COURT FILE NO.: CR-16-009143-00AP
DATE: 20210504
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
NIKITA BUKIN
Appellant
Bradley Juriansz, for the Crown
Frank Addario and Lynda Morgan, for the Appellant
HEARD: April 9, 2021
REASONS FOR DECISION
DI LUCA J.:
[1] The appellant was tried before Rose J. of the Ontario Court of Justice on an information alleging that on November 25, 2016, he committed the offences of Impaired Driving and Driving While Over 80. On March 2, 2018, following a three-day trial that included a multi-pronged Charter application and a mistrial/recusal application, the appellant was acquitted of the Impaired Driving charge but found guilty of the Drive While Over 80 charge.
[2] The appellant appeals his conviction and raises the following grounds of appeal:
a. The trial judge created a reasonable apprehension of bias by the use of inflammatory language in his written ruling on the appellant’s mistrial/recusal application;
b. The trial judge erred by misapprehending the evidence and erred in law by failing to find a violation of the appellant’s ss. 8 and 9 Charter rights;
c. The trial judge erred in law by finding that the appellant was afforded a reasonable opportunity to contact counsel of choice; and,
d. The trial judge erred in law by failing to exclude the appellant’s breath samples pursuant to s. 24(2) of the Charter.
Brief Overview of the Facts
[3] On November 26, 2016, at approximately 9:00 p.m., Cst. Crook of the York Regional Police was on general patrol when she observed the appellant’s vehicle swerve and brake for no apparent reason. She followed the vehicle for a distance and decided to conduct a sobriety check. As she was directing the vehicle to pull over, she made further observations about the manner in which it was operated. She also saw something thrown from the car and, upon inspection, she observed it was a cigarette.
[4] When she approached the vehicle and spoke with the appellant, she noted an odour of alcohol coming from his mouth, his eyes were red and his speech appeared slurred. He also admitted to having consumed “a couple of drinks.” It took some time for him to produce his driver’s licence.
[5] Approximately four minutes after the initial stop, Cst. Crook made an approved screening device (ASD) demand. She tested the device by providing a sample of her breath, which returned a zero reading. The device had been calibrated approximately 2 weeks prior to use that evening.
[6] The appellant provided a sample and registered a “fail”, which signalled to the officer that the appellant had a blood/alcohol concentration of Over 80 milligrams of alcohol in 100 millilitres of blood. Based on the “fail” result, the appellant was arrested, and a further breath demand was made.
[7] The appellant was read his rights to counsel at the roadside. He indicated that he had a lawyer and was advised by Cst. Crook that he could speak to his lawyer in private once back at the station.
[8] Cst. Crook transported the appellant to 1 District of the York Regional Police, arriving at approximately 9:38 p.m. Once they arrived at the station, the appellant advised that he wished to speak with a specific lawyer, Todd Brown at Maverick Legal Services. As it turns out, Todd Brown is a paralegal, though at the time, police believed him to be counsel.
[9] At 10:10 p.m., after the appellant was processed, a call was placed to Mr. Brown. There was no answer and the voicemail indicated that the office was open Monday to Friday until 6:00 p.m. Cst. Crook nonetheless left a message advising that the appellant had been arrested. At 10:18 p.m., she called Mr. Brown again based on her understanding that lawyers would sometimes answer the phone after hours.
[10] By 10:21 p.m., there had been no return call. Cst. Crook went to the cells and advised the appellant that she had called Mr. Brown twice and that the voicemail indicated that the office was closed. During this discussion, Cst. Crook asked whether the appellant would like to speak to duty counsel. He agreed. Cst. Crook contacted duty counsel at 10:22 p.m. By 10:41 p.m, having received no call back, Cst. Crook called duty counsel again. Duty counsel called back at 10:47 p.m. but the call was disconnected. Duty counsel called back again and between 10:51 and 10:56 p.m., the appellant spoke with duty counsel.
[11] At 10:57 p.m., after the consultation with duty counsel was completed, the appellant was placed with the breath technician.
[12] Mr. Brown retrieved the messages left by Cst. Crook at 10:49 p.m. He then contacted Adam Little, a lawyer with whom he worked. Mr. Little responded at 10:55 p.m. and indicated he was prepared to provide legal advice.
[13] Mr. Brown attempted to call the appellant using the phone number that Cst. Crook left in the voice message. He was mistakenly advised that the appellant and Cst. Crook had gone to the hospital and that he should contact them there.
[14] At 11:01 p.m., the appellant provided his first breath sample with a result of 140 mgs.
[15] Mr. Brown called the hospital at 11:04 p.m. After 12 minutes had passed, he was advised that the appellant was not at the hospital. Mr. Brown again called the police station and at 11:17 p.m., he was connected with the breath technician, Cst. Mergit. Mr. Brown was advised that the appellant had already provided a breath sample and that Cst. Crook would call him back.
[16] At 11:22 p.m., Cst. Crook phoned Mr. Brown and indicated that the appellant had spoken to duty counsel. She did not let Mr. Brown speak with the appellant as the breath technician was conducting the second test.
[17] At 11:25 p.m., the appellant provided his second breath sample with a result of 132 mgs.
