R. v. Kunenge, 2023 MBPC 7

CITATION: R. v. Kunenge, 2023 MBPC 7 THE PROVINCIAL COURT OF MANITOBA BETWEEN His Majesty the King ) M. Hazelton and L. Campbell ) ) for the Crown - and – ) ) ) Prince Hassan Kunenge ) ) M. Wasyliw For the Accused ) ) ) Reasons for Decision on s. 24(2) Charter issue in the voir dire ) Delivered: February 10, 2023 CARLSON, P.J. INTRODUCTION [ 1 ] Prince Hassan Kunenge is charged with impaired driving and having a blood alcohol reading of .08 or more on December 12, 2021. [ 2 ] On November 7, 2022, I provided counsel with written reasons for my findings that Mr. Kunenge’s right to counsel guaranteed by s. 10(

b) of the Canadian Charter of Rights and Freedoms (the Charter ), was violated by police. [ 3 ] Specifically, I found that Mr. Kunenge, when arrested for impaired driving, was given his full informational right to counsel, which Mr. Kunenge declined to exercise. However, I found that when Mr. Kunenge was at the police station, and advised police that he did want to speak to counsel, he was only told that he could speak to his own lawyer or, if he did not have one, to Legal Aid. He was not told he could search for a lawyer, and have access to a phone book to do so, and then talk to that lawyer.

After speaking to Legal Aid counsel, Mr. Kunenge provided breath samples, and then he was arrested on the over .08 charge. On that second arrest, he was again given the options to speak to his own lawyer, or to Legal Aid. I found the failure of police to provide the option to Mr. Kunenge that he could search for his own lawyer, with the aid of a phone book if he wished, and then speak to that lawyer, on both occasions, breached his s. 10(

b) Charter right. [ 4 ] I also found that police violated Mr. Kunenge’s right under the Vienna Convention by not advising him, once they learned he was a foreign national, that he was entitled to have police contact a consular post for him if he wished. I found that breach happened after the breath samples were provided and just before he was released. I also found that breach was not a Charter breach. ISSUES [ 5 ] The Court must decide whether evidence, specifically Mr.

Kunenge’s breath sample results set out in the Certificate of Qualified Technician, should be excluded from evidence pursuant to s. 24(2) of the Charter . [ 6 ] The Court must also determine what impact, if any, the breach of Mr. Kunenge’s right under the Vienna Convention has on a determination under s. 24(2) of the Charter , or if any other remedy is to be provided.

Section 24(2) Charter Analysis [ 7 ] The evidence is admissible unless its admission would bring the administration of justice into disrepute having regard to the seriousness of the Charter infringing conduct, the impact of the breach on the Charter protected interests of the accused, and society’s interest in the adjudication of the case on its merits ( R. v. Grant, 2009 SCC 32 ).

Seriousness of the Charter infringing conduct [ 8 ] The first inquiry requires the Court to consider whether it needs to disassociate itself from the unlawful state action, in order to avoid the administration of justice being brought into disrepute. Deliberate or wilful breaches will be more likely to require such disassociation than minor or inadvertent breaches committed in good faith. [ 9 ] In this case, the breaches were not deliberate, wilful or made in bad faith. The full right to counsel with all options, was given

to Mr. Kunenge immediately on arrest. It seems that the officers did not understand or appreciate that they were required to give all three options, when they were repeating notice of right to counsel to an accused, even when they had previously provided the fulsome notice. However, of course, wilful ignorance of Charter standards cannot be equated with good faith ( R. v. Grant, 2017 ONCJ 239 , p. 43). [ 10 ] The importance of right to counsel, which includes the right to choice of counsel, is explained in R. v. Willier , 2010 SCC 37 , at paras. 27-28 .

