COURT FILE NO.: CR-21-50000006-00AP

DATE: 2022-07-11

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL – TORONTO REGION

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

WILTON EDWARDS Appellant

Counsel: Aaron Del Rizzo, for the Respondent Eric Neubauer, for the Appellant

HEARD: January 18, 2022

SPIES J.

REASONS FOR DECISION

Introduction

[1] In the very early hours of October 20, 2018, the Appellant, Wilton Edwards, was found asleep in his car at a light on a highway 401 off-ramp. A subsequent investigation led to him being charged with impaired care and control (then, s. 253(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Criminal Code”)) and “over 80” (then, s. 253(1)(b) of the Criminal Code). He was tried in the Ontario Court of Justice (“OCJ”) by the Honourable Justice Shandler on January 23 and 24, 2020, and ultimately found guilty on both counts in reasons for judgment released on March 30, 2020. Mr. Edwards appeals his convictions and requests an order allowing his appeal, quashing the convictions, and ordering a new trial. In addition, he seeks an order excluding the evidence obtained as a result of an alleged Canadian Charter of Rights and Freedoms infringement.

The Issues

[2] At trial, there were three issues. First, had the Crown established that the investigating officers had reasonable and probable grounds to believe Mr. Edwards was impaired and arrest him and make a breath demand? Second, had Mr. Edwards proven a breach of his s. 10(b) Charter rights and, in particular, his ability to speak to counsel of choice (and if so, should Mr. Edwards’ breath test results, grounding the “over 80” conviction, be excluded from evidence at trial as a s. 24(2) Charter remedy)? Third, if no Charter breach was found, had the Crown proven beyond a reasonable doubt that Mr. Edwards was guilty of the offences charged?

[3] Mr. Neubauer, counsel for Mr. Edwards on this appeal, advised at the outset of this hearing that Mr. Edwards does not challenge the lawfulness of his arrest. Mr. Edwards accepts that the investigating officers had reasonable and probable grounds to arrest him. It is his position, however, that any signs of impairment largely disappeared once he was out of his vehicle and, further, what the officers observed was because of his confusion from being woken up from sleep (i.e., not alcohol induced impairment).

[4] More specifically, Mr. Neubauer makes three arguments on this appeal: (1) the trial judge’s reasons for convicting Mr. Edwards of impaired care and control are legally insufficient; (2) the trial judge erred in law in finding Mr. Edwards’ s. 10(b) Charter rights were not breached; and (3) the trial judge erred in concluding, in the alternative, that any s. 10(b) Charter breach did not warrant exclusion of the breath evidence as a s. 24(2) Charter remedy.

The Evidence at Trial

[5] I will set out a summary of the evidence at trial based largely on the summary set out in the Appellant’s Factum (as its accuracy was not challenged by the Crown).

[6] Mr. Edwards was investigated by police, while seated in his car, in a live lane of traffic on an off-ramp of the 401, just after 6:00 in the morning. Police had received calls reporting a motor vehicle stopped with its lights on and the driver asleep at the wheel, not responding to honking. There was a tow truck parked directly behind the vehicle. Officers Lewis and Bedford both went to the driver’s side of the vehicle and found it running with Mr. Edwards’ head against the headrest, eyes closed and mouth open. He was asleep. Mr. Edwards was difficult to rouse, and the police needed to knock on the window and the door and yell for several seconds before he woke up.

[7] In the seconds following Mr. Edwards awakening, officers observed a number of signs that they associated with impairment. When Mr. Edwards rolled down the window, they noted a strong odour of alcohol coming from the vehicle. Mr. Edwards seemed confused or disoriented, seemed to have problems following officer directions, had glassy eyes, and slurred and slow speech.

[8] Seconds after Mr. Edwards was awoken, officers directed him to put his vehicle in “park.” His vehicle was a manual transmission and on an incline. Mr. Edwards seemed to be fiddling with the gear shift and the car was rolling back – first a little, and then several feet. In response to the officer’s yelling to stop, Mr. Edwards braked abruptly. His vehicle touched the tow truck behind him. The impact was minor and there was no damage to either vehicle. Mr. Edwards was removed from the vehicle and arrested for impaired care and control, contrary to s. 253(1)(a) of the Criminal Code.

[9] About the rolling vehicle, Officer Bedford confirmed under cross-examination that the car was a manual transmission. Officer Lewis confirmed that she and Officer Bedford directed Mr. Edwards to put the vehicle in “park” and agreed that if the vehicle was a standard transmission, the vehicle would not have a parking gear, and would naturally roll back if on an incline. In other words, the officers were asking Mr. Edwards to do something that was not possible.

[10] On the issue of impairment, under cross-examination both officers agreed that the factors they associated with impairment were observed seconds after Mr. Edwards was awoken, but largely disappeared thereafter. Officer Lewis agreed that she had no notes or recollection of Mr. Edwards stumbling when getting out of the vehicle; not understanding the handcuff demand; swaying or having issues with balance once out of the vehicle; failing to comply with other commands; or having difficulty getting into the cruiser.

[11] Officer Lewis was also shown the booking video and agreed that it did not disclose any issues with balance or confusion. She agreed that this was an ongoing impaired investigation and, had she noted any such issues, she would have made a note of them. She agreed that the video depicted Mr. Edwards at 6:31 am, only six minutes after they had left the scene of his arrest.

[12] The evidence of the breath technician, Officer Badiu, confirmed the lack of indicia of impairment evident at the detachment. Officer Badiu testified that he administered the breath tests on Mr. Edwards. Although he did smell alcohol on Mr. Edwards’ breath, he could detect no other indicia of impairment. He was questioned further on this in cross-examination. He testified that he did not indicate in his report that the odour was “strong”. He noted that there were boxes on his form for slurring, confusion, and incoherence but that he did not check any of these boxes off. He noted Mr. Edwards’ speech was “good,” which was the best category. He noted that Mr. Edwards’ clothes were orderly and his attitude with police was cooperative. Officer Badiu also noted no unusual actions like profanity, belching, fighting, or vomiting. He had no issue with coordination or dexterity, noting Mr. Edwards’ balance as “sure” which was, again, the best category.

[13] Hubert Thomson and Oren Dean Fraser were long-time friends of Mr. Edwards and were with him for the hours preceding his arrest. The three of them had attended a club called Rebel that evening. The substance of Messrs. Thomson and Fraser’s evidence was that they did not observe Mr. Edwards drink more than three beers but agreed they were not with Mr. Edwards at all times in the club. Both testified that they did not have any concerns that Mr. Edwards was impaired. Mr. Fraser testified that he and Mr. Edwards left the area around 3:30 am, and Mr. Edwards drove him home. At Mr. Fraser’s house, he and Mr. Edwards ate and drank non-alcoholic drinks before dozing on the couch. Mr. Edwards awoke and left at 5:00 am, having been up all night. Mr. Fraser had no concerns that Mr. Edwards was impaired.

[14] As found by the trial judge, Officer Lewis gave Mr. Edwards rights to counsel and Mr. Edwards stated he wished to speak with his own lawyer. Mr. Edwards was allowed to retrieve his cell phone from the vehicle, in which his counsel’s number was stored. As noted by the trial judge, Mr. Edwards’ contact was a paralegal, but the parties agreed nothing turned on that issue. For ease of reference, I will simply refer to Mr. Edwards’ contact as his “counsel of choice”, as the trial judge did in his reasons.

[15] Mr. Edwards sent a text message to his counsel of choice’s number once he was back at the station at 6:37 am. Mr. Edwards’ phone was then taken from him, and Officer Lewis called the number and left a voicemail. Officer Lewis testified that she asked Mr. Edwards whether he had another lawyer if this one did not call back and Mr. Edwards said no. She asked whether duty counsel would be okay if they could not reach Mr. Edwards’ lawyer and he indicated, yes.