[18] At some point between 11:33 p.m. and 11:37 p.m., Cst. Crook placed the appellant in contact with Mr. Brown. Counsel, Mr. Little, then joined the call. The call was disconnected but was resumed by approximately 11:42 p.m. The appellant completed the call and was returned to his cell at 11:54 p.m. and then released from the station at 1:12 a.m.
The Reasons for Judgment
[19] In written reasons reported at 2018 ONCJ 137, the trial judge set out his reasons in relation to the various Charter arguments advanced as well as the substantive charges.[^1]
[20] On the issue of whether the officer violated ss. 8 and 9 of the Charter by improperly relying on the screening device test results, the trial judge accepted Cst. Crook’s evidence that she had no basis to believe that mouth alcohol was a factor necessitating a 15-minute waiting period prior to the administration of the screening device test. Further, he accepted her evidence that she did not feel it was necessary to wait more than two minutes due to her observations of the cigarette being thrown from the car. Ultimately, he found that the officer subjectively believed in the reliability of the test result and that her belief was objectively reasonable. As such, he found no violation of s. 8 or 9 of the Charter.
[21] In terms of the s. 10(b) issues, the trial judge rejected the argument that Cst. Crook did not wait a sufficient period of time before telling the appellant that Mr. Brown had not called back. He found that Cst. Crook properly took steps to tell the appellant that she had been unable to reach Mr. Brown. He further found that it was the appellant who asked for duty counsel. Nonetheless, the trial judge found a s.10(b) violation because Cst. Crook did not ask the appellant if there was another lawyer he wished to speak to, nor did she offer him other means of identifying a lawyer. The trial judge found a further s.10(b) violation occurred when Cst. Mergit did not interrupt the breath testing to put the appellant in touch with Mr. Brown, who by that time had contacted the police station.
[22] In terms of s. 24(2) of the Charter, the trial judge found that the breaches of s. 10(b) were neither technical nor overly serious. He found that the first line of inquiry of the Grant test tipped modestly in favour of exclusion.
[23] In terms of the second line of inquiry, the trial judge noted that the appellant’s “counsel of choice” was actually a paralegal who was not in a position to give legal advice. On this issue, the trial judge noted that there was no evidence suggesting that the appellant wanted to contact Mr. Brown in order to be put in touch with a lawyer or that the appellant specifically wanted to speak with Mr. Little. He further concluded that the appellant’s consultation with duty counsel significantly mitigated the impact of the breach, especially in view of the fact that there was no complaint about the advice received. The trial judge concluded that the second line of inquiry tipped strongly in favour of admission of the breath results.
[24] In terms of the third line of inquiry, the trial judge concluded that the breath evidence was reliable and the charges were aimed at addressing a serious societal problem. As such, the trial judge concluded that the third line of inquiry favoured admission.
[25] The evidence of the breath readings was admitted and a finding of guilt on the Over 80 charge followed.
[26] The trial judge considered the evidence of impairment and ultimately concluded that the observed indicia of impairment were frail and could not support a finding of guilt beyond a reasonable doubt. The appellant was, therefore, acquitted on the Impaired Driving charge.
The Mistrial/Recusal Application
[27] The viva voce evidence was heard on December 11 and 12, 2017. On February 20, 2018, the trial continued with submissions on the Charter issues and on the trial proper. It appears that during the course of submissions, defence counsel, Mr. Little, observed the trial judge holding a document that appeared to be a draft judgment. The following exchange then took place:
Defence Counsel: …I’m going to answer Your Honour’s question and then I have to raise something because I have eyes, unfortunately… […]
But I, I’m just concerned because it looked like Your Honour was reading from a document that said Draft on it. That just concerns me.
Court: You don’t have to worry about what I’m looking at up here.
Defence Counsel: I, I just - there is law out there where a similar situation has arisen before and that that concerns me that Your Honour may have come to court with draft reasons without hearing argument.
Court: Well - okay. You don’t have to worry about what’s coming up here. In other words, I make my own notes.
Defence Counsel: Uh-huh.
Court: And how I make my notes, you don’t have to worry about.
Defence Counsel: Sure. I appreciate that but I just - I’m not - I mean no disrespect to the Court but I have eyes and it sure looked like what Your Honour was reading off of something that looked like a draft reason on an issue on really something Your Honour hasn’t heard oral argument on that’s just what it looked like. I, I may be totally wrong, I’m 15 feet back from you but I, I know what reasons for judgment look like, I know that the format is, I know the template that is provided to judges from the Ontario Court of Justice is. It sure looked like that’s what the document was that said “draft” on it and, and I’m just raising that from the Court, if I hadn’t seen it, I wouldn’t be saying anything but, but that’s sure what it looked like from here.
The Court: Mr. Little.
Defence Counsel: Yes. Sir.
The Court: I would appreciate if you didn’t look at what notes I was taking up here and I don’t look at your notes, I’m asking you not to look at my notes.
