Court File and Parties
Court File No.: CR-21-204-00AP Date: 2022/09/29 Ontario Superior Court of Justice
Between: His Majesty the King, Respondent – and – Amanda Doherty, Appellant
Counsel: Zachary Huywan, for the Respondent Shawn Hamilton, for the Appellant
Heard: July 25, 2022
Reasons on Summary Conviction Appeal Justice S.K. Stothart
A. OVERVIEW
[1] Amanda Doherty was convicted after trial of operating a conveyance with a blood alcohol concentration equal to or exceeding 80 milligrams of alcohol in 100 ml of blood contrary to section 320.14(b) of the Criminal Code.
[2] Ms. Doherty appeals this conviction. She submits that the police violated her right to counsel pursuant to section 10(b) of the Charter by failing to provide her a reasonable opportunity to consult with counsel of her choice and by failing to provide a “Prosper” warning when she was unable to contact counsel of her choice. Ms. Doherty submits that the trial judge erred in concluding that her right to counsel pursuant to section 10(b) of the Charter had not been violated and submits that the results of her breath samples should have been excluded pursuant to section 24(2) of the Charter.
B. FACTS RELEVANT TO THE RIGHT TO COUNSEL
[3] On January 22, 2022, Amanda Doherty was operating a red Dodge caravan in North Bay, Ontario when it became stuck in a snowbank. Police were dispatched to the scene and Cst. Shantz arrived at 11:58 p.m.
[4] Ms. Doherty told Cst. Shantz that she made the turn on to Booth Road too tight which resulted in her getting stuck in a snowbank. When the officer asked her if she had been consuming alcohol, Ms. Doherty advised that she had consumed a couple of glasses of wine. Given the admission of drinking, Cst. Shantz required Ms. Doherty to provide a sample of her breath into an approved roadside screening device. The analysis of that sample registered a fail.
[5] Cst. Shantz advised Ms. Doherty that she was under arrest for Over 80 and made a demand that she provide a sample of her breath into an approved instrument. No issue was taken with respect to the content of that demand at trial.
[6] At 12:06 a.m., Cst. Shantz advised Ms. Doherty of her right to counsel as follows:
I am arresting you for over 80. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer that you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid plan for assistance. 1-800-265-0451 is a number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now.
[7] When the officer asked Ms. Doherty if she understood, she indicated “yes”. When the officer asked her if she wished to call a lawyer she responded, “I’m not sure”.
[8] Ms. Doherty was escorted to the North Bay Police Station, arriving at 12:18 a.m. Once she was booked, she was asked if she wanted to call a lawyer. Ms. Doherty advised that she wanted to call Zach Campbell. She did not provide a phone number for Mr. Campbell.
[9] Cst. Shantz looked online and found a phone number for a lawyer named Zach Campbell in North Bay. At approximately 12:30 a.m. he called this phone number but there was no answer. There was an answering machine. The officer did not leave a message.
[10] Cst. Shantz went back and told Ms. Doherty that he could not get a hold of Zach Campbell. He advised that there was free duty counsel available and that he would make that phone call for her. Ms. Doherty declined and said that she would call Zach Campbell later. Cst. Shantz then handed Ms. Doherty over to the breath technician, Cst. Carleton.
[11] Cst. Carleton testified that Ms. Doherty was turned over to him for breath testing at 12:46 a.m. As part of his preliminary discussions with Ms. Doherty he explained that it was his understanding that Cst. Shantz had made efforts to contact her counsel of choice. Ms. Doherty responded that it was okay, that she was going to comply with whatever was asked of her.
[12] Cst. Carleton explained that he wouldn’t be doing his job if he didn’t make sure her rights were protected and that if any point she wanted to speak with a lawyer, whether it be duty counsel, that she could inform him and let him know.
[13] Cst. Carleton then proceeded to take two samples of Ms. Doherty’s breath which revealed a blood alcohol concentration of over 80 milligrams of alcohol per 100 milllitres of blood.
[14] During submissions I pointed out to counsel that the video recording of Cst. Carleton’s interaction with Ms. Doherty during the breath testing process, which was played at trial, had not been marked as an exhibit at trial. I offered the parties the opportunity to respond to this issue. It was agreed between the parties that the summary conviction appeal could be decided based on the transcripts provided to the court.
