Court File and Parties

COURT FILE NO.: 21-10114-AP DATE: 2024/06/14

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING – and – JACOB BERNARD

Counsel: Carl Lem, for the Crown Nicholas Valsamis, for the Accused

HEARD: May 17 and July 24, 2023

Reasons for Decision

(Summary Conviction Appeal)

On appeal from the decision of Justice J. Legault, Ontario Court of Justice, at Ottawa, dated September 29, 2022

Corthorn J.

Introduction

[1] While travelling on Frank Kenny Road in the east end of Ottawa, on the morning of June 5, 2021, Mr. Bernard loses control of the car he is driving. The car ends up in the ditch adjacent to the lane for northbound traffic. The car is facing south when it comes to rest in the ditch.

[2] The driver of another car, travelling south on Frank Kenny Road, sees the Bernard vehicle in the ditch. The other driver stops his car, checks on the man standing near the Bernard vehicle, and is told by the man that he is okay. The other driver leaves the scene; he places a call to the police while continuing on his way to work.

[3] A police officer, Cst. Worth, arrives at the scene. Cst. Worth makes an Approved Screening Device demand and, after Mr. Bernard registers a fail, places Mr. Bernard under arrest. Cst. Worth informs Mr. Bernard of his right to counsel and reads to Mr. Bernard a caution, secondary caution, warning, and breath demand.

[4] Cst. Worth transports Mr. Bernard to the Ottawa Police Station, where Mr. Bernard provides two breath samples. The samples register 201 and 195 mg of alcohol in 100 mL of blood approximately 23 minutes apart. Mr. Bernard provides the second breath sample approximately 1.5 hours after the time of arrest.

[5] Mr. Bernard is charged with impaired driving (s. 320.14(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46) and operating a vehicle while having a blood alcohol concentration in excess of 80 mg of alcohol in 100 mL of blood (s. 320.14(1)(b)). Justice Legault presides over Mr. Bernard’s trial on these charges. The trial is conducted over three days: August 22, 24, and 25, 2022.

[6] For oral reasons given on September 29, 2022, Legault J.,

a) finds that Mr. Bernard’s rights under s. 10(b) of the Canadian Charter of Rights and Freedoms were infringed;

b) concludes that, as a result of that infringement, the evidence from the breathalyzer samples should be excluded; and

c) acquits Mr. Bernard on both charges.

[7] The Crown appeals the acquittal on the charge pursuant to s. 320.14(1)(b).

[8] The Crown alleges errors of law on the part of the trial judge in (a) his treatment, for the purpose of s. 10(b), of the five-minute period from the time of arrest (7:03 a.m.) to the time at which Mr. Bernard is informed of his right to counsel (7:08 a.m.); and (b) his approach to the analysis on the s. 24(2) Charter application for the exclusion of the breath samples.

[9] The Crown asks the court to set aside the acquittal, enter a conviction on the charge pursuant to s. 320.14(1)(b), and impose the minimum sentence of a $2,000 fine and a 12-month driver’s licence suspension.

[10] Mr. Bernard’s position on the appeal is that the trial judge did not err in law in concluding that (a) the arresting officer did not, “without delay”, inform Mr. Bernard of his right to counsel; and (b) the criteria were met for exclusion of evidence pursuant to s. 24(2) of the Charter. Mr. Bernard asks the court to dismiss the appeal.

The Standard of Review

[11] The Crown submits that the trial judge made two types of errors. The first type of error is in the application of the relevant legal principles to the facts of this case. In that regard, the Crown asks the court to consider the principles relevant to the phrase “without delay” as it appears in s. 10(b) of the Charter.

[12] The second error is in the trial judge’s analysis on the s. 24(2) application. More specifically, the Crown submits that the trial judge (a) failed to address the threshold requirement of evidence “obtained in a manner that infringed or denied any rights or freedoms guaranteed by” the Charter, and (b) erred in his analysis of the factors, as set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[13] Both types of errors upon which the Crown relies are errors of law; the standard of review is correctness: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20; R. v. Dussault, 2022 SCC 16, 468 D.L.R. (4th) 589, at para. 26.