Defence Counsel: I, I appreciate that. I want to be clear, I’m not trying to look at anything, I was looking at Your Honour when Your Honour was reading and asking me a question and just my eyes were drawn to what it said on that. I’m, I’m not trying to go behind anything, I’m just simply raising that from an appearance point of view, if I’m right in what I saw, there could be an issue with that. I’m just raising that because I have an obligation to put these comments on the record. If I’m wrong, so be it, and I mean no disrespect to the Court but I’m just indicating what it is that I have seen.
The Court: If you could carry on please. [Emphasis added]
[28] Defence counsel continued with submissions. After the morning recess, defence counsel advised the court that he had consulted with senior counsel as well as his client and that he was seeking the trial judge’s recusal on the basis of a reasonable apprehension of bias. Defence counsel noted that the trial judge did not suggest that the document that had been observed was not a draft judgment, and that as a result there existed an appearance that the matter had been predetermined in advance of the completion of submissions. In response, the trial judge indicated that he had not made up his mind on any of the issues raised in the case. He further noted that there were three decisions before him that day and that, in any event, he would not be rendering a decision in the appellant’s case that day. Defence counsel pressed the issue suggesting that the trial judge’s reluctance to indicate whether or not the observed document related to the appellant’s case left the impression that it was, in fact, related to the case and that this impression raised an issue of fairness.
[29] The trial judge gave defence counsel an opportunity to assemble some case law and make further submissions on the mistrial/recusal issue. In these further submissions, defence counsel acknowledged that there was nothing per se wrong with a trial judge preparing draft reasons in advance as long as the trial judge retained an open mind. However, defence counsel maintained the submission that a trial judge had to be careful in doing so because of the risk of an appearance of unfairness. Defence counsel further argued that the trial judge’s refusal to confirm for the record the nature of the document observed gave rise to a reasonable apprehension of bias, despite the trial judge’s comments that he maintained an open mind and had not decided any issues in the case.
[30] Following argument, the trial judge took a further recess to consider the issue. In brief oral reasons, he dismissed the mistrial/recusal application finding that it was “without merit”, though he reserved the right to release further reasons.
[31] On May 6, 2018, four days after the reasons for judgment were released, the trial judge released additional written reasons, reported at 2018 ONCJ 146, on the mistrial/recusal application. The concluding paragraphs of these reasons are as follows:
[11] In submissions I told Mr. Little that I would not disclose to him the content of the document he had seen me handle while he was arguing the Charter Application, or even which case it belonged to. He seemed to think that exacerbated the problem. I strongly disagree. One of the functions of judicial independence is surely the ability of a judge to note and document on paper, thoughts and reflections about the evidence, law, and anything else logically connected with the judicial function of deciding a case or part of it. I therefore find, in law, that a trial judge has no obligation to disclose to counsel for any party his or her own notes or preliminary or draft rulings. I would not honour the argument with any further discussion of jurisprudence. As Nordheimer J. said in Chue (supra), the important thing is that the trial judge keep an open mind until submissions are complete. That Mr. Little would not accept my confirmation that I had an open mind during submissions is “unseemly” per R. v. Wills (supra), and the very thing that the presumption of judicial regularity is meant to avoid, see R. v. G.A. (supra).
[12] What also concerns me about this motion is that it smacks of surveillance of a judicial officer by counsel. One of the reasons why the Newmarket Courthouse manages a large volume of criminal trials in a timely manner is that we work with all of the facilities provided. This includes small courtrooms where the bench, counsel, witnesses and staff must all work in very close quarters. It would be highly inappropriate for defence or crown counsel to exploit the close quarters to look at an opposing lawyers’ notes. It is no less inappropriate for counsel to do that to a judge. [Emphasis added.]
Analysis of the Issues Raised on Appeal
(a) The Supplementary Reasons for Mistrial/Recusal
[32] The appellant does not challenge the trial judge’s initial oral reasons for dismissing the mistrial/recusal application. Indeed, the appellant accepts that if the trial judge had not issued any supplementary written reasons, there was no reviewable error committed in initially dismissing the request for a mistrial/recusal.
[33] However, the appellant argues that the trial judge’s use of inflammatory language in the supplementary written reasons, issued after the reasons for judgment were released, gives rise to a reasonable apprehension of bias.
[34] In particular, the appellant argues that the trial judge’s supplementary reasons unfairly impugn defence counsel’s integrity by suggesting that he acted unprofessionally and unethically, and did so without according defence counsel notice that the findings were being contemplated. The appellant further argues that a reasonable observer reading the supplementary reasons would perceive that the trial judge was biased against counsel and therefore also the appellant.
[35] The respondent argues that the trial judge correctly dismissed the mistrial/recusal motion. The respondent notes that in R. v. Chue, [2011] O.J. No. 4149 (S.C.J.), Nordheimer J. (as he then was) found that there was nothing wrong with a trial judge preparing draft reasons either in advance of hearing counsel’s submissions or while hearing counsel’s submissions, as long as the judge maintained an open mind and remained receptive to persuasion. The respondent next argues that the trial judge’s impugned comments as set out in the supplementary reasons must be viewed in context with the marginal merit of the mistrial/recusal application. Lastly, the respondent argues that the language used by the trial judge, when viewed in context, does not rise to the level of impugning counsel’s integrity or professionalism.