[16] Twelve minutes after leaving a voicemail with Mr. Edwards’ counsel of choice, Officer Lewis left a message for duty counsel. At 6:56 am, duty counsel called back. Officer Lewis put Mr. Edwards into a room to speak with duty counsel, and this call completed at 7:05 am. In cross-examination, Officer Lewis confirmed that she did not ask Mr. Edwards whether he wished to wait longer for his counsel of choice to call back. She did not inform him that he had the right to wait a reasonable time to speak with counsel of choice. When she put Mr. Edwards into the room with duty counsel on the line, she did not give Mr. Edwards the option to wait. As best she could recall, all she would have said was that duty counsel was on the line and put Mr. Edwards in the room. When asked why she only waited the 12 minutes, Officer Lewis indicated that she felt it was a reasonable time to wait before calling duty counsel.

[17] At 7:07 am, after speaking with duty counsel, Mr. Edwards was brought into the breath room. He was asked by Officer Badiu whether he had spoken with duty counsel and was satisfied. Mr. Edwards stated: “[W]ith duty counsel? Yeah. But I didn’t get a chance to call back my lawyer.” Officer Lewis testified that it was her impression from that exchange that Mr. Edwards was not satisfied with his conversation with duty counsel and that he wanted to speak with his counsel of choice.

[18] Accordingly, Officer Lewis removed Mr. Edwards from the breath room and, at 7:14 am, placed another call to Mr. Edwards’ counsel of choice and left another voicemail. At 7:26 am (again, waiting 12 minutes), having not heard back, Officer Lewis escorted Mr. Edwards back to the breath room where he was told to blow. He gave two breath samples. Under cross-examination, the officer once again confirmed that she did not allow Mr. Edwards to wait any longer. Officer Lewis did not have any further conversation with Mr. Edwards, she simply took him back to the breath room. On re-examination, Officer Lewis indicated that she would not have allowed Mr. Edwards further time to wait for his lawyer to call back because, “we wanted to […] do the breath test in a reasonable amount of time, and not extend the amount of time that he was held by us.” She also indicated that there would be a concern if they continued to wait that Mr. Edwards would “become more sober”, meaning there would be “less and less” evidence.

[19] Mr. Edwards testified on the s. 10(b) application. His evidence was that he only agreed to speak with duty counsel because he felt it was his only option. He indicated he was unhappy with his conversation with duty counsel and wanted to speak with his own lawyer. He had a prior relationship with that lawyer arising from a personal injury matter. Mr. Edwards maintained that if he had been given the option to wait, he would have waited to speak with his own lawyer. He was simply not given that option.

The Trial Judges’ Reasons for Judgment

[20] The trial judge gave an eight-page written judgment. After a brief introduction, which included setting out the three issues before him, the trial judge began with the first issue: whether the Crown had established that the police had reasonable and probable grounds to arrest Mr. Edwards and make a breath demand.

[21] The trial judge set out the test for reasonable and probable grounds for arrest and then briefly reviewed the evidence of the two investigating officers, the breath technician, and the two defence witnesses. He then began the section of his reasons – headed, “My Findings” – by stating that defence counsel challenged the evidence of the investigating officers as being “exaggerated and unreliable.” The trial judge quoted from the defence written materials as follows: “[T]he objective, independent evidence from the police station totally contradicts allegations of the police that he was very incoherent, that his speech was slurred, and that he had difficulty understanding instructions”. The trial judge then referred to the fact that defence counsel submitted that: “[T]he officers jumped too quickly to the conclusion that Mr. Edwards was impaired as ‘the only evidence of effects of alcohol’ were ‘the odour of alcohol on his breath, and that he was asleep in his vehicle when approached by the police but woke up when they knocked on the window’”. The trial judge then stated that he did not accept these arguments and proceeded to give his reasons for doing so (which I will come to). He dismissed the Charter challenge and found that the police had reasonable and probable grounds to arrest Mr. Edwards and make a breath demand.

[22] After the trial judge found Mr. Edward’s arrest to be lawful, he gave one sentence in finding him guilty of the impaired care and control charge:

I am satisfied that the only explanation for the state of Mr. Edwards’ obliviousness to his surroundings and his level of confusion upon being woken by the officer is that he was impaired by alcohol. [Emphasis added]

[23] In dismissing the Charter challenge to the arrest, the trial judge made the following findings:

a) First, that the circumstances of what the investigating officers witnessed amounted to much more than a benign description of an individual asleep in a vehicle as “Mr. Edwards was asleep in a running vehicle in a live lane of traffic” [emphasis in original], that he remained asleep through apparent honking, the arrival of a tow truck and the arrival of police and remained asleep even when police knocked on his window. The trial judge found that those circumstances amount “to a level of obliviousness to one’s surroundings consistent with a highly impaired state of judgment.”

b) Second, the trial judge accepted the detailed account of both investigating officers as to their observations that Mr. Edwards was confused and did not seem to know why the police were there. He specifically referred to their evidence about the directions police yelled at Mr. Edwards and his car rolling backwards and he found the evidence of the investigating officers as credible and reliable and rejected the defence submission that their evidence was embellished, exaggerated, or embroidered.

c) Third, he found that Mr. Edwards’ appearance an hour later with the breath technician “did not amount to a ‘remarkable recovery’ from the roadside so as [to] put these officers’ observations into question.” Although he accepted that Mr. Edwards was not slurring words and was not exhibiting the same level of confusion in the presence of the breath technician, he found that “in no way ‘remarkable’ that Mr. Edwards regained some level of awareness and exercise of control over his speech and movements in the course of an hour from being awoken.”

d) Fourth, the trial judge put little weight on the evidence of Mr. Edwards’ friends. He accepted the evidence of one who said he had no idea how much Mr. Edwards drank and rejected the evidence of the other that he was keeping track of Mr. Edwards’ consumption of alcohol or that either man was making careful observations of Mr. Edwards. He found that their evidence amounted to no more than Mr. Edwards “not displaying overt signs of intoxication in their presence”.

[24] The trial judge concluded this portion of his reasons by summarizing why he found that the arresting officer’s grounds were objectively reasonable “given their observations of Mr. Edwards’ level of obliviousness and confusion”. He then listed the following points:

a) asleep in a live lane of traffic with his vehicle running;

b) only woke up when officers knocked repeatedly on his window;

c) smelt of alcohol;

d) unable to roll down the window and keep the car braked at the same time, resulting in the car rolling backwards;

e) allowing the vehicle to inexplicably roll backwards again, this time hitting the tow truck behind him;

f) displaying some indicia of impairment including glossy eyes, slurred speech, confusion and delayed or abnormal processing.

[25] The trial judge then turned to the right to counsel of choice issue. After setting out a brief statement of the law, the trial judge gave a brief review of the evidence of the arresting officer, the exchange between Mr. Edwards and the breath technician, the evidence of Mr. Edwards, and an affidavit from the person Mr. Edwards was trying to reach. The trial judge found that the police made reasonable efforts to contact Mr. Edwards’ counsel of choice and that he was afforded a reasonable opportunity for his chosen lawyer to call back. He went on to give the following reasons for his findings:

a) The police provided Mr. Edwards a reasonable opportunity to get into contact with his lawyer by providing him with his cellphone so that he could give them contact information. When they did that, Mr. Edwards himself texted his counsel of choice shortly after 6:30 am.

b) Officer Lewis still called the lawyer’s phone number and when the phone call was unanswered, she left a voice-mail message at 6:37 am.

c) Officer Lewis followed up by asking Mr. Edwards if there was another lawyer to call if his first lawyer didn’t call back. Mr. Edwards said there was no other lawyer.

d) Officer Lewis further followed up by asking Mr. Edwards whether duty counsel would be okay if his lawyer didn’t call back. Mr. Edwards agreed that he responded “sure” to that request.

e) By the time Officer Lewis placed a call with duty counsel and duty counsel responded to that call, some 19 minutes had elapsed from the time she left a voice-mail message. The trial judge found that “that was a reasonable opportunity for his counsel of choice to respond”.

f) The police held off on having Mr. Edwards provide breath samples until that time had elapsed and again provided Mr. Edwards a further opportunity to consult with his lawyer of choice when asked. Officer Lewis tried again to get in touch with Mr. Edwards’ counsel of choice.

g) It was only after some 49 minutes had elapsed after leaving the first message for counsel of choice, followed up by a second message, that Mr. Edwards was brought back to the breath testing room. Mr. Edwards had already told the police he was satisfied with his conversation with duty counsel. That exchange was clearly captured on video and I do not accept Mr. Edwards’ testimony that he was unhappy with his conversation with duty counsel. Mr. Edwards was perfectly capable of expressing discontent. [Emphasis added]

[26] The trial judge then concluded that there was no s. 10 Charter breach, stating:

Mr. Edwards was given a reasonable opportunity to contact counsel of choice, he was given and took the opportunity to speak to duty counsel and he advised that he was satisfied with that conversation. Even if I was to find a s. 10(b) breach, there would be no basis to exclude the evidence of the breath samples here as any possible breach could only be described as minor and there was no prejudice to Mr. Edwards.