[14] The trial judge’s findings are entitled to deference: Shepherd, at para. 20. It is, however, an error of law for a trial judge to exclude evidence based on an error in principle, a misapprehension of material evidence, or an unreasonable assessment of the evidence: R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 43.

[15] Where a trial judge is found to have made an error of law, the “appellate court must always engage in a de novo analysis and thereby substitute its own view of the correct answer for a trial judge’s legal conclusion” (emphasis in original): R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 54; R. v. Gardner, 2021 ONSC 3468, 485 C.R.R. (2d) 338, at para. 22.

The Issues

[16] The following issues are raised on this appeal:

1. Did the trial judge err in law in concluding that Mr. Bernard’s rights pursuant to s. 10(b) of the Charter were infringed or denied?
2. Did the trial judge err in law in his treatment of the “fresh start” principle when carrying out his analysis under s. 24(2) of the Charter?
3. Did the trial judge err in law in his analysis of the Grant factors for the purpose of the application under s. 24(2) of the Charter?

Issue No. 1 – Section 10(b) of the Charter

[17] Section 10(b) of the Charter provides that “[e]veryone has the right on arrest or detention … to retain and instruct counsel without delay and to be informed of that right.”

a) What Does “Without Delay” Mean?

[18] The Crown and Mr. Bernard agree that the definition of “without delay” is found in the Supreme Court of Canada decision in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. At para. 41, the court defines “without delay” as meaning “immediately” and explains the basis for that definition:

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.

[19] At para. 42, the court explains that allowing for delay between the outset of detention and the engagement of a police officer’s duties under s. 10(b) “creates an ill-defined and unworkable test of the application of the s. 10(b) right.” In the same paragraph, the court highlights that the concept of “permissible delay is abstract and difficult to quantify.”

[20] Yet, the court allows for concerns for officer or public safety. Paragraph 42 concludes as follows: “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.”

[21] At para. 40, the court states that the “interpretation of the phrase ‘without delay’ must be consistent with a purposive understanding of the Charter provision in which it occurs … Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.”

[22] Mr. Bernard does not dispute that his s. 10(b) rights were temporarily suspended up to and including when he complied with the request to provide a sample for the Approved Screening Device and registered a fail. Where the Crown and Mr. Bernard diverge is regarding the delay, from Mr. Bernard’s arrest (following the register of a fail) to Mr. Bernard being seated in the back of the cruiser, before Cst. Worth informs Mr. Bernard of his right to counsel.

b) The Trial Judge’s Decision

[23] The trial judge relies on Suberu as the authority for the definition of “without delay”.

[24] The trial judge is critical of Cst. Worth for not informing Mr. Bernard of his right to counsel “immediately upon his arrest after being cuffed.” The trial judge concludes “there were no fact-specific contextual determinations or viable explanations for the necessity to delay reading Mr. Bernard’s right to counsel” – for five minutes – from the time of arrest at the roadside to the time when Mr. Bernard is seated in the rear of the police cruiser.

[25] In finding that Cst. Worth did not meet the “without delay” standard regarding Mr. Bernard’s s. 10(b) rights, the trial judge refers to Cst. Worth’s concerns about safety during the arrest procedure. The trial judge summarizes those concerns as Cst. Worth not wanting Mr. Bernard “on the road” and the potential for Mr. Bernard to run into traffic or to fall and hit his head.

[26] The trial judge does not accept those concerns as “fact-specific contextual determinations or viable explanations” for the five-minute delay from the time of arrest until Mr. Bernard was informed of his right to counsel. In support of that conclusion, the trial judge relies on,

• the presence of a second officer, Cst. Desjardins, at the scene, by the time of arrest;
• the lack of evidence that the Approved Screening Device could not be administered, as it was, at the roadside (i.e., Mr. Bernard was not placed in a vehicle, because of traffic safety concerns, before the Approved Screening Device was administered); and
• Cst. Worth’s acknowledgement that Mr. Bernard was calm, was not combative, and followed all directions given to him.

