COURT FILE NO.: SCA(P) 177/20
DATE: 20210423
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Mr. D. Leitch, for the Respondent
Respondent
- and -
SUNDEEP JHITE
Mr. J. Marchand, for the Appellant
Appellant
HEARD: February 22, 2021, by Zoom videoconference
REASONS FOR JUDGMENT
[On appeal from the conviction by Justice L.E. Chester dated February 6, 2020]
STRIBOPOULOS J.:
INTRODUCTION
[1] The appellant, Mr. Jhite, was convicted of having a blood alcohol concentration above the legal limit within two hours of operating a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. He was fined $1,500, ordered to pay a $100 victim surcharge, and prohibited from driving for one year. He appeals against his conviction.
[2] The trial focussed on a single issue: whether police violated that facet of Mr. Jhite’s right to counsel guaranteed by s. 10(b) of the Charter entitling him to consult his counsel of choice. The trial judge ruled that the police did not violate that right. In seeking to overturn his conviction, Mr. Jhite claims the trial judge erred in arriving at that conclusion.
[3] These reasons begin with a summary of the evidence before detailing the trial judge’s reasons for dismissing the Charter application. The law concerning the right to retain and instruct counsel guaranteed by s. 10(b) of the Charter, which includes the right to consult counsel of one’s choice, is then summarized. Finally, in light of the evidence and the governing legal principles, these reasons turn to consider the appellant’s claim that the trial judge erred in dismissing his Charter application.
I. THE EVIDENCE
[4] On June 18, 2019, at 3:25 a.m., a police officer pulled Mr. Jhite over because his vehicle’s taillights were not working. An approved screening device breath test soon followed. Mr. Jhite failed that test. At 3:29 a.m., the officer arrested Mr. Jhite. Informed of his right to counsel and asked if he wanted to call a lawyer, Mr. Jhite responded, “I want to speak to my family.” When the arresting officer explained he could only speak with a lawyer and asked if he had one that he wanted to call, Mr. Jhite responded that he did and that the number was in his phone. The arresting officer then retrieved Mr. Jhite’s phone from his car before they departed the roadside.
[5] At 3:51 a.m., they arrived at the police division. Once there, the arresting officer and Mr. Jhite accessed his phone. Mr. Jhite provided the officer with a phone number. The officer called that number at 4:01 a.m. The call was not answered by a lawyer but by Mr. Jhite’s brother, who, it would appear, knew some lawyers from his paralegal studies. Mr. Jhite’s brother told the officer that he would try to obtain a phone number for a lawyer and call back if he managed to do so.
[6] At 4:03 a.m., the arresting officer called and left a message for duty counsel. He testified to doing so because, in his experience, he had never managed to get hold of a detainee’s preferred lawyer before 6:00 a.m. Later, during cross-examination, he recalled one occasion when he had. The arresting officer further testified that it might take some time for duty counsel to call back and explained that he wanted to ensure Mr. Jhite had an opportunity to speak with a lawyer.
[7] After the arresting officer left a voicemail message for duty counsel, Mr. Jhite’s brother called back with a lawyer’s name and a phone number. At 4:10 a.m., the officer called the lawyer’s office number. Then, at 4:11 a.m., he called the lawyer’s cell phone number, which he believed he obtained from the office number recording. The arresting officer left voicemail messages at both numbers.
[8] Duty counsel called back at 4:14 a.m. Mr. Jhite spoke privately with duty counsel between 4:14 a.m. and 4:22 a.m. The arresting officer had no memory of what precipitated Mr. Jhite taking that call. (He made no notes concerning how Mr. Jhite came to speak with duty counsel.) The officer testified, in general terms, that: “We offer duty counsel to the person; if they choose to talk to them, it’s up to them.”
[9] Mr. Jhite testified regarding events in the booking area before he spoke with duty counsel. According to his evidence, the arresting officer asked him if he wanted to speak with duty counsel. Mr. Jhite testified that he initially declined that offer because he wanted to consult a lawyer recommended by his brother. He maintained that he only agreed to speak with duty counsel because a female officer in the booking area told him there would be no harm in doing so and said that he should. The booking area was video recorded but not audio recorded. Mr. Jhite identified the officer, whom he maintained gave him that advice, on the video recording from the booking area.
[10] Mr. Jhite testified that, after speaking with duty counsel, while he was still in the booking area, he asked the police officers present if they had managed to get in touch with the lawyer his brother recommended. When the police told him they had not, he asked them to call the lawyer again. The arresting officer had no recollection of Mr. Jhite making such a request in the booking area.
[11] The arresting officer eventually escorted Mr. Jhite into the breath room at 4:26 a.m. At that point, the qualified technician began the process of collecting breath samples. Unlike in the booking area, events in the breath room were both audio and video recorded. In response to questioning by the qualified technician, Mr. Jhite confirmed he spoke with duty counsel and could hear and understand the lawyer during their conversation. The qualified technician did not ask Mr. Jhite whether he was satisfied with duty counsel; he testified that he does not ask that question because “satisfaction is a very ambiguous term.”
[12] After confirming that he spoke with duty counsel, the recording from the breath room captures Mr. Jhite asking the qualified technician and the arresting officer whether his lawyer had called back. When told that the lawyer had not called, Mr. Jhite asked the officers to call him one more time. Mr. Jhite testified that he wanted to speak with the lawyer recommended by his brother because he was not satisfied with duty counsel. However, he did not say that to the police officers.
[13] The qualified technician responded to the request that the police call the lawyer again by telling Mr. Jhite that, if the lawyer called back, they would stop, and he could speak to him. He also told Mr. Jhite that he would not ask him any questions during the breath testing procedure because he had not had an opportunity to speak with his preferred lawyer.
[14] The qualified technician gave a few reasons for not delaying the collection of breath samples to place a further call to the lawyer. First, he explained that “based on the 100 breath tests I have completed,” he thought it “highly unlikely” that the lawyer would call back. Second, he testified that “to me, [it] comes off as a delaying tactic, which I have experienced numerous times,” and “that’s where my mind went.” Finally, he referenced what he characterized as his obligation “to collect the samples forthwith.” Nevertheless, during cross-examination, the qualified technician also conceded that it “would not have been a bad idea” to delay collecting the breath samples so that the arresting officer could make another call to Mr. Jhite’s preferred lawyer.
