COURT FILE NO.: CR-21-0026-00AP DATE: 2022 05 03

ONTARIO SUPERIOR COURT OF JUSTICE (SUMMARY CONVICTION APPEAL)

B E T W E E N:

HER MAJESTY THE QUEEN Arish Khoorshed, for the Appellant Appellant

- and -

NICHOLAS BENNETT Respondent Douglas Lent for the Respondent

Heard: October 13, 2021, at Milton, ON

REASONS FOR JUDGMENT

[On appeal from the Reasons for Judgment by Justice Nadel of the Ontario Court of Justice at Milton, ON, delivered December 5th, 2019]

BARNES J.

Introduction

[1] On December 5th, 2019, Justice Nadel acquitted the Respondent of one count of driving with over 80 milligrams in one 100 milliliters of blood on June 12th, 2018, contrary to section 253(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46 (“Code”).

[2] The Appellant appeals the acquittal. I will dismiss the appeal.

Overview

[3] The Respondent was stopped by Constable Dominelli for speeding. Constable Dominelli detected an odour of alcohol on the Respondent’s breath. The police officer made an approved screening device demand and administered the approved screening test. The Respondent failed the test.

[4] Constable Dominelli, arrested the Respondent, informed him of his rights to counsel, and gave him his primary and secondary cautions. In response to his rights to counsel, the Respondent said he would speak to counsel at the police station.

[5] At trial, the Respondent said he told Constable Dominelli that his parents had the name of a lawyer, and he would require his cellphone to contact them. He said Constable Dominelli went to the Respondent’s car and retrieved the cellphone. Then they left the scene for the police station. Constable Dominelli did not give the Respondent the cellphone. The Respondent testified that on route to the police station there was no response to his request to call his parents.

[6] At the police station, Staff Sergeant Reilly asked the Respondent if he understood his rights to counsel, the Respondent answered in the affirmative. He was asked if he wished to speak with duty counsel and said “No”. He was asked if he wanted to speak to his own lawyer and he said “No”.

[7] The Respondent testified that he said “no,” because up to that point, though he had asked to speak to counsel and his parents, no one was helping him; thus, he was confused and thought it was futile to ask again.

[8] The Respondent was escorted to Constable Walsh, the approved breath instrument technician. Constable Walsh asked, “it’s my understanding that you wish not to speak with counsel,” to which the Respondent responded “No”. The Respondent testified that at this point, he had decided that any efforts to obtain counsel were futile. The Respondent provided breath samples with results indicating blood alcohol concentrations over the legal limit.

[9] Nader J. concluded that the Respondent’s conclusion, that he changed his mind because it was futile to renew his request to call counsel, was reasonable in the circumstances. The actions of the police caused the Respondent to reach that conclusion. This circumstance required the police to give the Respondent a Prosper warning; that is, the officer was required to tell the Respondent that he still had a right to a reasonable opportunity to speak to counsel. The Respondent did not know what he was giving up when he changed his mind and decided not to speak to counsel. The failure to provide a Prosper warning was a 10(b) Charter breach warranting the exclusion of the breath test results pursuant to section 24(2) of the Charter. Nader J. acquitted the Respondent.

Issues

[10] The Appellant raises three issues:

1. Did the trial judge err in finding that the Respondent had been diligent in exercising his section 10(b) Charter rights?
2. Did the trial judge err in finding that the Respondent’s section 10(b) Charter rights were breached?
3. Did the trial judge err in excluding the breath test results pursuant to section 24(2) of the Charter?

Scope of review

[11] The standard of review on an appeal from a ruling on a Charter violation is correctness. Factual findings of a trial judge are entitled to deference. On appeal, there shall be no interference with factual findings unless the trial judge committed a palpable and overriding error. R. v. Cornell, 2010 SCC 31, [2010] 2 S.C.R. 142; R. v. Mackenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 54; R. v. M.A.L., 173 C.C.C. (3d) 439 (Ont. C.A.), at para. 5.

Rights to counsel jurisprudence

[12] The Appellant’s position at trial was that his section 10(b) Charter rights had been violated, hence, he bears the burden to establish the breach on a balance of probabilities: R. v. Bernshaw, [1995] 1 S.C.R. 254, at pg. 281.

[13] Supreme Court of Canada jurisprudence on right to counsel adopts a purposive approach, rather than the mechanical application of a mathematical formula, in delineating the obligations of the police and the detainee. The objective is to ensure that the right to counsel is a meaningful right. This involves a contextual, i.e., fact driven, application and articulation of principles governing the obligations of police and the detainee, subject to what is reasonable in all of the circumstances.