[27] The trial judge finds that Mr. Bernard’s s. 10(b) rights were breached because Cst. Worth proceeded with a search of a co-operative individual, in handcuffs, at a time when another officer was present. The trial judge concludes that other officer could, at the time of arrest, have held onto Mr. Bernard – allowing Cst. Worth to inform Mr. Bernard, at the time of arrest, of his s. 10(b) rights.

c) The Positions of the Parties

▪ The Crown

[28] The overarching submission from the Crown is that the court must balance the protection of individuals from the abuse of state power with the societal interest of safe and effective law enforcement. The Crown submits that there is a high societal interest in keeping highways safe.

[29] Specific to the phrase “without delay” in s. 10(b) of the Charter, the Crown submits that the immediacy with which an individual is entitled to be informed of their right to counsel must account for the arrest process. Police officers must be permitted to carry out their duties in a safe manner. Police officers should not be forced into a race against the clock, at the expense of their safety, the safety of the accused, or the safety of the public. The Crown asks the court to find that the trial judge erred in law in his application of the relevant principles to the evidence before him.

[30] The Crown’s position is that Cst. Worth was justified in placing Mr. Bernard in the police cruiser before informing him of his right to counsel. The Crown asks the court to conclude that Mr. Bernard’s s. 10(b) Charter rights were neither infringed nor denied.

▪ Mr. Bernard

[31] Mr. Bernard accepts that police officers are entitled to exercise discretion when carrying out their duties. Mr. Bernard’s position is that the delay from the roadside to the cruiser, must be justified based on the factual matrix of the actual events. The delay in this case was not justifiable based on hypothetical concerns Cst. Worth had for his safety, Mr. Bernard’s safety, or the safety of the public. Mr. Bernard submits that, if there exists a reasonable basis for delay in informing an individual of their right to counsel, a police officer must take reasonable steps to minimize the delay.

[32] Mr. Bernard asks the court to (a) give the trial judge’s factual findings the deference to which they are entitled, and (b) conclude that the trial judge correctly applied the relevant principles to the facts as found. Mr. Bernard asks the court to dismiss the Crown’s first ground of appeal.

d) Analysis

▪ The Trial Judge’s Assessment of the Evidence

[33] “Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience”: R. v. Braich, 2022 ONCJ 81, at para. 18. I find that the trial judge failed to give any consideration to Cst. Worth’s evidence as to how his experience was relevant to the safety concerns he had at the side of the road with Mr. Bernard.

[34] Cst. Worth acknowledged that Mr. Bernard was co-operative while at the side of the road. Cst. Worth also acknowledged that there was not a lot of traffic on Frank Kenny Road while he, Cst. Desjardins, and Mr. Bernard were at the side of the road.

[35] Cst. Worth’s safety concerns stemmed from his experience and understanding that an arrest is a dynamic situation; the atmosphere of an arrest can change in an instant. Cst. Worth testified that, “through [his] experience making numerous, numerous arrests, things do change in a heartbeat and a blink of an eye that you can’t see coming until it actually happens.”

[36] Cst. Worth’s evidence in that regard includes the following points:

• On many occasions when dealing with and asking questions of individuals, while at the roadside, a lot of individuals have simply walked away.
• Once an individual is in handcuffs, and the individual realizes “the jig is up”, “weird things happen”. Part of maintaining control of the situation is placing the individual in the back of a police cruiser.
• Maintaining control of the situation eliminates the opportunity for the individual to run into traffic; to run into the adjacent ditch, fall, and sustain injury; or to spit at or kick the officers. Regarding the potential for injury, Cst. Worth observed that Mr. Bernard (a) had difficulty opening the plastic packaging for the mouthpiece, for the Approved Screening Device, he was to use, and (b) dropped the mouthpiece on the ground.

[37] I find that the trial judge failed to address the evidence of Cst. Desjardins regarding the manner in which the search of Mr. Bernard was conducted. Cst. Desjardins testified that, if he is not the arresting officer, he does not interpose himself into the search. His reason for not doing so is to permit the arresting officer to be certain nothing is missed. Cst. Desjardins acknowledged that he could assist, by holding the person under arrest; he does so only when required.

[38] Cst. Desjardins had no memory of whether he assisted Cst. Worth by holding Mr. Bernard during the search.