The First Ground of Appeal

Are the trial judge’s reasons for concluding Mr. Edwards was guilty of impaired care and control legally sufficient?

The Applicable Legal Principles

[27] Much has been said about the sufficiency of reasons. Both counsel referred to R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, where in assessing the sufficiency of a trial judge’s reasons, the Supreme Court emphasized the importance of a functional and contextual reading of a trial judge’s reasons. The Court cautioned appellate courts not to “finely parse” reasons searching for an error. Rather, “they must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review”: G.F., at para. 69. This assessment is informed by the trial record. “If the trial reasons do not explain the ‘what’ and the ‘why,’ but the answers to those questions are clear in the record, there will be no error”: G.F., at para. 70 (emphasis added).

[28] At paras. 71 and 74, the Court continued:

The reasons must be both factually sufficient and legally sufficient. Factual sufficiency is concerned with what the trial judge decided and why. Factual sufficiency is ordinarily a very low bar, especially with the ability to review the record. Even if the trial judge expresses themselves poorly, an appellate court that understands the ‘what’ and the ‘why’ from the record may explain the factual basis of the finding to the aggrieved party. It will be a very rare case where neither the aggrieved party nor the appellate court can understand the factual basis of the trial judge's findings. [Citations omitted.]

Legal sufficiency requires that the aggrieved party be able to meaningfully exercise their right of appeal. Lawyers must be able to discern the viability of an appeal and appellate courts must be able to determine whether an error has occurred. Legal sufficiency is highly context specific and must be assessed in light of the live issues at trial. As stated in R. v. Burns, ‘Trial judges are presumed to know the law with which they work day in and day out’. A functional and contextual reading must keep this presumption in mind. Trial judges are busy. They are not required to demonstrate their knowledge of basic criminal law principles. [Citations omitted.]

[29] During the course of submission, Mr. Neubauer also referred to R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, where at para. 46, the Supreme Court of Canada stated:

These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function. [Emphasis added.]

[30] Given the issues raised on this appeal, I also found R. v. Wolynec, 2015 ONCA 656, 339 O.A.C. 237, to be of assistance. At paras. 55-60, the Court of Appeal for Ontario stated:

Our approach to the adequacy of reasons in a criminal case is at once functional and context-specific. The reasons must be sufficient to fulfil their threefold functions:

• explaining the verdict;

• providing public accountability; and

• permitting effective appellate review.

Consideration of the sufficiency of reasons requires reading the reasons as a whole, in the context of the evidence, the arguments and the trial, together with an appreciation of the purposes or functions for which reasons are delivered.

The reasons of a trial judge fulfil their purpose if the reasons, read in context, show why the trial judge decided as she did. To show why, the reasons need not show how the judge reached her conclusion in a ‘watch me think’ fashion. The reasons must display a logical connection between the ‘what’ – the verdict – and the ‘why’ – the basis for the verdict. But explaining the ‘why’ and its logical link to the ‘what’ imposes no obligation on a trial judge to set out every finding or conclusion in the process of reaching a decision.

The core question to be answered in determining whether a trial judge's reasons are sufficient is whether those reasons, read in context, show why the judge decided as she did on the offences charged.

To succeed on an appeal based on inadequate reasons, an appellant must show not only a deficiency in the reasons, but also that the deficiency has occasioned prejudice to the exercise of his or her legal rights to an appeal in a criminal case. An appeal based on insufficient reasons will only be allowed where the trial judge's reasons are so deficient that they foreclose meaningful appellate review. A failure to explain rejection of a submission does not mean the reasons are deficient, provided the reasons demonstrate the acceptance of contrary evidence. [Emphasis added.] [Citations omitted.]

Application to the Case at Bar

[31] Mr. Edwards’ position is that the trial judge’s reasons for finding him guilty of the impaired care and control charge are legally deficient in one narrow, yet fatal, respect. He submits that the court’s single sentence of reasons for finding him guilty of the impaired charge – “I am satisfied that the only explanation for the state of Mr. Edwards’ obliviousness to his surroundings and his level of confusion upon being woken by the officer is that he was impaired by alcohol” – failed to sufficiently explain why the other innocent inference arising from the evidence, urged by trial counsel, was rejected. While it is conceded that there were indicia consistent with impairment at the time Mr. Edwards was awakened by police, Mr. Neubauer argues that these indicia largely disappeared by the time Mr. Edwards was at the station and that the trial judge failed to consider whether the initial signs of impairment were due to fatigue, not alcohol. Mr. Neubauer made three arguments in support of this position.

[32] First, he submitted that although the trial judge’s reasons correctly set out the test for “reasonable and probable” grounds and adequately explain why the investigating officers had such grounds to believe that Mr. Edwards was impaired and arrest him for that offence, the trial judge does not explain why he found that the Crown had proven “beyond a reasonable doubt” that Mr. Edwards was guilty of that offence.

[33] Secondly, while Mr. Neubauer concedes that the reasons should be considered as a whole and that the single sentence finding Mr. Edwards guilty of impaired care and control should not be considered on its own, he argues that the reasons do not sufficiently explain why the trial judge did not find the other reasonable innocent inference available on the evidence (noted above) did not arise, or at least raise a reasonable doubt. The fact that there were signs of impairment justifying Mr. Edwards’ arrest at the roadside, Mr. Neubauer says, was not, by itself, enough to support the conviction.

[34] Third, Mr. Neubauer argues that, given the brevity of reasons in relation to Mr. Edwards’ guilt, there is a real risk that the trial judge may have committed one or more legal errors in finding Mr. Edwards guilty on the impaired count. Specifically, Mr. Neubauer submits that there is some indication in the trial judge’s reasons that, in addition to failing to consider evidence inconsistent with impairment, the court may have improperly: (i) relied upon hearsay evidence; (ii) used Mr. Edwards’ breath analysis readings; and/or (iii) speculated as to whether Mr. Edwards’ “obliviousness” was more consistent with intoxication than being in a deep sleep. Mr. Neubauer argues that if the trial judge committed any one of these errors, Mr. Edwards is entitled to remedy on appeal. Because of the insufficiency of the trial judge’s single sentence of reasons concerning Mr. Edwards’ guilt, however, there can be no adequate appellate review.

[35] In response, Mr. Del Rizzo submits that, when read as a whole, the trial judge’s reasons are sufficient for appellate review. His position is that this was a straightforward case in which there was compelling evidence before the trial judge. Moreover, he says that the trial judge’s reasons make it clear what his decision was based on. He points out that the trial judge expressly rejected the various arguments made by counsel for Mr. Edwards earlier in his judgment (i.e., at the “reasonable and probable grounds” portion of his judgment).

[36] Returning to Mr. Neubauer’s arguments on this issue, as the Court of Appeal for Ontario stated in R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 37 (a decision referenced by the trial judge), “reasonable and probable grounds” lies somewhere between suspicion and proof beyond a reasonable doubt. While it is true that the trial judge does not refer to being satisfied “beyond a reasonable doubt” on the impaired care and control charge, judges are presumed to know the law, particularly when it comes to basic principles such as the standard of proof in a criminal case. Hence, while it would have been preferable for the trial judge to add the words “beyond reasonable doubt” in finding Mr. Edwards guilty, I do not accept that he was unaware of the standard of proof imposed upon the Crown when he turned to the merits of the charge. In fact, when he set out the three issues at the outset of his reasons (see para. 4), he specifically described the third issue as whether the Crown had “proven beyond a reasonable doubt that Mr. Edwards is guilty of the offences of care and control of a motor vehicle while impaired by alcohol”.

