COURT FILE NO.: CR-18-3745
DATE: 20221216
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHEY CHANNA
Appellant
Greg Elder, for the Crown/Respondent
Stephen Whitzman, for the Appellant
HEARD: July 22, 2022
REASONS FOR DECISION
DE SA J.:
Overview
[1] The Appellant, Chey Channa, was found guilty of “Over 80” contrary to s. 253(1)(b) of the Criminal Code.
[2] At trial, the defence sought to exclude evidence of the Intoxilyzer test results because of alleged breaches of the Appellant’s right to counsel guaranteed by s. 10(b) of the Charter.
[3] The defence submits that the learned trial judge erred in law in finding that the Appellant’s right to counsel was not infringed, and therefore erred in failing to exclude the evidence of the Appellant’s breath samples obtained thereby.
[4] I disagree. In my view, the trial judge was entitled to make the findings he did in concluding there was no breach of the Appellant’s 10(b) Charter rights. Even if there was a breach, I would not exclude the evidence.
[5] The appeal is dismissed. The reasons for my decision are outlined below.
Summary of Facts
[6] On April 22, 2018, Stefanie Manzoli was hit from behind by the Appellant’s vehicle, causing her to hit the car in front of hers. The Appellant got out of his vehicle and told Ms. Manzoli that he had consumed three beers. He offered money to the couple in the other car for the damage caused, and he told Ms. Manzoli that he could get her car fixed at the Toyota dealership where he worked.
[7] Ms. Manzoli phoned her husband, who arrived at the scene about 10 to 15 minutes after the accident occurred and he called the police.
[8] Const. Robert Rogowski was dispatched to the incident at 2:35 p.m. and arrived at 2:43 p.m. He spoke with Ms. Manzoli and the driver of the other car and they identified the Appellant as the driver of the third vehicle. Ms. Manzoli told Const. Rogowski what the Appellant had said to her.
[9] Const. Rogowski then spoke with the Appellant, asking if he had had anything to drink to which the Appellant said that he had been drinking heavily the night before.
[10] The officer detected a faint smell of an alcoholic beverage on the Appellant’s breath. As a result, he formed the suspicion that the Appellant had alcohol in his body, and at 2:51 p.m. issued an approved screening device (“ASD”) demand.
[11] The Appellant provided a sample of his breath and at 2:55 p.m. registered a fail. At that time, Const. Rogowski then placed the Appellant under arrest for “Over 80”.
[12] After arresting the Appellant, Const. Rogowski handcuffed and searched him for officer safety and at 2:59 p.m. placed him in the officer’s police cruiser.
[13] Const. Rogowski still had equipment and the Appellant’s property on the hood of the car and he returned to his vehicle to collect it. At that point Mr. Channa spoke with PC Paquet about having his niece pick up the dog. He asked “Why can’t we drop the dog right now?”, and PC Paquet replied “No, because you’re under arrest, you’re going to the station.”
[14] At 3:03 p.m., Const. Rogowski returned to the vehicle and advised the Appellant of his right to counsel. The Appellant’s initial response was “I’ll think about it”. Const. Rogowski then asked him if he understood, and he said he did. Const. Rogowski asked him if he would like to call a counsel “Right now”, and the Appellant said “I will”. He provided the name of his counsel.
[15] At 3:06 p.m., Const. Rogowski read an approved instrument demand. Mr. Channa said, “You’re talking about the sample when I get to the station?...Yeah, sure, of course”.
[16] At 3:09 p.m., and while still at the roadside Mr. Channa said, “Please take care of my puppy…No, please please, please…Please I beg you...Please, for my puppy. Please”. Const. Rogowski then used Mr. Channa’s phone to call his niece so that she could come and pick up the dog.
[17] At 3:13 p.m., Const. Rogowski left the scene for the police station with Mr. Channa in the back seat. They arrived at the police station at 3:26 p.m. The Appellant was booked and lodged in a cell. He spoke with his lawyer from 3:47 to 4:00 p.m. At 4:05 p.m., he was turned over to the qualified breath technician (“QBT”).
