R. v. Arnold Ellis, 2013 NBPC 13

R. v. Arnold Ellis , 2013 NBPC 13 File: 05623810 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT CAMPBELLTON HER MAJESTY THE QUEEN - v - ARNOLD ELLIS Decision following a trial delivered by the Honourable Ronald LeBlanc, judge of the Provincial Court, at Campbellton, New Brunswick, on May 27, 2013. Counsel: François Doucet, Q.C. for the prosecution Terrence Delaney, Q.C. for the accused 1 . Mr. Ellis is charged with refusal of an approved screening device demand, under section 254(5) of the Criminal Code . This is a case of constructive refusal as Mr. Ellis never actually verbally refused to supply his breath sample.

I have determined the following facts based on the testimony given at trial. 2 . On April 7 th , 2012, Cst. Chris Robichaud, an RCMP officer with 5 years experience, was on duty, in his patrol cruiser. He had started his shift that day in Bathurst and was en route to his detachment in Belledune, N.B. At 17:13 hours, he received a call to attend the scene of an accident. The call came in from a Mr. Guitard, who advised the officer that the accident occurred at 17:13 hours. Cst. Robichaud arrived at that scene, in Belledune, at 17:23 hours. Upon arrival, he saw Mr.

Ellis` truck parked in the driveway of his residence, and Mr. Guitard`s car on the side of the road, facing northbound. The car had front-end damage and the truck had damage on its side. 3 . Cst. Robichaud first spoke with Mr. Guitard, the driver of the car. Mr. Guitard confirmed that he was the person who had called the police about the collision. He told Cst. Robichaud that he was driving northbound on Route 134 when Mr. Ellis’ truck pulled into his driveway in front of him. Mr. Guitard applied his brakes but had no time to avoid the collision. Cst. Robichaud then examined the skid marks made by Mr.

Guitard`s vehicle on the roadway. Mr. Guitard pointed to the defendant Arnold Ellis as the driver of the truck. He then told the officer that Mr. Ellis was the only occupant of that truck and that he had an odour of alcohol on his breath. 4 . Cst. Robichaud approached Mr. Ellis and spoke with him. He noticed that Mr. Ellis slurred a few words and displayed some odd mannerisms. His initial impression was that “He wasn`t completely drunk at the time”. He conceded he had insufficient reasonable and probable grounds to believe in impairment at that time. He did, however, notice that Mr.

Ellis fumbled through his wallet in producing his identification, and that he stumbled slightly while walking a straight line. Mr. Ellis, 69 years old at the time, explained to Cst. Robichaud that he had a bad knee, which accounted for the stumbling; an explanation which the officer accepted since Mr. Ellis` daughter, who was present at that time, confirmed this.

5 . After a shift in the wind, Cst. Robichaud also discerned a strong smell of alcohol emanating from Mr. Ellis’ breath. Mr. Ellis then fell over as he leaned against his truck. At this point, the officer formed the opinion that Mr. Ellis had alcohol in his body. This opinion was formed at 17:31 hours. Cst. Robichaud testified that the grounds he formulated for making the approved screening device demand included the fact that Mr. Ellis had minor dexterity problems not associated with his walking, the odour of alcohol emanating from his breath and the slurring of a few words. 6 . He told Mr.

Ellis he was detained and asked him to accompany him to the police car because he was to make a demand to him to provide a sample of his breath for analysis by means of an approved screening device. Mr. Ellis entered the police car. 7 . Cst. Robichaud did not have the approved screening device with him. It was not present in the car he had taken from the Bathurst detachment. He called Cpl Lemire to request he deliver one to him. He knew that Cpl Lemire was not too far away as he had been following him from Bathurst. He made the call at 17:31 hours.

The device, the Alcotest 7410 GLC, was delivered personally by Cpl Lemire at 17:40 hours, 9 minutes later. Cst. Robichaud had received training in the operation of this device in the fall of 2008 and was qualified to operate it. 8 . At 17:32 hours, Cst. Robichaud read from his card the demand for a breath sample for analysis by means of an approved screening device. 9 . Cst. Robichaud testified that between 17:23, (the time he arrived at the scene), and 17:32, (the time he read the approved screening demand) the following events had occurred: he had a conversation with Mr.

Guitard, he examined the tire marks on the roadway, he obtained documents and he spoke with Mr. Ellis. He testified that he spent a fair amount of time with Mr. Guitard initially because he was merely investigating an accident. It was only once he was told about the smell of alcohol on Mr. Ellis` breath that it became a possible impaired driving complaint. 10 . Mr. Ellis understood the approved screening device demand. When asked if he understood, he replied: “Yup”. Both were in the police cruiser at the time of the demand. Because Mr.

