Court File and Parties

COURT FILE NO.: CR-22-5480-AP DATE: 20231025 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Appellant – and – Jared Hillier Respondent

Counsel: J. Wright, Counsel for the Crown B. Sherwood, Counsel for the Respondent

HEARD: June 22, 2023, by Zoom

On appeal from the acquittal entered by Justice G. M. Hornblower in the Ontario Court of Justice at Windsor, Ontario, on April 7, 2022.

Reasons on Summary Conviction Appeal

CARROCCIA J.

Nature of the Proceedings

[1] The Crown appeals against the acquittal of the respondent on a charge of having, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to, or exceeds 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 320.14(1)(b) of the Criminal Code which was entered after Hornblower J. found that there was a breach of the respondent’s rights pursuant to s. 10(b) of the Charter of Rights and Freedoms, and he subsequently excluded from admission at trial evidence of the breathalyzer readings.

The Evidence at Trial

[2] This trial was heard by Zoom on February 1, 2022. At trial, the respondent brought an application, pursuant to s. 24(2) of the Charter, to exclude evidence of breathalyzer readings on the basis that the evidence was obtained following a violation of his right to counsel pursuant to s. 10(b) of the Charter. The voir dire held on this issue was blended with the trial and Justice Hornblower heard evidence from two police officers in addition to the respondent, who testified on the voir dire only. Once the testimony was concluded, the court heard oral submissions that were supplemented by written submissions filed by counsel.

[3] The circumstances surrounding the stop and arrest of the respondent were not significantly contested. The court first heard evidence from Constable Bozidar Cavrag (“PC Cavrag”) of the Ontario Provincial Police. He testified that on October 25, 2020, he was on general patrol in the Town of Essex at about 1:00 a.m. when he observed a Volkswagen Golf vehicle being operated by the respondent directly in front of him.

[4] PC Cavrag was not sure whether the vehicle made a full stop at a stop sign before making a right turn. As a result, he followed behind the vehicle. It appeared to be speeding; he paced it at 76 kilometres per hour in a 50 kilometre per hour zone. The driver then made a left turn onto Arthur Avenue without first coming to a complete stop at a stop sign. As a result, he initiated a traffic stop.

[5] The respondent was the lone occupant of the motor vehicle. PC Cavrag requested his driver’s licence, ownership and insurance information, and recognized him from an encounter earlier in the evening. He observed a case of beer in the back seat of the vehicle.

[6] PC Cavrag observed the respondent to have glossy eyes and slurred speech and, as a result, he formed a suspicion that he may have alcohol in his blood, so he read him the Approved Screening Device (“ASD”) demand at 1:06 a.m. The officer had an ASD with him and administered it to the respondent and the result registered a “fail”.

[7] Thereafter, PC Cavrag formed the opinion that the respondent had “over 80 milligrams of alcohol in his blood” and he was placed under arrest for that offence and for impaired operation of a conveyance. PC Cavrag read to the respondent his right to counsel, which included the 1‑800 number that would put him in touch with duty counsel. The respondent was asked if he understood the rights read to him, and he responded by saying “Yes”. He was then asked: “Do you wish to call a lawyer now?” to which he responded, “No” and that he would speak to one when he got back to the detachment. The officer then read the respondent the breath demand.

[8] The respondent was transported to the OPP Detachment and, after being lodged, a phone call was made by PC Cavrag on behalf of the respondent to duty counsel at 2:20 a.m. Two minutes later, duty counsel returned the call and spoke to the respondent. According to the evidence of PC Cavrag, the respondent did not ask to speak to a specific lawyer or to anyone else. Furthermore, the officer inquired of the respondent whether he was “satisfied with the counsel” and he responded by saying that he was. It was suggested in cross‑examination that Mr. Hillier responded to that question by saying: “I’m satisfied, I guess”, but the officer testified that he did not recall the respondent saying “I guess”. He remembered, and noted in his notebook, that Mr. Hillier said he was satisfied. PC Cavrag testified that if the respondent had asked to speak to a specific lawyer, he would have contacted that lawyer for him.

[9] Three breath tests were taken by a certified breathalyzer technician, Constable Michael Gray (“PC Gray”), which resulted in readings of 180 mgs/100 ml of blood, 167 mgs/ml of blood, and 179 mgs/ml of blood.

