised that he was satisfied with his call to counsel of choice. He then complied with the demand for two breath samples. In terms of the aspect of s. 10(b) that protects the need for substantive legal advice, Commisso undoubtedly received that legal advice before he provided the incriminating breath sample. Mr. Lafontaine conceded on the record at trial that, “there’s no issue that my office gave competent advice”. The above factual record stands in stark contrast to Rover, Noel, and Khan where the three accused were all deprived of legal advice that they needed in relation to an array of significant issues, such as execution of search warrants at their homes, arrest on a number of serious charges, and potential self-incrimination by making statements about the various offences that were actively under police investigation.

68Based on the above factual record, the Appellant asked the trial judge (and this Court on appeal) to draw an inference, or a legal conclusion, of significant psychological impact due to the delay in implementing Commisso’s right to counsel. Unlike the record in cases like Rover, Noel, and Khan, that inference or legal conclusion is simply not reasonable, given the six circumstances summarized above which characterize this particular case. Accordingly, the Appellant’s first and main submission in relation to this last ground of appeal cannot succeed. The trial judge did not err in failing to make a finding that the delay in implementing Commisso’s right to counsel had a significant psychological impact. Her finding that the delay had “some impact” on his s. 10(b) interests, but that it was “towards the less serious end of the spectrum”, was reasonable in light of the above six circumstances.

69The Appellant’s second argument relating to this last ground of appeal concerns “discoverability” and whether Commisso would have received different legal advice if his s. 10(b) rights had been implemented more quickly. This submission was not pressed in oral argument. The Appellant relied on R. v. Noel, supra at para. 27, while acknowledging that the present case was to some extent distinguishable from Noel. In that case, the Court stated:

Mr. Noel was not required to offer direct evidence about why he required access to counsel without delay. He asked to speak to counsel promptly but that right was denied. In assessing the impact of such breaches, it is not appropriate for courts to plumb the content and significance of the conversations a detainee would have had, if his right to consult counsel without delay had been respected, or to treat such breaches as “quite neutral” in the absence of such evidence. The impact of the loss of the right to consult counsel without delay can be evaluated based on the interests it is meant to protect along with the length of the delay.

70Noel was a case where the accused never had access to counsel at the time when he needed legal advice. The Court warned against speculating about whether the accused would have benefited from legal advice that he never received. In the present case, Commisso was provided with access to counsel before he made the one critical decision he was facing, that is, whether to provide breathalyzer samples. Furthermore, he told the breathalyzer technician that he was satisfied with the access to counsel that he had received before he was asked to comply with the breathalyzer demand. Finally, his counsel conceded at trial that the advice Commisso received was “competent”. In the face of this factual record, there was no evidence to the contrary from Commisso. In all these circumstances, it was appropriate for the trial judge to conclude that earlier access to counsel was unlikely to have affected Commisso’s decision to comply with the breathalyzer demand. In my view, “discoverability” in this sense was one relevant factor that the trial judge was entitled to take into consideration when assessing the second set of Grant factors, concerning the impact of the s. 10(b) Charter violation.

71There is a long line of authority, pre-dating Noel, that has addressed this issue. In the early Charter case law, the question of whether the accused would have acted differently and whether incriminating evidence would still have been discovered, if the police had complied with s. 10(b), generally arose in relation to the first branch of s. 24(2) analysis. In determining whether evidence was “obtained in a manner” that violated the Charter, the Crown often argued for a strict “but for” causal analysis. The Supreme Court rejected this approach, adopting a more flexible consideration of three factors (causation, context, and temporal connection) at this first stage of s. 24(2) analysis. However, the strength of the causal link between the evidence and the Charter violation remained a factor for consideration at the second stage of s. 24(2) analysis (“would bring the administration of justice into disrepute”). The Court warned, at both stages of s. 24(2) analysis, about the difficulties and dangers involved in speculating as to whether the accused would have acted differently and whether incriminating evidence would have been discovered, if he/she had received the assistance of legal advice. See: R. v. Therens, supra at 509-510 C.C.C.; R. v. Strachan (1988), 1988 25 (SCC), 46 C.C.C. (3d) 479 at 495-9 (S.C.C.); R. v. Elshaw (1991), 1991 28 (SCC), 67 C.C.C. (3d) 97 at 128 (S.C.C.). In all these cases, the accused had not received the assistance of legal advice, before the incriminating evidence was obtained, and so it was particularly difficult and speculative on these facts, to reach any conclusion as to what he/she would have done with the assistance of legal advice.