The purpose of the right is to protect persons who are under state control against self incrimination and to assist in regaining one’s liberty. [ 11 ] Breaches of right to counsel where an accused has not been given the option to find his own lawyer, as in Mr. Kunenge’s case, have been found to be serious (including recently in Manitoba Courts, in R. v. Cure , 2020 MBQB 20 ; R. v. Plaha , 2020 MBPC 50 ; and R. v. Aftanas , unreported, October 17, 2022, MBPC). Likewise, I find the breaches of Mr. Kunenge’s s. 10(

b) Charter right to be serious. [ 12 ] The breach of Mr. Kunenge’s s. 10(

b) Charter right was serious. That factor tends toward exclusion of evidence. The impact of the breaches on Mr. Kunenge’s Charter protected interests [ 13 ] The Charter protected interests of Mr.

Kunenge engaged here are liberty and the right against self incrimination, specifically the interest in getting legal advice so that he could make a decision as to his legal options, and whether or not he would potentially incriminate himself, for example by providing breath samples. [ 14 ] In Cure , Justice Greenberg, found that when police immediately contacted Legal Aid without any further inquiry of the accused as to whether he wished him to do so, the officer foreclosed any opportunity for him to contact a lawyer of his own choice and thus breached s. 10(

b) of the Charter . That is the same type of breach I have found in Mr. Kunenge’s case. In addressing s. 24(2), Justice Greenberg found that the breach of s. 10(

b) Charter right was serious, but noted at paragraph 46 that “while the appellant was not able to exercise his right to counsel of choice, he did receive legal advice prior to the breath test being administered, so I do not consider the impact on his right to counsel to be significant”. [ 15 ] I do note that in Plaha , Judge Devine ultimately excluded evidence in the case where the option to search for counsel and be provided a phone book was not given again to the accused, even though it had been initially provided – so in facts similar to in this case.

However in Plaha , there were two factual aspects going to the heart of the accused’s Charter protected interests, which were not present in Mr. Kunenge’s case. First, when Mr. Plaha was asked if he was satisfied with counsel after his call with Legal Aid, Mr. Plaha answered “50-50 satisfied”, and the officer took no further steps to try to clarify, confirm or ensure his satisfaction with counsel, which he was required to do as part of his implementational duty, and proceeded with having the breath samples taken from the accused.

Further, in Plaha , when the accused asked to contact his employer to get more information about which lawyer he could call, the officer declined to permit him to do so, which the officer was required to permit as s. 10(

b) is a broad right that accommodates third party calls to facilitate choice of counsel. Both of these circumstances were clearly relevant to a consideration of the impact of a s. 10 (

b) breach. Without being able to call his employer to get the name of a lawyer that he could use, he was not able to contact counsel of choice, which may have impacted the candid nature of any conversation involving provision of legal advice. Further, if the accused was dissatisfied with his legal advice, there can be no assurance that he received information from counsel sufficient or understandable enough to permit him to make decisions relative to self incrimination. Neither of those two circumstances present in Plaha , nor any type of similar or aggravating circumstances, were present in Mr.

Kunenge’s case. [ 16 ] I also note that there are decisions of other courts in which judges have found the fact an accused was able to get legal advice did not sufficiently mitigate the impact of the breach of choice of counsel on an accused and have excluded evidence obtained (including cases provided by defence counsel of R. v. Edzerza-MacNeill , 2019 YKTC 3 - in which there was a fact specifically found to go to impact, which was that the accused’s father had called police to pass on to the accused the name of a specific lawyer, which was ignored by police; R. v. Gasiorek, [2019] O.J.

No 1121 (Ontario Court of Justice) in which the accused was dissatisfied with the advice he received from duty counsel). [ 17 ] The Cure decision, being a decision of a superior court in this province, that is on point in this case, is binding on me. In any event, I concur with Justice Greenberg’s analysis. Mr. Kunenge received legal advice that he was satisfied with in order to make a decision as to whether or not he would provide breath samples. [ 18 ] Crown counsel also provided the recent decision of my colleague, Judge Huberdeau, in R. v. Aftanas.

It was a similar case in which the officer connected an accused to Legal Aid without telling him he could search for his own lawyer and be provided a phone book or access to internet to search. Judge Huberdeau found on the facts of his case there was no s. 10(

b) Charter breach but said that if he were to have found the s. 10(

b) Charter rights were violated, he relied on the reasoning and analysis in the Cure decision to say that he would have allowed admission of the evidence. He stated that although a s. 10 (

b) violation is serious, the breach in his case was not due to an officer’s bad faith and the accused did still receive advice prior the breath test being administered and the accused did not raise a concern about the advice. [ 19 ] Like in Cure and Aftanas (though noting the comments in Aftanas were really obiter given that no Charter breach was found), in Mr.