[15] The first breath sample was collected at 4:32 a.m. Within a minute, the arresting officer left the breath room and made a further telephone call to the lawyer recommended by Mr. Jhite’s brother. At around that time, the qualified technician said to Mr. Jhite: “Here’s the thing, two phone calls were placed, he’s not going to answer.” As he had promised, the qualified technician refrained from asking Mr. Jhite any investigative questions during their time together in the breath room. The second breath sample was collected at 4:54 a.m.
II. THE TRIAL JUDGE’S RULING
[16] The trial judge began his ruling concerning the Charter application by identifying what he characterized as the relevant issues. First, “did the police officers, namely, the investigating officer and the qualified technician, take reasonable steps to provide Mr. Jhite with a reasonable opportunity to consult with counsel of choice?” And secondly, if “a breach is established, should the breath test results be excluded … after consideration of the Grant factors?”
[17] The trial judge then summarized the evidence before turning to his analysis. He began by stating his conclusion that the police met the required standard because “the steps they took during the process were reasonable under all of the circumstances and provided Mr. Jhite with a reasonable opportunity to consult with counsel.” The trial judge then reviewed the steps police took to put Mr. Jhite in contact with counsel of his choice. He also noted that the qualified technician refrained from asking Mr. Jhite any investigative questions in the period between collecting the first and second breath samples because he had not spoken to his preferred lawyer.
[18] Ultimately, the trial judge concluded that it was not unreasonable for the qualified technician to proceed with collecting breath samples when he did, explaining his reasoning as follows:
Because the counsel of choice had been called at two telephone numbers at 4:10 a.m. and 4:11 a.m. He spoke to duty counsel for seven minutes, from 4:15 a.m. to 4:22 a.m. The demand was made by the breath technician just before 4:29 a.m., -- his own demand, and he proceeded with the first test at 4:32 a.m. That is approximately a 20 minute period when the counsel of choice had not called back, but in the interval he had spoken to duty counsel. There was no call back before the second test at 4:54 a.m., which is over 40 minutes from the original call to the counsel of choice.
Mr. Jhite had an opportunity to speak to duty counsel, which he did take advantage of for approximately seven minutes. According to the two police officers, at no time did Mr. Jhite state that he did not want to speak to duty counsel at any time.
I appreciate the fact that Mr. Jhite testified that he did say that to the police officers, but I do not find as a fact that he did so based on what transpired and what he said in the breathalyzer room. Mr. Jhite said that he did so, but, certainly, there is nothing on the tape about it and the investigating officer has no note or memory of him so doing and he indicated that if he had done so there would have been some follow-up on that by calling another lawyer or something similar. Both officers made it clear that if counsel of choice did call at any time they would cease what they were doing and have him talk to his counsel of choice.
So, those are all the reasons for dismissing the Charter Application, but, they are also the reasons I would have used if I found there had been a breach [for] not excluding the evidence seized.
[Underlining added]
[19] The trial judge misstates one aspect of the evidence in the underlined passage from this excerpt. Neither the arresting officer nor the qualified technician testified that Mr. Jhite never said he did not want to speak with duty counsel. The arresting officer had no memory concerning what, if anything, Mr. Jhite said before he spoke with duty counsel. Nor did the qualified technician testify concerning events before Mr. Jhite took the call from duty counsel, given that he only began dealing with Mr. Jhite at 4:26 a.m., after his conversation with duty counsel.
III. THE LAW
[20] Section 10(b) of the Charter guarantees to everyone “on arrest or detention” the right “to retain and instruct counsel without delay and to be informed of that right”.
(a) The purpose and importance of the guarantee
[21] Section 10(b) is essential to ensuring that individuals who are detained or arrested “are treated fairly in the criminal process”: Clarkson v. The Queen, 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, at p. 396; see also R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at p. 203; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 191.
[22] The purpose of the guarantee “is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights”: R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43.
[23] It is difficult to overstate the importance of the guarantee for those who find themselves in police custody. Once detained or arrested, a person is in a position of disadvantage relative to the state and needs legal advice to protect their right against self-incrimination and to obtain assistance in regaining their liberty: see Bartle, at p. 191; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21.
[24] The right guaranteed by s. 10(b) of the Charter enables those in detention to make informed choices concerning “whether to cooperate with the police or not”: R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 24; see also Sinclair, at paras. 25-26; R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at pp. 176-77.
(b) The duties section 10(b) imposes on the police
[25] In Bartle, the Supreme Court of Canada concisely summarized the duties s. 10(b) of the Charter imposes upon the police when they detain or arrest an individual. These include:
(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).
Bartle, at p. 191-92; see also Manninen, at pp. 1241-42; Brydges, at pp. 203-204; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at p. 890; Taylor, at para. 23. The first duty is informational. The second and third duties are implementational and only engaged if the detainee asserts their right by asking to speak with a lawyer: Bartle, at p. 192.
(c) The obligation on detainees to be reasonably diligent and the duty on police to hold off
[26] Detainees must be “reasonably diligent” in exercising their right to counsel, failing which the police duty to hold off on questioning or otherwise eliciting evidence will be suspended: see R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 35; R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, at pp. 10-11; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138, at pp. 154-55.
[27] This limitation aims to prevent the person under detention or arrest from needlessly frustrating the police investigation, which could, in some cases, result in “an essential piece of evidence to be lost, destroyed or rendered impossible to obtain”: R. v. Smith, 1989 CanLII 27 (SCC), [1989] 2 S.C.R. 368, at p. 385. In the context of drinking and driving investigations, this means that, if the detainee is not reasonably diligent, the police duty to hold off will be suspended and provide no “bar to [police] continuing their investigation and calling upon him to give a sample of his breath”: R. v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, at p. 439.
(d) The right to counsel of choice and the duty on police to hold off
[28] The Supreme Court of Canada has recognized that s. 10(b) of the Charter entitles an accused to consult a lawyer of his or her choice: Ross, at pp. 11-12; Black, at p. 155; Willier, at paras. 24, 35. An invocation of that right triggers an obligation on the police to afford the detainee a reasonable opportunity to consult with their lawyer of choice and, in the interim, to hold off on questioning or otherwise attempting to elicit evidence from the detainee: Ross, at p. 12; Black, at p. 154; Willier, at para. 33.
