COURT FILE NO.: CR-21-00000010-00AP

DATE: 2022/11/04

BETWEEN:

HIS MAJESTY THE KING

– and –

Sarah-Jill Perez

Appellant

Andrew MacDonald, for the Respondent

Will Murray, for the Appellant

HEARD: October 6, 2022 (Perth)

ONTARIO SUPERIOR COURT OF JUSTICE

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

CARTER J.

Introduction

[1] The Appellant Sarah Perez was charged with one count of impaired driving and one count of having a blood alcohol concentration exceeding 80 mg of alcohol in 100 mL of blood pursuant to ss. 320.14(1)(a) and (b) of the Criminal Code, R.S.C. 1985, c. C-46. The trial proceeded before Wright J. on August 18, 2021. At the conclusion of the evidence the Crown invited the trial judge to dismiss the impaired driving charge, which he did.

[2] The central issue at trial was whether the Appellant’s s. 10(b) Charter rights had been breached. The defence argued that Ms. Perez had asserted a right to counsel and that although she subsequently changed her mind, the waiver was not valid because the police had not provided her with a “Prosper warning”. A Prosper warning is meant to equip a detainee with the information required to know what they are giving up if they waive their right to counsel. Its absence in this case, the defence said, resulted in a breach of the informational component of the s. 10(b) right.

As a result, the evidence obtained in the subsequent investigation should have been excluded pursuant to s. 24(2) of the Charter.

[3] The trial judge rejected the defence position. Although there is some ambiguity as to whether Wright J. concluded that Ms. Perez invoked her right to counsel or not, there are clear findings that she was not diligent in seeking counsel and that there was no frustration of her effort to contact counsel. Ms. Perez was convicted on the over 80 charge and sentenced to a $2,000 fine and a 12-month driving prohibition.

[4] The Appellant submits that the trial judge erred in his dealing with the assertion of counsel issue in the context of the Prosper warning analysis, although there is no suggestion of error with respect to his findings on diligence and frustration. In addition, the Appellant raises a new argument on appeal – that she demonstrated a lack of understanding about her right to counsel and as a result the officer was required to do something more to clarify. That something more was the functional equivalent of a Prosper warning.

[5] For the reasons that follow, I find that even if the trial judge erred on the issue of assertion of counsel, the result would have been the same. The findings on due diligence and frustration are unchallenged. In the absence of an effort to contact counsel which is frustrated, a traditional Prosper warning is not required. However, I do accept the Appellant’s alternative argument – that special circumstances required that the officer provide Ms. Perez with further information about her rights to counsel.

[6] I find that the Appellant’s s. 10(b) rights were breached, that the evidence obtained in the subsequent investigation should be excluded pursuant to s. 24(2) and that an acquittal be entered.

Facts

[7] Cst. Corey Noonan was on general patrol on November 4, 2020, when he observed a vehicle driven by Ms. Perez turn left. The officer observed a wide turn and subsequent weaving. The vehicle was pulled over shortly after 7 p.m. As a result of the manner of driving and indicia of impairment noted by Cst. Noonan, a breath demand was read, and a sample taken on an

approved screening device, which resulted in a fail. Ms. Perez was then arrested and read her rights to counsel.

[8] During his examination in chief, Cst. Noonan testified that Ms. Perez was initially unsure about whether to call counsel but she did say that she wished to speak to a lawyer once it was explained to her that there was a toll-free number and that she could get free legal advice.

[9] Given their proximity to the police detachment, they arrived two minutes later. Cst. Noonan brought Ms. Perez to the booking area, completed the prisoner logs and provided the breath technician, Cst. Nicholas, with grounds for the arrest. According to Cst. Noonan, Ms. Perez was turned over to Cst. Nicholas after she decided not to speak with duty counsel until after she got the test results, “to see if she was going to be charged with an offence or not.” Ms. Perez had wavered quite a bit, not knowing what she should do, and appeared to be asking for advice. She was told that the police could not make the decision, only she could.