72In his seminal decision concerning s. 10(b) rights and exclusion of breathalyzer evidence, R. v. Bartle, supra at 313-316 C.C.C., Lamer C.J.C. related the above line of authority to the burden of proof on a Charter Motion. Speaking for seven members of the full Court, he stated the following:

Under the first threshold requirement, there must be some connection or relationship between the infringement of the right or freedom in question and the obtaining of the evidence which is sought to be excluded. However, a strict causal link between the Charter infringement and the discovery of the evidence is not required: Therens, per Le Dain J., at p. 509; Strachan, per Dickson C.J.C., at pp. 494-9, and Lamer J. (as he then was), at p. 501, and Brydges, at pp. 345-6. Generally speaking, so long as it is not too remotely connected with the violation, all the evidence obtained as part of the “chain of events” involving the Charter breach will fall within the scope of s. 24(2): Strachan, per Dickson C.J.C., at p. 499, and Lamer J. at p. 501. This means that in the initial inquiry under s. 24(2) as to whether evidence has been “obtained in a manner that infringed or denied” Charter rights courts should take a generous approach. However, it should be borne in mind that the presence and strength of the casual connection between the evidence and the Charter breach may be a factor for consideration under the second, more important, branch of s. 24(2): Strachan, per Dickson C.J.C., at p. 499; R. v. I. (L.R.) (1993), 1993 51 (SCC), 86 C.C.C. (3d) 289 at p. 307 (S.C.C.), per Sopinka J.

One of the issues that tends to arise in cases where there has been a breach of s. 10(b) of the Charter is whether the accused would have acted any differently had there been no violation of his or her right to counsel. In the case at bar, for instance, a question that arises is whether the appellant would have actually contacted a lawyer if he had been properly advised of his right to duty counsel and of the existence of the 1-800 number. This issue is related to the strength of the causal link that exists between the violation and the evidence obtained, a matter that was mentioned above in the context of the first branch of inquiry under s. 24(2). Inevitably, the casual connection issue intersects with the question of burden of proof. That is, on whom should the risk of non-persuasion in these circumstances fall? Framed positively, does the Crown bear the burden of proving that the accused would not have acted any differently had his or her s. 10(b) rights been respected (so that the evidence would have been obtained in any event), or does the s. 24(2) applicant bear the burden of proving that he or she would have exercised his or her right to counsel if the police had complied with their informational obligation?

In my view, the Crown should bear the legal burden (the burden of persuasion) of establishing, on the evidence, that the s. 24(2) applicant would not have acted any differently had his s. 10(b) rights been fully respected, and that, as a consequence, the evidence would have been obtained irrespective of the s. 10(b) breach.

… in light of the many warnings by this court about the dangers of speculating about what advice might have been given to a detainee by a lawyer had the right to counsel not been infringed [post, p. 319] it is only consistent that uncertainty about what an accused would have done had his or her s. 10(b) rights not been violated be resolved in the accused’s favour and that, for the purposes of considering the effect of admission of evidence on trial fairness, courts assume that the incriminating evidence would not have been obtained but for the violation. The state bears the responsibility for the breach of the accused’s constitutional rights. If the state subsequently claims that there was no causal link between this breach and the obtaining of the evidence at issue, it is the state that should bear the burden of proving this assertion.