[18] When asked why he did not provide the Appellant with counsel in the rear of the cruiser, Const. Rogowski testified that he wanted to wait until he got back to the station for officer safety reasons, and in order to give the Appellant more privacy.
[19] Const. Rogowski testified that he could have allowed the Appellant to make a phone call on his own from the cruiser, but the in-car camera would not have permitted him to have privacy. He testified that it was not policy to turn off the audio while they had someone in the back of the cruiser.
[20] The defence tendered the York Regional Police Command Directive (the “Directive”) at trial. The Directive contemplates allowing accused persons to have access to counsel in the rear of the cruiser. According to the Directive, the in-car recording (including audio) is to be turned off while an accused is exercising his right to counsel.
[21] Const. Gilbert Metcalfe, the QBT, arrived at the station at 3:44 p.m. and began the pre-test checks of the Intoxilyzer. The Appellant was turned over to him by Const. Rogowski at 4:05 p.m. At 4:08 p.m., he made a demand for breath samples to the Appellant. He took two samples, at 4:12 and 4:35 p.m., producing readings of .260 and .270 respectively.
Trial Judge’s Reasons
[22] In dismissing the s. 10(b) Charter application, the trial judge concluded that approximately 3 minutes of the overall 8-minute delay was devoted to dealing with the dog. He found that it was in fact the Applicant’s concern about the dog that caused part of the delay in reading the right to counsel, not the police.
[23] Viewing the situation in totality, including other tasks undertaken by police, the trial judge concluded that the police actions in delaying reading the right to counsel did not offend s. 10(b) of the Charter. He explained:
Searching Mr. Channa, seizing his belongings, and packing up the ASD are all steps required in order to clear the scene and get on to the next step in the process without having to be concerned about potential evidence or equipment still unattended. To be sure, failure to deal with these things is not something which poses an obvious or immediate threat to those on scene. But with that said, PC Rogowski was at the side of the road with civilians, and damaged cars being examined and ultimately towed away. In that sense it was a fluid scene. One car was badly damaged. But PC Rogowski’s concern to secure the ASD and Mr. Channa’s property before proceeding to reading Rights to Counsel was logically connected to the investigation and concerns for property damage that no constitutional violation arose out of that delay.
[24] With respect to the implementational component, the trial judge noted that “the duty to facilitate access to a lawyer ... arises immediately upon the detainee’s request to speak to counsel.” The trial judge concluded, however, that the situation at the roadside was “dynamic” and “real” privacy was not compatible with ensuring safe custody of the Appellant. He found:
In this case, I am satisfied that the delay in putting Mr. Channa in touch with Mr. Jourard was reasonable in the circumstances. Mr. Channa was in the back of a police car at the side of the road. It may have been technically possible for Constable Rogowski to turn off the in-car camera, put him in touch with Mr. Jourard, and then turn the camera back on once the call was completed. But the police decision to take him to the station to facilitate contact with counsel was perfectly reasonable.
Again, the situation at the side of the road was dynamic. Civilians were lingering about, police officers were investigating, a family member of Mr. Channa’s was to pick up the dog at the scene. This was not a place to give Mr. Channa real privacy to speak with counsel, and at the same time ensure safe custody over him. There may be well situations when the back of the police car is a place to call a lawyer for legal advice, but this was not one of them. This Charter argument is dismissed.
Analysis
Was there a breach of the Appellant’s Right to Counsel?
[25] Section 10(b) of the Charter guarantees to anyone arrested or detained the right “to retain and instruct counsel without delay and to be informed of that right”.
[26] The right to counsel is meant to help detainees regain their liberty, and guard against the risk of involuntary self-incrimination: R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 (S.C.C.), at para. 17. It is for this reason that the police must inform the detained of his/her rights immediately. As the Supreme Court explained in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41:
A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase “without delay” must be interpreted as “immediately”. If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises. [Emphasis added.]