[10] Immediately before the breath tests were administered, PC Gray also provided the respondent with his right to counsel. Mr. Hillier indicated that he understood. PC Gray then asked Mr. Hillier if he had spoken to duty counsel and he answered that he had. PC Gray asked the respondent if he was satisfied with the “conversation” but did not ask him if he was satisfied with the counsel he spoke to. In response, as is captured on video, which was introduced at the trial, the respondent shrugged his shoulders, and nodded slightly but did not give a verbal response. When this response was given, PC Gray was making notes in his notebook and was not looking at Mr. Hillier, and did not ask him any other questions.

[11] While PC Cavrag was in the breathalyzer room when this discussion took place, he testified that he was not focusing on the conversation between PC Gray and the respondent and accordingly was not able to give evidence on what was said by them.

[12] Mr. Hillier testified on the Charter voir dire. He testified that he was provided with his right to counsel. As he understood it, he had the right to a lawyer and that if he knew the name of a lawyer, he could call that person, or he would be “appointed one”. He testified that he did not know the name of a lawyer and was not aware, nor was he told that he could contact a third party to obtain the name of a lawyer to call.

[13] The respondent acknowledged speaking to duty counsel and acknowledged being asked if he was satisfied with the advice he received. When asked how he responded to that question, he testified that “I assumed that that was the satisfactory I was gonna get out of it…I said I was satisfied”. [1] He went on to say that if he had known there were other options, “[he] would’ve been more [sic]”. He acknowledged that when asked whether he was satisfied with his conversation with duty counsel by PC Gray, he shrugged or nodded in agreement that he was satisfied.

[14] In cross-examination, Mr. Hillier agreed that at no time did he indicate to the police that he was dissatisfied with the legal advice he had been given. He acknowledged that he was provided with his rights to counsel by both of the officers, and that on both occasions he was advised that he had the right to call a lawyer of his choosing. He testified that he did not request a particular lawyer because he did not have the name of a lawyer, nor did he tell either of the officers that he did not know any lawyers.

[15] The respondent testified that he told PC Cavrag that he would speak to duty counsel at the detachment. Further, he agreed that he was in fact satisfied with the legal advice he received from duty counsel and told the police officers that he was. He agreed that when asked by PC Gray if he was satisfied with his conversation with duty counsel he shrugged and nodded to indicate that he was satisfied.

The Ruling of the Trial Judge

[16] Initially, the respondent alleged that there were violations of his rights, pursuant to s. 8, 9, and 10(b) of the Charter, and accordingly sought to exclude the evidence of the breathalyzer readings allegedly obtained in violation of those rights, although it appears that in oral submissions, counsel for the respondent only argued a violation of s. 10(b).

[17] In relation to the alleged Charter violations under s. 10(b), the learned trial judge found that a six-minute delay in advising Mr. Hillier of his right to counsel at the roadside was adequately explained by the testimony and accordingly, it did not constitute a violation of the respondent’s s. 10(b) rights.

[18] However, Hornblower J. found that the respondent’s rights, pursuant to s. 10(b) of the Charter had been violated when PC Gray, the breathalyzer technician, failed to follow up on the initial question he asked Mr. Hillier about whether he was satisfied with the legal advice he received from duty counsel and the response given. The question asked by PC Gray was, “Are you satisfied with that conversation?”

[19] Mr. Hillier responded to that question by shrugging his shoulders and nodding slightly and did not respond verbally or answer to the contrary. The trial judge found that this was an equivocal response that warranted further inquiry on the part of the police officer. The failure of PC Gray to make those further inquiries amounted to a failure to ensure that the respondent had satisfactorily exercised his right to counsel.

[20] Justice Hornblower referred to the decision of Regina v. Sheriff, [2021] O.J. No. 3993, in support of his decision although he acknowledged that the decision in Sheriff dealt with different factual circumstances. In that case, the issue was the effect of an equivocal answer by a detainee to a question posed by the police about whether he wished to consult counsel. The trial judge found that the failure to make further inquiries in those circumstances violated s. 10(b).

[21] After reviewing Sheriff, Hornblower J. stated the following:

I also agree the police are under no obligation to ask regarding the degree of satisfaction with the advice received from counsel. That question, however, was asked. There must have been a reason to ask, otherwise why pose the question? The reason I would suggest is to ensure not only that the right to counsel is understood, an aspect of the informational component, but also that it was properly implemented. [2]

[22] Accordingly, Hornblower J. found that once the question is asked, the police are obligated to consider the answer. The court found that the equivocal answer given by Mr. Hillier raised a concern that the implementation of the respondent’s right to counsel had not been properly fulfilled.