Section 24(2) applicants thus do not bear the burden of proving that they would have consulted counsel had their s. 10(b) rights not been infringed. Of course, once there is positive evidence supporting the inference that an accused person would not have acted any differently had his or her s. 10(b) rights been fully respected, a s. 24(2) applicant who fails to provide evidence that he or she would have acted differently (a matter clearly within his or her particular knowledge) runs the risk that the evidence on the record will be sufficient for the Crown to satisfy its legal burden (the burden of persuasion).

[Italics of Lamer C.J.C., underlining added]

73In Bartle, the accused was not properly advised of his s. 10(b) rights and he never did speak to counsel, prior to providing breathalyzer samples. He also testified at trial that “he wanted to call a lawyer but did not know who to call because it was so late”. The trial judge did not make any express finding as to the credibility of the accused’s evidence. On this record, Lamer C.J.C. concluded that the causation/discoverability issue favoured exclusion of the evidence (at 320-1 C.C.C.):

I find that it is speculative on the facts of this case to try and draw conclusions one way or the other as to what the appellant would have done had he been properly cautioned. In light of what I said above about the Crown’s legal burden (the burden or persuasion), the uncertainty in this case must be resolved against the respondent Crown. As a result, I must conclude that the breathalyzer evidence might not have been obtained had the appellant’s s. 10(b) rights not been infringed and, therefore, that admission would adversely impact on the fairness of the trial.

74A few years after Bartle was decided, Rosenberg J.A. gave the judgement of the Court of Appeal in R. v. Polaschek (1999), 1999 3714 (ON CA), 134 C.C.C. (3d) 187 at paras. 31-33 (Ont. C.A.). He applied the above reasoning from Bartle to the s. 24(2) causation/discoverability issue, in relation to a s. 10(b) violation that occurred in that case. The Court held that one relevant consideration, in resolving the s. 24(2) issue, was the fact that “the appellant did not testify on the voir dire and therefore failed to provide any evidence that he would have acted differently”.

75The framework for s. 24(2) analysis changed in 2009, as a result of the Supreme Court’s decision in Grant. Nevertheless, the principles relating to discoverability, causation, and the burden of proof set out in Bartle continued to play a role. In R. v. Grant, supra at para. 122, McLachlin C.J.C. and Charron J. stated:

Discoverability retains a useful role, however, in assessing the actual impact of the breach on the protected interests of the accused. It allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused’s underlying interest against self-incrimination. The converse, of course, is also true. On the other hand, in cases where it cannot be determined with any confidence whether evidence would have been discovered in absence of the statement, discoverability will have no impact on the s. 24(2) inquiry.

Similarly, in R. v. Coté (2011), 2011 SCC 46, 276 C.C.C. (3d) 42 at para. 70 (S.C.C.), Cromwell J. stated:

While discoverability may still play a useful role in the s. 24(2) analysis, it is not determinative. A finding of discoverability should not be seen as necessarily leading to admission of evidence. Nor should courts engage in speculation. As stated in Grant, where it cannot be determined with any confidence whether evidence would have been discovered in absence of the Charter breach, discoverability will have no impact on the s. 24(2) inquiry.

Also see: R. v. Miller, supra at para. 43.

76In cases like the present one, where there has been a s. 10(b) violation but where the accused has, nevertheless, managed to obtain legal advice from counsel before the incriminating evidence was obtained, the principles set out in Bartle concerning discoverability, causation, and the burden of proof are easier to apply. In R. v. Spencer (1995), 14 M.V.R. (3d) 55 (Sask. CA), the accused’s s. 10(b) rights were violated because he was not advised concerning the availability of a free duty counsel service. He, nevertheless, spoke to counsel before providing breathalyzer samples. Vancise J.A. gave the judgement of the Court and stated (at para. 5):

Notwithstanding the fact he was not given information concerning the Legal Aid 1-(800) number and that he could obtain free temporary legal advice from Legal Aid duty counsel, he advised he wanted to retain and instruct counsel and was given an opportunity to do so (indeed he was assisted in that regard). He exercised the right and after receiving the advice he advised the police officer he had spoken to Mr. Bobbit, counsel on the appeal and at trial, and that he had been instructed to “blow”. The evidence was obtained after the respondent fully exercised his right to counsel and was not obtained as a result of the assumed Charter violation. There is no evidence the respondent would have acted any differently had his s. 10(b) rights not been violated. The fairness of the trial would not have been affected by the admission of the evidence. The trial judge erred in refusing to act upon the impugned evidence and as [a] result the acquittal must be set aside and a new trial ordered. [Emphasis added].