C. LEGAL PRINCIPLES TO BE APPLIED
Standard of appellate review
[15] The powers of a summary conviction appeal court are set out in section 822(1) of the Criminal Code. That provision incorporates by reference the powers of an appellate court found in section 686 which states:
686(1) On the hearing of an appeal against a conviction…, the court of appeal
(a) may allow the appeal where it is of the opinion that
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence,
(ii) the judgement of the trial court should be set aside on the ground of a wrong decision on question of law, or
(iii) on any ground there was a miscarriage of justice.
[16] The function and scope of a judge sitting on a summary conviction appeal is not to retry the case or substitute his/her own view of the evidence for that of the trial judge. A summary conviction appeal judge is not entitled to interfere with a trial judge’s findings of fact unless they are unreasonable or unsupported by the evidence. Regina v. O’Meara, 2012 ONCA 420 at para. 36, leave to appeal to S.C.C. refused, [2018] S.C.C.A. No. 271; Regina v. Smits, 2012 ONCA 524 at para. 67.
[17] The findings of fact made by a trial judge are not to be reversed unless it can be established that the trial judge made a palpable or overriding error. Housen v. Nikolaisen, 2002 SCC 33 at para. 10.
[18] Where the reviewing court is tasked with reviewing a question of law, the standard is that of correctness and an appellate court may replace the trial judge’s opinion with its own. Housen v. Nikolaisen, supra. at para. 17.
Right to counsel
[19] Section 10(b) of the Charter provides that everyone on arrest or detention has the right to retain and instruct counsel without delay and to be informed of that right. The Supreme Court has held that the right to counsel places a duty on the police that is both informational and, if the detainee invokes his/her right, implementational. Regina v. Bartle, [1994] 3 S.C.R. 173 (S.C.C.) at p. 203-204; Regina v. Prosper, [1994] 3 S.C.R. 235 (S.C.C.) at p. 269; Regina v. Willier, 2010 SCC 37 at paras. 29-30.
[20] In Regina v. Willier, 2010 SCC 37, the Court summarized the duty of the police as follows:
(1) they must inform the detainee of his/her right to retain and instruct counsel without delay and the existence and availability of legal aid and duty counsel;
(2) if a detainee has indicated a desire to exercise this right, they must provide the detainee with a reasonable opportunity to exercise this right and facilitate that contact (except in urgent and dangerous circumstances); and
(3) they must refrain from eliciting evidence from the detainee until he/she has had that reasonable opportunity (except in cases of urgency and danger).
[21] If a detainee opts to exercise their right to counsel by speaking to a specific lawyer, section 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonably amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time will depend on the circumstances as a whole and may include factors such as the seriousness of the charge and urgency of the investigation. Regina v. Willier, supra. at para. 35.
[22] The police have not only a duty to provide a reasonable opportunity to contact counsel of choice they must also facilitate that contact. Regina v. Traicheff, 2010 ONCA 851 at paras. 2-3; Regina v. Vernon, 2016 ONCA 211 at para. 2. The extent of the duty to facilitate contact has been the subject of conflicting jurisprudence and is often assessed based on the particular circumstances of each case.
[23] If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or duty counsel. If they are not diligent, the police are no longer required to hold off from eliciting evidence from the detainee. Regina v. Willier, supra. at para. 35.
[24] When an individual has been diligent, but unsuccessful, in contacting a lawyer and subsequently declines any further opportunity to consult with counsel, the police have a further informational duty and must explicitly inform the detainee of his/her right to a reasonable opportunity to contact counsel and of the police obligation to hold off their questioning (or taking breath samples) until then. This has been referred to as a “Prosper warning”. Regina v. Willier, supra. at para. 32
[25] The purpose behind a “Prosper warning” is to ensure that a detainee understands that their reasonable but unsuccessful attempts at contacting counsel did not exhaust their s.10(b) right. This further information is intended to ensure that the detainee’s choice to speak (or to provide a breath sample) does not derive from such a misconception and to ensure that a decision to waive the right to counsel is fully informed. Regina v. Willier, supra. at para. 32, Regina v. Fountain, 2017 ONCA 596 at para. 27.