[39] Last, the trial judge failed to address Cst. Desjardins’ evidence regarding the dynamic nature of an arrest and the potential for the demeanor of an individual under arrest to change in an instant. Cst. Desjardins provided an example specific to the circumstances of Mr. Bernard’s arrest. Cst. Desjardins testified that, even for an individual who is being fully co-operative, once the individual is in handcuffs, they can break away from the police officer’s hold on them and be on the road in two seconds.

[40] In the face of the detailed evidence from the two officers regarding the management of safety concerns on arrest, and without making any negative findings about the credibility of either officer, the trial judge rejects Cst. Worth’s assessment of safety concerns. The trial judge says, “I do not accept Constable Worth’s conclusion that the search needed to be conducted because of concerns for officer and/or [the] detained person’s safety.”

[41] The trial judge rejects Cst. Worth’s evidence regarding safety concerns outright and without explanation. I find that the trial judge’s rejection of that evidence is based on an unreasonable assessment of the evidence from the two officers present at the side of the road with Mr. Bernard. That unreasonable assessment of the evidence constitutes an error of law.

[42] It is therefore necessary for this court, in its appellate role, to engage in a de novo analysis and substitute its view for that of the trial judge.

▪ De Novo Analysis

[43] I start by considering what occurred during the five minutes between the time of arrest and Cst. Worth informing Mr. Bernard of his right to counsel. First, Cst. Worth testified that, because the entries for the arrest and the right to counsel were made five minutes apart, there would actually have been fewer than five minutes between those two events. Cst. Worth’s evidence is that, in those fewer than five minutes, he did the following:

• informed Mr. Bernard he was under arrest for operation of a vehicle while impaired;
• turned Mr. Bernard to face the police cruiser;
• completed a full search of Mr. Bernard, which took “several minutes” – “a portion” of the fewer than five minutes;
• brought Mr. Bernard from the rear of the cruiser, where the Approved Screening Device was administered, to the far side of the police cruiser;
• placed Mr. Bernard in the police cruiser;
• entered the police cruiser himself;
• sent a message to the Ottawa Police Station to request a breathalyzer technician;
• found his duty book;
• opened the partition window between the front and rear seats of the police cruiser; and
• began informing Mr. Bernard of his right to counsel.

[44] Determining whether Mr. Bernard was informed immediately of his right to counsel is not based solely on a measure of time; an examination of all of the circumstances is required. Context is important because “immediately” does not mean “instantaneously”: R. v. Turcotte, 2017 ONCJ 716, 394 C.R.R. (2d) 363, at para. 12.

[45] Investigative functions – such as a search of the individual, which takes a matter of minutes – do not undermine the immediacy of the provision of right to counsel: Braich, at para. 25. Placing an individual under arrest in the rear of a police cruiser, with the goal of maximizing the informational component of informing the individual of their right to counsel, does not undermine the immediacy of the implementational component of so informing the individual: Braich, at para. 28, citing R. v. Agnihotri, 2019 ONCJ 551.

[46] Carrying out what Cst. Worth described as the very brief task of sending a standard form message to request a breathalyzer technician does not undermine the immediacy of providing the defendant with his right to counsel: Braich, at para. 26.

[47] It took Cst. Worth fewer than five minutes to search Mr. Bernard, place Mr. Bernard in the rear of the cruiser, send a standard message, and obtain a duty book from which to read Mr. Bernard his rights. The time taken to complete those tasks was minimally intrusive and did not undermine the immediacy of informing Mr. Bernard of his right to counsel.

[48] It is sufficient for arresting officers to rely on generalized safety concerns in support of a decision to place an arrested individual in the rear of a police cruiser before informing the individual of their right to counsel: R. v. Lep’okhina, 2023 ONSC 2850, at para. 21. Evidence regarding specific traffic or road safety concerns may be useful, but is not required in all cases: Lep’okhina, at para. 21.

[49] Cst. Worth had general safety concerns while with Mr. Bernard at the roadside. In addition, Mr. Bernard demonstrated impairment of his motor skills. Cst. Worth observed Mr. Bernard to be challenged when handling both the plastic packaging of the mouthpiece and the mouthpiece itself.