[14] The question to be answered is, what is reasonable in all the circumstances, in order to comply with the principles and achieve the objectives articulated in rights to counsel jurisprudence?

[15] Rights to counsel must be provided immediately upon detention. This is subject to an officer’s safety concerns or other reasonable limits prescribed by section 1 of the Charter. As soon as the detainee is detained, police must inform the detainee of their right to counsel. This duty is triggered right at the outset of an investigative detention: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460.

[16] The detainee must be fully and accurately informed of how to exercise their right. There is an informational component to the police obligation, i.e., the police have a duty to provide the detainee with information about available free legal advice in the jurisdiction and how to access those services, i.e., legal aid, duty counsel services, and any phone number to access these services: R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429.

[17] Where the detainee expresses a desire to speak to counsel, state authorities have a duty to implement the detainee’s request. It requires state authorities to:

(1) to provide the detainee with a reasonable opportunity to consult with counsel and,

(2) immediately cease questioning the detainee until the reasonable opportunity has expired.

[18] To trigger state authorities’ duty to implement the detainee’s request, the detainee has an obligation to be reasonably diligent in exercising the right: R. v. Bartle, [1994] 3 S.C.R. 173; Tremblay v. R., [1987] 2 S.C.R. 435; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310. If the detainee fails to be reasonably diligent in exercising the right, the police’s duty to implement the detainee’s request is suspended and police may continue to question the detainee: Bartle; Tremblay; Sinclair.

[19] If the detainee has been reasonably diligent in efforts to contact counsel and subsequently changed their mind to not contact counsel, the police have an additional informational obligation to inform the detainee that they have the right to have police hold off the collection of incriminating evidence until they have had an opportunity to contact counsel. This is called the Prosper warning: R. v. Prosper, [1994] 3 S.C.R. 236, at para. 43.

[20] In Prosper, the police arrested the detainee for impaired driving. The detainee was informed of his rights to counsel. He invoked it and made 15 unsuccessful calls to duty counsel. The arresting officer assisted Mr. Prosper to look for duty counsel. The process took 40 minutes. Mr. Prosper was unable to contact duty counsel. Duty counsel could not be reached because they were on strike. The arresting officer offered him a phone book to call other lawyers. There were 12 lawyers listed in the phone book. The arresting officer then helped Mr. Prosper search the phone book for private counsel. He refused the offer because he could not afford to pay for a lawyer, so Mr. Prosper provided a breath sample for testing by an approved breath testing instrument. His test results showed a blood alcohol concentration over the legal limit.

[21] The Supreme Court of Canada concluded that police breached their section 10(b) duties and should have provided Mr. Prosper additional information of the obligations of police. The Court held that, first the police had an obligation to hold off upon his changing his mind about speaking to a lawyer; and second, after asserting his right to counsel and exercising it with due diligence, the police have an obligation to provide him with a “reasonable opportunity to contact counsel and refrain from having him participate in a potentially incriminating procedure until he had had this opportunity”.

[22] The Supreme Court of Canada, per Lamer J., explained the rationale for the Prosper warning as follows:

However, s. 10(b) does require, in situations where a detainee has asserted his or her right to counsel and been duly diligent in exercising it, that the police hold off in order to provide the detainee with a reasonable opportunity to contact counsel.

Moreover, given that the appellant was never properly informed of his rights under s. 10(b) when he changed his mind and indicated he was prepared to take the breathalyzer tests without first speaking to a lawyer specifically of his right to have the police hold off in order to provide him with a reasonable opportunity to contact a Legal Aid lawyer one cannot say that he was in a position to know what he was giving up when he submitted to the breathalyzer tests. In other words, the appellant cannot be said to have waived a right he did not know he had.

To conclude, I find that the appellant neither explicitly nor implicitly waived his right to counsel. His s. 10(b) rights were infringed by the police in two ways: first, when he was not properly informed of the obligation on the part of the police to hold off upon his changing his mind about speaking to a lawyer; and second, when, after asserting his right to counsel and exercising it with due diligence, the police did not provide him with a reasonable opportunity to contact counsel and refrain from having him participate in a potentially incriminating procedure until he had had this opportunity.

Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up [emphasis added].

See: Prosper, at paras 43, 60, 61, and 62.