[26] Where a detainee asserts his/her right to counsel and then changes their mind after reasonable efforts to contact counsel have been frustrated, the burden of establishing that they waived their right to counsel is on the Crown. This burden is a “high one” requiring proof of a clear, free and voluntary change of mind made by someone who knew what they were giving up. A “Prosper warning” is significant as it assists the Crown in proving a waiver of the right to counsel. Regina v. Fountain, supra. at para. 27.
D. ANALYSIS
[27] The appellant takes no issue with respect to the findings of fact made by Justice Lainevool at trial. Rather, the appellant submits that Justice Lainevool erred in her application of those facts to the law. Given that this appeal engages questions of law, the standard of review is correctness.
[28] In my analysis I have proceeded on the basis that the law is to be applied to the facts as found by Justice Lainevool.
[29] The findings of fact made by Justice Lainevool with respect to the issue of right to counsel are found at page 60 of her decision and are as follows:
Once Ms. Doherty was booked at the police headquarters and escorted to a cell she was again asked if she wanted to call a lawyer and she replied yes and gave the name Zach Campbell. Mr. Campbell is a lawyer in the City of North Bay. Constable Shantz looked up a number for Zach Campbell online and called the number. An answering machine picked up the call, the officer did not leave a message. Constable Shantz returned to Ms. Doherty, advised that he did not reach Mr. Campbell and asked if she wanted to call duty counsel. Ms. Doherty declined duty counsel, advising “No, I’ll call Zach later”. Ms. Doherty was turned over to Constable Carleton.
[30] Additional findings of fact of Justice Lainevool which are relevant to this issue are found at page 61 of her decision. They are as follows:
Constable Carleton spoke to Ms. Doherty about her right to contact counsel of choice. He told her that he was advised that Constable Shantz had not been able to get a hold of Zach Campbell and confirmed that additional efforts could be made to facilitate a conversation with counsel of her choice. Ms. Doherty responded to Constable Carleton that she was going to “comply”. Ms. Doherty did not request a further opportunity to speak to counsel.
[31] Justice Lainevool went on to find at pp. 61-62:
Ms. Doherty did not testify during a voir dire on the Charter application or in the course of the trial.
In the result the Court has evidence that 1. Constable Shantz read Ms. Doherty her right to counsel and she understood. 2. when asked if she wanted to contact a lawyer her initial answer was I’m not sure. 3. following the booking procedure at police headquarters when asked if she wanted to call a lawyer, Ms. Doherty replied yes, Zach Campbell. 4. when she was advised that Zach Campbell had not been reached and was offered duty counsel she responded no, I’ll call Zach later. 5. finally when Constable Carleton sought to confirm Ms. Doherty did not want to have a further opportunity to consult counsel she indicated that she was going to comply and did not request a further chance to speak to counsel.
[32] After referring to the Ontario Court of Appeal decision in Regina v. Zoghaib, Justice Lainvol went on to conclude at page 62:
Ms. Doherty gave the name of the lawyer she wanted to speak with and police were unsuccessful in reaching him. When she was given a choice about further options to exercise her right to counsel she declined. Diligence was required of Ms. Doherty in the circumstances where she wanted to exercise her right to counsel. She needed to give voice to her wish to obtain advice.
On the evidence before the Court, I am unable to conclude that Ms. Doherty’s right to counsel was violated
Did the police provide the appellant with a reasonable opportunity to contact and consult with counsel of choice
[33] The issue at trial was whether the police complied with the s. 10(b) implementational duty to provide a detainee with a reasonable opportunity to consult with counsel of choice and their duty to facilitate contact with counsel of choice.
[34] The position of Ms. Doherty at trial was that by failing to leave a message on Mr. Campbell’s answering machine and then failing to wait an appropriate period of time for counsel of choice to call back before proceeding with the breath tests, the police violated Ms. Doherty’s s.10(b) rights.
[35] In my view the failure of the police to leave a message on Mr. Campbell’s answering machine violated Ms. Doherty’s right to contact counsel of choice. It is expected that when the police call counsel of choice and are met with an answering machine or an answering service that they will leave a message indicating the time of their call, the name of the detainee, that the detainee wishes to speak to them, and a call back number. From that point, the police are expected to wait a reasonable period of time for counsel to call back. If a reasonable period of time has elapsed and counsel has not called back, the police should then advise the detainee that no call has come from their lawyer and ask them if they would like to consult with another lawyer or duty counsel. Regina v. Traicheff, 2010 ONCA 851 at paras 2-3, Regina v. Willier, supra. at para. 35.