Ellis was being detained, the officer read him his right to counsel in accordance with

section 11(

b) of the Charter and also his caution. When asked about whether he wanted to exercise his right to counsel, Mr. Ellis replied: “Why would I want to?” When asked whether he understood his right to consult Legal Aid, he replied: “No”. When asked what he wanted to do about his right to consult a lawyer, he again replied: “No”. When asked whether he understood the caution, he again replied: “No”. 11 . Cst. Robichaud explained to Mr. Ellis two or three times, in simpler language, what he had read to him from the cards. He rephrased in simpler language the demand and the rights given to him. Mr.

Ellis kept repeating “no, no, no”, which the officer interpreted as being uncooperative and basically not wanting to listen to him. 12 . After the device arrived, Cst. Robichaud again offered him the opportunity to speak with a lawyer. Since Cst. Robichaud had no phone book or list of lawyers with him that would allow Mr. Ellis the right to consult with his counsel of choice, he advised Mr.

Ellis that if he wanted to speak with Legal Aid, he could do so from the police car as he had the number for Legal Aid; but that if he wanted to speak with another lawyer, he would have to go to the police station and speak with one there. He explained that if he wanted a lawyer right away, the only option he had was Legal Aid. 13 . Mr. Ellis decided he wanted to speak with Legal Aid. He did not ask to speak with another lawyer. Cst. Robichaud testified that if he had asked for another lawyer, he would have taken him to the office in Belledune. They were, in fact, only two minutes from the RCMP detachment.

When asked why Mr. Ellis was not immediately taken to the detachment to ensure he could make a private phone call, the officer responded that the demand had to be made “forthwith”, and besides, the conversation he had was “quite private”, in the back of the police car with the windows closed and the doors locked. The officer testified that he had as much privacy in the back of the police car as he would have had at the police station. At 17:45 hours, Cst. Robichaud called Legal Aid using his RCMP cell phone. 14 . The time period which elapsed between 17:40 (the time the device arrived), and 17:45 (the time Cst.

Robichaud called Legal Aid) was spent in conversation between them regarding whether or not Mr. Ellis wanted to talk to a lawyer. Mr. Ellis was again, in Cst. Robichaud`s opinion, dodging questions, demonstrating by his actions that he didn`t want to speak with the police officer and being generally what he described as “obnoxious”, not wanting to answer questions.

15. Duty Counsel Anne St-Pierre called back at 18:00 hours. Cst. Robichaud explained the circumstances to her. He then gave thefollowing instructions to Mr. Ellis: he told him that he was going to give him his cell phone, that he would exit the vehicle, that he wasnot to speak with the lawyer until he exited the vehicle and that once he was done speaking with the lawyer he should knock on the carwindow. Mr. Ellis spoke with Ms. St-Pierre for one minute. The call ended at 18:01 hours.

The conversation was in private as he wasalone in the police cruiser, the windows were up, the doors were locked, the engine was running and the police could not overhear theconversation between them. Mr. Ellis knocked on the window. He told Cst. Robichaud that he couldn`t speak with the lawyer as thetelephone was cutting out. Cst. Robichaud saw bars showing service on the phone so he called Legal Aid back. He was informed byLegal Aid that Mr. Ellis had informed them that he wanted to speak with a different lawyer. Mr. Ellis confirmed this to the officer. 16. The second lawyer, Lise Landry, called at 18:03 hours.

He again passed the phone to Mr. Ellis for a private conversation. At18:14 hours, Mr. Ellis again knocked on the window and said that the phone had gone dead. Cst. Robichaud confirmed that his cellphone was not working but he concluded that since Mr. Ellis had spoken several minutes with this second lawyer before it had gonedead, he would instruct Mr. Ellis to provide an answer to his demand. He then told Mr. Ellis that either he provide a sample of his breathor he would be charged with refusal.

He was told that he had spoken with his lawyer, that they had made a demand to him and repeatedthat either he blow into the machine or he would be charged with refusal, which carried the same penalty as impaired operation of amotor vehicle. 17. According to Cst. Robichaud, Mr. Ellis again dodged questions. He was informed several times that if he didn`t provide a sample,he would be charged with refusal. Cpl Lemire also explained to Mr. Ellis the consequences of a refusal, that if he refused, he would becharged with refusal and brought to the Belledune detachment and processed. Mr.