(e) The obligation on police if they control the means for contacting counsel of choice
[29] In some jurisdictions, including Peel Region, the police do not provide detainees with the means to contact counsel of choice. For example, police do not provide detainees with access to a phone and the Internet or a lawyers' directory. Instead, the police have assumed responsibility for locating the lawyer’s phone number and calling them. Detainees only have access to the telephone once the lawyer is on the line. In jurisdictions where police take that approach, a detainee’s ability to exercise their right to counsel of choice and do so with reasonable diligence mostly depends on the police.
[30] Where police assume control over the means for contacting counsel of choice, their efforts must reflect the same reasonable diligence expected of detainees: R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 30-31; R. v. Maciel, 2016 ONCJ 563, 32 C.R. (7th) 174, at para. 43; R. v. Panigas, 2014 ONCJ 797, 305 C.R.R. (2d) 18, at para. 52 (however, see also R. v. Wijesuriya, 2020 ONSC 253, 459 C.R.R. (2d) 235, at paras. 64-79). Requiring anything less would risk encouraging only token efforts by the police and imperilling the right to counsel of choice: Maciel, at para. 43.
[31] Expecting the police to exercise the same reasonable diligence the law demands of a detainee does not mean, as Schreck J. observed in O’Shea, “that the police are obliged to take every step an accused would take at the exact times that she would take them”: at para. 22. Instead, as he explained, the question “is whether the police took all steps that were reasonable in the circumstances”: at para. 22; see also Wijesuriya, at para. 72; R. v. Ruscica, 2019 ONSC 2442, 50 M.V.R. (7th) 121, at para. 38; R. v. Ali, 2018 ONCJ 203, 29 M.V.R. (7th) 143, at para. 59.
(f) Where counsel of choice is not immediately available
[32] The Supreme Court of Canada has recognized that, if counsel of choice is not immediately available, “detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond”: Willier, at para. 35; see also Ross, at p. 11; R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 17. There are no fixed time limits. Instead, “[w]hat amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation”: Willier, at para. 35; see also Ross, at pp. 12-13.
[33] In Ross, for example, the Supreme Court’s first decision recognizing that s. 10(b) includes the right to consult a specific lawyer, two detainees could not contact their lawyers at 2:00 a.m. Before they could call their lawyers’ offices in the morning, police placed them in an identification line-up. By doing so, the police violated their 10(b) Charter rights, the Supreme Court held, because the line-up could have easily been held “a few hours later”: at pp. 7, 12-13.
[34] Drinking and driving investigations undoubtedly give rise to unique time constraints. Nevertheless, the Supreme Court of Canada has explained that urgency does not automatically arise just because a detainee’s blood alcohol concentration dissipates over time: R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 275. “Urgency” is not the same as “mere investigatory and evidentiary expediency”: Prosper, at p. 275. The Crown will have the option of calling expert evidence “to relate later and lower test results back to the blood-alcohol level at the time of the offence”: Prosper, at p. 276. (The Crown no longer needs to resort to this option because of the statutory read back now provided by s. 320.31(4).)
[35] After a reasonable period, if counsel of choice is still not available, “detainees are expected to exercise their right to counsel by calling another lawyer”: Willier, at para. 35; see also Ross, at pp. 10-11; Brydges, at pp. 215-16. In such circumstances, in keeping with their duty to facilitate contact with counsel (Willier, at para. 41), the Court of Appeal for Ontario has recognized that police should ask the detainee if they would like to call a different lawyer: R. v. Traicheff, 2010 ONCA 851, at para. 2.
[36] In assessing whether police afforded a detainee a reasonable amount of time to speak with their chosen lawyer and whether a detainee has been reasonably diligent in their efforts to do so, the availability of duty counsel is also a relevant and important consideration. In Brydges, the Supreme Court refrained from imposing time limits on how long the police must wait for counsel of choice to become available. However, it noted that “[w]aiting for eight to ten hours for counsel of the detainee’s choice to become available may not be justified … when duty counsel has been available all along”: at p. 216; see also R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.), at paras. 8-9.
[37] For example, in Richfield, the Court of Appeal concluded that the police did not violate the right to counsel of choice where they waited just slightly more than an hour for the appellant’s preferred lawyer to call back. Given the delay and police concerns about the window closing on the presumption of identity (what was then s. 258(1)(c)(ii) of the Criminal Code), police offered the appellant the chance to call duty counsel. He refused. The court held that by declining duty counsel at that point, the appellant was not reasonably diligent in exercising his right to counsel: at para. 12. Accordingly, the police duty to hold off lapsed and they were entitled to proceed with collecting breath samples.
(g) Foregoing the right to counsel of choice in favour of duty counsel
[38] A detainee who asserts their right to counsel of choice by asking to speak with a specific lawyer may – before being afforded a reasonable opportunity to contact that lawyer – choose to forego doing so and instead exercise their right to counsel by speaking with duty counsel.
[39] In Willier, following the accused’s arrest for murder, the police informed him of his right to retain and instruct counsel. Soon afterward, he had a brief conversation with duty counsel. The next day he was offered a further opportunity to contact counsel, and he made an unsuccessful attempt to reach a specific lawyer. He left a message for that lawyer. The police then asked if he wanted to call another lawyer; Mr. Willier declined, indicating he would prefer to wait for the lawyer to call back. At that point, the officer informed Mr. Willier that the lawyer’s office was closed (it was the weekend) and cautioned him that unless the lawyer checks his messages, he might not call back until the next day.
[40] The officer then reminded Mr. Willier of the availability of duty counsel. Mr. Willier responded by asking to call duty counsel. Following his brief conversation with duty counsel, the police commenced an investigative interview with Mr. Willier. At the outset of that interview, Mr. Willier confirmed that he was satisfied with the advice he had received from duty counsel. Before commencing questioning, the police reminded Mr. Willier of his right to counsel and invited him to stop the interrogation at any time if he wanted to speak with a lawyer again. In these circumstances, the Supreme Court of Canada in Willier concluded that the police did not violate the right to counsel of choice.