[36] In this case, by failing to leave a message, Ms. Doherty was deprived of a reasonable opportunity to have her counsel of choice call back. While I appreciate that the phone call to counsel was late at night and outside normal office hours, it cannot be assumed that messages were not monitored and would not be returned. A message should have been left and Ms. Doherty should have been afforded a reasonable opportunity for counsel to call back.
[37] This Charter violation was compounded when the officer failed to advise Ms. Doherty that when he called Mr. Campbell there was an option of leaving a message on an answering machine. Had Ms. Doherty placed the call herself she would have had the choice whether to leave a message or not. Had she left a message, the police would have been obligated to provide her with a reasonable opportunity for counsel to call back. The failure of the officer to advise Ms. Doherty that there was an option of leaving a message on an answering machine deprived her of that choice.
[38] After advising Ms. Doherty that he could not get a hold of her lawyer of choice, Cst. Shantz proceeded to offer Ms. Doherty the sole choice of contacting duty counsel. Cst. Shantz testified that it was “standard procedure” to offer free duty counsel following an unsuccessful attempt to contact counsel. This was a further violation of Ms. Doherty’s right to counsel of choice.
[39] A standard practice of only offering duty counsel when a detainee is unable to contact counsel of their choice would leave a detainee with the erroneous impression that they can only choose one lawyer and if they can’t reach that lawyer their only other option is duty counsel.
[40] The police cannot “default to duty counsel” in the face of a request to consult with counsel of choice. The police also cannot leave the impression that the detainee has no option other than consulting with duty counsel. Regina v. Bukin, 2021 ONSC 3347 at para. 69(c), Regina v. Vernon, 2015 ONSC 3943 at para. 56, leave to appeal refused 2016 ONCA 211.
[41] In Regina v. Traicheff, supra. at para. 2, the Ontario Court of Appeal agreed with the following comments of the trial judge, who found a breach of the accused’s s.10(b) Charter rights:
Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult with another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directly to see if he could find his lawyer’s name and another telephone number where he could be reached.
[42] The Ontario Court of Appeal commented on the trial judge’s comments at para. 2-3 as follows:
We agree with these observations. Indeed, they reflect the Supreme Court of Canada’s decision in R v. Willier [citations omitted] where at para. 41 McLachlin C.J.C. and Charron J. wrote that s.10(b) requires the police to afford detainees not only a reasonable opportunity to contact counsel of their choice but as well to facilitate that contact.
Departing from the practice outlined by the trial judge is not a technicality….
Were the police required to provide a “Prosper” warning.
[43] When Cst. Shantz advised Ms. Doherty that he could not contact her counsel of choice and she thereafter declined his offer to contact duty counsel, he did not provide her with a “Prosper warning” advising her that she had right to a reasonable opportunity to contact counsel and of the police obligation to hold off their questioning (or taking breath samples) until then.
[44] When Ms. Doherty was turned over to Cst. Carleton it appears that he went further than Cst. Shantz in addressing the issue of counsel of choice. The evidence of Cst. Carleton was that he told Ms. Doherty “I wouldn’t be doing my job if I didn’t make sure that her rights were protected and that if at any point she wanted to speak with a lawyer, whether it be duty counsel, that she could inform me and let me know of that”.
[45] I note that Justice Lainevool made the following finding of fact with respect to Cst. Carleton’s evidence:
Constable Carleton spoke to Ms. Doherty about her right to contact counsel of choice. He told her that he was advised that Constable Shantz had not been able to get a hold of Zach Campbell and confirmed that additional efforts could be made to facilitate a conversation with counsel of her choice.
[46] Based on the transcript of Cst. Carleton’s evidence, his testimony did not go quite that far. However, for the purposes of this decision, I will defer to the findings of Justice Lainevool with respect to Cst. Carleton’s evidence. Justice Lainevool would have been in a better position to assess Cst. Carleton’s evidence on this issue having watched a video recording of his interaction with Ms. Doherty. I have not had the benefit of reviewing the video recording.