Ellis told him he did not understand French. CplLemire has a slight French accent when he speaks. Mr. Ellis did not like how Cpl Lemire pronounced the word “Belledune”, with aFrench accent. Cpl Lemire concluded that Mr. Ellis was being uncooperative and was in fact mouthy to him. 18. After a while, the investigating officer determined that it was evident that Mr. Ellis was not going to provide a sample of hisbreath. He felt that he was just biding his time and wasting as much time as possible.

He arrested him for refusal at approximately 18:17hours, brought him to the detachment for processing and released him on a Promise to Appear. POSITIONS OF THE PARTIES 19. The defence argues two main points. First, that the approved screening device demand made to Mr. Ellis was invalid as the policeofficer could not comply with the immediacy requirement, not having with him, at the time of the making of the demand, the device heneeded to confirm his suspicion. Since the demand was outside the scope of section 254(5), the demand was not a proper demand.Therefore, Mr. Ellis was not required to comply.

Second, he argues that the police did not allow Mr. Ellis a meaningful opportunity toexercise his right to counsel due to the struggles in getting a proper phone call from a defective cell phone. This breach of

section 10(b)is a serious violation and should result in the need to either exclude evidence under section 24(2) of the Charter or stay proceedingsunder section 24(1). 20. The Crown replies that the demand for the approved screening device breath sample was a proper demand in that it was madeforthwith in compliance with applicable jurisprudence regarding the

interpretation of that word, citing R. v. Quansah 2012 ONCA 123, [2012] O.J. No 779, a decision from the Ontario Court of Appeal. They maintain furthermore that Mr. Ellis was afforded areasonable opportunity to consult with counsel when one considers the entirety of the circumstances in this case, including the fact thathe spoke with two lawyers in private. The Crown finally contends that if there was a Charter violation with respect to the right tocounsel that such a breach was not serious and that any Charter protected interest was minimally invasive. On a R. v.

Grant 2009 SCC32 , [2009] 2 S.C.R. 353 analysis, no remedy should be given. ISSUES 21. There are two issues to be addressed: (1) was the screening device demand lawful; (2) did the police violate Mr. Ellis’ right tocounsel, and, if so, what is the appropriate remedy? ANALYSIS THE SCREENING DEVICE DEMAND

22. There is established in the Criminal Code a two-step process allowing police officers to make demands for breath samples. Thefirst step, the demand for a breath sample for analysis by means of an approved screening device, provides the police with aninvestigative method to determine if the individual from whom the breath sample was obtained has a blood alcohol concentration inexcess of the limits imposed by Parliament. If a fail result is obtained from the approved device, the police may proceed to the secondstep, which is the demand for breath samples for analysis by means of an approved instrument. 23.

The requirements for the first of the two processes are not exacting, but they insist on immediacy. Section 254(2) of the CriminalCode authorizes a peace officer, on reasonable grounds to suspect the presence of alcohol in the body of the person who has within thepast three hours operated or had the care or control of a motor vehicle, to make a demand requiring that person to supply “forthwith” asample of breath for analysis. 24. The “forthwith” requirement in the legislation is directed towards the person to whom the demand is made, not the demand itself.

Section 254(2) does not specifically state that the demand must be made forthwith. It is the breath sample which must be suppliedforthwith. However, judicial

interpretation of the

section has added the “forthwith” requirement to the making of the demand: see R. v.Pierman; R. v. Dewald (1994), (ON CA), 19 O.R. (3d) 704 (ONCA). This judicially imposed requirement forimmediacy in the making of the demand was imposed to minimally impair violations of sections 8, 9 and 10(

b) of the Charter. Anydelay in the making of the demand would require the police to advise the detainee of his right to counsel and the corresponding need tohold off from eliciting evidence until the consultation with counsel has occurred. 25. What constitutes “forthwith” for the purposes of section 254(2) of the Criminal Code has been the subject of much judicialinterpretation. The Ontario Court of Appeal has recently revisited the topic in R. v. Quansah 2012 ONCA 123 , [2012] O.J. No 779; 92 C.R. (6th) 1; 286 C.C.C. (3d) 307.

At paragraph 26, Justice LaForme stated as follows: 26 “Woods (referring to R v Woods 2005 SCC 42, [2005] 2 S.C.R. 205 (SCC))…reasserts that the constitutional validity of s.254(2) depends on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit for the policedemand for a breath sample and explicit for the mandatory response: the driver must provide a breath sample "forthwith".