[41] The Supreme Court held that a valid waiver of that right did not require that the police tell Mr. Willier he was entitled to have a reasonable opportunity to consult counsel of choice and of their obligation to refrain from questioning him until he had such an opportunity. That additional information, which would parallel what police must tell a detainee who initially asserts their right to counsel but then attempts to waive it (Prosper, at p. 274), was unnecessary because Mr. Willier was not choosing to forego speaking with counsel entirely. Instead, after being unsuccessful in contacting a specific lawyer, he was merely opting to call another: Willier, at paras. 38-39. The Court also concluded that the police did not interfere with Mr. Willier’s right to consult counsel of his choice, explaining, at para. 43:
… In no way did the police interfere with Mr. Willier’s right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait, Cst. Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr. Willier was not told that he could not wait to hear back from Mr. Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise.
[Underlining and Emphasis added]
In McCrimmon, a companion decision to Willier, the Supreme Court of Canada also concluded that the police did not violate s. 10(b). In that case, after leaving a message for private counsel, the police offered Mr. McCrimmon the opportunity to call duty counsel, an offer he accepted: McCrimmon, at para. 19. After he spoke with duty counsel, Mr. McCrimmon confirmed that he was satisfied with the consultation and that he understood the advice provided by duty counsel: McCrimmon, at para. 7.
[42] Willier establishes that, after a detainee asserts their right to consult a specific lawyer, even before police afford them a reasonable opportunity to do so, the detainee may choose to forego counsel of choice in favour of exercising their right to counsel by speaking with duty counsel. Although the police are free to offer the detainee the option of contacting duty counsel, they are not permitted to “interfere with [the detainee’s] right to a reasonable opportunity to contact counsel of choice”: at para. 43.
[43] Consequently, the police cannot mislead the detainee by suggesting that they do not have the option of waiting for their preferred lawyer or that their only option is speaking with duty counsel: Willier, at para. 43. Further, the police must refrain from pressuring the detainee to forego consulting their lawyer of choice in favour of speaking instead with duty counsel: at para. 43. In other words, the decision to forego the detainee’s preferred counsel for duty counsel must result from the detainee’s choice. The decisions of Ontario courts both before and after Willier are consistent with the approach it endorsed.
[44] For example, the Court of Appeal has rejected claims that police violated s. 10(b) where detainees, after asserting their right to speak to a specific lawyer, chose to instead speak with duty counsel: see R. v. Eakin (2000), 2000 CanLII 2052 (ON CA), 74 C.R.R. (2d) 307 (Ont. C.A.), at para. 8; R. v. Littleford (2000), 2001 CanLII 8559 (ON CA), 15 M.V.R. (4th) 191 (Ont. C.A.), at paras. 7-8.
[45] In contrast, courts have invariably found violations of s. 10(b) where detainees asserted their right to counsel of choice but then instead spoke with duty counsel because police steered them in that direction and effectively left them with the erroneous impression that they had no other option: see R. v. Singh, 2020 ONSC 1342, at para. 17; R. v. Lewis, 2019 ONSC 5919, 451 C.R.R. (2d) 190, at paras. 44-45; R. v. Vernon, 2015 ONSC 3943, 88 M.V.R. (6th) 84, at paras. 32-33, leave to appeal refused 2016 ONCA 211; R. v. Michael, 2017 ONSC 4579, 17 M.V.R. (7th) 308, at paras. 24-25; R. v. Zaidi (2007), 2007 CanLII 44833 (ON SC), 164 C.R.R. (2d) 271 (Ont. S.C.), at para. 77; R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont. S.C.), at para. 29.
[46] The leading case remains Kumarasamy. In that decision, Durno J. held that police cannot “go directly to duty counsel when a detainee wants to contact his or her counsel of choice” cautioning that duty counsel “cannot be used to trump a detainee’s right to counsel of choice”: at para. 21. Although Kumarasamy pre-dates Willier, it is entirely consistent with it. In short, the police cannot foist duty counsel on a detainee who wants to speak with their lawyer of choice. If it were otherwise, the right to counsel of choice would be little more than a “right” in theory but not in practice.
IV. ANALYSIS
[47] With the evidence, the trial judge’s ruling, and the law now summarized, after detailing the positions of the parties, this part addresses whether the trial judge erred in ruling that the police did not violate Mr. Jhite’s s. 10(b) Charter right to consult counsel of his choice.
(a) The positions of the parties
[48] Counsel for Mr. Jhite submits that the trial judge erred in dismissing his s. 10(b) Charter application. Mr. Marchand argues that the trial judge committed at least three errors in deciding the application. First, by concluding that the police made adequate efforts to contact counsel of choice. Second, by concluding that the police waited a reasonable amount of time for counsel of choice to respond. Finally, by effectively concluding that Mr. Jhite decided to forego his right to counsel of choice by speaking with duty counsel. In the circumstances, Mr. Marchand argues this court should allow the appeal, exclude the breath test results under s. 24(2) of the Charter, and dismiss the charge.
[49] Counsel for the Crown submits that the trial judge did not commit any of the errors alleged by Mr. Jhite. Mr. Leitch argues that the trial judge accurately described the governing legal principles, made factual findings supported by the evidence, and correctly applied the law to the facts. Mr. Leitch argues that Mr. Jhite is essentially asking this court to retry his case, which is not the role of an appellate court. Finally, even assuming that the police violated Mr. Jhite’s s. 10(b) rights, Mr. Leitch argues that the circumstances do not warrant excluding the breath test results under s. 24(2) of the Charter.
(b) The standard of review
[50] A defendant in summary conviction proceedings may appeal against a conviction to this court: Criminal Code, s. 813(a)(i). On such appeals, this court has most of the same powers vested in a court of appeal under s. 686 of the Criminal Code: see s. 822(1). That includes the authority to allow an appeal where it is of the opinion that “the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law”: Criminal Code, s. 686(1)(a)(ii).
[51] The Supreme Court of Canada has repeatedly held that “the application of a legal standard to the facts of the case is a question of law”: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; see also R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. Given that the s. 10(b) Charter ruling required the trial judge to apply legal standards to the facts, it involved a question of law. Accordingly, although the trial judge’s factual findings are entitled to deference unless tainted by palpable and overriding error, his ruling on the Charter application is subject to review on the standard of correctness: Shepherd, at para. 18; R. v. Le, 2019 SCC 34, 375 C.C.C. (3d) 431, at para. 23; R. v. Donnelly, 2016 ONCA 988, 135 O.R. (3d) 336, at para. 43.
(c) Did the trial judge’s finding reflect palpable and overriding error?