[37] The second argument made by Mr. Neubauer– i.e., that the reasons do not sufficiently explain why the trial judge did not find the other reasonable innocent inference available on the evidence – is the most difficult to resolve. As Mr. Del Rizzo submitted, perfection is not the standard. I am also mindful that OCJ criminal trial judges face long lists and are very busy.

[38] With respect to this ground of appeal, the law is clear that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 100, at para. 30. It is submitted that in this case, there is a reasonable inference of non-impairment that arose from the evidence and that the trial judge failed to consider it. Alternatively, if he did consider it, he failed to explain why it did not raise a reasonable doubt, thereby precluding this court from assessing whether the conclusion of the trial judge was reached in error.

[39] According to Mr. Neubauer, the following evidence gave rise to an innocent inference of non-impairment:

a) Mr. Edwards was asleep in a live lane of traffic and difficult to rouse, but it was 6:00 am in the morning and there was reliable evidence Mr. Edwards had been up most of the night.

b) Mr. Edwards had difficulty controlling his vehicle, but he was parked on a slight incline and was being asked to perform the impossible task of placing it in “park” when his vehicle, which was a standard transmission, was incapable of performing that function. Any difficulty is explained by this and the fact that Mr. Edwards was on an incline. He was actively attempting to comply with the demands of police.

c) The investigating officers testified that they observed signs of impairment while Mr. Edwards was in his vehicle; however, they testified that signs of confusion, disorientation, and difficulty with physical coordination were largely absent once out of the vehicle.

d) The objectively reliable evidence of the booking video, and the observations of the trained breath technician, were positive evidence supporting an inference of non-impairment.

[40] In my view, considering the evidence before the trial judge, there was a reasonable innocent inference available on the evidence that Mr. Edwards was not impaired by alcohol, but rather from being awoken from a deep sleep. The question, then, is whether based on the reasons of the trial judge, I can determine whether he considered the availability of such an inference on the evidence and, if so, why it did not raise a reasonable doubt.

[41] It is true, as Mr. Del Rizzo submits, that the trial judge rejected these arguments before setting out his findings for why the arrest of Mr. Edwards was lawful (i.e., he considered Mr. Edwards’ desired innocent inference at the reasonable and probable grounds stage of his analysis). Nonetheless, I do have some concerns about applying that conclusion to the merits of the impaired operation charge. I say so for the following reasons.

[42] The first reason the trial judge gave in support of his rejection of the defence arguments focused on what the officers observed when they arrived on the scene and their attempts to wake Mr. Edwards up. As Mr. Neubauer observed, this finding of the trial judge referred to the hearsay evidence of what the officers were told about Mr. Edwards remaining asleep “through apparent honking”, which would not have been admissible for the truth of its contents on the trial proper. This evidence was only relevant to reasonable and probable grounds. On its own, however, I do not find this error to be material.

[43] What is significant, in my view, is that based on these initial observations by the investigating officers, the trial judge concluded his first finding by stating: “Those circumstances amount to a level of obliviousness to one’s surroundings consistent with a highly impaired state of judgment” (emphasis added). I note the trial judge used the words consistent with impaired judgment – they do not refer to impairment by alcohol. In my view, for the purpose of assessing reasonable and probable grounds to arrest, these facts alone, combined with what followed in the reasons, would give rise to grounds to arrest Mr. Edwards for impaired care and control. However, as I will come to, this language is repeated by the trial judge without any further analysis as the reason for finding Mr. Edwards guilty of impaired care and control.

[44] In his second finding, the trial judge then focused on Mr. Edwards’ difficulty in controlling his vehicle. Again, this evidence is perhaps consistent with impairment by alcohol and relevant to what the officers reasonably believed at the time. However, I am concerned that the trial judge made no reference to the fact that there was another possible reason for this difficulty other than impairment by alcohol, namely that Mr. Edwards was being asked to do something that was impossible given that his vehicle was on an incline and was equipped with a standard transmission. This other evidence as to why he was having difficulty complying with the officers’ demands would arguably only be relevant to the merits of the charge.

[45] The most significant finding made by the trial judge regarding this ground of appeal is his third finding, with respect to the alleged “recovery” by Mr. Edwards upon being brought to the police station (as set out above). It is clear that the trial judge considered whether the appearance of Mr. Edwards an hour after his initial contact with the police put the observations of the investigating officers into question. That, of course, was the issue on the Charter application, as it was being argued that the officers did not have reasonable and probable grounds to arrest Mr. Edwards. However, even if the recovery, to whatever extent it was accepted by the trial judge, did not put the officers’ observations at the roadside into issue, the ultimate question on the issue of guilt was whether this evidence raised a reasonable doubt as to impairment by alcohol when the trial judge turned to the question of proof beyond a reasonable doubt of the impaired charge itself. Critically, he did not go on to consider that evidence again in making his decision on the merits of the impaired care and control charge.

[46] It is also significant, on the issue of the alleged recovery, that the trial judge did not refer to fact that, under cross-examination, the officers agreed that the factors they associated with impairment were observed seconds after Mr. Edwards was awoken, but largely disappeared thereafter. It is true, as Mr. Del Rizzo submits, that when Mr. Edwards got out of his vehicle, the officers took control of him. However, there were no issues when he was allowed to go back to his car to retrieve his cell phone.

[47] More significantly, the trial judge made no reference to other evidence consistent with non-alcohol related impairment. For example, he did not refer to the booking video taken only six minutes after the officers left the scene, nor did he refer to the evidence of Officer Lewis, who was shown the video and agreed that it did not disclose any issues with balance or confusion. The trial judge also appears to have understated the evidence of the breath technician, who was looking for signs of impairment beyond odour, but did not note any. In characterizing this potentially exculpatory evidence, the trial judge simply characterized it as not “exhibiting that level of confusion”, implicitly referring to the level of confusion the investigating officers described. He also merely acknowledged that Mr. Edwards had regained “some level of awareness and exercise of control over his speech and movements” (emphasis added). On this appeal, Mr. Neubauer does not argue that this evidence was not considered in the context of the Charter application, as the officers had already decided to arrest Mr. Edwards based on their initial observations. However, the evidence of the booking video and an accurate assessment of the evidence of the breath technician was certainly relevant to whether the Crown had proven impaired care and control beyond a reasonable doubt. In my view, that evidence, had it been considered, could have raised a reasonable inference that Mr. Edwards was not impaired by alcohol, but rather from being awoken from a deep sleep. Unfortunately, I have no way of knowing whether the trial judge considered this evidence when he turned to the merits of the impaired care and control charge given the brevity of his reasons on this issue.

[48] The summary at the end of the trial judge’s finding that the officers had reasonable and probable grounds to arrest does not assist in determining whether he considered this evidence when he turned to the merits of the impaired charge. He repeated that the arresting officers’ grounds were objectively reasonable “given their observations of Mr. Edwards’ level of obliviousness and confusion”. He then listed the points that I have set out above, which all focus on what the officers observed at the scene as indicia of impairment. This makes sense as this was the final paragraph of the reasons dealing with the first issue at trial (i.e., reasonable and probable grounds), which necessarily focused on what the officers observed as signs of impairment by alcohol at the roadside.

[49] Returning to the single sentence on the charge of impaired care and control, set out at the end of the reasons, the trial judge stated that he was satisfied “that the only explanation for the state of Mr. Edwards’ obliviousness to his surroundings and his level of confusion upon being woken by the officer is that he was impaired by alcohol”. This conclusion raises two concerns. First, again, there is nothing in the reasons of the trial judge to suggest that he considered the other explanation advanced by defence counsel and, in particular, that he considered the other evidence of the officers as to how the signs of impairment dissipated or that he considered the booking video. There was no expert evidence before the trial judge to suggest that one inference was stronger than the other. Second, the trial judge referred again to the state of Mr. Edwards at the time he was woken up by the officers, which suggests that he was still focused on the issue of whether the officers had reasonable and probable grounds for arrest. That was too narrow a focus when considering the merits of the charge given the evidence and the submissions of defence counsel.