[47] In this case Ms. Doherty found herself in the very position the Supreme Court of Canada described as requiring a “Prosper warning”. She had been diligent in advising which counsel she wished to speak to, she had been unsuccessful in contacting that lawyer and she subsequently declined further opportunities to consult with counsel. This is the exact scenario referred to in Regina v. Willier at para. 32.
[48] While Cst. Carleton took steps to ensure Ms. Doherty understood that she had the right to consult with counsel at any point during the breath testing procedure, he did not clearly or explicitly tell her that he was required to hold off taking the breath samples until she had a reasonable opportunity to do so.
[49] Given that Ms. Doherty had expressed a desire to speak to counsel, the onus was on the Crown to establish that Ms. Doherty subsequently waived her right to consult with counsel prior to giving breath samples. A “Prosper warning” which advised her not only that she had a right to a reasonable opportunity to consult counsel but that the police had an obligation to hold off on taking breath samples until that happened may have provided evidence of a clear, free and voluntary change of mind made by someone who knew what they were giving up. Unfortunately, that did not occur in this case.
[50] In her reasons for decision Justice Lainevool did not address the fact that the Crown bore the onus of establishing that Ms. Doherty, having asserted her right to counsel, thereafter clearly, freely and voluntarily waived her right to counsel.
[51] Justice Lainevool held that Ms. Doherty had an obligation to give further voice to her wish to retain counsel. In my view this reversed the burden of proof with respect to the issue of waiver. It was incumbent upon the Crown to prove that Ms. Doherty clearly and unequivocally waived her right to counsel. In my view the absence of a full “Prosper warning” in this case meant that the Crown did not discharge its onus.
[52] For the reasons outlined above I conclude that the police violated Ms. Doherty’s s.10(b) Charter rights by not providing her with a reasonable opportunity to consult with counsel of choice, by failing to properly facilitate her request and by failing to provide her with a “Prosper warning” when she was unable to contact her counsel of choice.
E. SECTION 24(2) ANALYSIS
[53] Section 24(2) of the Charter directs that evidence obtained in a manner that infringes a Charter right “shall be excluded if it is established that, having regard to the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”.
[54] In Regina v. Grant, 2009 SCC 32, the Supreme Court set out a three-part test for determining the admissibility of evidence under s.24(2) which requires the court to examine: (i) the seriousness of the Charter-infringing state conduct; (ii) the impact of the breach on the accused’s Charter-protected interests; and (iii) society’s interest in the adjudication on the merits. In conducting this analysis a court must balance all of the circumstances in each individual case. Regina v. Harrison, 2009 SCC 34 at para. 36.
The seriousness of the Charter-infringing state conduct:
[55] This factor requires the court to consider whether admitting the evidence would send the message to the public that the courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of state misconduct. Accordingly, the more severe or deliberate the state conduct, the greater the need for the court to exclude the evidence. Regina v. Grant, supra. at paras. 72-75.
[56] Minor or inadvertent violations of the Charter that fall at the other end of the spectrum will reduce the need for the court to disassociate itself from the police conduct. However, negligence or wilful blindness by the police cannot be characterized as good faith. Regina v. Grant, supra. at paras. 72-75.
[57] The duties of the police to provide a reasonable opportunity to consult with counsel of choice, to facilitate access to counsel of choice and to hold off attempting to elicit evidence from a detainee until that reasonable opportunity has been provided has existed as early as the Supreme Court of Canada’s decision in Regina v. Manninen, [1987] 1 S.C.R. 1233 (SCC) at pp. 1241-1243 and has been consistently repeated thereafter.
[58] The obligation to provide a “Prosper warning” to detained individuals who have expressed a desire to speak to counsel, are not able to speak to counsel and thereafter decline to speak to counsel has existed since the Supreme Court of Canada’s decision in Prosper released in 1994.
[59] These duties are the result of long-standing precent that governs every case where the police wish to use a detained suspect as evidence, whether it be by way of statement or breath sample. Regina v. Fountain, supra. at para. 63.
[60] On the facts as accepted by Justice Lainevool, I find that both Cst. Shantz and Cst. Carleton appeared to genuinely want to assist Ms. Doherty in speaking with counsel. This was not a case where the police were discouraging Ms. Doherty’s contact with counsel.