[10] In cross-examination, Cst. Noonan agreed that there would be advantages to speaking to a lawyer before dealing with the breath technician, namely clarification of the process, whether to provide a sample and if there was a requirement to answer the officer’s questions.

[11] Cst. Nicholas did not testify. Instead, a recording and transcript of the interactions between Ms. Perez and Cst. Nicholas were entered as exhibits at the trial The following portions of the transcript are of particular relevance given the issues on this appeal:

Officer Nicholas: You were already read your rights to counsel; correct? Sarah Perez: Yes.

Officer Nicholas: Okay, did you understand that? Sarah Perez: Yes.

Officer Nicholas: Okay, do you wish to speak with a lawyer at this time or no? Sarah Perez: Ah, hey. [Silence].

Officer Nicholas: Okay, we can provide a free lawyer for free advice if you want one, or I think you’ll be released tonight and you can contact one at a later time if you choose to do so.

Sarah Perez: I hope I don’t need one but.

Officer Nicholas: I can’t answer the question for you, that’s all. If you want to speak with a lawyer, I can arrange it for free, or if you want to do that after we’re done here, you know the results, that’s also an option for you.

Sarah Perez: Okay.

Officer Nicholas: Which one? Sarah Perez: After the results.

Officer Nicholas: After the results, okay.

Sarah Perez: Am I making a mistake by not calling a lawyer right now?[^1]

Officer Nicholas: Do you know what? I can't give you any legal advice, that's not the problem, right? No, it's just the way it is, right? I would be criticized if I gave you legal advice. I'm not a lawyer, if you want to speak to a lawyer I can arrange that.

Sarah Perez: I don't know.

Officer Nicholas: Because right now, you are under arrest, you're not formally charged at this point, but you're under arrest.

Sarah Perez: I'm under arrest?

Officer Nicholas: You are under arrest, you can't just get up and walk away at this point. Sarah Perez: well I wouldn't.

Officer Nicholas: Oh I know, I'm just letting you know, right. So you're gonna give a sample of your breath and then 15 minutes later I'm going to put you in a jail cell and then 15 minutes later you're gonna come up and give a second sample. The result will come out through here; and if you're over the legal limit then you will be formally charged.

Officer Nicholas: So what I'm going to do is, I'm going to give you this...

Sarah Perez: So should I be talking to a lawyer now? Officer Nicholas: if you want to, I can get a lawyer. Sarah Perez: I don't know what to do...

Officer Nicholas: I'll give you this, so if you could open this for me. I don't want to touch it, it's just your mouthpiece...

[12] Ms. Perez ultimately provided two samples. The certificate of the qualified breath technician showed readings of .200 and .190 truncated.

The Prosper Warning Issue

[13] As previously noted, the Appellant submits that the trial judge misapprehended the evidence in finding that she had not asserted her right to counsel in the context of an argument that a Prosper warning was required.

[14] Before addressing this issue, it is important to place the Prosper warning in context.

[15] Section 10(b) of the Charter provides that everyone has the right on arrest or detention “to retain and instruct counsel without delay and to be informed of that right”. Stated at its broadest, the purpose of the right to counsel is to provide a detainee with an opportunity to obtain legal advice relevant to their legal situation. This section places corresponding obligations on the state. Police must inform detainees of the right to counsel (the informational duty) and must provide detainees who invoke this right with a reasonable opportunity to exercise it (the implementational duty). Failure to comply with either duty results in a breach of section 10(b) (R. v. Dussault, 2022 SCC 16, 468 D.L.R. (4th) 589 at paras. 30-31).

[16] Detainees who choose to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to not only facilitate a reasonable opportunity for the detainee to contact counsel, but to also refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee’s reasonable diligence in attempting to contact counsel. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. Such a limit on the rights of a detainee is necessary

because without it, it would be possible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or rendered impossible to obtain. (R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 33-34).