[50] With respect to the final conclusion of the trial judge, Mr. Neubauer also submitted that there is a concern that the trial judge may have relied upon the breath test results, as he was urged to do by the Crown during closing submissions, in finding that the only explanation for the observations was impairment by alcohol. In closing submissions, the Crown did indeed ask the trial judge to consider the breath samples, should they be admitted in evidence, to “feed into that evidence of the Defence witnesses because Mr. Edwards breath results were not consistent with their evidence that he only drank as many as three beers over several hours earlier on and he went on to state that the breath results were ‘more firm’ and ‘scientifically accurate’”. The trial judge did not comment on this submission at the time.

[51] Mr. Del Rizzo concedes that if the trial judge accepted this submission and considered the breath test results in weighing the evidence on the impaired care and control charge, he would have been wrong in law as there was no evidence before the court as to the effect this breath test result would have on Mr. Edwards, nor was the court entitled to take notice or otherwise draw an inference from these results: see R. v. Letford (2000), 2000 CanLII 17024 (ON CA), 51 O.R. (3d) 737 (C.A.), at para. 22. However, Mr. Del Rizzo submits that there is no reference to this evidence in the reasons of the trial judge on the impaired care and control charge, and so it would be speculation to suggest that he erred in this way.

[52] The problem, of course, is that I have no idea if the trial judge considered this evidence as suggested by the Crown in closing submissions. He certainly did not immediately set the Crown straight. During the submissions from defence counsel, the trial judge referred to the fact that the Crown had submitted there was an inconsistency between the breath test results as “scientific reliable evidence, as opposed to the memories of individuals who were at a bar […] which would appear to be, on the face of it, inconsistent with the blood alcohol.” This is concerning, although as the discussion proceeded, defence trial counsel did point out that the defence was not trying to lead evidence about how much Mr. Edwards actually had to drink, that these witnesses were important on the issue of how Mr. Edwards appeared, and that the Crown could not rely on the breath test results to contradict the defence witnesses even if those results were admitted into evidence. The trial judge made no comment to this submission one way or the other. It is therefore unclear whether the breath results were considered on the impaired care and control charge. This is another area of concern.

[53] In summary, an inference that Mr. Edwards was not impaired by alcohol and that what the officers initially saw was due to his being roused from sleep was a reasonable inference that arose from the evidence before the trial judge. By giving comprehensive reasons as to why the officers had reasonable and probable grounds to arrest Mr. Edwards, the trial judge naturally focused on the evidence of what they observed at the roadside and the defence submission that their evidence about that was unreliable and exaggerated. The problem is that when the trial judge turned to the merits of the impaired care and control charge, having not referred to significant exculpatory evidence that gave rise to a reasonable innocent inference that Mr. Edwards was not impaired by alcohol – and, indeed, not even acknowledging the existence of such an inference – the trial judge did not give any reasons to assist this court on appeal in determining whether he considered this innocent inference or the exculpatory evidence and, if so, why he did not find that it raised a reasonable doubt on the impaired care and control charge. Similarly given the brevity of the reasons it is impossible to determine if the trial judge impermissibly considered the breath results on the impaired care and control charge.

[54] For these reasons, the only appropriate remedy is to order a new trial on the impaired care and control charge.

The Second Ground of Appeal

Did the trial judge err in law in concluding that Mr. Edwards’ s. 10(b) Charter rights were not infringed?

[55] Mr. Edwards’ position is that the trial judge erred in law in finding that his s. 10(b) Charter rights were not breached. On the facts as found by the trial judge, Mr. Edwards submits that the police failed to fulfil their obligations under s. 10(b) in several ways:

a) They failed to inform Mr. Edwards that he was entitled to wait a reasonable time for counsel of choice before speaking with duty counsel.

b) They failed to exercise due diligence in trying to provide access to his counsel of choice.

c) They failed to wait a reasonable time before requiring Mr. Edwards to avail himself of duty counsel.

Applicable Legal Principles

[56] In R. v. Donnelly, 2016 ONCA 988, 135 O.R. (3d) 336, at para. 43, the Court of Appeal stated that in relation to alleged Charter breaches, appellate intervention is only warranted where the trial judge has committed a “palpable and overriding error about the facts that underlie the breach”, or where the trial judge’s identification and application of the correct legal principles raises “a question of law, assessed on a correctness standard”. Mr. Neubauer’s position is that on the facts found by the trial judge, the police breached Mr. Edwards’ Charter right by failing in both their s. 10(b) informational and implementational obligations. Specifically, he argues that:

a) They failed in their informational obligation by not advising Mr. Edwards he could wait longer for counsel of choice.

b) They failed in their implementation obligation by not being reasonably diligent in connecting Mr. Edwards with his counsel of choice or otherwise ensuring he was satisfied with the advice he received from duty counsel.

c) They further failed in their implementation obligation by not holding off until Mr. Edwards had been afforded a reasonable opportunity to speak with his counsel of choice.

[57] The law is clear that s. 10(b) of the Charter requires police to implement the right to counsel immediately upon detention, without delay: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 24. As stated by the Supreme Court of Canada in Taylor, at para. 21:

The purpose of the s. 10(b) right 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’. The right to retain and instruct counsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy ‘is able to make a choice to speak to the police investigators that is both free and informed’. [Citations omitted.]

[58] Three duties are imposed on police who arrest or detain an individual:

a) To inform the detainee of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel.

b) 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).

c) To refrain from eliciting evidence from the detainee until they have had that reasonable opportunity (again, except in cases of urgency or danger): Taylor, at para. 23, R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192; R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233, at pp. 1241-42.

[59] In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 35, the Supreme Court reaffirmed its holding in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3 – namely, that a detainee can choose to exercise their right to counsel by speaking to a specific lawyer and that they are entitled to a reasonable opportunity to contact that lawyer. It is only where the chosen lawyer is not available within a reasonable time that detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold of obtaining incrimination evidence will be suspended. What 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. In Willier, at para. 41, the Court held that s. 10(b) requires the police to afford a detainee not only a reasonable opportunity to contact counsel of their choice, but to also facilitate that contact: see also R. v. Traicheff, 2010 ONCA 851, at para. 2; R. v. Vernon, 2016 ONCA 211, at para. 2, aff’g 2015 ONSC 3943, 340 C.R.R. (2d) 213.

[60] In R. v. Maciel, 2016 ONCJ 563, 32 C.R. (7th) 174, Stribopoulos J. (as he then was) considered a detainee’s right to consult with counsel of choice in the context of drinking and driving cases and stated:

38 The Supreme Court has also explained that urgency capable of displacing the right to consult counsel does not arise in drinking and driving cases simply because the passage of time may jeopardize the Crown's reliance on the two-hour statutory presumption found in subsection 258(1)(c)(ii) of the Code. This is because even where delay in contacting counsel forecloses reliance on the presumption, the Crown will still be able to adduce expert evidence to relate lower test results back to the blood-alcohol level at the time of the offence. [Citing R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at 275-77[ [Emphasis added]

39 Finally, in assessing how long the police can be expected to wait for a detainee to contact counsel of their choosing, the Supreme Court has suggested that the availability of free and immediate advice from duty counsel is a relevant consideration. At a certain point, after efforts to contact counsel of choice have proven unsuccessful, the detainee will be expected to contact duty counsel or risk a finding that they were not reasonably diligent in the circumstances. [Citing R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190 and R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 175 O.A.C. 54 (C.A.)]

[61] In the Supreme Court of Canada’s earlier decision in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, the Court held that the fact that police wish to obtain a breath sample quickly to assist the Crown in proving its case because of a legal presumption or otherwise, does not mean the investigation is urgent. At paras. 45-46, the Court stated:

… in the context of impaired driving cases, I am satisfied that the existence of the two-hour evidentiary presumption available to the Crown under s. 258(1)(c)(ii) of the Code does not, by itself, constitute such a compelling or urgent circumstance. ‘Urgency’ of the kind referred to by this Court […] is not created by mere investigatory and evidentiary expediency in circumstances where duty counsel is unavailable to detainees who have asserted their desire to contact a lawyer and been duly diligent in exercising their s. 10(b) rights. A detainee's Charter-guaranteed right to counsel must take precedence over the statutory right afforded to the Crown which allows it to rely on an evidentiary presumption about what a breathalyser reading would have been at the time of care and control of a vehicle.