[52] The facts on the Charter application were essentially uncontested. However, the trial judge did make one factual finding in arriving at his decision. Mr. Jhite testified that he told the arresting officer that he did not want to speak with duty counsel while they were in the booking area. Mr. Jhite maintained that he only reluctantly agreed to speak with duty counsel after a female officer, who he identified from the booking room video, told him there would be no harm in doing so and said that he should. The trial judge rejected that evidence.
[53] Instead, the trial judge found that Mr. Jhite never said he did not want to speak with duty counsel. Unfortunately, in making that finding, the trial judge misapprehended the evidence. In his reasons, the trial judge explained his finding, in part, by noting that “[a]ccording to the two police officers, at no time did Mr. Jhite state that he did not want to speak to duty counsel at any time.” That was incorrect. The arresting officer had no memory of what was said before Mr. Jhite took duty counsel’s call, possibly because he failed to make any notes to memorialize their conversation. Nor did the qualified technician give any evidence on that topic. He only began dealing with Mr. Jhite in the breath room at 4:26 a.m. after the conversation with duty counsel.
[54] In making his finding, the trial judge also relied on what transpired in the breath room, where events were audio and video recorded. In the breath room, Mr. Jhite did not say anything to suggest that he had not wanted to speak with duty counsel. However, it is difficult to understand how Mr. Jhite’s failure to mention in the breath room that he did not want to speak with duty counsel would support a finding that he never said that to the arresting officer in the booking area. Once he was in the breath room, it would be strange for Mr. Jhite to say that he did not want to speak with duty counsel given that, by that point, he already had.
[55] The trial judge also failed to recognize the significance of Mr. Jhite, once in the breath room, inquiring whether his lawyer of choice had called back and asking the police to call him again. That is far more consistent with Mr. Jhite only reluctantly speaking with duty counsel, as he testified, as opposed to him having chosen to forego counsel of choice in favour of duty counsel.
[56] To qualify as a “palpable and overriding error,” an error must be “plainly seen”: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 6. And it must also be “shown to have affected the result”: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 55. The trial judge’s finding that Mr. Jhite never said he did want to speak with duty counsel meets that stringent standard.
[57] With respect, there was no basis in the evidence for finding that Mr. Jhite never told the arresting officer that he did not want to speak with duty counsel. That finding relied on the trial judge’s misapprehension of the evidence. It also overlooked evidence that weighed heavily against making that finding. As a result, there is nothing subtle about the error; it is “plainly seen.”
[58] The finding that Mr. Jhite never said he did not want to speak with duty counsel figured prominently in the trial judge’s analysis culminating in his conclusion that police did not violate s. 10(b) of the Charter. In short, it affected the result. Therefore, palpable and overriding error infected that finding, which means it does not attract deference on appeal.
(d) Did the trial judge error in law in his Charter ruling?
[59] Given the evidence, the law, and the parties' positions at trial, the Charter application required the trial judge to decide three distinct legal issues: (1) whether the police took all steps that were reasonable in the circumstances to put Mr. Jhite in touch with his counsel of choice; (2) whether the police afforded Mr. Jhite a reasonable opportunity to consult with his lawyer of choice and, in the interim, held off on attempting to elicit evidence from him; and (3) whether, before the reasonable opportunity had expired, Mr. Jhite chose to forego speaking with counsel of choice to instead speak with duty counsel.
[60] In my opinion, with respect, the trial judge erred by failing to give these three separate questions the individualized analysis they required. Instead, he effectively blended what were distinct legal issues into a global assessment of whether the police behaved reasonably in the circumstances. In doing so, the trial judge's analysis also emphasized facts that were immaterial to the legal issues he was required to address in deciding whether police breached s. 10(b) of the Charter.
[61] In his analysis of the Charter application, the trial judge placed significant emphasis on the fact that: (1) the qualified technician refrained from asking Mr. Jhite any investigative questions while administering the breath tests because he had not had an opportunity to speak with his lawyer of choice; (2) the qualified technician promised to stop collecting the breath samples if the lawyer called back; and (3) counsel did not call back before the second breath sample at 4:54 a.m. Although some of these facts were relevant to the potential exclusion of unconstitutionally obtained evidence under s. 24(2) of the Charter, they had no bearing on whether the police violated Mr. Jhite's constitutional right to counsel of choice.
[62] With respect, by failing to analyze the relevant legal issues while also considering facts that were irrelevant to the proper determination of the Charter application, the trial judge erred in law. These errors affected the trial judge's ultimate conclusion that the police did not violate Mr. Jhite's s. 10(b) Charter right to counsel of choice.
[63] As mentioned, the evidence at trial was essentially uncontested. Therefore, there is no need to remit this matter for a new trial. Instead, it is appropriate for this court to determine whether, based on the evidence, the police violated Mr. Jhite's s. 10(b) Charter right to consult with his counsel of choice. And, if they did, whether to exclude the breath test results under s. 24(2) of the Charter.
(e) Did the police take all steps that were reasonable in the circumstances to contact counsel of choice?
[64] Mr. Jhite was arrested at 3:29 a.m. Once back at the police division, at 4:01 a.m., the arresting officer called Mr. Jhite’s brother to obtain the name and phone number for a lawyer. By 4:10 a.m., his brother had called back, and the arresting officer called the lawyer’s office number. A minute later, at 4:11 a.m., he called the lawyer’s cell phone number. The arresting officer left voicemail message at both numbers. The question is whether, on these facts, the police took all steps that were reasonable in the circumstances to contact counsel of choice before requiring Mr. Jhite to furnish breath samples. In my view, they did not.
[65] It is fair to assume that, like most people who keep regular business hours, counsel of choice was likely sleeping at 4:11 a.m. If he did not answer his cell phone on the first call, it is hard to imagine how a voicemail message would wake him. Given the hour, the police should have called counsel of choice’s cell phone at least one more time before requiring Mr. Jhite to provide breath samples. There is no need to consider what a reasonably diligent detainee would likely have done in these same circumstances. Mr. Jhite’s comments in the breath room establish that he would have called the lawyer again if it were up to him. Even the qualified technician conceded that it “would not have been a bad idea” to try calling the lawyer once more before proceeding with the collection of breath samples. I agree.