[23] He found that through the “shrug” Mr. Hillier expressed “uncertainty with respect to the advice that he received”. [3] He also found that the respondent was diligent in expressing his position through that non-verbal response, even though he did not express any uncertainty verbally.

[24] The learned trial judge then undertook an analysis pursuant to s. 24(2) of the Charter to determine whether admission of the evidence at trial would bring the administration of justice into disrepute.

[25] Applying the three-prong test outlined by the Supreme Court of Canada in Regina v. Grant, 2009 SCC 32, the trial judge found, in relation to the first part of the test, that the violation was serious because in the circumstances, having asked the respondent whether he was satisfied with the legal advice he received, the officer assumed the most favourable answer, and was not paying attention to Mr. Hillier and the equivocal response given to the question.

[26] While Hornblower J. once again recognized that the officer was not obliged to ask the question, he found that once he had undertaken to do so, he was indifferent to the answer given.

[27] On the second prong of the test, in relation to the impact of the breach on the Charter-protected interests of the respondent, Hornblower J. found that:

While Mr. Hillier did have an opportunity to consult counsel, by ignoring the equivocal answer, we have no way of knowing the extent to which the right to counsel was properly implemented and indeed understood.

In light of the ambiguity arising from the equivocal answer, I cannot be satisfied the right was fully and properly implemented. That has a significant legal impact on the right to counsel. [4]

[28] As it relates to the third prong of the test, the trial judge found that the evidence was obtained in a minimally intrusive manner, was highly reliable, and important to the Crown’s case. He found that society’s interest in an adjudication of the case on its merits strongly favoured admitting the evidence at trial.

[29] However, on balancing the factors to be considered pursuant to s. 24(2) of the Charter, the evidence of the breathalyzer results was excluded from admission at trial. As a result of the exclusion of the evidence, the respondent was found not guilty of the charge.

The Grounds for Appeal

[30] The appellant Crown submits that the learned trial judge erred in law, or on a mixed question of fact and law in relation to his finding that there was a violation of s. 10(b) of the Charter, and that the evidence of the breathalyzer readings should be excluded pursuant to s. 24(2).

[31] More particularly, the appellant takes the position that the learned trial judge erred in finding that the respondent was reasonably diligent in communicating to the police that he was dissatisfied with the legal advice he received when he gave what has been described as an “equivocal” response to the question asked by PC Gray.

[32] The Crown argues that having found that the response given to PC Gray was open to more than one interpretation, it was an error for the trial judge to find that the respondent had been “diligent” in conveying to the police that he was dissatisfied with the legal advice he received. Further, this finding is contrary to the evidence since the respondent himself testified that he intended to indicate that he was satisfied with the advice that he received.

[33] Accordingly, the appellant argues that absent a reasonable and diligent indication by a detainee that he is not satisfied with the legal advice he received, or did not understand the advice he received, the police are entitled to assume that he is satisfied and does understand. In those circumstances there is no further obligation on the police to make inquiries and the learned trial judge erred in finding that there was.

[34] As it relates to the exclusion of the evidence pursuant to s. 24(2) of the Charter, the appellant submits that while it was open to the trial judge to make a finding that the breach was serious, on the second prong of the Grant test, the appellant submits that the learned trial judge failed to consider the respondent’s evidence that he was satisfied with the conversation with duty counsel which is critical evidence of the impact of any violation on the Charter-protected interests of the accused.

[35] The appellant submits that according to the evidence at trial, the impact of the breach found by the trial judge was “fleeting and technical at its highest”. The fact that PC Gray was not looking at the respondent after asking him if he was satisfied with the advice he received had no impact, since according to the evidence of the respondent, he intended to convey to the police that he was satisfied with the legal advice he received.

[36] The appellant submits that the evidence should not have been excluded pursuant to s. 24(2) of the Charter, and the trial judge erred in doing so and seeks an order allowing the appeal; that a verdict of guilty be entered; and, the respondent be sentenced according to law.

The Position of the Respondent

[37] The respondent submits that this appeal engages a mixed question of fact and law and accordingly, the onus is on the appellant to demonstrate that the learned trial judge committed a palpable and overriding error in applying the applicable legal principles to the facts as he found them.