I would also note as an aside that where the Crown is unable to rely on the presumption under s. 258(1)(c)(ii) of the Code due to the unavailability of duty counsel, the Crown can still try and prove the ‘over 80’ breathalyser charge by adducing expert evidence which seeks to relate later and lower test results back to the blood-alcohol level at the time of the offence. [Emphasis added.] [Citations omitted.]

[62] The Court in Prosper was considering a case where duty counsel was not available. The Court however did find that the availability of duty counsel services is a circumstance to take into account when considering what constitutes a “reasonable opportunity” to wait for counsel of choice, at para. 35. The question then, is how does the fact that duty counsel was available to Mr. Edwards impact the application of ruling in Prosper?

[63] In R. v. Brydges, 1990 CanLII 123 (SCC), [1990] 1 S.C.R. 190, at p. 216, the Supreme Court considered its earlier Ross decision and noted that waiting for eight to ten hours for counsel of the detainee’s choice to become available “may not be justified in a purposive approach when duty counsel has been available all along”. In R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 175 O.A.C. 54 (C.A.), a case where the charges were impaired operation and refusing to provide a breath sample, the Court of Appeal, at para. 8, stated that the availability of duty counsel is a “crucial factor” when considering if a defendant has been given a reasonable opportunity to exercise the right to counsel. The Court held that a detainee was not reasonably diligent when he refused to call duty counsel, who was available, but this was after one hour and forty-five minutes had passed from the time of arrest, and he had not been able to reach his counsel of choice.

[64] A decision to speak with duty counsel instead of the detainee’s counsel of choice must not be the product of any coercion. In Willier, at para. 43, the Supreme Court stated:

Considering the circumstances of this case as a whole, the majority of the Court of Appeal correctly found that Mr. Willier did not suffer a violation of his s. 10(b) right to counsel. 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. [Emphasis added]

[65] I was referred to R. v. Doobay, 2019 ONSC 7272, at para. 28, a decision of this court, where the statutory presumption that breath test results taken within two hours of the alleged offence establish the defendant’s blood alcohol level at the time of the offence (see s. 258(1)(c)(ii) of the Criminal Code) was considered as a relevant consideration in determining what is a reasonable period of time.

[66] In Doobay, the defendant was told he could wait a “reasonable time” for his counsel of choice. After an hour and a half after his arrest he was taken to the breath room and told that he had to provide a breath sample immediately. He said he would not do so without speaking to his lawyer and refused. In determining whether there had been a s. 10(b) Charter breach, Dawe J., sitting on appeal from the OCJ, found that there had been a failure on the part of police to adequately carry out their implementation duties and that in the circumstances he could not conclude that the defendant was not reasonably diligent in the exercise of his right to counsel because he did not take steps to speak to a different lawyer after police told him his lawyer was not available. Justice Dawe added that the defendant was not told he would only be given a very short period of time to speak to counsel before he was compelled to take a breath test, at para. 57. After considering the Grant factors, Dawe J. excluded the evidence and entered an acquittal.

[67] The Court in Prosper left open the question of whether a detainee's reasonable opportunity to contact counsel of choice could extend to the point at which it is no longer possible to obtain breathalyser readings that can be accurately extrapolated backwards to provide information about the defendant’s blood alcohol level at the time of the alleged offence. As no expert evidence was called in this case, I do not know how long that period would have been, but no doubt it would have been much longer than the time actually given to Mr. Edwards to call his counsel of choice as it was not even close to the presumption time of two hours running out. Furthermore, as the Court in Prosper noted, even should that occur, it would still be open to the Crown to proceed with a straight impaired driving charge, as the Crown has done in this case.

[68] I will come to the cases that considered the specific issues raised by Mr. Neubauer as I review what he submitted was a “multi-faceted” failure on the part of police to fulfill their s. 10(b) obligations in this case.

Application to the Case at Bar

1) Alleged informational failure

[69] Mr. Neubauer submits that when the police could not reach Mr. Edwards’ counsel of choice, they had a duty to advise him that he could wait a reasonable period of time before having to speak with duty counsel. He relies on the decision of this court in R. v. Lewis, 2019 ONSC 5919, 451 C.R.R. (2d) 190, which reviews many of the authorities, including Vernon.

[70] In Lewis, at para. 37, after referring to a number of decisions, Christie J. stated:

In reviewing the cases cited, it would appear that what those courts are really concerned about is where the police make the unsuccessful attempt to contact counsel of choice and then, within a very short time, default to duty counsel, leaving the detainee with the impression that they have no choice to wait, but rather that they must speak to duty counsel. [Citation omitted.] [Emphasis in original.]

[71] After reviewing further cases from this court, Christie J. stated, at para. 41:

In many circumstances, counsel of choice will not be immediately available. This is simply reality. In those circumstances, the detainee is entitled to wait a reasonable time before they will be expected to contact alternative counsel. […] It would appear to be only logical that, where the police are suggesting the detainee forego their counsel of choice and speak to other counsel or duty counsel, the police must, minimally, advise the detainee that they are entitled to wait a reasonable time to speak to their counsel of choice. The detainee should never be left with the impression that where their counsel of choice cannot be immediately reached, the only option at that point is duty counsel. During this waiting period, the police certainly should not be encouraging the detainee to forego their original choice and to make another choice. If this is permitted, the right to counsel of choice would be meaningless.

[72] I agree with these views. In this case, it is undisputed that the officers never advised Mr. Edwards that he could wait a reasonable time for his counsel of choice to call back. Their actions also left him with the impression that he could not wait any longer and so his only option was the duty counsel advice he had already received. The failure of the trial judge to even consider these informational breaches was clearly an error in law. Moreover, had the trial judge considered the issue, there could be no dispute that as a result, there was a clear failure of police to fulfil their informational obligation to Mr. Edwards and thus a violation of his s. 10(b) rights.

2) Alleged implementational failures

[73] Mr. Neubauer also submits that the police further infringed Mr. Edwards’ s. 10(b) rights by failing to fulfill their implementational obligations. Having taken carriage and responsibility for contacting Mr. Edwards’ counsel of choice, the police had a duty to act with reasonable diligence in their efforts to facilitate contact, and hold off taking further investigative steps (here, the breath tests) until the reasonable opportunity had elapsed. He argues that the police failed in both respects in this case – i.e., they (i) failed to facilitate contact and (ii) failed to wait.

(i) Failure to facilitate contact

[74] Courts have increasingly recognized that where the police assume the responsibility of contacting the detainee’s counsel of choice, rather than providing the detainee with direct access to a phone or internet connection, they must be taken to have “assumed the obligation to pursue [the detainee’s] constitutional right to [access counsel] as diligently as she would have”: R. v. Jarrett, 2021 ONCA 758, at para 43, citing R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42. This should lead to a heightened duty on the police to ensure that appropriate steps are taken to reach counsel: Lewis, at para. 35.

[75] Vernon is a case on point. There, the defendant was arrested for impaired operation and over 80. The OCJ judge found that police breached the defendant’s s. 10(b) Charter rights because the police ought to have advised the defendant that he had a right to wait a reasonable amount of time for his counsel of choice to call back. In that case, the arresting officer failed to wait longer than a minute after the defendant left a message at his lawyer’s office before the officer placed a call to duty counsel, with whom the defendant later spoke. This was the finding even though the defendant did not express dissatisfaction with the advice received from duty counsel.

[76] On a summary conviction appeal to this court, Ellies J. found the trial judge did not err in finding a s. 10(b) Charter breach. Ellies J. acknowledged that the trial judge, in his s. 24(2) analysis, had failed to consider the minimally intrusive nature of the breath samples and the reliability of that evidence. Nevertheless, he held that the trial judge’s finding that the breach was serious was amply supported by the evidence and that an exclusion of the elicited evidence was required in order to protect the reputation of the justice system. The Court of Appeal agreed, holding that the trial judge correctly applied Traicheff. Leave to appeal was therefore denied.