[36] In my view, there are some problematic aspects to the trial judge’s supplementary written reasons. First, in paragraph 6, the trial judge states, “Mr. Little furthered by saying that my failure to tell him what the document is, and what it said, was proof of my bias.” To be clear, Mr. Little never accused the trial judge of actual bias. To the contrary, he repeatedly stated that he was only suggesting that a reasonable apprehension of bias had arisen as a result of the interaction over the observed document. While he argued that the trial judge’s failure to identify the nature of the document failed to dispel the appearance of bias, I do not read his submissions as suggesting the trial judge was in fact biased. That said, and in fairness to the trial judge, at para. 8 of the supplementary reasons, he notes that defence counsel was “at pains to explain” that he was not arguing actual bias.
[37] Second, the trial judge finds that it is “unseemly” for defence counsel to have not accepted his assertion that he had an open mind and had not decided the case. In support of this finding, the trial judge cites the notorious case of R. v. Wills, wherein Fuerst R.S.J., in dealing with an allegation of actual bias made by a self-represented accused in a murder trial, stated: “It is unseemly for any trial judge to have to respond to an allegation of actual bias.”
[38] With respect, the trial judge erred in describing what happened here as “unseemly.” In instances where counsel has a good faith basis to believe that something has given rise to a reasonable apprehension of bias, counsel may be duty bound to raise the issue. While counsel must always treat the court with candour, fairness, courtesy and respect, counsel also has a duty of loyalty to the client. The duty of loyalty requires that counsel fearlessly and effectively raise every issue, advance every argument and ask every question that the lawyer competently believes is required to advance the client’s interests. The duty of loyalty applies even when the issue, argument or question is distasteful. Moreover, counsel plays a role in ensuring the transparency and accountability of the justice system, including the judges who work in it. To conduct that role effectively, counsel must feel free to speak without inhibition and with courage when circumstances demand, see Histed v. Law Society of Manitoba, 2007 MBCA 150, at para. 71.
[39] Raising an issue of apprehended bias with the court is never an easy task. It is rarely met with warmth and open arms. Nonetheless, circumstances arise wherein counsel may feel obliged to put matters of concern on the record not only to protect the client at first instance, but also to preserve the issue for appellate review if need be. Indeed, a failure to raise the issue at the first reasonable opportunity may prevent the issue from being raised subsequently, see R. v. Nero, 2016 ONCA 160, at para. 33.
[40] On my review of the transcript, defence counsel was respectful and courteous at all times. He was indeed “at pains” to note that the issue was not actual bias but a reasonable apprehension of bias. He adopted a deferential though committed tone throughout his submissions. He sought advice from senior counsel before raising the issue. He advanced the issue in a succinct, informed and direct manner. He moved on when told to do so.
[41] Viewed in context, I see nothing wrong with counsel maintaining his position on the existence of a reasonable apprehension of bias, despite the trial judge’s assertion of an open mind. Defence counsel was entitled to maintain his position. He was also entitled to argue that the judge’s assertion of having an open mind did not dispel the appearance of bias in the circumstances. In short, defence counsel’s conduct was not “unseemly.”
[42] Lastly, in paragraph 12 of his supplementary reasons, the trial judge appears to have made either a direct or implicit finding that defence counsel was engaged in the highly inappropriate act of “judicial surveillance.”
[43] While the paragraph is arguably open to interpretation, I accept that one interpretation is that the trial judge found that Mr. Little inappropriately took advantage of the close quarters of the particular courtroom to “surveil” the judge by examining the document the judge had on the dais during colloquy with counsel.
[44] Assuming that the paragraph suggests such a finding was made, the trial judge erred in so doing. Defence counsel, as an officer of the court, advised the trial judge that the document simply caught his eye during submissions. He described how he saw the words “Draft” and saw what appeared to be the standard judgment format commonly used by the courts. He clearly stated that he was not trying to look at the judge’s materials but had inadvertently done so. He went on to make submissions on why his observations gave rise to a reasonable apprehension of bias.
[45] During those submissions, the trial judge never suggested to counsel that he had acted inappropriately by taking advantage of the layout of the courtroom to view the document or that counsel had intentionally viewed the document. To the extent that the trial judge felt that counsel might have done so, he should have placed counsel on notice and should have granted him an opportunity to respond, see Brunning and Fontaine v. AGC, 2018 ONSC 1003, at para. 15.
[46] I turn lastly to assessing whether these problematic aspects of the trial judge’s supplementary ruling on the mistrial/recusal application give rise to a reasonable apprehension of bias.
[47] On this issue, the parties agree that the governing test is set out in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394 per Grandpré J., dissenting and the cases that follow it, including R. v. S.(R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 31, Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25 and Wewaykum Indian Band v. Canada, 2003 SCC 45, at para. 76. The cases establish that there exists a strong presumption of judicial impartiality. As such, the threshold for finding a reasonable apprehension of bias is high, see R. v. P.G., 2017 ONCA 351, at para. 24.
[48] The parties also agree that while allegations of reasonable apprehension of bias often arise mid-trial, comments made by a judge in a ruling released after trial or comments made during or after a recusal motion can also give rise to a reasonable apprehension of bias, see R. v. Griffin, 2016 ONSC 2448 and Cabana v. Newfoundland and Labrador, 2014 NLCA 34, at para. 54.