[38] The respondent submits that the factual finding made by the learned trial judge, that the respondent provided an “equivocal” non-verbal response, namely a shrug and a nod when asked by PC Gray whether he was satisfied with his conversation with duty counsel, was one that was available on the evidence at trial.

[39] The respondent agrees that a detainee must be reasonably diligent in expressing that he is not satisfied with the legal advice he has received, and submits that in the circumstances of this case, the learned trial judge considered all of the evidence in determining that the respondent had been diligent in making his confusion known to the police.

[40] The respondent submits therefore, that the learned trial judge correctly applied the law to the facts as he found them and did not commit any error when he concluded that the respondent’s right to counsel pursuant to s. 10(b) had been violated.

[41] The respondent submits that the learned trial judge was correct when he found that PC Gray was obligated to listen to the response to his question and respond in a meaningful way by making further inquiries, and that requiring him to do so did not put an onerous burden on the police since the issue could have been addressed by asking a simple follow-up question.

[42] It is suggested that the lack of attention displayed by PC Gray reflects an indifference to the response which does not comply with the obligation on the police in relation to the implementational component of the right to counsel.

[43] The respondent submits further that the learned trial judge made no error in excluding the evidence of the breathalyzer readings in this case after properly applying the three-prong test outlined in Grant.

[44] The respondent argues that the Charter-infringing police misconduct in this case was part of the same chain of events that resulted in the seizure of his breath samples and that there was a temporal and contextual connection between the Charter-infringing conduct of the police and the seizure of evidence making it a serious breach.

[45] As for the second prong of the test, the respondent submits that the learned trial judge correctly stated that the breach had a significant impact on his Charter-protected interests and did not err in so finding.

[46] Accordingly, the respondent asks this court to dismiss the appeal. If, on the other hand, the court determines that the appeal should be granted, the respondent submits that the appropriate remedy is to remit the matter to the Ontario Court of Justice for a new trial.

Analysis

The Standard of Review

[47] The Crown brings this summary conviction appeal pursuant to s. 813 of the Criminal Code. By operation of s. 822 of the Code, s.686(4) applies to summary conviction appeals which means that this court may either dismiss the appeal; or allow the appeal, set aside the verdict and order a new trial; or enter a verdict of guilty and pass sentence, or remit the matter to the trial court for sentencing.

[48] The standard of review on appeal depends upon the nature of the appeal. An appeal based on an alleged error on an issue of fact is subject to a narrower scope of review. Factual findings made by a trial judge are entitled to deference and should only be reversed in cases of “palpable and overriding error”.

[49] In Regina v. Labadie, 2011 ONCA 227, at para. 50, Watt J. states that:

The unqualified language that appears in s. 813(b)(i) compels the conclusion that an appeal by the Attorney General from dismissal of an information in summary conviction proceedings may be based on grounds of fact, mixed fact and law, or law alone. The authorities confirm that the Attorney General has a right of appeal under s. 813 (b)(i) on grounds involving questions of fact alone….

[50] The application of a legal standard to the facts of a case is a question of law: see Regina v. Shepherd, 2009 SCC 35, at para. 20. Although a trial judge’s factual findings are entitled to deference, a ruling on the application of the law to the facts as found, is subject to review on a standard of correctness. The Court says:

…In our view, the summary conviction appeal judge erred in failing to distinguish between the trial judge’s findings of fact and his ultimate ruling that those facts were insufficient, at law, to constitute reasonable and probable grounds. Although the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review for correctness.

[51] More recently, the Supreme Court of Canada dealt with a similar situation to the issue in this case in Rex v. Dussault, 2022 SCC 16. In that case, the issue was stated as follows at para. 26:

The only issue in this appeal is whether the factual findings of the trial judge support the legal conclusion that the police provided Mr. Dussault with a reasonable opportunity to consult counsel. This calls for an assessment of whether a legal standard was met and therefore amounts to a question of law that is reviewed for correctness: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20.

[52] Based on these authorities, I conclude that the question of whether or not there has been a Charter violation and the admissibility of evidence pursuant to s. 24(2) of the Charter is a question of law subject to review on a standard of correctness, the factual findings of the trial judge however, are entitled to deference and can only be set aside on appeal if the appellant establishes that they were “clearly wrong” which is often described as the trial judge having committed a palpable and overriding error.