[77] In Traicheff, the defendant was convicted of an over 80 charge. After he was informed of his right to counsel, he identified a lawyer he wanted to speak to. Police left a message for that lawyer and when there was no call back after 23 minutes, they called duty counsel without asking the defendant. The defendant spoke to duty counsel and did not express any dissatisfaction with that discussion. He went on to provide breath samples. The trial judge found a s. 10(b) breach because the police did not ask the defendant if he wanted to speak to another lawyer or ask if he had another number for his lawyer of choice. The Court of Appeal agreed with these conclusions and held that s. 10(b) requires the police to afford the detainee not only a reasonable opportunity to contact counsel of choice, but to facilitate that contact as well: at para. 2. On the facts of that case, however, the Court of Appeal agreed with the trial judge that, despite this s. 10(b) breach, the breathalyzer readings were admissible under s. 24(2): see para. 3.

[78] In Maciel, at paras. 44-50, Stribopoulos J. sets out a number of reasonable steps an officer could take to try and connect a detainee with counsel of choice. For example, “in an era when practically every lawyer and law firm has a website”, police could review the website for a cell phone number or email address: Maciel, at para. 45. They could also ask the defendant if they know anyone who has a contact number for the desired lawyer: at para. 46. In Doobay, Dawe J. considered Maciel and other cases that have followed it and he concluded, at para. 34 that leaving multiple voice mails on a lawyer’s office phone at a time of day when the office is obviously closed should no longer be seen as sufficient when the officer has internet access and can very easily look to see if the lawyer’s office has a website for an after-hours number or a personal cell phone number. Like that case, I have no evidence what the officers would have learned had they done this but there is at least a reasonable possibility they would have obtained better information. Furthermore, they also did not ask Mr. Edwards if he had any better information or another lawyer he might want to call.

[79] In this case, Mr. Edwards initially had control over his cell phone and took measures to contact his counsel of choice. He was able to send one text before the police took his phone from him. The police then left two voicemails with his lawyer of choice, but then began directing Mr. Edwards to duty counsel after not hearing back from the counsel of choice within 12 minutes after the first voicemail message was left. Officer Lewis testified that, in her view, 12 minutes was a reasonable time to wait before directing Mr. Edwards to duty counsel. As I will come to that was clearly not the case. Furthermore, had the officers told Mr. Edwards he did not need to speak with duty counsel at that time – i.e., that he could wait a further period of time – Mr. Edwards likely would have done so. More aggravating was the officer’s testimony that the rush was, in part, out of an imaginary and legally prohibited concern for the loss of evidence.

[80] Mr. Edwards submits that these efforts fell far short of the required diligence required in our case law and reveal a cavalier attitude towards the right to counsel of choice. I agree. In particular, when the officers asked for permission to call duty counsel in advance, and then waited just 12 minutes for counsel of choice to call back before contacting duty counsel, the police effectively steered Mr. Edwards to duty counsel. By doing so, police used duty counsel to short-circuit, rather than enhance, the right to counsel. Approaches such as this have been criticized by the courts for lacking reasonable diligence and due care for police obligations under s. 10(b): see R. v. Syblis, 2015 ONCJ 824, at paras. 140-144; R. v. Duong, 2016 ONCJ 602, at paras. 30-39.

[81] I also agree with Mr. Neubauer that in this case, where the police undertook to contact counsel on Mr. Edwards’ behalf, it was unreasonable for them to have left two voicemails in quick succession and then end their efforts there, particularly given how early it was in the morning. As Maciel makes clear, police are expected to do more. For instance, they could have asked Mr. Edwards whether he knew some other way or someone who might be able to contact his counsel of choice. They also could have reviewed the internet for contact information about Mr. Edwards’ desired counsel. Simply leaving two voicemails in quick succession and then ending their efforts there was insufficient.

(ii) Failure to wait

[82] In this case, the trial judge found that the span between the first phone call Officer Lewis placed with Mr. Edwards’ counsel of choice and the time at which he was brought back into the breath test room for formal testing amounted to 49 minutes. In my view, even if one considers that entire period of time, without taking into account the other s. 10(b) breaches, a mere 49 minutes did not amount to a reasonable period of time to wait for counsel of choice to call back in this case. Further, as mentioned, the trial judge found that Officer Lewis placed a phone call with duty counsel after not hearing back from Mr. Edwards’ counsel of choice for 12 minutes. With respect, the short window in which the police waited for Mr. Edwards’ counsel of choice to call back before they began directing him towards duty counsel – particularly given that, as discussed above, they did not even inform Mr. Edwards of his constitutional right to wait for a reasonable time – amounted to a breach of their duty to refrain from eliciting evidence until a reasonable time period had passed.

[83] Further, the failure of the police to refrain from further steps had negative consequences for Mr. Edwards. This is not a case like Willier, where the detainee made a fully informed decision to speak to duty counsel. Rather, as a result of not being informed about his right to wait a reasonable amount of time for his counsel of choice to call back, Mr. Edwards was twice left feeling like he was not being permitted to wait for his counsel of choice to call back. First, after only 12 minutes had passed, the police placed a call with duty counsel. Shortly thereafter, duty counsel called back and had a conversation with Mr. Edwards. In those circumstances, Mr. Edwards’ evidence that he believed he had no choice but to speak to duty counsel is credible. Second, after speaking to duty counsel, he was brought back to the breath technician a second time and told to blow. Again, his evidence that he felt like he had no choice but to proceed with the breath tests is credible.

[84] In response, Mr. Del Rizzo argues that because Mr. Edwards was previously removed from the breath room by Officer Lewis, he would have thought that he could wait. I disagree. Mr. Edwards was not asked whether he was satisfied with the advice he received from duty counsel before he was brought to the breath room a second time and Officer Lewis testified that it was her impression that Mr. Edwards was not satisfied with his conversation with duty counsel and still wished to speak with his counsel of choice. It was also clear from Mr. Edward’s evidence that, had been given the option, he would have waited to speak with his counsel of choice before proceeding. In my view, then, it was only because of the police officers’ failure to wait that Mr. Edwards engaged with duty counsel.

3) Conclusion

[85] In summary, I find that the trial judge was incorrect to hold that Mr. Edwards’ s. 10(b) rights were not infringed. Not only did the police fail to adequately inform Mr. Edwards of his right to wait for a reasonable period of time before he needed to speak with duty counsel, but they also (i) did not undertake sufficient efforts to contact Mr. Edwards’ counsel of choice and they (ii) failed to hold off taking further investigative steps (i.e., the breath tests) until it became unreasonable to continue waiting for Mr. Edwards’ counsel of choice to call back.

The Third Ground of Appeal

Did the trial judge err in reaching the alternative conclusion that, if Mr. Edwards’ s. 10(b) rights were infringed, the violation was minor and did not warrant exclusion of the breath evidence?

[86] Mr. Edwards’ position is that the trial judge erred in his s. 24(2) analysis. In his s. 24(2) analysis, the trial judge found, at para. 30, that even if there had been a breach of Mr. Edwards’ s. 10(b) rights, the breach “could only be described as minor” and that there was “no prejudice” to Mr. Edwards. I note that no other reasons were provided for this conclusion. In any event, given my determination that Mr. Edwards’ s. 10(b) Charter rights were in fact breached, it is for this court to conduct its own s. 24(2) analysis, applying the test articulated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Drawing on Grant, I must determine whether Mr. Edwards’ breath evidence should be excluded from the trial. Some deference must be given to the trial judge’s findings of fact.

[87] The onus is on Mr. Edwards to persuade this court on a balance of probabilities that the admission of the evidence obtained in a manner that violated the Charter would bring the administration of justice into disrepute.