Theterm "forthwith" in s. 254(2), therefore, means "immediately" or "without delay" and indicates a prompt demand by the peaceofficer and an immediate response by the person to whom that demand is addressed: see Woods, at paras. 13-14 and 44.However, in unusual circumstances "forthwith" may be given a more flexible

interpretation than its ordinary meaning strictlysuggests: see Woods, at para. 43.” 26. Justice LaForme concludes that the immediacy requirement in section 254(5) of the Criminal Code necessitates judges to considerfive things: 45 “…First, the analysis of the forthwith or immediacy requirement must always be done contextually.

Courts must bearin mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need tosafeguard individual Charter rights. 46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that thedriver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion. 47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a moreflexible

interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demandto the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary toenable the officer to discharge his or her duty as contemplated by s. 254(2). 48 Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonablynecessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where ashort delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulatedand legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer toproperly discharge his or her duty.

Any delay not so justified exceeds the immediacy requirement. 49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation toimplement the detainee's s. 10(

b) rights before requiring the sample. If so, the "forthwith" criterion is not met.” 27. Equally importantly, the Ontario Court of Appeal in Quansah specifically rejects two popular misconceptions. 28. The first misconception rejected is that the only time constraint to the “forthwith” requirement is whether the sequence of eventsbetween the time the police officer forms his reasonable suspicion to make an approved screening device demand and the time thedetainee responds to the demand occurs faster than the time in which the detainee could realistically consult with counsel.

The Courtheld that this was an incomplete approach. The realistic opportunity to consult counsel is not the only criterion for assessing whetherthere was compliance with the “forthwith” requirement. If the realistic opportunity to consult counsel does exist but has not been

afforded to the detainee, the “forthwith” requirement has not been met, but the reverse is not true. 29. The second misconception is that the word “forthwith” means “within a reasonable time”. The Court quoted paragraph 44 of R. v.Woods

(2005) SCC 42; 2005 SCC 42 , [2005] 2 S.C.R. 205: 44 « The « forthwith » requirement in s. 254(2) appears to me, however, to connote a prompt demand by the peaceofficer, and an immediate response by the person to whom that demand is addressed..”. 30. Although the Quansah case, or the directives it gives, has not been approved or applied in this province as of the writing of thisjudgment, I believe it encapsulates the current state of the law and I will therefore follow it.

As can be seen, the Ontario Court of Appealrecognizes that the immediacy requirement must take into account all of the circumstances of the case, including any reasonablynecessary delay where the breath sample cannot be immediately obtained because the approved screening device is not immediatelyavailable, provided the delay is no more than is reasonably necessary to enable the officer to properly discharge his duty. The mere factof not having the approved screening device in the police officer’s possession is not, in and of itself, reason to hold that the immediacyrequirement was not met.

The judge must analyze the forthwith requirement contextually. 31. In this case, the officer formed his reasonable suspicion at 17:31 hours. He directly told Mr. Ellis that he was detained andinstructed him to go to the police car because he was going to make a demand to him to provide a sample of his breath for analysis bymeans of an approved screening device. He brought him to the police car. Once inside the vehicle, he called Cpl Lemire to deliver adevice to him, which was delivered at 17:40 hours. Mr.

Ellis was read the approved screening device demand at 17:32 hours, oneminute after the reasonable suspicion was formed, and 8 minutes before the device arrived. 32. During this 8-minute interval, the officer also read to him, from the card he had been supplied, the right to counsel and the right toconsult with duty counsel. There was a rather arduous and challenging conversation between them regarding his understanding of theright to counsel which he had been read. I find that Mr. Ellis was somewhat uncooperative and disobliging during that conversation.

Asa consequence, the officer repeated two or three times, in simpler language, the demand made and the meaning of the rights given. Mr.Ellis was again being difficult. 33. Once the device had arrived, the officer again offered Mr. Ellis the opportunity to consult counsel and explained to him how hewould be allowed to exercise that right should he decide to do so. Again Mr. Ellis was being obstinate. After a few minutes, Mr. Ellisdecided to talk to a lawyer. This was at 17:45 hours. 34. In my opinion, the delay in this case was no more than was reasonably necessary to enable Cst.

Robichaud to properly dischargehis duty as contemplated by section 254(5) of the Criminal Code. The reasonable suspicion was formed at 17:31 hours and the demandmade at 17:32 hours. The delay in awaiting the arrival of the device was only 8 minutes, during which there ensued a spirited discussionabout the right to counsel and how to exercise that right to counsel. The police officer, in my estimation, was quite patient in dealingwith Mr. Ellis and imparted to him the knowledge he needed in order to decide what to do about his right to counsel.