[17] The Prosper warning (so called as it arose from the Supreme Court of Canada’s decision in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236) engages both the informational and implementational components of the s. 10(b) right. Informational, in the sense that when certain narrowly defined circumstances arise there is an additional informational obligation upon the police. Implementational, because the additional information relates to implementational obligations; the detainee must be told of the obligation on the part of the police to not take any statements or participate in any potentially incriminating process until they have had a reasonable opportunity to contact a lawyer (Prosper at para. 44; Willier at paras. 31 and 32).

[18] In Prosper, the narrow circumstances necessitating the warning were said to arise when “a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention” (para. 44).

[19] Nevertheless, some courts have given Prosper a wider interpretation. Two such cases were relied on by counsel for the Appellant during submissions at trial. Of the two, counsel placed particular reliance on R. v. Dolbear, 2019 ONCJ 286.

[20] In Dolbear, the accused was properly given information about right to counsel at the roadside and immediately invoked that right. However, at the police station she changed her mind before making any calls to a lawyer. The issue was whether a Prosper warning was required. After a thorough analysis of the case-law and turning to the intent of the Supreme Court in Prospser, Pringle J. held that the warning is not restricted to cases where there the detainee is diligent but unsuccessful in contacting counsel; it is required when a detainee asserts their right to counsel but then changes their mind (paras. 79 to 94).

[21] The trial judge in the present case distinguished Dolbear on the basis that it really turned on the issue of waiver of right to counsel, and not on Prosper.[^2]

[22] In any event, subsequent to the trial and the filing of the factum, counsel for the Appellant became aware of a subsequent decision of Pringle J. in which she noted that this aspect of Dolbear was wrongly decided. In R. v. Dasilva Morim, 2021 ONCJ 504, she noted that she had not been aware of the summary conviction appeal decision in R. v. Surhoff, 2016 ONSC 224. In addition, the Ontario Court of Appeal’s endorsement in R. v. Kamal, 2020 ONCA 213 was released subsequent to Dolbear. Pringle J. concluded that appellate law bound her to find that a Prosper warning is only required after a detainee has asserted the right to counsel and then apparently changed their mind after reasonable efforts to contact counsel have been frustrated (paras. 36 to 41).

[23] While there are valid and compelling criticisms of such a narrow interpretation of Prosper[^3], I am bound to follow to the Ontario Court of Appeal’s decision in Kamal. As a result, even if I had found that the trial judge erred with respect to the issue of the assertion of counsel, the Charter application would inevitably have been dismissed. Wright J. found that Ms. Perez did not attempt to contact counsel and, therefore, was not frustrated in her attempts. These findings are unchallenged on appeal. This ground of appeal is dismissed.

Understanding the Right to Counsel and Special Circumstances

[24] The Appellant further argues that even if a Prosper warning was not required for the traditional reasons, a functional equivalent should have been provided to her given “special circumstances”. The Appellant says this obligation arose because of the manner in which the police informed her of her right to counsel and the obvious confusion she demonstrated in response. The failure to clarify her rights in these special circumstances resulted in a breach of s. 10(b).

[25] It should be noted at the outset that this argument was not raised at trial. The general rule is that appellate courts will not permit an issue to be raised for the first time on appeal. A party who seeks an exception must meet or satisfy three pre-conditions:

i. the evidentiary record must be sufficient to permit the appellate court to fully, effectively and fairly determine the issue raised on appeal;

ii. the failure to raise the issue at trial must not be due to tactical reasons; and

iii. the court must be satisfied that no miscarriage of justice will result from the refusal to raise the new issue on appeal (R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 39 to 43).

[26] I am satisfied that in this case the three preconditions are made out.

[27] The issue is very closely related to the one argued at trial. Both issues engage the same evidentiary record – the testimony of Cst. Noonan and the recordings and transcripts of the interactions between Ms. Perez and Cst. Nicholas. This record is sufficient to permit me to fully, effectively and fairly determine the issue.