[23] In effect, this is an additional informational obligation on the police, in addition to that stipulated in Bartle. In other words, where the detainee has been reasonably diligent in exercising their right and changes their decision to contact counsel, the police have a duty to ensure that the detainee knows what they are giving up. Simply put, a detainee cannot be said to waive a right they are not aware off. The detainee must know what they are giving up.

[24] A detainee waives their rights to counsel when they elect not to invoke it. A waiver must meet certain requirements to be valid i.e., the detainee must

(1) fully understand their rights to counsel;

(2) fully understand how they can exercise that right (in other words the detainee should fully comprehend what they are giving up);

(3) must communicate that they understand their rights; and

(4) the waiver must be free and voluntary.

See: Bartle; Prosper.

The trial judge’s decision

[25] The trial judge had the opportunity to listen to and observe the witnesses firsthand. I do not have that opportunity on appeal. The trial judge did not make a palpable and overriding error and his factual findings are entitled to deference.

[26] The trial Judge concluded that that Constable Dominelli knew the Respondent invoked his right to counsel at the scene. The Respondent told Constable Dominelli that he would contact counsel at the police station. Constable Dominelli was present when Sergeant Reilly was asking the Respondent about rights to counsel at the police station and did not advise the Sergeant that the Respondent had said he would speak to counsel at the police station. In effect, the police knew that the Respondent intended to speak to counsel but ignored it and did not communicate this information between each other. In such a circumstance, it was unreasonable to conclude that the Respondent was not reasonably diligent. The deleterious effects of this failure by the police are not erased by Sergeant Reilly’s subsequent questions to the Respondent asking whether he wished to contact counsel.

[27] The trial judge applied the principles in R. v. Wills aff’d in (1992), 7 O.R. (3d) 337 (C.A.), and concluded that the Respondent did not waive his rights to counsel. In all the circumstances, the police were required to give the Respondent a Prosper warning and their failure to do so was a breach of the Respondent’s section 10(b) Charter rights.

Position of the Appellant

[28] The Appellant submits that the trial judge failed to properly apply the principles in Prosper, failed to analyse Respondent’s obligation to be reasonably diligent, and erred in finding that the Respondent had been reasonably diligent. In effect, the trial judge was in error because he ignored the Respondent’s clear communication to the police that he did not wish to speak with counsel and expected the police to read the Respondent’s mind. Such an expectation was unreasonable.

Position of the Respondent

[29] The Respondent submits the trial judge made no errors. The Respondent agreed with and adopted the reasons of the trial judge. The Respondent submits that the trial judge’s reasons should be considered together with his comments to trial counsel.

Additional factual findings at trial

[30] The trial judge’s reasons are to be considered as a whole: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621; R. v. G.W. (1996), 93 O.A.C. 1 (C.A.). In this case, the trial judge engaged in extensive discussions with counsel during their submissions.

[31] Reflecting the realities of working and navigating a busy Ontario Court of Justice trial court docket, Nader J. stated that his comments during those discussions formed part of his reasons for decision. Nader J stated the following:

So, my reasons for finding a breach were far from eloquent or concise. I trust that should this matter be seen by any future court, the colloquy, the discussion I have had, will assist a future supervisory court.

[32] Overall, the trial judge concluded that the Respondent’s conclusion that any attempts to contact counsel at the station is reasonable when viewed in the context of the actions of the police. In other words, the conduct of the police led the Respondent to conclude that any efforts to contact counsel was futile, therefore, the Respondent was reasonably diligent in efforts to contact counsel and a Prosper warning was required.

[33] Trial judge assessed the efforts of the Respondent in the context of a finding that it was reasonable for the Respondent to conclude that as a result of actions of the police, any further efforts from him was futile. Some of the factual findings of the trial judge and the impacts of these findings are described and discussed below.

[34] Constable Dominelli testified that he read the Respondent his rights to counsel in the back of the police cruiser. He then asked the Respondent, "do you wish to speak to a lawyer now." The Respondent said, "[he] would like to speak to a lawyer at the police station". Constable Dominelli testified he only noted the words "lawyer at station". He did not make a notation of the Respondent asking to speak to a lawyer at the police station. Constable Dominelli said he and the Respondent did not have any further conversation about what lawyer he wanted, and Constable Dominelli made no further inquires about rights to counsel.