Kunenge’s case, despite the breach, he did have an opportunity to speak to counsel and obtain legal advice before the breath tests were administered, and he indicted he understood the advice and did not raise any dissatisfaction with his call and did not ask to call anyone else. The second breach happened after the evidence had been provided. That does not necessarily mean there is no impact, and the entire chain of the interactions has to be considered. Even though the evidence had already been obtained, at the time of the second breach, again, Mr.

Kunenge did still have the opportunity to speak to counsel, obtain legal advice, and he did not raise any dissatisfaction with his call. [ 20 ] Accordingly, I do not consider the impact of the breaches to have been so significant as to tend toward exclusion of the evidence. Society’s interest in having cases decided on their merits .

[21] The public has an interest in having impaired driving cases decided on their merits, given the public safety threat that impaireddrivers pose. Breath test evidence by its nature is generally highly reliable, and exclusion of the breath test results would likely meanacquittal on the over .08 charge. This factor tends to inclusion of the evidence. Balancing the Grant factors [22] The third factor should not be given disproportionate significance because the public has a vital interest in ensuring the justicesystem is beyond reproach (R. v.

Harrison, 2009 SCC 34 , 2009 S.C.C. 34). [23] The Court has to balance all the factors to decide overall if the administration of justice is better served by exclusion orinclusion of the evidence. [24] In this case, on balance, despite the serious breach and the fact there were two such breaches, the breaches were not made inbad faith, the impact was not significant since Mr.

Kunenge obtained legal advice at the critical time, confirmed he understood theadvice, and did not express any dissatisfaction with the advice, and the evidence is reliable and fundamental to the Crown’s case. [25] As Justice Greenberg did in the Cure case, I do not find that admission of the evidence would bring the administration ofjustice into disrepute in Mr. Kunenge’s case. [26] I want to address a point put forward by defence counsel on behalf of Mr. Kunenge.

He argues that dealing with the breaches ofright to counsel in the way Justice Greenberg did in Cure essentially results in finding that right to counsel is meaningless and withoutconsequence. With respect, I do not agree. Right to counsel is indeed a fundamental right, for all the reasons set out in the jurisprudenceand for the reasons argued by defence counsel in this case. The Charter could have been drafted to provide that whenever a breach of aCharter guaranteed right is found, or even specifically that when a breach of right to counsel is found, the evidence obtained will beautomatically excluded.

But the Charter does not say that. Instead, the Charter provides that evidence obtained when a Charter right orrights have been violated, is still admissible, unless admission would bring the administration of justice into disrepute. It is a balancingof interests and impacts, now developed as the Grant three prong analysis that determines if admission will, overall, bring theadministration of justice into disrepute. In this case, though there were serious breaches of right to counsel, on balance, admission of thebreath results would not bring the administration of justice into disrepute.

What is the impact, if any, of the breach of the Vienna Convention? [27] Mr. Kunenge argues my finding that a breach of the Vienna Convention took place can have three possible impacts as toadmissibility of the breath sample results. Consideration in s. 24(2) Charter analysis [28] Mr. Kunenge argues that the breach of the Vienna Convention should be considered in the overall s. 24(2) Charter analysis,even though I found that the Vienna Convention breach was not, and was not akin, to a Charter breach. [29] As previously referenced, the purpose of s. 10(

b) of the Charter is to provide protection against self incrimination and loss ofliberty. The purpose of s. 1(

b) Article 36 of the Vienna Convention is different. It is to ensure that a foreign national is treated equally todomestic detainees (R. v. Van Bergen, 2000 ABCA 216 (Alta. C.A.) at paras. 16-17, leave refused [2000] 2 S.C.R. xiv (note) (S.C.C.)).Mr. Kunenge was treated the same as a Canadian citizen under arrest.