[28] I cannot conclude that the failure to raise the issue at trial was a tactical decision. Counsel for the Appellant advanced a primary argument at trial on the basis of Dolbear. It is only after finding out that the relevant aspect of that case had subsequently been rejected that the Appellant advanced this new but related argument.

[29] Finally, there is no prejudice to the Crown. I would note that the Crown did not object to this new ground of appeal being raised and had the opportunity to respond to it as it was thoroughly canvassed in the Appellant’s factum. Furthermore, for reasons that will be set out in greater detail below, I am concerned that a refusal to allow the new issue on appeal could result in a miscarriage of justice.

[30] The informational component of s. 10(b) requires that right to counsel advice be provided in a meaningful and comprehensive manner. Where a language issue or other “special circumstance” indicates that a person may not have understood the right to counsel advice, officers are required to take further steps to ensure that the advice was understood. The officer’s subjective conclusion as to the accused’s understanding at the time is not determinative (R. v. Rusiene, 2020

ONCJ 663 a para. 11; R. v. Vansaceghem, 1987 CanLII 6795 (ON CA), [1987] OJ No 509 (CA)). Objective evidence of some lack of understanding of the right to counsel or other information provided to the detainee by the police at the time of the detention or arrest may require the police to take further steps (see R. v. Nadarajah, 2019 ONCJ 265 at para. 54).

[31] The steps that are required will vary depending on the circumstances of the case, but the police are expected to err on the side of caution and ensure that the person fully understands their rights and is able to exercise those rights in a meaningful way (R. v. Hayatibahar, 2022 ONSC 1281 at para. 159).

[32] A person who does not understand their right to counsel cannot be expected to assert it (R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869 at para. 39).

[33] Cases concerning a lack of understanding of the right to counsel tend to arise in the context of language difficulties. Here, the evidence established that Ms. Perez could speak and understand English. However, the requirement that police take additional steps if there is evidence the detainee does not understand the s. 10(b) right is not restricted to language situations (Rusiene at para. 11). As noted by the Supreme Court of Canada in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 193:

Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence: Hebert. Moreover, in light of the rule that, absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible [emphasis added].

[34] The Court in Bartle did not restrict special circumstances to language difficulties. Language proficiency, along with mental disability, were simply proffered examples of when special circumstances might arise. A lack of understanding of a s. 10(b) caution can arise in other circumstances. What is important is that when there is objective evidence that a person may not

have understood the right to counsel advice, officers are required to take further steps to ensure that advice was understood.

[35] The question in this case is whether such special circumstances were present. For the following reasons, I find that they were.

[36] After being arrested and read the standard caution, Ms. Perez indicated that she wished to speak with counsel. There can be no question that at that point she understood her right to counsel. No further steps were required.

[37] At the station, Ms. Perez was given the opportunity to contact counsel. According to Cst. Noonan, she wavered and was uncertain as to what to do. She appeared to be asking for advice. She was told that the police could not make that decision, only she could. Again, at this point no further steps were required. Ms. Perez’s confusion was not related to an understanding of her right to counsel, but indecision as to whether to exercise it. Cst. Noonan was correct – the police could not give her advice in that regard.

[38] During her interaction with Cst. Nicholas, Ms. Perez was asked if she had been read her rights to counsel and understood them. Ms. Perez responded in the affirmative. If this had been the entirety of the interaction, once again, there would be no basis to conclude that the Appellant did not understand her right to counsel. That is not what happened, however.

[39] When Ms. Perez expressed uncertainty as to whether she wished to call a lawyer at that point, the following exchange occurred [emphasis added]:

Officer Nicholas: Okay, we can provide a free lawyer for free advice if you want one, or I think you’ll be released tonight and you can contact one at a later if you choose to do so.

Sarah Perez: I hope I don’t need one.

