COURT FILE NO.: 22-15772-AP
DATE: 20231017
ONTARIO
SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Michael Hogan
Appellant
K. Wilcox, for the Crown
E. Boeve, for the Appellant
HEARD: February 24, 2023
REASONS FOR JUDGMENT
(On appeal from the judgment of the Honourable Justice Magotiaux, dated January 28, 2022)
J.C. Corkery J.
[1] Mr. Hogan appeals his conviction under s. 320.14(l)(b) of the Criminal Code of Canada: that he operated a motor vehicle with a blood alcohol concentration exceeding 80 mg of alcohol in 100 ml of blood. At issue is whether the Certificate of a Qualified Technician providing evidence Mr. Hogan’s blood alcohol concentration was properly admitted at trial.
[2] The trial judge held that during the booking process the arresting officer knew that Mr. Hogan wished to call his girlfriend to obtain the name of a lawyer. His failure to facilitate that call was in violation of Mr. Hogan’s s. 10(b) right to counsel under the Charter. The finding of a s. 10(b) breach is not in issue. Mr. Hogan contends that the trial judge correctly held that that the arresting officer breached his right to counsel, but she erred in failing to exclude the evidence of the certificate under s. 24(2).
[3] For the following reasons the appeal is dismissed.
A. The facts
[4] Mr. Hogan was arrested for impaired operation of a vehicle after he was found by the investigating officer in his truck with his girlfriend. A videotape of the booking process played at trial shows the staff sergeant repeatedly explaining to Mr. Hogan his right to counsel and Mr. Hogan repeatedly asking to call his girlfriend, who worked for a lawyer.
[5] At one point the staff sergeant and arresting officer agree to call Mr. Hogan’s girlfriend. Then, after the arresting officer expressed concern that the girlfriend was impaired or had too much to drink and was walking home and thus would not be able to provide the best advice, the call to the girlfriend was never made and Mr. Hogan ended up speaking with duty counsel.
[6] The arresting officer testified at trial. The staff sergeant did not.
B. The findings of the trial judge
[7] The trial judge made the following findings:
“Mr. Hogan repeatedly asks to call his girlfriend, but he does not indicate that he wants to call her for the purpose of obtaining the name or number of a lawyer.”
“The reasonable interpretation of this answer to the staff Sergeant [about the purpose for contacting his girlfriend] is that Mr. Hogan wants to get advice from his girlfriend, not a lawyer's name.”
“[Mr. Hogan] did not have one particular purpose for wanting to call his girlfriend.”
“Mr. Hogan was clear that he wanted to speak to his girlfriend throughout the exchange with officers, including after they told him that that could only be done to get the contact information of a lawyer, but he was entirely ambivalent throughout on whether he actually wanted to speak to a lawyer.”
“… the evidence before me is that although Mr. Hogan never expressed a desire to contact his girlfriend for the purpose of contacting a lawyer, at least in the booking process before me, the arresting officer testified that he believed that was why Mr. Hogan wanted to call his girlfriend.”
“In my view, once P.C. Duffy [the arresting officer] acknowledged the purpose of the third-party call was to get contact information for a lawyer, he was obligated to facilitate that request.”
“Given the evidence at trial that P.C. Duffy believed Mr. Hogan wanted to get a lawyer's name and had therefore invoked the right to counsel or asserted his choice, P.C. Duffy had a responsibility to facilitate the request.”
[8] The trial judge concludes that the arresting officer’s failure to facilitate a call for the purpose of obtaining a counsel of choice was in breach of s. 10(b) of the Charter.
[9] With respect to the staff sergeant, the trial judge found his patience, clear language, repetition of the right counsel and his explanation of Mr. Hogan’s choices to be exemplary. The trial judge concluded that the staff sergeant “contributed to the breach in a minor way by relying on his colleague's indication that the third party suggested was not practically available”.
C. The issues
[10] Mr. Hogan raises four issues:
Did the trial judge err in her s. 24(2) analysis by holding that the breach of s. 10(b) was less serious because of the efforts of the staff sergeant?
Did the trial judge err by misapprehending the evidence and in holding that the appellant’s purpose to contact a lawyer by calling his girlfriend was not clear to the officers.
Did the trial judge err in law and/or misapprehend the evidence by holding the breach of section 10(b) to be less serious because the appellant failed to explicitly express his reason for why he wished to contact a third-party?
Did the trial judge err in balancing the totality factors in assessing whether the breath readings should be excluded?
D. Analysis
1. Did the trial judge err in her s. 24(2) analysis by holding that the breach of s. 10(b) was less serious because of the efforts of staff sergeant?
[11] The trial judge’s s. 24(2) analysis properly followed the factors set out by the Supreme Court in R. v. Grant, 2009 SCC 32.
[12] Assessing the first factor, the seriousness of the breach, she places the police conduct in the mid-range of seriousness. The trial judge considered the evidence as a whole and evaluates the conduct of each officer.
[13] The trial judge concluded that the staff sergeant, unlike the arresting officer, did not understand the purpose of Mr. Hogan’s request to call his girlfriend was to get the name of a lawyer. This conclusion was reasonable and based on the evidence before her. It is entitled to deference absent a palpable and overriding error. Her remark that the staff sergeant “contributed to the breach in a minor way by relying on his colleague's indication that the third party suggested was not practically available”, must be understood in this context.
[14] The trial judge is clear that the s. 10(b) breach arose because the investigating officer, not the staff sergeant, believed that Mr. Hogan wanted to get a lawyer's name from his girlfriend. It was the investigating officer’s failure to facilitate the call that constituted the breach. The staff sergeant may have played a role in not facilitating the call but, given his understanding, that did not make the breach more or less serious. The trial judge did not hold that the breach was less serious because of the efforts of staff sergeant.
2. Did the trial judge err by misapprehending the evidence and in holding that the appellant’s purpose to contact a lawyer by calling his girlfriend was not clear to the officers?
[15] The trial judge did not misapprehend the evidence. She did not hold that the appellant’s purpose to contact a lawyer by calling his girlfriend was not clear to the officers. She held that the appellant’s purpose for calling his girlfriend was known to the investigating officer. That was the investigation officer’s evidence. She held that staff sergeant, who did not testify, reasonably interpreted Mr. Hogan’s answer to a question about the purpose for contacting his girlfriend was that Mr. Hogan wanted to get advice from his girlfriend.
3. Did the trial judge err in law and/or misapprehend the evidence by holding the breach of section 10(b) to be less serious because the appellant failed to explicitly express his reason for why he wished to contact a third-party?
[16] The trial judge did not err in law or misapprehend the evidence. In her 24(2) analysis of the seriousness of the breach by the arresting officer, the trial judge accurately characterized and appropriately considered the “equivocal position of the applicant” with respect to why he wished to contact his girlfriend.
4. Did the trial judge err in balancing the totality factors in assessing whether the breath readings should be excluded?
[17] Mr. Hogan submits that the trial judge should not be entitled to deference in her decision not to exclude the breath readings. The trial judge properly summarized the evidence before her and came to reasonable conclusions based upon that evidence. Her decision not to exclude the breath readings under s. 24(2) is entitled to deference.
E. Conclusion
[18] The appeal is dismissed.
J.C. Corkery J.
Released: October 17, 2023
COURT FILE NO.: 22-15772-AP
DATE: 20231017
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Michael Hogan
REASONS FOR JUDGMENT
J.C. Corkery J.
Released: October 17, 2023