[35] In cross examination, Constable Dominelli said he knew the Respondent had a cell phone in his car. Constable Dominelli said he may have had more discussion regarding a lawyer with the Respondent. He said such discussion may have included a comment from the Respondent that he did not have the name of a lawyer with him, but he knew the name of a lawyer he wished to call, and he wished to call his parents who would give him the name of a lawyer.

[36] Constable Dominelli explained that in addition to his regular notes, he also had typed notes which complemented his regular notes. In his typed notes, the only response to rights to counsel was “he would like to speak to a lawyer". There was no notation about the Respondent saying he would speak to a lawyer at the station. Constable Dominelli said he did not take any further action to facilitate the Respondent’s’ request for counsel. He did not offer a phone book, cell phone, or access to the internet to the Respondent. He did not inform Staff Sergeant Reilley or any other officer of the Respondent’s roadside request to speak to counsel. He did not remember Staff Sergeant Reilly rereading the Respondent his rights to counsel.

[37] Sgt. Reilly was the Staff Sergeant on the day of arrest. Constable Dominelli handed the Respondent over to him for processing at the station. The booking video helped him recollect his interaction with the Respondent. He said he told the Respondent he was charged with impaired driving. He did not ask the Constable Dominelli if the Respondent had been read his rights to counsel or if he thought the Respondent understood his rights to counsel. He did not ask Constable Dominelli any questions about his interaction with the Respondent on the rights to counsel issue.

[38] Sergeant Reilly asked the Respondent whether he wished to speak to duty counsel. The Respondent answered “No”. Sergeant Reilly then asked whether he wanted to speak to his own lawyer. The Respondent answered “No”. He did not point the Respondent to any signs containing his full rights to counsel. At trial, he said if he had known that the Respondent wanted to speak to a lawyer, he would have let him do so.

[39] The Respondent said that Constable Dominelli gave him his rights to counsel at the scene. He told Constable Dominelli that he knew a lawyer he wished to call but needed his cell phone to contact his parents to obtain the lawyer's name and contact information. He said he told Constable Dominelli that he had used this lawyer in the past and his name was John Krasunski. This lawyer was referred to him by his father who obtained the name from his union.

[40] The Respondent said Constable Dominelli retrieved the Respondent’s cell phone from his car but did not give it to him. Constable Dominelli then took him to the police station with no further effort to contact counsel. On route he asked for his cellphone to call his parents but received no response. At the station no one did anything to facilitate his access to counsel or his parents.

[41] The Respondent told the trial judge that he remembered Sergeant Reilly’s questions. He answered “No” to the questions about contacting counsel because he was confused because he had asked to speak to his lawyer and his parents, and no one was helping him to get access to them. He was before another officer with the same result, so he thought it was futile to ask again. The police did not give him any additional information about his rights to counsel.

[42] The Respondent said his response to the breath technician’s question confirming he did not want to speak with counsel was because, at that point, he had decided that any efforts to obtain counsel was futile. Had he known that he had the right to use a cellphone, telephone book, or internet, he would have used them.

[43] An assessment of the trial judge’s comments to counsel during legal argument and his reasons for decision, leads to the conclusion that the trial judge found that Constable Dominelli gave the Respondent the correct information about rights to counsel at the scene. The Respondent invoked the right and asked to speak to counsel at the station. He accepted the Respondent’s evidence on what he said he had told Constable Dominelli in regard to rights to counsel.

[44] Constable Dominelli did not record the Respondent’s answers accurately. It was clear from the Respondent’s answers that further action was required at the police station on the rights to counsel issue. He accepted the evidence of the Staff Sergeant that no further information on rights to counsel were conveyed, except to ask the Respondent his intentions. Constable Dominelli did not tell Staff Sergeant Reilly or Constable Walsh that the Respondent had requested to speak to counsel at the scene. The police ignored what happened at the roadside. The cumulative effect of finding these facts led the trial judge to conclude that, because of the actions of the police, the Respondent’s conclusion, that any further efforts to contact counsel would be futile, was reasonable.

[45] In effect, the police conduct created a situation where it was reasonable for the detainee to conclude that further action was futile. The police conduct in this case was unreasonable. In such a circumstance, it is unreasonable to expect the detainee to take further action, since the extent of such further action has been constrained by the actions of the police.