Officer Nicholas: I can’t answer the question for you, that’s all. If you want to speak with a lawyer, I can arrange it for free, or if you want to do that after we’re done here, you know the results, that’s also an option for you.

Sarah Perez: Okay.

Officer Nicholas: Which one?

Sarah Perez: After the results.

Officer Nicholas: After the results, okay.

Later in the interaction, the conversation on the issue continued:

Sarah Perez: Am I making a mistake by not calling a lawyer right now?

Officer Nicholas: Do you know what? I can't give you any legal advice, that's not the problem, right? No, it's just the way it is, right? I would be criticized if I gave you legal advice. I'm not a lawyer, if you want to speak to a lawyer I can arrange that.

Sarah Perez: I don't know.

[40] It is the comments of Cst. Nicholas that serve as the “special circumstances” requiring further steps to ensure that the Appellant understood her rights to counsel.

[41] A similar situation arose in the case of R. v. Fountain, 2017 ONCA 596. Mr. Fountain had attempted to contact counsel but was unable to connect. The officer gave him the option of calling a legal aid lawyer immediately or waiting until the morning to speak to his own counsel. He chose the latter. The Court of Appeal held that a Prosper warning was required in the circumstances. Unlike here, all of the criteria for such a warning were met given that Mr. Fountain was diligent in exercising his right to counsel and had been frustrated. Nevertheless, the Court’s concerns about the effect of giving a detainee the choice between calling a lawyer now or later are equally applicable on the facts of this case. Paciocco J.A, wrote:

When Mr. Fountain was offered the binary option of calling a legal aid lawyer now or waiting until the next day to speak to his own lawyer he would have had no reason to suspect that he would be forfeiting the “hold off” protection he had been enjoying, should he chose the latter option. Mr. Fountain was entitled to proceed as though either choice was reasonable.

If a detainee is not advised that they will lose a constitutional protection if they choose an offered option, that offer can operate as a trap. If Det. Dellipizzi was going to treat an option he was offering Mr. Fountain as authority to begin using Mr. Fountain as a source of evidence before he had spoken to a lawyer, Det. Dellipizzi should have told Mr. Fountain this. Yet he did not do so (paras. 36 and 37).

[42] Section 10(b) expressly requires that the detainee be told of his or her right to retain and instruct counsel without delay. While Cst. Noonan complied with this requirement, Cst. Nicholas seriously muddied the waters and undercut any force Cst. Noonan’s directions would have had. As in Fountain, when Ms. Perez was offered the binary option of calling a legal aid lawyer now or waiting until the next day to speak to a lawyer, she would have had no reason to suspect that she would be forfeiting the “hold off” protection available to her. She was entitled to proceed as though either choice was reasonable.

[43] Although there is no direct evidence from Ms. Perez as to her state of mind, from an objective standpoint the comments of Cst. Nicholas would have created confusion about the right to counsel. That confusion is evident in the sequence of events that can be seen on the video of the interactions of the two:

a. Ms. Perez expressed uncertainty about whether she wished to call a lawyer;

b. Cst. Nicholas explained that she could call a free lawyer immediately or call one later after she was released;

c. Ms. Perez responded that she hoped she didn’t need a lawyer, suggesting that she believed a lawyer was only necessary if she was to be charged;

d. Again, Cst. Nicholas told her she had two choices and asked it she wished to call a lawyer;

e. Ms. Perez replied okay;

f. Once again, Cst. Nicholas emphasized that she had two choices by asking her which one she wanted to take;

g. Ms. Perez affirmed that she wanted to speak to a lawyer but took the option of speaking at a later time, as had been offered by Cst. Nicholas; and

h. Despite this, Ms. Perez later wavered and wondered if she was making a mistake by not calling a lawyer right away.