In my opinion, thedemand made by the officer was made promptly once he formed the reasonable suspicion that the driver had alcohol in his body andeven though the “forthwith” requirement obliges an immediate response, the delay was justified in the circumstances of this case by theongoing dialogue concerning counsel. 35. This case is somewhat similar to that in R. v. Latour (ON CA), [1997] O.J. No 2445 (Ont CA) where thedefendant was stopped by a police officer for a seat belt violation. The officer detected a faint smell of alcohol emanating from hisbreath and made an approved screening device demand.

The officer did not have the device with him and radioed for one to be broughtto him. There was no evidence as to when that device was to arrive. It arrived 8 minutes after the demand was made. The appeal courtupheld the trial judge’s conviction of the accused. 36. The demand for the approved screening device was, in my opinion, a lawful demand. THE RIGHT TO COUNSEL 37. Every person detained or arrested by the police has the right to retain and instruct counsel without delay.

Section 10(

b) of theCharter imposes both informational and implementational duties on state authorities. As stated by Chief Justice Lamer in R. v. Prosper (SCC), [1994] 3 S.C.R. 236, at paragraph 34:

“Once a detainee has indicated a desire to exercise his or her right to counsel, the state is required to provide him or her with areasonable opportunity in which to do so. In addition, state agents must refrain from eliciting incriminatory evidence from thedetainee until he or she has had a reasonable opportunity to reach counsel. As the majority indicated in R. v.

Ross, (SCC), [1989] 1 S.C.R. 3, at p. 12, once a detainee asserts his or her right to counsel, the police cannot in any way compel himor her to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventualtrial until that person has had a reasonable opportunity to exercise that right. In other words, the police are obliged to "hold off"from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reachcounsel.” 38.

What constitutes “reasonable opportunity” depends on all the surrounding circumstances in each case. Police cannot use theprovisions of s. 258(1)(c) (the two-hour time limit in obtaining the first breath sample) in order to truncate what is otherwise a legitimateattempt to consult with counsel: R. v. Sargent 2005 NBPC 27 , [2005] N.B.J. No 362; 292 N.B.R. (2d) 219, at paragraph 67. 39. The New Brunswick Court of Appeal in the case of R. v. Brown

(2009) NBCA 27, adopted the Alberta Court of Appeal’sdirectives in R. v. Luong (G.V.) (2000), 2000 ABCA 301 , 271 A.R. 368, regarding reasonable opportunity to consult counsel. The seventh and eighth paragraphs of that

summary read as follows: 7. “A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with areasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invokedthe right to counsel was provided with a reasonable opportunity to exercise the right. 8. If the trial judge concludes that the first implementation duty was breached, an infringement is made out.” 40. In R. v. Miller

(2011) NBPC 11, the importance of the individual’s right to consult a lawyer in an impaired driving case washighlighted at paragraph 24: 24. “Section 10(

b) of the Charter aims to ensure detainees the opportunity to be informed of their rights and obligations. Italso aims to ensure that they are allowed to exercise them. When faced with an arrest or detention for an impaired drivingrelated offence, the detainee could face what, in his or her mind, could be serious consequences arising from mandatoryminimum penalties relating to fines, driving prohibitions and mandatory jail sentences for repeat offenders.

They wouldobviously benefit from access to counsel prior to determining what course of action they should take faced with a demand toprovide breath samples for analysis by approved instruments. State authorities must ensure their conversations are held inprivate and furthermore, absent any urgent or dangerous circumstance, they should allow them the time required to consult withtheir counsel.” 41. In this case, Cst. Robichaud called the Legal Aid office at 17:45 hours. At 18:00 hours, Duty Counsel Anne St-Pierre from LegalAid called back. There was a one-minute telephone conversation between them.

Exactly why that conversation ended is not entirelyclear as two explanations were given. Mr. Ellis told the police officer that the telephone kept cutting out. Lise Landry, the second DutyCounsel to call for Mr. Ellis, stated that Mr. Ellis had decided that he wanted to speak with a different lawyer. This second scenario wasconfirmed by the defendant. 42. In any event, the Lise Landry call came in at 18:03 hours. At 18:14 hours, Mr. Ellis advised Cst. Robichaud that the cell phonehad gone dead. This was confirmed by Cst. Robichaud. The conversation, prior to the phone going dead, lasted 11 minutes.