[46] The Respondent’s actions in the face of the futility caused by police action satisfied the reasonably diligent requirement. This was a finding open to the trial judge to make. In such a circumstance, the trial judge was correct to conclude that a Prosper warning was required, i.e., first, to inform the Respondent that the police were under an obligation to hold off when he changed his mind; and second, provide him with a reasonable opportunity to contact counsel and refrain obtaining any potentially incriminating evidence from him until he had had this opportunity. It matters not that there was no bad faith on the part of the police.

[47] This case is distinguishable from the facts in R. v. Fountain, 2017 ONCA 596, 351 C.C.C. (3d) 291 and R. v. Smith and Stacey (1999), 134 C.C.C. (3d) 453 (Ont. C.A.), referred to by the Appellant. In both cases, the ability of the detainee to be reasonably diligent was not constrained by the actions of the police.

[48] The trial judge was not in error when he found the Respondent had been reasonably diligent and when he found the police breached the Respondent’s section 10(b) rights by failing to provide a Prosper warning.

Did the trial judge err by excluding the Respondent’s breath test results?

[49] In considering the impacts of the breach on the Respondent’s Charter protected rights, the trial judge did not consider the principle articulated in R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224. This constitutes an error in principle but ultimately Nader J. did not err in excluding the breath test results.

[50] Absent an error in principle, palpable and overriding factual error or an unreasonable determination, the trial judge’s decision on a section 24(2) of the Charter analysis is entitled to deference: R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64. Since the trial judge made an error in principle, I must reconsider the impact of section 24(2).

[51] The framework for a section 24(2) analysis is articulated in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The analysis begins with the premise that the accused’s Charter right has already been breached. The question to be answered is whether after considering the Charter breach, a reasonable person with an understanding of the values underlying the Charter, will conclude that the admission of the evidence obtained from the breach, will bring the administration of justice into disrepute.

[52] The impact of these three factors, must be considered separately and then balanced to answer the question of whether the admission of evidence obtained as a result of the breach will bring the administration of justice into disrepute:

1. The seriousness of the state conduct which caused the Charter breach;
2. The impact of the breach on the interests of the accused protected by the Charter; and,
3. The interest of Society in the adjudication of the matter on its merits.

[53] The Appellant submits the trial judge erred by failing to consider the second branch of the Grant test and by failing to consider that breath tests are minimally intrusive as articulated in Jennings.

The seriousness of the state conduct which caused the Charter breach

[54] The seriousness of the state conduct which caused the Charter breach consideration involves an assessment of whether the admission of the evidence would send a message to the public that the court was condoning the Charter infringing state conduct: See Grant.

[55] The breath test results were obtained as a result of the section 10(b) breach. The trial judge concluded that though there was no deliberate action to breach the Respondent’s rights, however, the police decision to simply ignore what happened at the roadside was so negligent as to be a very serious breach favouring exclusion of the evidence. I agree. The police action in effect, rendered the right to counsel meaningless. Such conduct should not be condoned.

The impact of the breach on the interests of the accused protected by the Charter

[56] The second line of inquiry requires an assessment of the actual impact of the state infringing conduct on the accused’s Charter protected interests. The trial judge concluded that the Respondent was in police custody which in effect, prevented him from using his cellphone to do what he had wished to do at the roadside i.e., use the cellphone to contact his parents and ultimately contact a lawyer. He noted that this was a “teaching moment” for the police. The trial judge classified the impact of the breach on the Respondent’s rights to counsel as “medium on the spectrum” favouring exclusion.

[57] I agree with the Appellant that the trial judge failed to consider the impacts of the classification by binding appellate authority in Jennings, that breath samples are minimally intrusive. Applying Jennings, the minimally intrusive nature of breath tests favors inclusion.

The interest of society in the adjudication of the matter on it’s merits

[58] This third line of inquiry considers whether society’s interest in the truth-seeking function of the criminal process favours admission. Relevant factors under consideration include the reliability of the evidence, the seriousness of the charge, and the importance of the evidence to the viability of the prosecution: See Grant.

[59] The trial judge concluded that drinking and driving offences are very serious. Society’s interest in the truth-seeking function of the criminal process includes the fair and proper adjudication of such offences. The breath test results are reliable and central to the prosecution case favoring inclusion. I agree.

Conclusion

[60] On balance, the seriousness of the police conduct is such as to outweigh the outcome of the other two considerations, notwithstanding the minimally intrusive nature of the breathalyser. Therefore, admission of the breath test results will bring the administration of justice into disrepute. Nader J. was correct to exclude them. The appeal from the acquittal is dismissed.

Barnes J. Released: May 3, 2022