[53] In H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, [2005] S.C.J. No. 24 (QL), Fish J. speaking for a majority of the Supreme Court says the following, at paras. 55, 74 and 75:

“Palpable and overriding error” is at once an elegant and expressive description of the entrenched and generally applicable standard of appellate review of the findings of fact at trial. But it should not be thought to displace alternative formulations of the governing standard. In Housen v. Nikolaisen, 2002 SCC 33, for example, the majority (at para. 22) and the minority (at para. 103) agreed that inferences of fact at trial may be set aside on appeal if they are “clearly wrong”. Both expressions encapsulate the same principle: an appellate court will not interfere with the trial judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.

I would explain the matter this way. Not infrequently, different inferences may reasonably be drawn from facts found by the trial judge to have been directly proven. Appellate scrutiny determines whether inferences drawn by the judge are “reasonably supported by the evidence”. If they are, the reviewing court cannot reweigh the evidence by substituting, for the reasonable inference preferred by the trial judge, an equally – or even more – persuasive inference of its own. This fundamental rule is, once again, entirely consistent with both the majority and the minority reasons in Housen.

In short, appellate courts not only may – but must – set aside all palpable and overriding errors of fact shown to have been made at trial. This applies no less to inferences than to findings of “primary” facts, or facts proved by direct evidence.

[54] In Regina v. Salerno, [2000] O.J. No. 3511, at para. 7, Durno J. sets out the scope of the authority of a summary conviction appeal court in the following terms:

Before examining those areas, the function and scope of a judge sitting on summary conviction appeals must be kept in mind. I am not permitted to re-try the case and substitute my view of the evidence for that of the trial judge. I can examine the transcript and determine if there was evidence upon which the trial findings could reasonably have been made. I cannot substitute my own findings of fact when there was a basis for those reached by the trial judge.

The trial judge has the advantage of seeing and hearing the witnesses. If there was an evidentiary basis upon which the findings could reasonably have been made, I cannot interfere. R. v. Colbeck (1978), 42 C.C.C. (3d) 117 (Ont. C.A.).

[55] With these principles in mind, I now turn to the issues to be determined in this appeal.

Issue #1: Did the learned trial judge err in law or on a mixed question of fact and law by finding that there was a violation of s. 10(b) of the Charter?

[56] The law is clear that s. 10(b) of the Charter imposes an informational duty on the police along with an implementational duty. In Regina v. Willier, 2010 SCC 37, at para. 31, the Court states:

The informational duty imposed on the police is relatively straightforward. However, should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding: R. v. Evans, [1991] 1 S.C.R. 869. Additionally, there are specific, narrowly defined circumstances in which s. 10(b) prescribes an additional informational obligation upon the police. [Emphasis added.]

[57] In Regina v. Culotta, 2018 ONCA 665, at para. 38, the court says:

It should be remembered that the police do not have a duty to positively ensure that a detainee understands what the rights under s. 10(b) entail. Officers are only required to communicate those rights to the detainee. As the Supreme Court has repeatedly held, “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”: R. v. Bartle, [1994] 3 S.C.R. 173, [1994] S.C.J. No. 74, at p. 193 S.C.R. See, also, R. v. Baig, [1987] 2 S.C.R. 537, [1987] S.C.J. No. 77, at p. 540 S.C.R.; Evans, at p. 891 S.C.R.; R. v. Feeney, [1997] 2 S.C.R. 13, [1997] S.C.J. No. 49, at paras. 108‑109, per L’Heureux-Dubé J. (dissenting); and Willier, at para. 31. [Emphasis added.]

[58] The respondent relies on the decision in Regina v. Badgerow, 2008 ONCA 605, in support of his position. However, the facts of Badgerow differ significantly from the circumstances of this case. In Badgerow, the accused was under arrest for first degree murder and upon arrest requested to speak to a specific lawyer. He was unable to reach his lawyer of choice and spoke to the lawyer’s partner. When asked by the police if he was happy with his discussion with counsel, Mr. Badgerow said yes and that he had asked the other lawyer to continue to try to contact his lawyer of choice. He then asked if he could make another phone call and the police officer would not let him make another call.

[59] In those circumstances, the Court of Appeal held that “at a minimum, the appellant’s comment raised an issue concerning whether the appellant was still seeking assistance from Mr. Jones and required Staff Sergeant Hrab to clarify that issue”. [5]

[60] The court reiterated the well-established principle that when an accused asks to speak to a particular lawyer, the police are obliged to give the accused a reasonable opportunity to speak to counsel of choice and to hold off questioning so long as the accused is reasonably diligent in exercising the right (at para. 44). The court goes on to say that the police “cannot be expected to be mind readers” but are not entitled to ignore statements by an accused that raise a reasonable prospect that the accused has not exercised his s. 10(b) rights and must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights (at para. 46). Badgerow was a case dealing with right to counsel of choice, not whether the detainee understood his rights.