[66] Therefore, the police failed in their obligation to take all steps that were reasonable in the circumstances to contact counsel of choice. In short, by failing to call the lawyer’s cell phone more than once in the middle of the night, the police did not do enough.
(f) Did the police afford Mr. Jhite a reasonable opportunity to consult with counsel of choice by waiting a reasonable amount of time for the lawyer to respond?
[67] As just explained, the arresting officer left voicemail messages at counsel’s office number at 4:10 a.m., and his cell phone number at 4:11 a.m. Fifteen minutes later, the arresting officer took Mr. Jhite into the breath room. The qualified technician collected the first breath sample at 4:32 a.m. As a result, the police waited 21 minutes for counsel of choice to call back. The question raised is whether, in these circumstances, the police afforded Mr. Jhite a reasonable opportunity to consult with his counsel of choice by waiting a reasonable amount of time for the lawyer to respond.
[68] As explained, the Supreme Court of Canada has refrained from setting any fixed time limits concerning how long the police must wait to fulfill their constitutional obligation to afford a detainee a reasonable opportunity to speak with counsel of choice. Instead, that determination depends on the circumstances as a whole: Willier, at para. 35; see also Ross, at pp. 12-13. Given this, the decided cases are only of limited assistance because there are invariably different circumstances in every case. Nevertheless, decisions in analogous situations do provide some general guidance.
[69] Recall that, in Richfield, which was also a drinking and driving case where the detainee wanted to speak with a specific lawyer in the middle of the night, the police waited just slightly more than an hour between leaving a message for the lawyer and then proceeding with breath testing. The Court of Appeal held that, in those circumstances, with the qualified technician citing concerns about the window on the presumption of identity closing and the detainee declining an offer to call duty counsel, the police waited long enough.
[70] Contrast that decision with Vernon, another drinking and driving case, where the accused wanted to speak with a particular lawyer in the early hours of the evening. Police waited 31 minutes after leaving a message for the lawyer before proceeding to collect breath samples. The trial judge found a violation of s. 10(b) of the Charter. The summary conviction appeal judge ratified the trial judge’s ruling, and the Court of Appeal refused the Crown leave to appeal.
[71] In this case, the arresting officer pulled Mr. Jhite over at 3:25 a.m. Section 320.14(1)(b) of the Criminal Code now furnishes the Crown a fair amount of leeway when it comes to proving its case using the results of breath testing. Given the current definition of the offence, the Crown need only prove that “within two hours after ceasing to operate a conveyance,” the defendant had a blood alcohol concentration that exceeded the legal limit. In this case, that meant that, if police collected the first sample before 5:35 a.m., the Crown could rely on the results to prove the offence: s. 320.31(1). Even if police only collected the first sample after that, the Crown is no longer required to call a toxicologist to make out its case. Unlike in the past, the Crown can now rely on the statutorily prescribed readback afforded by s. 320.31(4).
[72] In any event, the qualified technician did not have these provisions in mind when he proceeded to collect the first breath sample from Mr. Jhite at 4:32 a.m. Instead, he explained his decision to collect breath samples when he did because, given the hour, he thought it “highly unlikely” that counsel of choice would call back. He also assumed that Mr. Jhite’s desire to speak with the lawyer was just a “delaying tactic.” Finally, he referenced what he believed was his obligation to collect the breath samples “forthwith,” an imprecise description of his obligation to collect the breath samples “as soon as practicable”: see Criminal Code, s. 320.28(1)(a). None of these reasons could justify the police disregarding their constitutional obligation to afford Mr. Jhite a reasonable opportunity to consult counsel of his choice.
[73] The police still had plenty of time available before reaching a point where waiting any longer might risk prejudicing the Crown’s case. Provided the police collected the first sample before 5:35 a.m., the Crown would not need to rely on s. 320.31(4). After that, that section would still enable the Crown to prove its case without calling a toxicologist. As the Supreme Court of Canada has explained, in assessing what amounts to a reasonable period of time, investigative or evidentiary expediency is not the same as urgency: Prosper, at p. 275. There was nothing urgent about the situation police faced that would justify them proceeding to collect breath samples when they did.
[74] In all of the circumstances, the police lacked a valid reason for failing to wait longer before compelling Mr. Jhite to furnish breath samples. Accordingly, I am satisfied that the police did not fulfill their constitutional obligation to afford Mr. Jhite a reasonable opportunity to consult with his lawyer of choice. In short, they failed to wait long enough for the lawyer to call back.
[75] Finally, even after a reasonable period passes without counsel of choice calling back, the police cannot just proceed with collecting breath samples. Instead, as the Supreme Court of Canada has instructed, at that point, a detainee is entitled to call a different lawyer: Willier, at para. 35; see also Ross, at pp. 10-11; Brydges, at pp. 215-16. And as the Court of Appeal has noted, the police must ask the detainee if they would like to do so: Traicheff, at para. 2. In this case, the police did not tell Mr. Jhite that he had that option. Had they done so, it is possible Mr. Jhite could have called his brother back to obtain a referral for a different lawyer.
(g) Did Mr. Jhite choose to forego counsel of choice in favour of exercising his right to counsel by speaking with duty counsel?
[76] Mr. Jhite spoke privately with duty counsel between 4:14 a.m. and 4:22 a.m. The inadequacy of police efforts to contact counsel of choice and their failure to wait a reasonable amount of time for that lawyer to call back would not occasion a s. 10(b) Charter breach if Mr. Jhite chose to forego consulting counsel of choice to exercise his right to counsel by instead speaking with duty counsel. The Crown maintains that is what precisely took place in this case. Mr. Leitch argues the circumstances are entirely analogous to what occurred in both Willier and McCrimmon.
[77] Mr. Jhite was the only witness who gave evidence concerning how the consultation with duty counsel came about. On his account, when the arresting officer asked him if he wanted to speak to duty counsel, he declined that offer because he wanted to consult with the lawyer recommended by his brother. He testified that he only agreed to take the call with duty counsel because a female officer in the booking area told him there would be no harm in doing so and said that he should. Mr. Jhite identified the officer who gave him that advice on the video recording from the booking area. The Crown did not seek to call that officer in reply to contradict Mr. Jhite’s evidence.