[27] The arresting officer is also under a constitutional obligation to facilitate the requested access to a lawyer at the first available opportunity. In R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, Abella J. explained at paras. 24-26:
The duty to inform a detained person of his or her right to counsel arises “immediately” upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee’s request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368, at para. 12 (C.A.)). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.
…This includes “allowing [the detainee] upon his request to use the telephone for that purpose if one is available” (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see Brownridge v. The Queen, 1972 CanLII 17 (SCC), [1972] S.C.R. 926, at pp. 952-53). [Emphasis added.]
[28] In this case, the delay of eight minutes between the Appellant’s arrest at 2:55 p.m. and Const. Rogowski advising him of the right to counsel was caused by various intervening events: searching the Appellant, seizing his property, packing up the ASD, and a conversation about the Appellant’s dog.
[29] The Appellant takes the position that other than handcuffing and searching the Appellant, none of these activities had anything to do with officer or public safety and were not justified as a basis for delaying the provision of the rights to counsel.
[30] The Appellant also submits that the immediacy requirement mandated Const. Rogowski to have allowed the Appellant to call his lawyer on his cellphone from the back of the cruiser – and his failure to do so thereby infringed s. 10(b) of the Charter: R. v. Tremblay, 2021 QCCA. The Appellant points out that he had a phone with his lawyer’s contact and privacy could be afforded to him in the police cruiser. The York Regional Police Directive even contemplates allowing accused persons to have access to counsel in the rear of the cruiser.
[31] Clearly, the police are required to inform a detainee of the rights to counsel immediately. However, the reasonableness of any delay must be assessed contextually having regard to all the circumstances. The analysis of the immediacy requirement must be interpreted in a manner that allows for the realities of unforeseen situations arising as investigations unfold. Whether the delay is reasonable is not simply a matter of “counting the minutes”. The particular circumstances must be considered in assessing the reasonableness of any delay.
[32] In this case, the trial judge concluded that the short delay occasioned by the officer securing the Appellant’s property and the ASD from the hood of the cruiser was not unreasonable. I see no error with the trial judge’s conclusions in this regard.
[33] Given the lack of privacy available and safety considerations, the trial judge also concluded that the police were not required to allow the detainee to speak to counsel at the roadside prior to being brought back to the police station.
[34] In my view, it was also open for the trial judge to conclude that even though a phone was available, the circumstances rendered it impractical to facilitate access to counsel at the roadside. See R. v. Ruck, 2013 ONCJ 527, at para. 35.
[35] In any event, even if there was a breach of s. 10(b) in this case, the breach would not warrant exclusion of the evidence under s. 24(2) of the Charter.
[36] The actions of the police do not reflect a wilful or flagrant disregard of the s. 10(b) right. Securing Mr. Channa’s belongings and packing up the ASD were steps required in order to clear the scene. With respect to the delay in access, even if the officer’s assessment of the situation regarding privacy in the rear of the cruiser was mistaken, his actions were directed at facilitating access to counsel in private.
[37] The 8-minute delay in informing the Appellant of the rights to counsel and the decision to delay access until arriving at the station had a minimal impact on the Appellant’s Charter protected interests. The police made no attempts to elicit evidence prior to affording the Appellant access to counsel.
[38] I agree with the Crown that the nature of the breaches would fall closer to the “fleeting and technical” end of the range than the profoundly intrusive one as expressed in Grant: R. v. Grant, 2009 SCC 32, at para. 76.
[39] Finally, society’s interest in an adjudication on the merits clearly favours admission of the evidence. The evidence was reliable, and necessary to the Crown’s case. The charge itself was serious.
[40] The appeal is dismissed.
Justice C.F. de Sa
Released: December 16, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHEY CHANNA
Appellant
REASONS FOR DECISION
Justice C.F. de Sa
Released: December 16, 2022