Court File and Parties

COURT FILE NO.: CR-20-12570-AP DATE: 2023/05/15 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING – and – MILANA LEP’OKHINA Appellant

COUNSEL: C. Lem, for the Crown D. Anber, for the Appellant

HEARD: April 5, 2023

Reasons for Decision

J. Parfett

[1] The Appellant appeals her conviction entered after trial on June 14, 2022. She brings the appeal pursuant to s. 830 of the Criminal Code and requests that the conviction be overturned, a finding made that there was a breach of s. 10(b) of the Charter of Rights and Freedoms and that the matter be remitted to the trial judge for a determination of the remedy pursuant to s. 24(2) of the Charter.

Evidence at trial

[2] On December 3, 2020, the Appellant, Ms. Lep’okhina, was observed by an off-duty police officer to be driving erratically. He called 911 and provided information in relation to the car. A police officer, Cst. Bronstein, went to the address of the vehicle’s owner. While he was there, the car pulled into the driveway and the Appellant got out of the car and went into the house.

[3] Cst. Bronstein knocked on the door and the Appellant opened it. She was advised that the officer was investigating her driving. She told the officer that she had been drinking while she was in the house.

[4] Cst. Bronstein told the Appellant that he was going to administer a roadside screening test, but that they had to wait fifteen minutes given she had been drinking very recently.

[5] On the third attempt, the Appellant provided a suitable sample and registered a failure. Based on that result, Cst. Bronstein arrested Ms. Lep’okhina at 9:09 p.m., handcuffed her and placed her in the cruiser. He then read the right to counsel at 9:12 p.m. He stated in cross-examination that he was aware that he was under an obligation to read the right to counsel ‘essentially immediately’. [3]

[6] After arresting Ms. Lep’okhina, Cst. Bronstein requested a female officer to attend the scene so that she could be searched. At the same time, he advised the station that he needed a breathalyzer technician and a tow truck. [4] As noted earlier, after all these things were done, Cst. Bronstein read the Appellant her rights to counsel at 9:12 p.m.

[7] Once the Appellant was in the cruiser, she was also read the breathalyser demand, caution and secondary cautions. She was transported to the police station, where she had the opportunity to speak to a lawyer. She provided two breathalyser samples and the results were 261mg% and 245mg%. [5]

[8] Cst. Bronstein testified that Ms. Lep’Ohkina was polite and cooperative throughout his dealings with her and that he did not consider her to be a safety risk. [6] Cst. Bronstein agreed that although in his view, Ms. Lep’Ohkina was detained, he did not read her the right to counsel immediately. However, he indicated that he had provided what he described as a ‘soft’ caution, where he simply indicated to Ms. Lep’Ohkina that she did not have to speak to him. [7] In answer to questions posed on cross-examination, he stated he did not know why he did not also read the right to counsel at 9:09 p.m. [8]

[9] At trial, defence counsel argued several Charter motions. All the motions were dismissed, and the Appellant was convicted of driving with more than 80mg/100ml of alcohol in her system.

[10] The only decision that is being appealed here is the trial judge’s ruling that there was no s. 10(b) Charter breach.

Issues

[11] The issue in the present case is whether the trial judge erred in determining there was no s. 10(b) Charter breach.

Positions of the parties

[12] The Appellant argues that the trial judge mis-applied the legal test set out in R. v. Suberu regarding the timing of reading the right to counsel.

[13] Crown counsel states that the caselaw supports the trial judge’s finding that, in the circumstances of this case, there was no breach of s. 10(b) Charter rights.

Analysis

[14] Both parties agree that this matter solely involves a question of law. As a result, the standard of review is correctness. R. v. Shepherd, 2009 SCC 35 at para. 20 and R. v. Dussault, 2022 SCC 16 at para. 26.

[15] In Suberu, the Supreme Court of Canada closed the door on the concept of flexibility in reading the right to counsel. It found,

To allow for a delay between the outset of detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words ‘without delay’ mean ‘immediately’ for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [11]

[16] Unfortunately, this decision did not eliminate the litigation surrounding the issue of timing in relation to the right to counsel.

[17] In the present case, counsel agree that the determination whether the officer’s obligation to read Ms. Lep’okhina her s. 10(b) rights was met turns in part on the timing and in part on whether there were any safety concerns.