Thedefendant did not testify at trial; therefore it was not disclosed exactly how the abrupt end to his conversation with his lawyer affectedhis behavior subsequently. 43. The police officer did not offer to the defendant the opportunity to resume his call with Lise Landry. Indeed, there was nodiscussion between the parties, subsequent to the end of the call, about another phone call to the same or any other lawyer. Cst. Robichaud simply came to the conclusion that since Mr. Ellis had spoken for “several minutes” with this second lawyer, he wouldproceed and require from Mr.

Ellis an answer to his demand for the breath sample. He told Mr. Ellis that he needed an answer and thathe either had to provide a sample of his breath or he would be charged with refusal.

44. The issue is whether Mr. Ellis, considering the entirety of the circumstances, was afforded a reasonable opportunity to exercisehis right to counsel. I have concluded that he was not. 45. It seems to me that implicit in the right to counsel under the Charter is the right to have a reasonable period of time for suchconsultation. Police officers cannot arbitrarily place a time limit on such discussions. The Supreme Court of Canada in the seminal caseof R. v.

Prosper (SCC), [1994] 3 S.C.R. 236 stated, at paragraph 44: 44 “Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the rightthere must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocalwaiver will be on the Crown: Ross, at pp 11-12….The Court has indicated on numerous occasions that the standard required foran effective waiver of the right to counsel is very high…” 46.

The same logic should apply in situations where an individual’s right to counsel has been interrupted or terminated for reasons notassociated with the detainee. In situations such as where a phone call is terminated by no fault of the detainee, such as where a cell phonegoes dead, there must be a clear indication that he or she no longer wants to continue that conversation with counsel and the burden ofestablishing this should be on the Crown. 47. In this case, as mentioned, no one asked Mr. Ellis if he wanted to continue his conversation with counsel after the phone wentdead. Cst.

Robichaud merely concluded that he had had enough time. Without establishing a period of time within which a person hashad a reasonable opportunity to consult counsel, I would hold that in this case, with so much at stake, an 11-minute conversation did notsuffice to establish a reasonable opportunity to consult counsel. 48. I therefore conclude that Mr. Ellis’ right to counsel under

section 10(

b) of the Charter was breached.

SECTION 24 CHARTER 49. Section 24(2) of the Charter allows a court to exclude evidence where it concludes that evidence was obtained in a manner thatinfringed or denied any Charter protected rights, provided that the admission of that evidence, having regard to all the circumstances,would bring the administration of justice into disrepute. 50. Section 24(1) allows the court, under similar circumstances, to grant an appropriate remedy. 51. The seminal case on exclusion is R. v. Grant (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1.

In this case, the Supreme Courtof Canada established a revised approach to section 24(2) of the Charter. They modified the analytical framework. Whether theadmission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenuesof inquiry.

A court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system havingregard to: 1) The seriousness of the Charter-infringing state conduct; 2) The impact of the breach on the Charter-protected interests of the accused, and; 3) Society’s interest in the adjudication of the case on its merits. 52. After assessing each of these lines of inquiry, the court’s role is to balance the assessments to determine whether, considering allthe circumstances, admission of the evidence would bring the administration of justice into disrepute. 53.

The term “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining theintegrity of, and public confidence in, the justice system. Section 24(2) does not focus on an immediate reaction to an individual case.

Instead, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by the admissionof the evidence in question. This inquiry is an objective one. Would a reasonable person, informed of all the relevant circumstances andthe values underlying the Charter, conclude that the admission of the evidence would bring the administration of justice into disrepute? 54. Furthermore, section 24(2)’s focus in prospective. The fact of the Charter breach means that damage has already been done to theadministration of justice.

Section 24(2) starts from that proposition and then seeks to ensure that evidence obtained through that breachdoes no further damage to the repute of the justice system. Its focus is also societal. It does not aim at punishing the police, nor does itaim at providing compensation to the accused. It addresses systemic concerns. The focus is on the broad impact of admission of theevidence on the long-term repute of the justice system. A. SERIOUSNESS OF THE CHARTER-INFRINGING STATE CONDUCT 55.

At paragraph 72, Grant says the following: 72 “The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of theevidence would bring the administration of justice into disrepute by sending a message to the public that the courts, asinstitutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing todissociate themselves from the fruits of that unlawful conduct.

The more severe or deliberate the state conduct that led to theCharter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked tothat conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.” 56. Under this heading, the Courts evaluate the seriousness of the state conduct leading up to the breach. The concern is to preservethe public confidence in the rule of law and its processes.