[49] Lastly, the parties agree that a reasonable apprehension of bias may arise in instances where a judge impugns the integrity or ethics of counsel, see R. v. Ibrahim, 2019 ONCA 631 and R. v. Van Wissen, 2018 MBCA 110.
[50] When I assess what occurred in this case in context and consider the authorities that govern the analysis, I am not satisfied that the test for a reasonable apprehension of bias has been met. While I find that the trial judge erred in aspects of his analysis and that his comments went too far, this is not an instance where I find that a reasonable and informed observer would view the comments as giving rise to an apprehension of bias. Put another way, I am not satisfied that a reasonable and informed observer would have concerns over the fairness of the appellant’s trial as a result of the comments. I reach this conclusion for the following reasons:
a. While I find no fault with defence counsel initially raising his concerns over the document observed on the judicial dais, that concern was fully answered in the circumstances of this case. The trial judge indicated that he had an open mind and had not pre-judged the matter. He heard submissions on the issue, gave counsel time to place relevant caselaw before the court and then retired to consider his decision. He gave unimpeachable oral reasons addressing the issue.
b. I see no error in the trial judge’s refusal to reveal the nature and/or content of the document that he had on his dais. In the absence of cogent evidence suggesting otherwise, the presumption of judicial integrity suggests that judges will carry out their duties in accordance with their oath of office, see R. v. Richards, 2017 ONCA 424. As well, the integrity of the judicial process is connected to the concept of judicial independence, see Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673. In keeping with the presumption of integrity and the concept of judicial independence, judges are under no general obligation to disclose what documents they have on their dais or elsewhere. Judges do not disclose draft judgments, notes taken during trial or summaries of evidence prepared afterwards. The presumption of integrity suggests that judges listen to evidence and decide cases in accordance with their oath of office. They release written or oral reasons that reveal their thought processes and deliberative paths. Those reasons are the basis upon which the appellate review function occurs. Judicial independence would be unnecessarily curtailed if judges were required to answer questions about what documents they consult or use in deciding cases.
c. Even assuming that the document observed by defence counsel related to this case, there is nothing wrong with a judge starting to write reasons in the midst of trial. This was a complex drunk driving trial with “no stone left unturned.” The trial judge had heard two days of detailed evidence and was returning for a further day of submissions approximately two months after the initial trial dates. It is hardly surprising that in a busy trial court, a judge may have committed summaries of the evidence heard and even some preliminary findings on paper pending argument by counsel, see Chue, supra, at para. 19.
d. In large measure, the supplementary written reasons simply repeat and amplify the oral reasons already given. Apart from the impugned passages, the supplementary reasons reveal no error.
e. In terms of the impugned passages, it would have been preferable if the trial judge had not made the comments he made. Indeed, I find that he erred in doing so. However, not every instance where a trial judge wrongly or unfairly comments on counsel’s conduct gives rise to a reasonable apprehension of bias. The presumption of judicial integrity suggests that judges are capable of and indeed obliged to put aside any feelings towards counsel and decide cases based solely on their merits.
f. The reasonable observer understands the presumption of judicial integrity. While there is no issue that the presumption of judicial integrity can be overcome in certain cases, it is the whole context of the trial that must be examined and not simply the impugned passages said to give rise to the apprehension of bias. This was a hard-fought trial. Defence counsel skillfully advanced a multi-pronged attack on the Crown’s case. The trial judge was very patient and engaged throughout the trial. Even when the issue of apprehended bias was raised, the proceedings remained professional and courteous despite the nature of the allegation. After hearing submissions, the trial judge retired to consider the mistrial/recusal issue. He gave unimpeachable oral reasons dismissing the application. He also heard extensive oral argument, supplemented by written material on the substantive Charter and trial issues. He reserved his decision on those issues and provided detailed written reasons explaining the basis for his findings. He issued supplementary reasons on the mistrial/recusal application that unfortunately contained language that impugned defence counsel’s conduct. When this entire process is viewed in context, a reasonable and informed observer would not conclude that the trial judge had visited whatever opinion he formed of counsel on to the appellant. In other words, a reasonable observer would not conclude that there exists an appearance of bias by virtue of the language used in the trial judge’s supplementary written reasons on the recusal/mistrial application.
g. Lastly, while the trial judge should not have directly or implicitly suggested that counsel was engaged in “judicial surveillance”, he was correct in noting that the practice was highly improper and no different than looking at another counsel’s notes. Indeed, best practices suggest that counsel should not only avoid intentionally looking at opposing counsel’s or a judge’s notes, they should actively avoid inadvertently doing so as well.
(b) Sections 8 and 9 of the Charter
[51] The appellant argues that the trial judge misapprehended the evidence when he found that Cst. Crook had a reasonable belief that the ASD test result was reliable, and that this misapprehension tainted his findings on the ss. 8 and 9 Charter violations which were premised on the absence of reasonable and probable grounds for arrest and subsequent breath demand.
[52] The respondent argues that the trial judge correctly determined that Cst. Crook had sufficient grounds to arrest the appellant based on the ASD test result. The respondent further argues that the trial judge made factual findings in support of this conclusion, did not misapprehend the evidence and applied the correct legal framework.