[61] In this case, the learned trial judge made a finding of fact that the non-verbal response by Mr. Hillier to the question asked by PC Gray, “Are you satisfied with that conversation?” was equivocal. It was open to the trial judge to make this finding, and ultimately, the appellant does not allege that this finding constitutes an error of fact or a palpable and overriding error. That finding is entitled to deference. I accept that this was a finding of fact that was available on the evidence, although the preponderance of the evidence seems to suggest that by that gesture, the respondent intended to convey that he was satisfied with the advice received. Indeed, the respondent said so in his testimony.

[62] Having so found, Hornblower J. goes on to say:

As such, that that [sic] equivocal answer impose upon the police an obligation to inquire further regarding the exercise of the right to counsel. [6]

[63] And he goes on to say:

Once asked the police are obligated to consider the answer as it relates to those aspects of the right to counsel, the informational component and the implementation component. At a minimum, the equivocal answer raises a concern that the implementation of the right to counsel has not been properly fulfilled. In the same manner as in Sheriff “maybe Duty Counsel” raises a concern with whether the informational component with the right to counsel has been understood, the equivocal answer here raises a concern whether the right to counsel has been properly implemented. [7]

[64] The learned trial judge found that once the question was asked, the police were obliged to make further inquiries given the non-verbal response received. The conclusion by the police that the respondent was satisfied with the advice received was found not to be reasonable in the circumstances and the failure to make further inquiry resulted in a violation of s. 10(b).

[65] In Regina v. Lafrance 2022 SCC 32, the Supreme Court clearly states the obligation on police officers as follows at para. 72:

Properly understood and applied, Sinclair gives effect to s. 10(b) and achieves its purpose. It identifies within s. 10(b) an informational component (requiring police to advise detainees of their right to counsel), and an implementational component (requiring police to allow detainees to exercise their right to consult counsel), which implicitly includes “a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel” (para. 27). And, as just noted, Sinclair also recognized that the implementational component of s. 10(b) imposes upon police a further obligation: to provide a detainee with a reasonable opportunity to consult counsel again if a change in circumstances or a new development makes this necessary to fulfill s. 10(b)’s purpose (para. 53).

[66] A third category of “change in circumstances” requiring the police to permit an accused a further opportunity to consult with counsel was identified by the Court. This involves situations where it is clear that the detainee may not have understood the initial s. 10(b) rights (see Lafrance, at para. 73).

[67] As to how to identify those circumstances that indicate that a detainee may not have understood his s. 10(b) rights, the Court, at para. 75, states that this requires an inquiry into the totality of the circumstances, not just an examination of whether the detainee consulted counsel. The court should consider the entirety of the evidence, including evidence of “vulnerabilities” involving the detainee such as youth, race, language comprehension or cognitive capacity that will render the initial legal advice inadequate.

[68] In Regina v. Sinclair, 2010 SCC 35, at para. 55, the Court says:

The change of circumstances, the cases suggest, must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so. [Emphasis added.]

[69] In Lafrance, the Court states, at para. 86, that “general confusion or a ‘need for help’ is not a ground for further consultation with counsel.” However, where there is reason to question a detainee’s understanding of his s. 10(b) rights, this may constitute a changed circumstance. In Lafrance, it was clear that the detainee wanted to speak to his father because he believed that was his only chance to get a lawyer to sit with him during the interview. The officer indicated that was “bad advice” (that he could have a lawyer present with him during the interview) but did not permit Mr. Lafrance a further consultation with counsel. In those circumstances, the Court held that:

His confusion was an “objective indicator that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so” (Sinclair at para. 55). And this is because the information to which he had a right under s. 10(b) had not been conveyed, either at all or in a manner he understood (para. 52).

[70] The Court in those circumstances found that the police faced with a detainee who was “obviously ignorant as to his rights” [8] chose to press ahead with an interview without allowing the individual to clarify his rights and that resulted in a violation of s. 10(b).