The seriousness of the violation is viewed in terms of the gravity of theoffending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter. State conductresulting in Charter violations varies in seriousness. At one end are inadvertent or minor violations, which minimally undermine publicconfidence in the rule of law whereas on the other end is willful, reckless or flagrant disregard of Charter rights. B. THE IMPACT ON THE CHARTER-PROTECTED INTERESTS OF THE ACCUSED 57.

On this topic, we find the following instruction in Grant, at paragraph 76: 76 “This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of theaccused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the rightinfringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive.

The more serious theimpact on the accused’s protected interests, the greater the risk that admission of the evidence may signal to the public thatCharter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing theadministration of justice into disrepute.” C. SOCIETY’S INTEREST IN AN ADJUDICATION ON THE MERITS 58. This heading is explained in paragraph 79 of Grant: 79 “Society generally expects that a criminal allegation will be adjudicated on its merits.

Accordingly, the third line ofinquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be betterserved by admission of the evidence, or by its exclusion. This inquiry reflects society’s “collective interest in ensuring that thosewho transgress the law are brought to trial and dealt with according to the law”: R. v. Askov, (SCC), [1990] 2S.C.R. 1199, at pp. 1219-20.

Thus the Court suggested in Collins that a judge on a s. 24(2) application should consider not onlythe negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admitthe evidence.”

59. It is the long-term repute of the justice system that is the focus of s. 24(2). The judge must consider all of the circumstances ofthe case to determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administrationof justice into disrepute. BALANCING THE THREE LINES OF INQUIRY 60. The case before me involves a constructive refusal of an approved screening device demand. Undoubtedly, Cst. Robichaud hadmore than sufficient reasonable suspicion to believe that Mr. Ellis had alcohol in his body. Furthermore, he had reasonable grounds tobelieve that Mr.

Ellis had operated a motor vehicle that was involved in a collision just in front of his home. He had established the timeof driving by reason of the call he received from Mr. Guitard. The demand for the approved screening device was therefore entirelylawful. Mr. Ellis was at no time unlawfully detained. He undoubtedly was detained but the legality of this detention is not in issue. Hisdetention was a reasonable limit to the right to retain and instruct counsel: R. v. Thomsen (SCC), [1988] 1 S.C.R. 640;l40 C.C.C. (3d) 411. 61. Cst. Robichaud decided to read to Mr. Ellis his right to consult counsel.

Normally, for demands of this type, such instruction isnot required, but circumstances may arise which do require the reading of the right to counsel. Such was the case in R. v. George (2004), (ON CA), 187 C.C.C. (3d) 289; 23 C.R. (6th) 181 (Ont CA), where the approved screening device demand was madebut the police officer had to wait 16 minutes for it to arrive. It was held in that case that since the demand was not made forthwith, theright to counsel had to be given. In this case, I am not required to decide whether or not Cst. Robichaud had a legal obligation to provideMr. Ellis with his right to counsel. Cst.

Robichaud made that decision for himself. Once he gave the right to Mr. Ellis, however, he hadto comply fully with the legal requirements that attach to that right. 62. The right to consult with counsel is a very precious and important constitutionally protected right. An individual is entitled toknow and appreciate the full extent of his jeopardy. It is only by consulting counsel that he can grasp the full extent of the problems hefaces and what to do about it. The right to get advice from a lawyer is therefore of great magnitude.

Without counsel’s advice, theperson is left to his own devices and the risk of making a bad decision that could have meaningful consequences is amplified. 63. I believe that the Charter- infringing conduct in this case was serious. The police officer had concluded that he should advise thedetainee of his right to counsel because he did not have with him the device he needed to enforce the demand he made. He certainlyshould have known that once the right to counsel was given, he had responsibilities towards the detainee to ensure compliance with theCharter-imposed legal requirements.

He also should have known that Mr. Ellis was entitled to a meaningful communication with hislawyer. In my opinion, on the facts of this case, after having been ordered to supply a breath sample, an 11-minute conversation was nota meaningful communication with a lawyer. Mr. Ellis had to make an important decision. He had been involved in an accident. Hecould lose his licence immediately and be prohibited from driving a motor vehicle later on, if convicted. He had a right to get advice. The police officer knew this, yet did not inquire, after confirming that the phone had cut out, as to whether or not Mr.

Ellis wanted tocontinue his conversation. Instead, he arbitrarily determined he had had enough time to consult counsel. In my estimation, thatconstitutes a serious violation. 64. What was the impact of this Charter breach on the detainee? He was disallowed the right to continue to talk to his lawyer inorder to decide what to do. He was left to decide on his own. This breach was neither fleeting nor technical; nor, on the other hand, wasit profoundly intrusive. What Mr.