[53] There is no dispute between the parties on the applicable legal analysis. A police officer is entitled to rely on the result of an ASD test in order to form the requisite grounds for an arrest and subsequent breath demand in circumstances where the officer subjectively believes in the accuracy of the test result and where, in the circumstances, that belief is reasonable, see R. v. Jennings, 2018 ONCA 260 at paras. 9-11, R. v. Notaro, 2018 ONCA 449 at paras. 27-33 and R. v. Einarson, (2004) 2004 CanLII 19570 (ON CA), 70 O.R. (3d) 286 (C.A.). An officer is not entitled to rely on the screening device test result in cases where there is credible evidence that the result is unreliable.
[54] A police officer is required to administer an ASD test “forthwith.” However, an officer is permitted to delay administration of the ASD test if the delay is required in order to obtain a reliable test result, see R. v. Mastromartino (2004), 2004 CanLII 28770 (ON SC), 70 O.R. (3d) 540 (S.C.J.), at para. 23. A delay in administering the test is exceptional and not routine. Officers are not required to inquire into every conceivable issue that may require the delayed administration of the test.
[55] In instances where reliance on the test result is challenged, the accused is required to demonstrate on a balance of probabilities “a high degree of unreliability” with respect to the device at the time it was used, see R. v. Bernshaw (1995), 1995 CanLII 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.) at p. 219, R. v. Paradisi (1998), 1998 CanLII 1989 (ON CA), 112 O.A.C. 310 and R. v. Beharriell, 2014 ONSC 1100, at para. 56.
[56] At trial, the appellant raised two issues in relation to the ASD: (a) the potential for residual mouth alcohol and, (b) the impact of the appellant’s recent smoking. There is no dispute that in certain circumstances, either or both of these issues may impact the reliability of the ASD result.
[57] The trial judge found that there were no circumstances suggesting the presence of residual mouth alcohol and that as a result there was no reason for the officer to consider delaying administration of the ASD on that basis alone. The appellant does not challenge this finding on appeal.
[58] In terms of the potential impact of smoking on the ASD test result, the appellant argued at trial that the officer’s observation of a cigarette thrown from the appellant’s vehicle supported an inference that the appellant had been recently smoking and that as a result a delay in the administration of the ASD was warranted. The officer was cross-examined extensively on her training and her understanding as to whether a recently smoked cigarette required a 15-minute delay in the administration of the ASD test. The officer’s evidence was that she initially learned through her training that a 15-minute delay was appropriate in cases where there was evidence of recent smoking. However, she had also learned that a 2-minute delay was actually sufficient to ensure reliability of the results. The timing of when she learned that 2 minutes would be sufficient was the subject of convoluted and lengthy questioning. Nonetheless, the officer maintained that at the time she administered the test, which was some 7 minutes after she first approached the appellant’s vehicle, she subjectively believed that the test result was reliable.
[59] The trial judge’s findings on this issue are as follows at paras. 25-26:
…I also accept her evidence that she did not believe that she had to wait more than 2 minutes after the test subject had finished a cigarette before obtaining a roadside breath sample. I accept her evidence that there had been conversations within YRP members on this very issue and the result of that was that Cst. Crook did not see the need to wait for more than 2 minutes. In the end, her evidence is uncontradicted that she believed at the time of the ASD test that it would yield a reliable result.
Cst. Crook was cross-examined at considerable length about training manuals and her training about waiting for residual mouth alcohol or cigarette smoke to dissipate before obtaining an ASD sample. I find that she turned her mind to the cigarette smoke issue and followed a reasonable belief that there was nothing wrong in the circumstances which would yield an unreliable ASD result. She was candid that Mr. Little’s cross-examination gave her new information to consider on this point. While the process of cross-examination provided her with more information from Mr. Little which has changed her mind, she believes that the ASD would generate a reliable result even if she had seen a cigarette butt thrown from the car by Mr. Bukin minutes before he provided an ASD sample. I find that her belief at the time she made the ASD demand was a reasonable one, see R. v. Ho, 2015 ONCA 559.
[60] The appellant argues that the trial judge’s conclusions on this issue are tainted by a misapprehension of Cst. Crook’s evidence. The appellant argues that at the time of the administration of the ASD test, Cst. Crook believed that a 15-minute delay was required in order to ensure the reliability of the result. To the extent that Cst. Crook changed her mind on this issue, it occurred after the fact when she was advised by colleagues that she only needed to wait two minutes. In addition, the appellant also notes that Cst. Crook essentially conceded in cross-examination that she should have followed her initial training and waited 15 minutes.
[61] I am not satisfied that the trial judge misapprehended the evidence or otherwise erred in assessing this issue. Cst. Crook acknowledged that her initial training suggested that a 15-minute waiting period was required in order to address the potential impact of recent smoking. She further testified that she later learned that 2 minutes was sufficient. She was pressed at length on this issue. Her evidence is far from clear and is, at times, very confusing due at least in part to the nature and style of the questions that were being asked. Ultimately, Cst. Crook gave evidence that she learned of the sufficiency of a two-minute wait period both before and after her interactions with appellant. The trial judge did not misapprehend this evidence. To the contrary, despite the overall state of the evidence, it was open to the trial judge to accept Cst. Crook’s evidence on this point. I see no basis for interfering with his fact finding.