[78] That Mr. Jhite did not choose to forego speaking with counsel of choice to instead consult with duty counsel is borne out by his comments in the breath room, which were both audio and video recorded. Again, he asked the officers if the lawyer recommended by his brother had called back. And when told that he had not, he asked the officers to call him one more time. This evidence is consistent with Mr. Jhite’s testimony that he only reluctantly spoke to duty counsel at the police’s suggestion. His comments in the breath room demonstrate that speaking with a lawyer recommended by his brother was his preference.
[79] As the Supreme Court of Canada explained in Willier, the police are under a positive obligation to inform detainees about the availability of duty counsel, including where a detainee has initially expressed a preference for counsel of choice and that lawyer proves unavailable: at para. 43. However, what the police are not permitted to do is interfere with the detainee’s right to a reasonable opportunity to contact counsel of choice: at para 43. It is not the function of the police to provide advice to detainees in their custody: see R. v. Bagherli (A.), 2014 MBCA 105, at paras. 46-47; R. v. Willier, 2008 ABCA 126, 429 A.R. 135, at paras. 36-40, aff’d, 2010 SCC 37, [2010] 2 S.C.R. 429. The police have a duty to provide information, but they must refrain from counselling a detainee on the choice they should make. In my view, a police officer telling a detainee who asserts their right to counsel of choice that they should speak with duty counsel, crosses the line between furnishing information, which is required, and giving advice, which is impermissible.
[80] In the circumstances, the police interfered with Mr. Jhite’s right to a reasonable opportunity to contact counsel of choice. Based on all of the evidence, it is apparent that Mr. Jhite did not choose to forego speaking with the lawyer recommended by his brother to instead speak with duty counsel. His decision to speak with duty counsel resulted from improper police influence. In that regard, the circumstances of this case are readily distinguishable from both Willier and McCrimmon. In those cases, the police only informed the detainees of duty counsel’s availability and asked if they wanted to pursue that option. In neither case did the police give advice concerning the choice they should make: Willier, at para. 11; McCrimmon, at para. 7.
[81] Further, in both those cases, unlike Mr. Jhite, the detainees confirmed that they were satisfied with the advice they received from duty counsel: see Willier, at para. 12; McCrimmon, at para. 7. In contrast, after consulting with duty counsel, Mr. Jhite expressed no such satisfaction. To be sure, it is not the function of the police to monitor the quality of the advice a detainee receives from counsel: Willier, at para. 41. Nevertheless, as the Court of Appeal has noted, the police “are not entitled to ignore statements by an accused that raise a reasonable prospect that the accused has not exercised his or her s. 10(b) rights”: R. v. Badgerow, 2008 ONCA 605, 237 C.C.C. (3d) 107, at para. 46.
[82] Mr. Jhite’s comments in the breath room, asking if the lawyer had called back and requesting that the police call him again, should have alerted the police that, from his perspective, he had not exercised his right to counsel by speaking with duty counsel. His comments made clear that he still wanted to consult the lawyer recommended by his brother. As a result, instead of proceeding with collecting breath samples, the police had a duty to continue their efforts to contact counsel of choice and afford Mr. Jhite a reasonable opportunity to exercise that right.
[83] For all of these reasons, I am satisfied that the police violated Mr. Jhite’s s. 10(b) Charter right to consult counsel of his choice.
(h) Should the court exclude the breath test results under s. 24(2) of the Charter?
[84] Given that this court has arrived at a different conclusion than the trial judge concerning the violation of Mr. Jhite’s s. 10(b) Charter right, it does not owe deference to his alternative conclusion regarding the exclusion of evidence under s. 24(2) of the Charter: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 129; R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 42.
[85] While the s. 10(b) violation was ongoing the police collected the breath samples. Therefore, the Charter breach has a strong temporal and contextual connection to the evidence. Accordingly, the breath samples were “obtained in a manner” that violated Mr. Jhite’s s. 10(b) Charter right: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; R. v. Strachan, 1988 CanLII 25 (SCC), [1988] 2 S.C.R. 980, at pp. 1005-1006. It follows that the evidence is eligible for exclusion under s. 24(2) of the Charter.
[86] The decision to exclude unconstitutionally obtained evidence under s. 24(2) of the Charter requires a consideration of all the circumstances of the case. Under Grant, it is necessary to assess and balance the effect of admitting or excluding the evidence on the integrity of, and public confidence in, the justice system. In doing so, the court must consider: i) the seriousness of the state’s Charter-infringing conduct; ii) the impact of the breach on Mr. Jhite’s Charter-protected interests; and iii) society’s interest in an adjudication of the case on its merits: Grant, at paras. 71, 85-86.
i. Seriousness of the Charter-infringing state conduct
[87] The first line of inquiry requires the court to assess the state conduct that led to the Charter violation and situate it along a “continuum of misconduct”: R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, at para. 23; see also Grant, at para. 74. To be sure, there is no basis for concluding that the breach was deliberate. More likely is that the arresting officer and the breath technician did not appreciate the extent of their Charter obligations as they relate to a detainee’s right to consult counsel of choice. Unfortunately, the police officers appear to have placed administrative expediency ahead of their constitutional obligations.
[88] Nevertheless, as the Supreme Court made clear in Grant, “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith”: Grant, at para. 75. The police “are rightly expected to know what the law is”: Grant, at para. 133. This is especially true concerning their obligations under s. 10(b) of the Charter. As the Court of Appeal recently noted, “[t]he law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out”: R. v. Noel, 2019 ONCA 860, at para. 34.
[89] Even if a constitutional breach was not deliberate, in the sense of a police officer setting out to violate the Charter, the Supreme Court has observed that “exclusion has been found to be warranted for clear violations of well-established rules governing state conduct”: Paterson, at para. 44.
[90] Additionally, there are some concerning aspects to the police conduct in this case. The arresting officer’s decision to call duty counsel at a point when Mr. Jhite had only asked to speak with private counsel suggests an inclination to default to that option. More troubling is the breath technician’s explanation for why he proceeded to collect breath samples when he did. His testimony revealed a fair degree of cynicism towards the right to counsel of choice. Unfortunately, this case appears to be reflective of a troubling pattern that Schreck J. recently noted: “a tendency on the part of the police in some cases … to resort too readily to duty counsel without giving full effect to a detainee’s right to counsel of choice”: O’Shea, at para. 52. Although a case from Toronto, it appears the problem described is not unique to the police in that city.