[44] While there is value in the use of a standardized s. 10(b) caution which complies with the informational requirements established in the Supreme Court of Canada jurisprudence, there will be cases where further information is required (R. v. Devries, 2009 ONCA 477 at paras. 37 and 38). This is one such case. Having departed from the standard caution by giving Ms. Perez two unequal options with respect to her right to counsel, Cst. Nicholas was obliged to take steps to clarify. As noted in Fountain, the mischief created is that the Appellant would have had no reason to suspect that she would be forfeiting the “hold off” protection available to her. The solution was to provide a Prosper type warning that emphasized to Ms. Perez that if she wished to speak to a lawyer at that point there would be an obligation on the part of the police during this time not to take any statements or require her to participate in any potentially incriminating process until she has had that reasonable opportunity. She should have further been told that if she waited to speak until the investigation was complete, as suggested by Cst. Nicholas, that the same protections would not apply.

[45] Ms. Perez had expressed a desire to speak to counsel. It is only if she were provided with this further information that she would have been in a position to make an informed choice about the timing of that consultation. As this was not done, I find that there has been a breach of the Appellant’s s. 10(b) rights.

Remedy Pursuant to s. 24(2) of the Charter

[46] The Appellant seeks the exclusion of any evidence gathered subsequent to the Charter breach. In determining whether evidence should be excluded pursuant to s. 24(2), there are three factors to consider:

• The seriousness of the Charter-infringing state conduct;

• The impact of the breach on the Charter-protected interests of the accused; and

• Society’s interest in an adjudication on the merits (R. v. Grant, 2009 SCC 32, [2009] S.C.R. 353, at paras. 71 to 86).

[47] The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter- protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society’s interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case. The third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility (R. v. McGuffie, 2016 ONCA 365, 131 O.R. (3d) 643, at paras. 62 to 63).

[48] In this case the trial judge engaged in very limited analysis of whether s. 24(2) would have required exclusion, had he found a breach. Given the cursory nature of the review and the fact that I have found a Charter breach that was not argued before him, this is not a case where considerable deference is required in considering his conclusion (Fountain at para. 59). As a result, I will conduct the analysis anew.

i. The Seriousness of the State’s Charter Infringing Conduct

[49] The more severe or deliberate the state conduct, the greater the need for the court to exclude the evidence. 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 (Grant at paras. 72 to 75).

[50] Cst. Nicholas’ conduct is the only state conduct at issue in this case. Because Cst. Nicholas did not testify, I do not have the benefit of an explanation as to why he offered the binary choice regarding right to counsel that he did. I cannot find that he acted in bad faith, nor can I conclude that he acted in good faith.

[51] What I can say is that, deliberate or not, the conduct was serious. In 2017, the Court of Appeal in Fountain made clear the problems associated with police officers giving detainees the binary choice between calling a lawyer immediately or later. Offering a binary choice can create

a trap and undermine the right to counsel by removing the hold-off protection without informing detainees of that loss and its implications. If Cst. Nicholas was not aware of these concerns, he should have been.

[52] In addition, it should have been evident from the Appellant’s questions that his comments had created confusion and that special circumstances arose which required taking further steps. The law is well established that an officer must be alive to any questions or comments made by a detainee in the context of a discussion of s. 10(b) rights that may indicate a misunderstanding by the detainee as to the nature of the rights.

[53] The first branch of the inquiry strongly favours exclusion.

ii. The Impact of the Breach on the Charter-protected Interests of the Accused

[54] In R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224, at paras. 29 to 31, the Ontario Court of Appeal emphasized that breath samples are minimally intrusive and as such their admission under this factor is favoured.

[55] There are, however, two important caveats to that principle in the context of this case.