[50] In R. v. Rossi, 2017 ONCJ 443, Henschel J. considered the day-to-day activities of police officers. At paras. 34 and 35, she made the following observations:

[34] Officers are entitled to take reasonable steps to ensure their safety, the safety of the public, and the detainee’s safety prior to reading the rights to counsel. Without limiting what this may entail, it includes searching an arrestee incident to arrest, and placing an arrestee in a safe location, like the back of a police vehicle, prior to reading the rights to counsel. It may include steps such as moving a vehicle off of a roadway if it poses a danger to the public.

[35] In addition, police officers as a part of ensuring their safety and that of the arrestee, often need to rely upon communication skills to manage their relationship with the arrestee so that the situation does not become confrontational. An arrest is a volatile situation and officers must be given some discretion about how to best proceed in dealing with individual accused. While officers must refrain from eliciting evidence from an arrestee prior to the provision and implementation of the rights to counsel, this may involve listening to and responding to an arrestee about their circumstances and what is taking place. Courts must recognize this important aspect of the day to day activities of a police officer in assessing whether officers have complied with the requirement to provide rights to counsel and should be reticent to dissect every second of contact with an arrestee where the officers are diligently moving towards the provision of rights to counsel.

[51] I find that Cst. Worth informed Mr. Bernard, without delay, of his right to counsel. The fewer-than-five-minute delay in the informational component of the right to counsel is not an infringement or a denial of Mr. Bernard’s s. 10(b) rights.

e) Summary

[52] For those reasons, I would allow the appeal, set aside the acquittal on the charge pursuant to s. 320.14(1)(b), convict Mr. Bernard on that charge, and impose the minimum sentence requested by the Crown ($2,000 fine and 12-month driver’s licence suspension).

[53] I continue, in any event, and consider the Crown’s second ground of appeal – related to the trial judge’s treatment of the fresh start principle.

Issue No. 2 – The Fresh Start Principle

[54] If I had found, as did the trial judge, that Mr. Bernard’s s. 10(b) rights were infringed, then it would be necessary to determine whether the fresh start principle applies. As its second ground of appeal, the Crown submits that the trial judge erred in law because of his failure, as part of the s. 24(2) application, to consider the threshold requirement – namely, whether the breath samples were “obtained in a manner that infringed or denied” Mr. Bernard’s s. 10(b) rights.

a) The Law

[55] There are two components to the analysis required on a s. 24(2) application. At para. 94 of the Supreme Court of Canada decision in R. v. Beaver, 2022 SCC 54, 475 D.L.R. (4th) 575, Jamal J. summarizes those components as follows:

• The first component is the threshold requirement. The court determines whether the evidence for which exclusion is sought was “obtained in a manner” that infringed or denied a Charter right or freedom.
• The second component is the evaluative component. The court determines “whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute.”

[57] Absent a nexus between the infringement or denial of a Charter right and the evidence, s. 24(2) has no application: Beaver, at para. 95, citing Manchulenko, at para. 71. A case-specific, factual inquiry is carried out to determine whether evidence was “obtained in a manner” that infringed or denied an individual’s rights or freedoms guaranteed by the Charter: Beaver, at para. 95.

[58] Evidence will not be “obtained in a manner” that violates the Charter “when the police made a ‘fresh start’ from an earlier Charter breach by severing any temporal, contextual, or causal connection between the Charter breach and the evidence obtained or by rendering any such connection remote or tenuous”: Beaver, at para. 97. That said, subsequent compliance does not lead to a “fresh start” in every case: Beaver, at para. 97.

[59] At para. 99, Jamal J. expresses the following caution: “Whether evidence was ‘obtained in a manner’ is not determined by whether the state eventually complied with its Charter obligations, but instead is based on whether there remains a sufficient causal, temporal, or contextual connection between the Charter breach and the impugned evidence.” Justice Jamal concludes his overview of the fresh start principle, at para. 99, by highlighting that “the ‘fresh start’ analysis fits comfortably within this Court’s holistic approach to whether evidence was ‘obtained in a manner’ that breached the Charter.”

[60] The Court of Appeal for Ontario considered the fresh start principle in R. v. Davis, 2023 ONCA 227, 166 O.R. (3d) 401. The court had the benefit of the decision in Beaver when the court released its decision in Davis. At paras. 28 and 29, the court addresses the “purposive and generous approach” to the “obtained in a manner” requirement.