[62] Moreover, while Cst. Crook accepted in cross-examination that she perhaps should have waited 15 minutes, she did not vary in her stated belief that at the time she administered the test, she believed it would provide a reliable result. As such, the trial judge’s finding that the subjective component of the reasonable and probable grounds analysis was met rests on firm ground.
[63] Lastly, I see no error in the trial judge’s conclusion that the officer’s subjective belief was objectively reasonable. First, it is far from clear that a failure to wait 15 minutes following the smoking of a cigarette raises concerns about the reliability of the test result. Indeed, it appears that a 2-minute wait may be sufficient to dispel the possibility of inaccuracy, see R. v. Nicolosi, 2015 ONCJ 653, at para. 18. More problematically, while the courts appear to have taken judicial notice of the fact that residual mouth alcohol can affect the validity of the test result on an ASD, the same does not appear to be the case with respect to the effect of smoking, see R. v. Mason, 2013 ONCJ 328 at paras. 17-18 and cf. Mastromartino, supra, at para. 33. In this case, there was no evidence about the potential impact that a 7-minute wait between smoking and the administration of the test could have on the reliability of the test result. Lastly, even assuming that the officer should have followed her training and waited 15 minutes, in the absence of evidence suggesting that the result of the ASD was unreliable, the mere failure to follow this training does not automatically render reliance on the test result objectively unreasonable, see Jennings, supra, at para.17.
(c) Section 10(b) of the Charter
[64] The appellant argues that the trial judge erred in concluding that the police waited a reasonable period of time for counsel of choice to contact the police station. Further, the appellant argues that Cst. Crook should have advised him that he had the option of waiting for counsel to call back when presenting him with the option of contacting duty counsel.
[65] The Crown argues that the trial judge’s conclusion that the police waited a reasonable period of time is a factual finding that is owed deference on appeal. The Crown further argues that the trial judge made no error in concluding that the police had waited a reasonable time, and further made no error in assessing the limited nature of the Charter violations that followed.
[66] The courts have long recognized that where counsel of choice is not immediately available, a detainee is entitled to wait a “reasonable amount of time” for their counsel of choice to respond, see R. v. Willier, 2010 SCC 37 at para. 35 and R. v. McCrimmon, 2010 SCC 36 at paras. 17-18. There is no fixed period of time. What is reasonable depends on the circumstances of the case as a whole and may include factors such as the availability of duty counsel, the seriousness of the charge and the urgency of the investigation, see Willier, at para. 35. In some instances, a reasonable period of time may stretch hours or overnight, see R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3 at p. 11. In other instances, it will be much shorter, see R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont.C.A.).
[67] The requirement to wait a reasonable time for counsel of choice to respond results in a holding off period. During this time, it is impermissible for the police to engage the detainee in evidence gathering techniques such as participating in an interview or the taking of breath samples, see Willier, at para. 33.
[68] Where a detainee who is unable to reach counsel of choice waives the right to counsel entirely and elects to simply proceed with the evidence gathering technique, the police are required to give an additional caution prior to proceeding, see R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236 and R. v. Fountain, 2017 ONCA 596. This additional caution involves advising the detainee that he or she has the right to a reasonable opportunity to contact counsel of choice, and that the police will hold off on obtaining evidence until the detainee has had a reasonable opportunity to do so. The aim of the caution is to ensure that the detainee’s decision to forgo the right to counsel and participate in evidence gathering is not related to the immediate unavailability of counsel, see Willier, at para. 32. In other words, the caution is aimed at ensuring that the detainee understands what they are waiving in choosing to proceed without the advice of counsel.
[69] A detainee who initially indicates they wish to speak with a specific lawyer may later forgo that choice and instead speak with duty counsel. The implications of doing so are discussed in detail in the recent decision of R. v. Jhite, 2021 ONSC 3036, at paras. 38-46. In brief summary:
a. Willier establishes that the police are not required to provide a Prosper type warning when presenting a detainee with another option for obtaining legal advice. In other words, they are not required to tell the detainee that he or she can wait a further period of time for counsel of choice to respond. The rationale for not extending the Prosper warning to this type of scenario is that the detainee is not waiving the right to counsel, but rather is “merely opting to call another”, see Willier at paras. 38-39. See also, McCrimmon at para. 7.
b. Willier also establishes that a detainee may choose to forego counsel of choice in favour of duty counsel or another lawyer, even before the police have provided a reasonable opportunity for counsel of choice to respond, see Willier at para. 43. However, what the police cannot do is interfere with the detainee’s right to a reasonable opportunity to contact counsel of choice. As Stribopoulos J. explains in Jhite at para. 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.
c. The police cannot “default to duty counsel” in the face of a demand to consult with counsel of choice, see R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont.S.C.). The police also cannot leave the impression that the detainee has “no option” other than consulting with duty counsel, see R. v. Vernon, 2015 ONSC 3943, leave to appeal refused 2016 ONCA 211, R. v. Singh, 2020 ONSC 1342 at para. 17, and R. v. Lewis, 2019 ONSC 5919.