[71] In my view, in these circumstances, the learned trial judge erred in his application of the law when he concluded that the “equivocal” response of the respondent imposed upon the police a duty to make further inquiries or offer a second opportunity to consult with counsel. The law is clear that there must be an “objectively observable indicator” by a detainee of a failure to understand his rights that triggers additional implementational duties on the police. On the totality of the circumstances, how would the respondent’s behaviour in this case reasonably be perceived?

[72] The question should not have revolved around the equivocal nature of the response given by the respondent, but rather whether the respondent provided an “objectively observable indicator” that his rights to counsel had not been implemented because either the information had not been conveyed to him or he did not understand it.

[73] An equivocal response, by its nature is subject to interpretation and does not amount to an objectively observable indicator by the respondent of a failure to understand his rights. There was no evidence before the trial judge that the respondent was trying to convey that he did not understand his right to counsel or the advice received, or that he wished to have a further opportunity to consult counsel, not even in the testimony of the respondent himself.

[74] The finding by the trial judge that the respondent was reasonable and diligent in asserting his dissatisfaction with the advice received by shrugging and nodding in response to the question asked by the police, is a finding of fact that is entitled to deference. However, that finding of fact fails to take into account the unchallenged evidence of the respondent himself that he was intending to convey that he was satisfied with the advice he received from duty counsel with this gesture, and was not trying to convey dissatisfaction. In my view, the finding of the trial judge on this issue is not reasonably supported by the evidence and is clearly wrong.

[75] Accordingly, I find that the trial judge erred in both fact and in the application of the law as it relates to his finding that there was a violation of the respondent’s rights pursuant to s. 10(b) in these circumstances.

Issue #2: Did the learned trial judge err in law or in a mixed question of fact and law in determining that the evidence should be excluded pursuant to s. 24(2) of the Charter?

[76] The second issue raised by the Crown was whether the learned trial judge erred in excluding the evidence of the breathalyzer readings pursuant to s. 24(2). The focus of this argument was on the application of the second prong of the Grant analysis. The Crown does not take any issue with the finding that the breach was serious as this finding was open to the trial judge to make.

[77] An analysis pursuant to s. 24(2) is an exercise in judicial discretion by the trial judge that attracts deference as to the supporting findings of fact, but the application of the law to the facts is a question of law and an appellate court owes no deference where it disagrees with the trial judge’s conclusions on the Charter breaches. [9]

[78] The Crown submits that the trial judge’s analysis on the second prong of the three-prong test was incomplete and incorrect. It is submitted that when Hornblower J. found that “we have no way of knowing the extent to which the right to counsel was properly implemented and indeed understood” [10] because PC Gray ignored the equivocal answer given by the respondent, he disregarded the onus on the respondent at trial to establish on evidence that the breach had an impact on his Charter-protected interests.

[79] In Grant, at para. 77, the Court says that:

When considering the second line of inquiry, the court must look at the interests engaged by the infringed right and examine the degree to which the violation impacted those interests.

[80] In failing to address the evidence of the respondent on the voir dire, that is, that he intended to communicate to both officers that he was satisfied with his discussions with duty counsel, the learned trial judge disregarded this important evidence about how the right to counsel was implemented and of the actual impact of the conduct of the police on the respondent’s s. 10(b) rights when addressing the second prong of the Grant analysis.

[81] The appellant argues that this evidence suggests that the impact of the breach on the respondent’s Charter rights was “fleeting and technical at its highest”. Even if PC Gray disregarded the shrug and nod by the respondent to the question of whether he was satisfied with his phone call with duty counsel, any follow-up questions would likely have resulted in the respondent indicating that he was satisfied based on his evidence on the voir dire. The respondent did not testify to any adverse impact on his Charter-protected interests, and accordingly the appellant submits that the learned trial judge erred in his conclusion.

[82] The respondent testified at trial that if he had known that he could call a third party to obtain the name of a lawyer, he might have done that, but that was not the issue argued. The respondent did not indicate in his evidence any confusion, or lack of understanding about his rights or that he wished to consult counsel again.

[83] The respondent submits that the learned trial judge did not err when he found that although the police were not obligated to inquire as to whether the respondent was satisfied with the advice he received, since they did so, when they failed to consider the equivocal response received, this had a serious impact on the respondent’s Charter-protected interests.

[84] Since this court disagrees with the conclusion of the learned trial judge on the Charter breach, I need not show deference to the trial judge’s conclusion on the s. 24(2) analysis.