[61] However, I find the decision to not leave a message on counsel of choice’s answering machine and the decision to not advise Ms. Doherty that there had been an option to leave a message to be highly concerning. At the time this occurred Ms. Doherty was confined to a police holding cell with no access to a telephone. She was completely reliant on the police to access her counsel of choice. Ms. Doherty had the right to choose whether she wanted to leave a message for her lawyer or not. The police deprived her of that right by failing to even tell her that she had this option.
[62] It is also concerning that neither Cst. Shantz or Cst. Carleton appeared aware of their duty to provide a fulsome Prosper warning once Ms. Doherty was unsuccessful in contacting counsel of her choice. The police were required to not only provide the option of calling another lawyer or duty counsel but to also ensure that Ms. Doherty was aware that they had to hold off taking the breath samples until she had a reasonable opportunity to obtain legal advice.
[63] A clear breach of settled rules governing state conduct supports exclusion under section 24(2). Regina v. Thompson, 2020 ONCA 264 at para. 95. At the time of Ms. Doherty’s arrest the requirement to provide a Prosper warning had existed for at least twenty-seven years.
[64] For these reasons I find that the Charter infringing conduct in this case was serious and falls at the high of the spectrum.
The impact of the breach on the accused’s Charter-protected interests
[65] In Regina v. Jennings, 2017 ONCA 260, at paras. 29-32, Justice Watt re-affirmed the line of authorities that have held that breath samples are minimally intrusive and as such their admission under this factor is favoured. Regina v. Manchulenko, 2013 ONCA 543 at paras 111, Regina v. Guenter, 2016 ONCA 572 at para. 98, Regina v. Wilding, supra. at para. 8.
[66] While appreciating that breath samples are minimally intrusive, in this case Ms. Doherty was not only deprived of the opportunity to access counsel of choice but was also deprived of the knowledge that the police had to hold off taking her breath sample until she could speak to counsel. The result was that she had to navigate through her interactions with the police without the benefit of legal guidance.
[67] In my view the breach had a moderate impact on Ms. Doherty’s Charter protected rights.
Society’s interest in the adjudication on the merits.
[68] The third branch of the Grant analysis considers whether society’s interest in the truth-seeking function of the criminal process favours admission. Under the third branch, breath samples have generally been found to be reliable evidence which favours their admission. Regina v. Jennings, supra. at para. 33.
[69] The results of the analysis of the breath samples in this case were central to the Crown’s case with respect to the charge of operating a conveyance with 80 or more milligrams of alcohol per 100 millitres of blood.
[70] Drinking and driving offences have been found to be serious offences given the significant number of deaths and serious injury caused by drunk drivers and terrible toll these take on our communities. As such there is a societal interest in ensuring that a proper determination take place on the merits. Regina v. Bernshaw, [1994] 1 S.C.R. 254 at para. 22.
[71] In my view, this third factor favours admission of the breath samples in this case.
Final balancing
[72] The final step under the section 24(2) analysis involves balancing the factors under the three lines of inquiry to assess the impact of admission or exclusion on the long-term repute of the administration of justice. Such balancing involves a qualitative exercise that is not capable of mathematical precision. Regina v. Thompson, 2020 ONCA 264 at para. 106, Regina v. Harrison, supra. at para. 36.
[73] If the first two inquiries together make a strong case for exclusion, the third inquiry “will seldom if ever tip the balance in favour of admissibility”. Regina v. Le, 2019, SCC 94 at para. 142, Regina v. Thompson, supra. at para. 107.
[74] While the seriousness of the offence and the reliability of the evidence are important, they are less important in cases involving wilful and flagrant Charter breaches. To condone state conduct that is wilful and flagrant undermines the long-term repute of the administration of justice. Regina v. Harrison, supra. at para. 40.
[75] In this case I have found the breaches to be cumulative, serious and a violation of long-standing Charter jurisprudence. I have also found the impact on Ms. Doherty’s Charter protected rights to have been less serious, but still significant.
[76] Despite the reliability of the evidence and its importance to the Crown’s case, I conclude that the administration of justice would be brought into disrepute by its admission. As such, the evidence should have been excluded under section 24(2) of the Charter.
CONCLUSION
[77] For these reasons, I would allow the appeal, exclude the evidence under section 24(2) of the Charter and set aside the conviction. Given the appellant could not be convicted without the evidence obtained as a result of the Charter breaches, I would direct an acquittal.
Justice S.K. Stothart Released: September 29, 2022