[61] At para. 29, the court highlights that the “disrepute requirement” (i.e., the second component as identified by Jamal J. in Beaver) is the “core inquiry” under s. 24(2): citing R. v. Strachan, [1988] 2 S.C.R. 980, at p. 1006. On the core inquiry, the court undertakes a “close analysis” to determine whether evidence must be excluded: Davis, at para. 29.

[62] At para. 29, the court contrasts the close analysis required on the core inquiry with the type of analysis to be carried out for the threshold requirement:

Treating the “obtained in a manner requirement” as an exacting threshold would be contrary to the remedial scheme of s. 24(2) because it would foreclose trial judges from engaging in the close “core inquiry” that is needed to preserve the repute of the administration of justice, and potentially prevent trial courts from having an available remedy for Charter violations that should not be condoned. The idea is that so long as the connection between the breach and the evidence is not remote or tenuous, the evidence is sufficiently “tainted” to warrant evaluation of whether its admission would bring the administration of justice into disrepute. [Citation omitted.]

[63] Also, at para. 29, the court addresses how the absence of a meaningful link between a Charter breach and the evidence is to be addressed in the context of a s. 24(2) application. The absence of such a link can be fully considered under the Grant test. Specifically, the absence of such a link can reflect not only on the seriousness of the breach, but also, and arguably even more clearly, on the impact of the breach on the Charter-protected interests of the accused. “When this examination is undertaken as part of the core inquiry, rather than as a threshold issue, it brings the benefit of having all of the circumstances considered”: Davis, at para. 29.

b) The Trial Judge’s Decision

[64] While the “disrepute requirement” is the core inquiry to be determined on a s. 24(2) application, the status of that requirement does not detract from the trial judge’s obligation to determine the threshold requirement.

[65] After finding that Mr. Bernard’s s. 10(b) rights were infringed, the trial judge moves directly to an analysis of the Grant factors for the purpose of the s. 24(2) application. As part of that analysis, the trial judge considers the fresh start principle in the context of two Grant factors: (a) the seriousness of the Charter-infringing state conduct, and (b) the impact of the breach on Mr. Bernard’s Charter-protected rights.

c) The Positions of the Parties

▪ The Crown

[66] The Crown’s position is that it was an error in law for the trial judge to move directly to the Grant factors, without first determining the threshold requirement: was the evidence (i.e., the breath samples) “obtained in a manner” that infringed or denied Mr. Bernard’s rights or freedoms as guaranteed by the Charter? (See: Beaver, at para. 95.) The place for consideration of the fresh start principle is in the context of this threshold requirement, not in the analysis of the Grant factors.

▪ Mr. Bernard

[67] Mr. Bernard’s position is that the fresh start principle applies only in the clearest of cases. Mr. Bernard relies on the decision Davis. At para. 44, Court of Appeal for Ontario says, “The ‘fresh start’ doctrine was not intended, and should not serve, as a mechanism for systematically undermining the effective enforcement” of the informational component of s. 10(b) Charter rights.

[68] Mr. Bernard submits that the trial judge did not err in law in his analysis under s. 24(2).

d) Analysis

▪ The Trial Judge’s Analysis

[69] I find that the trial judge failed to address the threshold requirement. There is nothing in the language or phrasing of the trial judge’s reasons to support a conclusion that the trial judge explicitly, or even implicitly, turned his mind to the threshold requirement.

[70] The trial judge’s failure to address the threshold requirement is an error of law. No deference is owed to that component of the trial judge’s decision. It is therefore necessary for this court, in its appellate role, to engage in a de novo analysis of the threshold requirement.

▪ De Novo Analysis

[71] At para. 44 of Davis, the Court of Appeal for Ontario provides the following caution:

[T]he “fresh start” doctrine should be applied to breaches of the immediacy requirement of the informational component of s. 10(b) only in clear cases. If belated s. 10(b) compliance is readily accepted as making an earlier immediacy breach too remote to warrant the exclusion of evidence, then s. 10(b)'s immediacy requirement will become a right without a remedy … The “fresh start” doctrine was not intended, and should not serve, as a mechanism for systematically undermining the effective enforcement of informational Charter rights.