77Similarly, in R. v. Braithwaite, [2002] O.J. No. 1955 (Ont. S.C.J.), the accused spoke to duty counsel before complying with a breathalyzer demand. The accused testified at trial and raised issues about the competence of duty counsel’s advice. Duty counsel also testified, challenging certain aspects of the accused’s account. The trial judge accepted duty counsel’s version of the advice provided but, nevertheless, concluded that it did not amount to “meaningful advice” and “constitutes no advice at all”. He found a violation of s. 10(b) and excluded the breath sample evidence pursuant to s. 24(2). On appeal, Nordheimer J. (as he then was) reversed the trial judge, reasoning as follows (at paras. 14, 21, and 23-4):

In Bartle, the issue was not the adequacy of the advice given. Rather, the issue was that no legal assistance or advice had been made available to the defendant because the defendant had not been apprised of his right to counsel or to the availability of free legal advice. The Supreme Court of Canada held that, where it existed, the police were required to advise the individual of how to access available services which provide free, preliminary legal advice and that the failure to do so was a breach of an individual’s rights under section 10(b) of the Charter. It was in the context of a situation where no advice has been obtained that the Supreme Court said that it would be wrong to speculate as to what advice might have been given. In my view, that is a very different matter than embarking on an after the fact analysis of the quality of the advice that was given by duty counsel, which is what has happened in this case.

The Supreme Court rejected an ex post facto review or speculation as to what the advice might have been had the individual been able to consult counsel. That, however, is a different situation to the one here where the individual did consult counsel but then alleges that the advice was deficient. In such circumstances, there appears to be more reason to cast a burden on the individual to satisfy the court that he would have acted differently had he received more fulsome or better advice. As Chief Justice Lamer said in Bartle at p. 316:

Section 24(2) applicants thus do not bear the burden of proving that they would have consulted counsel had their s. 10(b) rights not been infringed. Of course, once there is positive evidence supporting the inference that an accused person would not have acted any differently had his or her s. 10(b) rights been fully respected, a s. 24(2) applicant who fails to provide evidence that he or she would have acted differently (a matter clearly within his or her particular knowledge) runs the risk that the evidence on the record will be sufficient for the Crown to satisfy its legal burden (the burden of persuasion).

… Consequently, placing an onus on the defendant to adduce evidence in support of his contention that his position was prejudiced through the failings of the advice received is not unreasonable and accords, as I have already said, with the approach where other forms of incompetence of counsel are advanced.

In this case, no evidence was led by the defendant as to how his position was prejudiced through the alleged lack of proper legal advice. Indeed, the evidence would suggest that the defendant had a choice between two unpalatable options. He could provide the breath sample and be charged with “over 80” or he could refuse to do so and be charged with “refusal to blow”. Either way, he was facing the imposition of a criminal sanction since the record is devoid of evidence that could have supported his refusal to provide a breath sample. [Emphasis added]

78Applying the principles set out above in Bartle, Polaschek, Spencer, and Braithwaite, in the context of the post-Grant approach to s. 24(2), there was a proper evidentiary record before the trial judge from which she could conclude that earlier access to legal advice would have had little or no impact on Commisso’s Charter-protected interests.

79For all these reasons, the Appellant’s third and last ground of appeal cannot succeed on either of the two arguments advanced. The trial judge’s conclusion, that the delay in implementing Commisso’s right to counsel had “some impact” on his s. 10(b) interests but it was “towards the less serious end of the spectrum”, was reasonable in all the circumstances of this case.

D. CONCLUSION

[80]

Conclusion

In light of the above rejection of all three grounds of appeal against conviction, the appeal is dismissed.

M.A. Code J.