Ellis might have said or done regarding the demand for a breath sample, had he been allowed tocontinue on with that conversation, will never be known. I would categorize the impact on Mr. Ellis’ Charter rights as being significantwithout being invasive. 65. As to the cell phone itself, which was no longer working and could not be used to continue the conversation in any event, I do notbelieve this is significant. Mr. Ellis was at his home and could have used a phone there, or he was just a short two-minute ride to thepolice station where he could have resumed the conversation. 66.

I have not lost sight of the fact that the result of Mr. Ellis’ providing a breath sample into the approved screening device would beno more than to provide the police with sufficient reasonable and probable grounds to make a breathalyzer demand. The possible “Fail”reading on the device is not otherwise incriminating. It has no evidentiary value to proving impairment of one’s ability to operate amotor vehicle.

The actual incriminating evidence derives from the breathalyzer readings obtained later on, after the police would havebeen required to advise the detainee of his right to counsel and prior to obtaining the incriminating evidence. The “Fail” reading on theapproved screening device merely assists in establishing reasonable and probable grounds, no more.

67 . In this case, however, the prosecution is relying on constructive refusal in proving its case against Mr. Ellis. They rely on his lack of co-operation and his lack of a response to the demand in order to convict. Had Mr. Ellis provided a sample of his breath under the same circumstances, it is unlikely that this Court would decide that the results of any further testing would be inadmissible. The Supreme Court of Canada in R. v.

Grant , supra, refers to the relatively innocuous taking of breath samples in paragraph 111: “…On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.” 68 . In the case of constructive refusal, however, the same principles do not necessarily apply. The behavior exhibited by Mr.

Ellis following the incomplete phone call and his lack of response constitutes the basis of the charge against him. The fact that he was not afforded the opportunity to meaningfully communicate with counsel could have impacted directly on his behaviour. In other words, the impact of the breach on Mr. Ellis in a constructive refusal case is much more significant than would have been the case had he provided a breath sample. In the first instance, he faces conviction and sentencing for refusal.

In the second, he would have been advised about his right to consult counsel and would have had the opportunity to call a lawyer before proceeding with the breathalyzer samples and providing the incriminating evidence. 69 . As for the third factor, society’s interest in pursuing criminal charges, I do not believe that the truth-seeking function of the criminal trial process would be better served by admission of the evidence than by its exclusion. Society’s interest in the adjudication of the case on its merits does not preempt a serious and unnecessary breach of a well entrenched Charter right. 70 .

Balancing all three factors, I have concluded that the long-term repute of the administration of justice would be better served by excluding from evidence the communications between Cst. Robichaud and Mr. Ellis following the police officer`s breach of his right to consult counsel. Mr. Ellis was having a legitimate conversation with counsel concerning a matter which could have lasting and costly impact on his person. He had every right to a meaningful conversation with the lawyer to discuss the options available to him. The right to consult with the lawyer was given to him by Cst.

Robichaud who must have been aware of the obligations imposed upon him by law. By cutting that conversation short, albeit not deliberately, the officer may have effectively removed from Mr. Ellis the opportunity to make an informed decision. 71 . While recognizing that prosecuting a case is in the eyes of the general public a legitimate concern, I believe the long-term repute of the administration of justice would suffer in this case should the evidence be allowed to be used. The Court should be wary to allow evidence seized following a Charter breach involving one`s right to consult meaningfully with counsel.

This is particularly so in the exceptional circumstances of this case where a constructive refusal immediately followed the abruptly terminated phone call. In this case, the defendant had no further opportunity to consult counsel prior to the foundational facts giving rise to the offence alleged. 72 . Considering all the circumstances, the Court holds that no evidence obtained as a result of the Charter breach should be allowed to be introduced into evidence as to do so would further damage the reputation of the administration of justice in the long term. 73 . Consequently, all conversations between Cst.

Robichaud and Mr. Ellis following the end of the phone call are excluded from evidence pursuant to s 24(2) of the Charter . 74 . That being the case, there is no evidence upon which the Court could conclude a refusal of the approved screening device demand. Therefore, the defendant will be acquitted of the offence. 75 . In view of my ruling on section 24(2), there is no need for me to consider s. 24(1) of the Charter . Dated at Campbellton, N.B. this 27 th day of May, 2013.

______________________________ Ronald LeBlanc Provincial Court Judge