[85] Since the trial judge’s assessment on the first and third prongs of the Grant analysis are not challenged, that is the seriousness of the breach and society’s interest in an adjudication on the merits, I will focus my analysis on the impact of the breach on the Charter-protected interests of the accused.

[86] This inquiry requires the court to consider the seriousness of the impact on an accused’s Charter-protected interests. The more serious the impact, the more likely it is that the admission of the evidence would bring the administration of justice into disrepute.

[87] Given that the respondent testified that he was trying to convey to the police with a shrug and a nod that he was satisfied with the legal advice he received from duty counsel, and that he gave no other indication to the police that he did not understand his rights, or that he wanted a further consultation with counsel, I find that even if the breach was serious (a finding by the trial judge that is not challenged here), it did not have a serious impact on the respondent’s Charter-protected interests.

[88] On the third prong of the Grant analysis, the learned trial judge found that society’s interest in an adjudication on the merits heavily favoured admission of the evidence of the breathalyzer readings, which was obtained in a minimally intrusive manner and was highly reliable; I agree. Accordingly, when properly balancing the Grant factors, in my view, the learned trial judge erred in excluding the evidence from admission at trial.

What is the appropriate remedy?

[89] The appellant Crown argues that if the appeal is allowed, the appropriate remedy is to substitute a verdict of guilty and impose the appropriate penalty. The Crown argues that it would unnecessarily delay the matter and put a burden on the system to remit the matter to the Ontario Court of Justice for a new trial, based on the evidence.

[90] The respondent submits that if the appeal is allowed, the appropriate remedy is to remit the matter to the Ontario Court of Justice for a new trial.

[91] In Labadie, Watt J. speaking for the Court of Appeal considered the appropriate remedy on a successful summary conviction appeal by the Attorney General. At paras. 53 and 54 he says:

Section 822(1) defines the authority of the summary conviction appeal court on appeals under s. 813. The mechanism used for this purpose in s. 822(1) is an incorporation by reference of the powers of the Court of Appeal on indictable appeals. The incorporated provisions include s. 686, except s. 686(5).

The only remedial provision in s. 686 directly applicable to appeals from acquittal is s. 686(4). Where the appeal from acquittal is successful, s. 686(4) authorizes the Court of Appeal to make either of two consequential orders: a new trial or, in some instances, entry of a conviction.

[92] Section 686(4)(b)(ii) of the Code authorizes a summary conviction appeal court (by virtue of s. 822) to “enter a verdict of guilty” on an appeal from acquittal (Labadie at para. 61). There must be a nexus between the error of law and the verdict of acquittal. There must be a reasonable degree of certainty that the verdict would have been different without the error and that the verdict would have been a finding of guilt.

[93] In these circumstances, clearly the verdict would have been a finding of guilty without the error. The learned trial judge found that the only issue raised on the merits by the defence at trial, whether there was evidence that the officer used an approved screening device, was answered in the affirmative and dismissed that argument. On that basis, the evidence of the breathalyzer readings would have resulted in a conviction being entered against the respondent if those readings had not been excluded from admission as a result of the trial judge’s ruling on the s. 10(b) argument.

Conclusion

[94] Accordingly, I have found that the learned trial judge erred in finding a violation of s. 10(b) of the Criminal Code in the circumstances and excluding the evidence of the breathalyzer results. In my view, the appropriate remedy is to allow the appeal and substitute a finding of guilt.

[95] The matter can be brought to the next assignment court after the release of these reasons to schedule a date for sentencing.

“signed and released by Carroccia J.”

Maria V. Carroccia Justice

Released: October 25, 2023

[1] Transcript of Proceedings at Trial, February 1, 2022, p. 107, lines 1-3. [2] Transcript of Reasons for Judgment, April 7, 2022, at p. 8, lines 11-21. [3] Transcript of Reasons for Judgment, April 7, 2022, at p. 9, lines 14-15. [4] Transcript of Reasons for Judgment, April 7, 2022, at p. 11, line 35 to p. 12, at lines 1-14. [5] Regina v. Badgerow, 2008 ONCA 605, at para. 42. [6] Transcript of Reasons for Judgment, at p. 6, lines 21-25. [7] Ibid, at p. 8, lines 23-33 and p. 9, lines 1-5. [8] Rex v. Lafrance, 2022 SCC 32, at para. 85. [9] Rex v. Lafrance, 2022 SCC 32, at para. 91. [10] Transcript of Reasons for Judgment, at p. 12, lines 3-6.