[70] I start my analysis of this issue by noting the appropriate standard of appellate review. While the underlying facts in support of the conclusion that the period of time the police waited are findings of facts which are entitled to appellate deference, the conclusion on the issue of whether the waiting time was reasonable is a legal finding as it involves the application of legal principles to a set of facts, see R. v. Araujo, 2000 SCC 65 at para. 18 and R. v. Shepperd, 2009 SCC 35 at paras. 18-20. As such, the trial judge’s conclusion on whether the police waited a reasonable period of time is subject to review on a correctness standard and his fact finding in support of that determination is subject to review on a palpable and overriding error standard.
[71] Turning next to the facts, on the evidence at trial there was no suggestion that Cst. Crook went into the cells to tell the appellant that enough time had passed for his counsel of choice to respond and as a result he either had to avail himself of some other option or proceed with breath testing. If that had been the case, a s.10(b) breach would have been established as the 11 minutes of time between the first call to Mr. Brown (whom the police mistakenly believed was counsel) and the interaction with the appellant would not have been a reasonable period of time in the circumstances.
[72] Instead, on the findings made by the trial judge, Cst. Crook simply took steps to tell the appellant about her efforts in contacting Mr. Brown. Cst. Crook testified that she essentially took it upon herself to update the appellant on these efforts as the voicemail message she listened to suggested that Mr. Brown’s office, Maverick Legal Services, was closed at that time of day. While the evidence of the nature of the discussion was sparse, the trial judge accepted that Cst. Crook told the appellant that she could not reach Mr. Brown and the appellant indicated he would speak with duty counsel. In the absence of evidence suggesting that the officer had decided that she had waited “long enough” for counsel of choice to respond and was therefore giving the appellant his final options before proceeding with breath testing, there was nothing wrong with her giving the appellant this update.
[73] Moreover, there was no evidence supporting a conclusion that the appellant subjectively felt like he had no option but to avail himself of duty counsel. There was no evidence suggesting that Cst. Crook improperly steered or directed the appellant to duty counsel. Lastly, it must be remembered that the appellant’s “counsel of choice” was actually a paralegal who was in no position to give the appellant legal advice. While Mr. Brown eventually seconded counsel, Mr. Little, to give legal advice later that evening, there was no evidence before the court that the appellant wanted to contact Mr. Brown in order to be put in touch with counsel who would be in a position to give advice.
[74] Set against this backdrop, I see no error in the trial judge’s conclusion that s.10(b) was not breached when the appellant agreed to speak with duty counsel. In reaching this conclusion, I note that this case was argued on the basis of whether the police waited a “reasonable time” for counsel to respond before proceeding. The issue of whether the appellant’s resort to duty counsel amounted to a “waiver” of the right to counsel of choice as opposed to a mere change in the counsel of choice was not argued at trial or on appeal. Whether, and if so to what extent the concept of “waiver” is engaged in these circumstances, is a nuanced issue as a result of the language used by the Supreme Court in Willier, see R. v. Wannamaker, 2019 ONSC 6459, at paras. 33-45.
[75] In terms of s. 24(2) of the Charter, I note that the trial judge did find a related s.10(b) violation because Cst. Crook failed to ask the appellant if he wanted to speak to another lawyer or use other means to identify a lawyer to contact as discussed in R. v. Traicheff, 2010 ONCA 851. He also found a further breach, which was conceded by the Crown, as a result of the failure to interrupt the testing procedure once Mr. Brown and Mr. Little actually called back. On this last issue, it may well be that the Crown unnecessarily conceded the point as the circumstances warranting a second consultation with counsel were not present. That said, the police should not be faulted for placing the appellant in touch with his initial “counsel” of choice, even if it was not, strictly speaking, a legal requirement.
[76] The appellant argues that the trial judge misapprehended the nature of the efforts undertaken by Cst. Crook. The trial judge noted that Cst. Crook “made several attempts to contact Mr. Brown” instead of perhaps more accurately describing it as “two attempts some 8 minutes apart.” I do not see this as a material misapprehension of the evidence.
[77] Next, the appellant argues that the trial judge erred in finding the seriousness of the breach was mitigated by the fact that the appellant spoke with duty counsel. I see no error in this analysis. This is not an instance where the appellant waived the right to counsel and gave breath samples having not consulted counsel, or an instance where the appellant raised a concern about the advice given or continued to indicate a desire to speak to his first choice of counsel after consulting counsel. It is also not an instance where the accused testified and explained the reasons why he raised no such concerns. The trial judge did not err in viewing the consultation with duty counsel as mitigating in these circumstances.
[78] In the absence of the errors in s. 24(2), the trial judge’s findings are entitled to deference. I would not interfere with either his findings or his conclusions.
[79] The appeal is dismissed.
Justice J. Di Luca
Released: May 4, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
NIKITA BUKIN
Appellant
REASONS FOR DECISION
Justice J. Di Luca
Released: May 4, 2021
[^1] The trial judge’s ruling in relation to an alleged s. 10(a) Charter violation was not pursued on appeal.