[72] Assuming that Mr. Bernard’s section 10(b) rights were breached, is there a sufficient “causal, temporal, or contextual connection between the Charter breach” and the breath samples?

[73] Mr. Bernard submits that the circumstances in his case are similar to those in Davis, and the outcome on the fresh start principle should be the same as it was in Davis – the court should conclude that the fresh start principle does not apply. I disagree. The circumstances in Davis are distinguishable from Mr. Bernard’s circumstances.

[74] First, in Davis, the delay from time of arrest to being informed of right to counsel was eight minutes, not fewer than five minutes.

[75] Second, the arresting officer in Davis was unable to satisfactorily account for the eight-minute delay. Cst. Worth was able to account for the delay. The arresting officer in Davis had no notes to explain his activity during the eight-minute delay. Cst. Worth had both notes and a memory of the events. Cst. Worth’s evidence as to what transpired in the fewer than five minutes was corroborated by the evidence of Cst. Desjardins.

[76] “Evidence will be tainted if the breach and the discovery of the impugned evidence are part of the same transaction or course of conduct”: R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, at para. 38.

[77] Did the subsequent Charter-compliant conduct of Cst. Worth sever the temporal, causal, or contextual connection between the breach of Mr. Bernard’s s. 10(b) rights and the breath samples – rendering the samples remote from and tenuously connected to the breach? In answering that question, I consider the following factors:

• Cst. Worth gave Mr. Bernard both the primary and secondary cautions after the Charter breach and before the breath samples were obtained: see Beaver, at para. 103 (second bullet point).
• Mr. Bernard had the chance to consult counsel after the breach and before the breath samples were obtained: see Beaver, at para. 103 (third bullet point). Not only did Mr. Bernard have the chance to consult counsel, but Cst. Worth encouraged Mr. Bernard to speak to a lawyer after he initially said that he did not have a lawyer. In addition, Cst. Worth contacted six or seven lawyers in an effort to find counsel with whom Mr. Bernard could speak.
• There is no evidence to suggest that Mr. Bernard did not give informed consent to the taking of the breath samples: see Beaver, at para. 103 (fourth bullet point).
• Mr. Bernard’s interaction with the breathalyzer technician at the Ottawa Police Station is also relevant: see Beaver, at para. 103 (fifth bullet point). The evidence before the trial judge was that, before taking the breath samples, the breathalyzer technician ensured that Mr. Bernard received his right to counsel and was satisfied with his call to counsel. In addition, the breathalyzer technician informed Mr. Bernard more than once of the right to remain silent and the right not to answer questions.

[78] Considering these factors collectively, I am satisfied that a breach of s. 10(b), as or if found, is, by reason of the Charter-compliant conduct, dissociated from the breath samples: see Beaver, at paras. 106, 108. The subsequent Charter-compliant conduct severs any temporal connection between the s. 10(b) breach and the breath samples or, at a minimum, renders any temporal connection remote or tenuous. There is no causal relationship between the s. 10(b) Charter breach and obtaining breath samples from Mr. Bernard.

e) Summary

[79] The breath samples were not “obtained in a manner that infringed or denied any right or freedoms guaranteed by the Charter”. Therefore, if I am wrong on Issue No. 1, I would, based on the Crown’s second ground of appeal, dismiss the s. 24(2) application at the threshold stage.

[80] I would allow the appeal, set aside the acquittal on the charge pursuant to s. 320.14(1)(b), convict Mr. Bernard on that charge, and impose the minimum sentence requested by the Crown ($2,000 fine and 12-month driver’s licence suspension).

[81] With the Crown succeeding on both its first and second grounds of appeal, I do not reach the evaluative component stage of the s. 24(2) analysis. Therefore, I need not consider the Crown’s third ground of appeal. In any event, in my view, it would be unlikely that the breath samples would be excluded.

Disposition

[82] For the reasons given, the Crown’s appeal is granted. The acquittal on the charge pursuant to s. 320.14(1)(b) is set aside. A conviction is entered on that charge. The minimum sentence of a 12-month drivers’ licence suspension and $2,000 fine is imposed.

Madam Justice Sylvia Corthorn Released: June 14, 2024