[91] In Peel Region, a long list of recently reported cases demonstrates a troubling pattern of the police failing to respect the constitutional right to counsel of choice: see R. v. Sakhuja, 2020 ONCJ 484; R. v. Virk, 2020 ONCJ 278, 461 C.R.R. (2d) 167; R. v. Byrnes, 2019 ONCJ 973; R. v. Banwait, 2019 ONCJ 283, 439 C.R.R. (2d) 278; R. v. Mattie, 2018 ONCJ 907; R. v. Gopalapillai, 2018 ONCJ 247, affirmed 2018 ONSC 929; R. v. Klotz, 2017 ONCJ 543, 17 M.V.R. (7th) 343; R. v. Rowe, 2017 ONCJ 737, 400 C.R.R. (2d) 13; R. v. Kandasammy, 2017 ONCJ 588; R. v. Simpson, 2017 ONCJ 321, 383 C.R.R. (2d) 134; R. v. McFadden, 2016 ONCJ 777; R. v. Duong, 2016 ONCJ 602, 367 C.R.R. (2d) 63; Maciel; R. v. Husman, 2014 ONSC 1392; R. v. N.N., 2014 ONCJ 344, 316 C.R.R. (2d) 248; R. v. Soomal, 2014 ONCJ 220, 10 C.R. (7th) 279. Equally concerning is its persistence despite nearly two decades having passed since Durno J.’s decision in Kumarasamy, which also involved the Peel Regional Police.
[92] These decisions suggest that what occurred during this investigation is not, unfortunately, an isolated occurrence. This case is reflective of what appears to be a systemic problem. As the Supreme Court of Canada has recognized, “evidence of a systemic problem can properly aggravate the seriousness of the breach and weigh in favour of exclusion”: R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 25; see also Grant, at para. 75. To be clear, I do not mean to place the blame for these systemic problems on the shoulders of the police officers directly involved in this investigation. The persistence of Charter breaches of this kind points towards a failure on an institutional rather than individual level. Police organizations must equip their officers with the knowledge and encourage a culture that ensures they exercise their powers and fulfill their duties according to the Charter. Their failure to do so renders the inevitable constitutional violations that result far more serious.
[93] In summary, although the breach of Mr. Jhite’s s. 10(b) Charter right to consult counsel of his choice was not deliberate, for the reasons noted, it deserves placement at the more serious end of the spectrum.
ii. Impact of the breach on Mr. Jhite’s Charter-protected interests
[94] Under this line of inquiry, the court must measure the extent to which a Charter breach “actually undermined the interests protected by the right infringed”: Grant, at para. 76. The impact may vary, from being fleeting (transient) or technical to profoundly intrusive. The more impactful on the protected interest, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute”: Grant, at para, 76.
[95] The right to consult counsel of choice guaranteed by s. 10(b) of the Charter aims to ensure that those in detention can obtain much-needed legal advice from a trusted legal advisor. A person in police custody is in a position of disadvantage and has a pressing need for legal advice so that they can make an informed choice whether to co-operate with the police, including whether to comply with a demand to furnish breath samples.
[96] To be sure, the potential impact on Mr. Jhite’s constitutionally protected interests was at least somewhat attenuated by the qualified technician’s decision to refrain from asking him investigative questions because he had not spoken to his counsel of choice. As a result, Mr. Jhite did not make any incriminating statements in the breath room, which undoubtedly served to lessen the potential impact of the breach. Nevertheless, the violation of Mr. Jhite’s s. 10(b) right to counsel of his choice meant that he had to navigate his interactions with police without the benefit of guidance from a trusted legal advisor, including the decision whether to furnish samples in response to the breath demand.
[97] In the circumstances, the breach had some impact on the interests protected by the right to counsel of choice guaranteed by s. 10(b) of the Charter.
iii. Society’s interest in an adjudication on the merits
[98] The court must also consider society’s interest in having this case adjudicated on its merits. In that regard, the court must determine if it would better serve truth-seeking to admit or exclude the evidence: Grant, at para. 79.
[99] The breath test results are reliable evidence: Grant, at para. 81. Further, the exclusion of this evidence will unquestionably deal a fatal blow to this prosecution: Grant, at para. 83. These considerations weigh heavily in favour of admitting the evidence.
iv. Section 24(2) conclusion
[100] After considering the three lines of inquiry identified in Grant, which encapsulate “all the circumstances” of the case, the court must decide whether, on balance, the admission of the evidence obtained in violation of the Charter would bring the administration of justice into disrepute: Grant, at paras. 85-86. This balancing exercise invariably requires a qualitative assessment that does not lend itself to “mathematical precision”: Grant, at para. 140.
[101] In this case, given some of the aggravating features, especially that the breach forms part of a systemic problem, the first line of inquiry strongly favours exclusion. Under the second line of inquiry, the fact that the violation had at least some impact on Mr. Jhite’s constitutionally protected interests only somewhat favours exclusion. In contrast, under the final line of inquiry, the exclusion of reliable evidence essential to the Crown’s case weighs heavily in favour of admitting the evidence.
[102] The first two lines of inquiry need not both strongly favour exclusion for such an order to be necessary. Serious breaches, even when there is only a weak impact on Charter-protected interests, will sometimes, on their own, support a finding that the admission of the evidence would bring the administration of justice into disrepute. “It is the sum, and not the average, of those first two lines of inquiry that determines the pull towards exclusion”: Le, at para. 141.
[103] After balancing all the circumstances of this case, I believe that an order excluding the evidence is necessary. The repute of the administration of justice would be more negatively affected by the court admitting the evidence and failing to dissociate itself from the chronic failure of the Peel Regional Police to respect the constitutional right to counsel of choice. Admitting the evidence would send the wrong message, signalling the court’s willingness to tolerate an ongoing systemic problem that is long overdue for correction. That would undoubtedly serve to bring the administration of justice into disrepute.
CONCLUSION
[104] For these reasons, the court allows the appeal, excludes the breath test results under s. 24(2) of the Charter, and sets aside the conviction. Because Mr. Jhite could not be convicted without the unconstitutionally obtained evidence, the court directs the dismissal of the charge.
Released: April 23, 2021
James Stribopoulos J.
COURT FILE NO.: SCA(P) 177/20
DATE: 20200423
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
SUNDEEP JHITE
Appellant
REASONS FOR JUDGMENT
Stribopoulos J.
Released: April 23, 2021