He was given notice of counsel and opportunity to consult counsel(notwithstanding the breach of right to choice of counsel). [30] Based on my finding as to the timing of the breach of the Vienna Convention, even if I were to consider the fact of that breachas one factor in the overall s. 24(2) Charter analysis, along with all other factors in this case, that consideration would presumably beconsidered at the second prong. As to impact on Mr.

Kunenge’s Charter protected right to counsel (which is the Charter right we aredealing with, not the right to be told about consular services), in my view, the failure of police to tell him at the stage the breach occurred(which was after the evidence had been collected and just before he was released), that he had a right to have consular services contacted,was of little impact on Mr. Kunenge’s right to be protected against self incrimination and to have information to regain his libertybecause by that stage the evidence had been collected and he was being released.

Remedies for breach of Vienna Convention [31] It is of note that the Vienna Convention itself does not specify any remedy for a breach of s. 1(

b) of

Article 36. [32] Again, it is important to remember that in Mr. Kunenge’s case, the breach happened only at the end of the police dealings withMr. Kunenge, after the evidence had been gathered, and after he had twice spoken to legal counsel. Exclusion of evidence based on trial fairness [33] Mr. Kunenge argues that the common law permits the court to exclude evidence obtained in a way that goes against trialfairness. The court does have a common law power to exclude evidence, the admission of which would adversely affect the fairness of anaccused’s trial.

Section 11(

d) Charter guarantees a fair trial. [34] In Van Bergen, it was held that for any remedy to be warranted for a breach of the Vienna Convention, “serious prejudice” toan accused must be shown by the accused. [35] In R. v. Partak, 2001 Carswell Ont 4954 (Ont. S.C.J.), the judge adopted the “serious prejudice” requirement set out in VanBergen, and declined to exclude an voluntary statement by the accused on the basis police had not told him of his consular rights eventhough police were aware the accused had an outstanding immigration warrant from another country. In R. v.

Walters, 2011 ABQB 593,no prejudice was found to an accused who made inculpatory comments to police after being advised of, and declining his Charter right

to counsel, and then alleging same should be excluded from evidence because he was not told of his consular rights under the ViennaConvention. [36] In the case of Mr. Kunenge, the breach of the Vienna Convention did not result in any trial unfairness. He was treated the sameway that Canadian citizens are treated when arrested. The Vienna Convention breach took place after the evidence had been providedand just before he was released. Mr.

Kunenge has not demonstrated any prejudice to him in relation to the criminal charges due to policefailing to tell him of his consular rights at that time. [37] Accordingly in my view there is no trial unfairness occasioned by the Vienna Convention breach to justify exclusion ofevidence. Abuse of process [38] Third, Mr.

Kunenge argues he should have the benefit of a finding of abuse of process based on the breach of the ViennaConvention, the remedy for which may be a judicial stay of proceedings. [39] Indeed, there is a common law power for a trial judge to stay proceedings if proceeding in a criminal matter would amount toan abuse of process. Such discretion is to be exercised only in the clearest of cases (R. v. Jewitt, (SCC), [1985] 2 SCR128). [40] Simply put in this case, I find that, on the evidence before me, the police conduct in not advising Mr.

Kunenge of his right toconsular services before releasing him, did not approach anything near an abuse of process, even taking into consideration that theinformation Constable Currier learned then was relayed to the immigration authorities. [41] Further, Mr. Kunenge’s application did not request relief pursuant to s. 24(1) of the Charter. The Court was simply requested toconsider this relief at the end of defence counsel’s submissions.

Given that no application for s. 24(1) Charter relief was filed, such thatthe requisite parties did not receive notice of such a request and have full opportunity to address it, and in any event given that, on theevidence in the voir dire before the Court, there is no clear case of abuse of process, there is no need to consider a s. 24(1) Charterremedy. CONCLUSION [42] While I found that police breached Mr. Kunenge’s s. 10(

b) Charter right twice, the admission of the breathalyzer evidence willnot bring the administration of justice into disrepute, and will be admitted into evidence on the trial. “Original signed by” Carlson, P.J.