[18] Certainly, the caselaw provided by the Crown demonstrates that the time between arrest and reading the right to counsel is flexible depending on the specific circumstances of each case. In order to come to any determination regarding a potential breach of s. 10(b), a contextual analysis is required.

[19] As noted in R. v. Turcotte,

In my respectful view, the holding in Suberu that police have a duty to facilitate s. 10(b) including its informational component "immediately" was intended primarily to overrule [the concept of investigative detention] and to make it clear that providing the right to counsel information could not be suspended until after an investigative interview of the detainee, even a brief one.

As the Supreme Court pointed out, "any interpretation of the phrase 'without delay' must be consistent with a purposive understanding of the Charter provision in which it occurs": Suberu, para. 40. The underlying purpose of the right to counsel it is to ensure that persons "vulnerable to the exercise of state power and in a position of legal jeopardy" have access to legal assistance to "regain their liberty, and guard against the risk of involuntary self-incrimination". Providing the informational component of the right in a timely way is important because it "also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so": Suberu, paras. 38 and 40.

In my view, an important consideration in determining whether a short delay runs afoul of the obligation to effect s. 10(b) "without delay" is whether and to what extent this purpose is engaged on the facts of the case. It is, of course, far more directly and clearly engaged by an investigative interview than by an officer leaving an arrestee in the back seat of the cruiser for a short number of minutes while she attends to other pressing tasks.

The immediacy requirement is also subject to "concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter." In my view, conducting a pat-down search clearly falls within the officer safety limit on the immediacy requirement. Arranging for another officer to attend to deal with the towing issue also relates to the legal duty to conduct the breath tests "as soon as is practicable" because the whole reason for summoning the other officer is that it allows the arresting officer to take the arrestee to the police station for the tests sooner. [12]

[20] I agree with this analysis. In the present case, the three-minute delay was taken up with calling for a female officer to do a search, calling for a tow truck and seating Ms. Lep’okhina in the back seat of the cruiser.

[21] Such activities are entirely consistent with safety protocols. As soon as Ms. Lep’okhina was in the back of the cruiser, the officer read the right to counsel. Although the officer himself did not note any specific safety concerns, in my view, such evidence, while useful, is not required in all cases. The reading s. 10(b) rights immediately after generalized safety concerns are met is sufficient. That was done here.

[22] Consequently, I find that there was no breach of s. 10(b) in the circumstances of this case and the appeal is dismissed.

[23] Even if I had found that there was a breach of s. 10(b), in my view, it would have been very unlikely that the evidence would have been excluded pursuant to s. 24(2) of the Charter.

[24] The three-part analysis set out in R. v. Grant requires the court to determine

1. The seriousness of the Charter-infringing state conduct;
2. The impact of the breach on the Charter-protected interests of the accused; and
3. Society’s interest in the adjudication of the case on its merits. [13]

[25] In the recent case of R. v. McColman, the Supreme Court of Canada revisited the analysis and emphasized that the Grant test requires a thorough contextual analysis of each branch, including the third branch, and a cumulative balancing (not a mathematical equation) at the end after each branch has been carefully evaluated.

[26] In the present case, assuming it had been found that there was a breach of s. 10(b), the seriousness of the breach falls at the lower end of the spectrum. It is a minor breach as the delay amounted to no more than three minutes.

[27] The interest engaged in s. 10(b), particularly the informational component, is to ensure that persons "vulnerable to the exercise of state power and in a position of legal jeopardy" have access to legal assistance to "regain their liberty, and guard against the risk of involuntary self-incrimination". [15] The question to be asked is: did the breach undermine the interests protected by the right infringed? [16] In the present case, no evidence was gathered during the three minutes between the detention and reading the right to counsel. Consequently, this branch also pulls toward including the evidence.

[28] Finally, impaired driving cases are serious, albeit not among the most serious cases, and the evidence the Crown sought to admit is very reliable. In addition, the evidence was critical to the Crown’s case. Without it, an acquittal would be entered.

[29] Balancing all these interests, there is a strong inference to be drawn that the evidence should be admitted. Indeed, to do otherwise would risk trivializing Charter rights and potentially damage the repute of the justice system.

[30] The appeal is dismissed.

Justice J. Parfett Date: May 15, 2023