[56] First, a number of cases have held that the ratio in Jennings has less weight if there is a breach of s. 10(b). As noted by Burstein J. in R. v. Manuel, 2018 ONCJ 381, 48 C.R. (7th) 49, at para. 45:

I am not persuaded that the recent decision of the Ontario Court of Appeal in R. v. Jennings has any relevance to the s. 24(2) determination in this case. The Charter violation at issue in Jennings was a (marginal) violation of the defendant’s s. 8 rights. Unlike the interests protected by s. 10(b) of the Charter, appellate courts have held that the s. 8 interests engaged by the breath testing process are “minimal”. The judicial determinations in Jennings of the seriousness of that s. 8 violation and the significance of its impact are of no assistance to me in determining the seriousness and impact of the s. 10(b) violations in Mr. Manuel’s case. The Court of Appeal in R. v. McGuffie said that “[t]he strength of the claim for exclusion under

s. 24(2) equals the sum of the first two inquiries identified in Grant”. It is therefore hard to conceive how the Court’s comments in Jennings about those “first two [Grant] inquiries” in a case involving a s. 8 breach, could somehow influence the

s. 24(2) determination for a case involving a s. 10(b) breach. That math does not add up.

See also R. v. Persaud, 2019 ONSC 6163.[^4]

[57] Second, Ms. Perez was 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 (see R. v. Doherty, 2022 ONSC 5546 at para. 66). The failure of the police to clarify her right to counsel after creating confusion led to not only the breath tests, but also to her answering questions of the officer. Although the breath test results likely would have been obtained by the police in any event, the same cannot be said about the utterances of Ms. Perez, as counsel would almost certainly have cautioned the Appellant about not answering police questions (Persuad at para. 20). Although the Crown ultimately asked that the impaired driving charge be dismissed at the conclusion of the case, the reality is that the threat of Ms. Perez’s own utterances hung over her throughout the proceedings.

[58] In my view the breach had a moderate to strong impact on the Appellant’s Charter-

protected interest.

iii. Society’s Interest in Adjudication on the Merits

[59] As noted above, the third inquiry pulls strongly towards inclusion where the evidence is reliable and critical to the Crown’s case.

[60] Under the third branch, breath samples have generally been found to be reliable evidence which favours their admission (Jennings at para. 33). The results of the analysis of the breath samples in this case were central to the Crown’s case with respect to the over 80 charge. The charges are serious. There is a strong societal interest in adjudication on the merits.

[61] The third branch favours inclusion of the evidence.

iv. Final Balancing

[62] The first two inquiries make a strong case for exclusion. As noted in McGuffie the third inquiry will seldom, if ever, tip the balance in favour of admissibility in such circumstances.

[63] As noted by the Court of Appeal in Fountain, s. 10(b) of the Charter exists, in part, to ensure detainees have reasonable access to legal advice in order to rectify the disadvantage they have in preserving the right to silence, and so that they can learn about their legal rights relating to their detention. Condoning the actions of the police in this case in undermining that right would do more harm to the long-term repute of the administration of justice than the exclusion of the evidence flowing from the breach.

Conclusion

[64] For these reasons set out above, 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 direct an acquittal be entered.

Carter J.

Released: November 4, 2022

Released: November 4, 2022

COURT FILE NO.: CR-21-00000010-00AP

DATE: 2022/11/04

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

Sarah-Jill Perez

Appellant

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

Carter J.

[^1]: In the transcript, Ms. Perez is noted as saying “Am I making you wait by not calling a lawyer right now?” I have reviewed the video at the request of counsel and I am satisfied that she actually said, “Am I making a mistake by not calling a lawyer right now?” [^2]: It should be noted that the trial judge was incorrect in this regard. Lack of informed waiver was an alternative basis for finding a s. 10(b) breach in Dolbear (paras. 95 to 100) [^3]: See Steven Penney, “Should Prosper Warnings Be Given to Non-diligent Detainees who Waive the Right to Counsel?” (2017) 39 C.R. (7th) 33. [^4]: It should be noted that there is conflicting caselaw on the applicability of the comments in Jennings to varying types of Charter breaches. For a detailed discussion see R. v. Moniz, 2018 ONCJ 593 and R. v. Ramnath, 2018 ONCJ 853.