[88] In R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, the Supreme Court clarified the role of s. 24(2) of the Charter. At paras. 139-40, the Court stated:

Section 24(2) of the Charter provides that, where evidence was obtained in a manner that infringed a Charter right or freedom, that evidence shall be excluded if it is established that, having regard to all the circumstances, its admission would bring the administration of justice into disrepute. While the judicial inquiry under s. 24(2) is often rhetorically cast as asking whether evidence should be excluded, that is not the question to be decided. Rather, it is whether the administration of justice would be brought into disrepute by its admission. If so, there is nothing left to decide about exclusion: our Charter directs that such evidence must be excluded, not to punish police or compensate for a rights infringement, but because it is necessary to do so to maintain the ‘integrity of, and public confidence in, the justice system’. [Citations omitted.]

Where the state seeks to benefit from the evidentiary fruits of Charter-offending conduct, our focus must be directed not to the impact of state misconduct upon the criminal trial, but upon the administration of justice. Courts must also bear in mind that the fact of a Charter breach signifies, in and of itself, injustice, and a consequent diminishment of administration of justice. What courts are mandated by s. 24(2) to consider is whether the admission of evidence risks doing further damage by diminishing the reputation of the administration of justice -- such that, for example, reasonable members of Canadian society might wonder whether courts take individual rights and freedoms from police misconduct seriously. We endorse this Court's caution in Grant, at para. 68, that, while the exclusion of evidence ‘may provoke immediate criticism’, our focus is on ‘the overall repute of the justice system, viewed in the long term’ by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights. [Emphasis added]

[89] In Grant, the Court identified three lines of inquiry guiding the consideration of whether the admission of evidence tainted by a Charter breach would bring the administration of justice into disrepute.

[90] With respect to the first factor, the seriousness of the Charter breach, I must assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts effectively condone state deviation from the rule of law by refusing to disassociate themselves from the products of that conduct. The more serious or deliberate the conduct, the greater the need for the courts to dissociate themselves from it in order to preserve public confidence in the justice system and the rule of law: Grant, at para. 72. This analysis involves a consideration of whether the Charter breach was, on the “one hand inadvertent or minor” or, on the other hand, showed “willful or reckless disregard for Charter rights”: Grant, at para. 74.

[91] The court must also consider whether the police acted in good faith. As the Court explained in Grant, at para. 75:

‘Good faith’ on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith. Wilful or flagrant disregard of the Charter by those very persons who are charged with upholding the right in question may require that the court dissociate itself from such conduct. It follows that deliberate police conduct in violation of established Charter standards tends to support exclusion of the evidence. It should also be kept in mind that for every Charter breach that comes before the courts, many others may go unidentified and unredressed because they did not turn up relevant evidence leading to a criminal charge. In recognition of the need for courts to distance themselves from this behaviour, therefore, evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

[92] In my view, the police in this case did not act in good faith. The jurisprudence considering s. 10(b) is not an area of law that has been rife with uncertainty such that the conduct of the police could be excused. Indeed, the cases I have referred to – for example, Willier and Traicheff – date back to 2010. Maciel was released in 2016. There can be no suggestion, then, that the obligations of police have changed due to recent legal developments. Rather, the law has long been clear: police have a duty to facilitate contact with a defendant’s counsel of choice and must wait for a reasonable amount of time before directing the defendant toward a different legal representative. In this case, the police did not live up to their well-established s. 10(b) obligations.

[93] Sticking with Grant’s first factor, I am also of the view that the breaches in question were serious. As the Court of Appeal said in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45, the right to counsel is more than just the access to legal advice. Rather, it is a “lifeline for detained persons” to not only obtain legal advice and guidance about the procedures to which they will be subjected, but also “[t]he psychological value” of knowing that they are not entirely at the mercy of the police while detained. In this case, Mr. Edwards was at the mercy of police upon being arrested. By not informing Mr. Edwards that he had the right to wait a reasonable time for counsel of choice to call back, the police withheld critical information from Mr. Edwards. Without this information, Mr. Edwards did not know that he could wait longer to speak to his counsel of choice, and I accept that he felt that he had no choice but to speak to duty counsel.

[94] In addition, the breach was exacerbated by the fact the police did not act diligently in trying to reach Mr. Edwards’ counsel of choice, believing that it was more important to connect him with duty counsel. Moreover, the conduct of the police arose, in part, over a concern over a loss of evidence, which is an inappropriate basis on its own to curtail access to counsel of choice. Although I do not find that the officers deliberately acted in bad faith, they were seemingly unaware of what their duties were in circumstances where the defendant’s counsel of choice is not immediately available. This can be a relevant factor in considering the seriousness of a s. 10(b) breach: see Maciel, at para. 55.

[95] The second factor in Grant requires a consideration of the impact of the Charter breach on the Charter protected interests of the defendant.

[96] In this case, the trial judge did not explain why the infringement of Mr. Edwards’ s. 10(b) rights did not cause him prejudice. Notwithstanding the minimally intrusive nature of the breath test (see Grant, at para. 111), properly viewed, the impact of the infringing conduct on Mr. Edwards was significant. While Mr. Edwards received legal advice, he was denied his counsel of choice, and effectively steered towards duty counsel. This renders the impact on his right to counsel of choice significant. This fact is made all the more apparent when viewed in light of his expressed displeasure with not receiving advice from his own counsel. Indeed, this case is similar to Vernon, in which the police’s cavalier attitude towards facilitating contact with counsel of choice was deemed to be a sufficient justification for exclusion of the evidence, notwithstanding that the defendant ended up speaking with duty counsel, a result upheld by the Court of Appeal.

[97] Finally, the third Grant factor requires the court to consider the societal interest in a trial on the merits. In this case, the breath evidence is of course reliable and the charge is serious. However, excluding this evidence will not preclude a future trial aimed at determining whether Mr. Edwards was in fact impaired. In my view, the Supreme Court of Canada’s comments in Le, at para. 142 are apposite:

The third line of inquiry, society's interest in an adjudication of the case on its merits, typically pulls in the opposite direction – that is, towards a finding that admission would not bring the administration of justice into disrepute. While that pull is particularly strong where the evidence is reliable and critical to the Crown's case […] we emphasize that the third line of inquiry cannot turn into a rubber stamp where all evidence is deemed reliable and critical to the Crown's case at this stage.

[98] At the final stage of the analysis, I must weigh the various factors. There is no overarching rule governing how the balance should be struck: Grant, at para. 86. Rather, I must focus on the overall repute of the justice system, viewed in the long term by a reasonable person, informed of all relevant circumstances and of the importance of Charter rights.

[99] In my view, the balance points towards the exclusion of the impugned breath samples. The breach was serious in that the police (i) failed to inform Mr. Edwards that he could wait a reasonable amount of time before speaking to duty counsel (as opposed to his counsel of choice), (ii) failed to hold off with further investigatory steps until this reasonable period elapsed, and (iii) failed to diligently pursue contact with Mr. Edwards’ counsel of choice. The breach also worked prejudice on Mr. Edwards. Despite voicing both his desire to speak to his counsel of choice and his dissatisfaction with duty counsel, the actions of the police officers in this case, while not deliberately conducted in bad faith, led Mr. Edwards to believe that he had no choice but to settle for communications with duty counsel. The actions of the police effectively undermined Mr. Edwards of his constitutional right to counsel of choice. As Ellies J. stated in Vernon, at para. 75, admitting the evidence in the face of such an indifferent attitude on the part of the police would do more to bring the administration of justice into disrepute than would excluding it. Furthermore, although the breath sample was minimally intrusive, excluding it will not preclude a new trial on the merits.

[100] For all these reasons, I find that the breath sample evidence should have been excluded from evidence at trial.

Disposition

[101] The appeal is granted. The reasons of the trial judge fail to permit meaningful appellate review, and this has caused prejudice to Mr. Edwards’ right to an appeal in this case. The conduct of the police in this case also violated Mr. Edwards’ s. 10(b) Charter rights. The proper remedy is a new trial. At the trial, the subsequent breath sample evidence is inadmissible under s. 24(2) of the Charter for the reasons given above.

[102] Mr. Edwards is ordered to attend at the remand/set date Court 301, at 1000 Finch Avenue on July 20, 2022, at 9:00 am.

SPIES J.

Released: July 11, 2022