R. v. Hunter, 2017 ONCJ 394

CITATION: R. v. Hunter , 2017 ONCJ 394 DATE: March 24, 2017 Court File No. 2811 998 16 33130 00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN V LEIGH HUNTER *** BEFORE: THE HONOURABLE JUSTICE M.S. FELIX this 24th day of March, 2017, at Oshawa, Ontario *** REASONS FOR JUDGMENT ON CHARTER APPLICATION AND TRIAL PROPER *** APPEARANCES: G. HENDRY Counsel for the Crown

T. BALKA Counsel for Ms. Hunter FRIDAY, MARCH 24, 2017 FELIX, J: REASONS FOR JUDGMENT ON CHARTER APPLICATION AND TRIAL PROPER: (Orally): I. INTRODUCTION: [ 1 ] THE COURT: The defendant is charged with operating a motor vehicle while Over 80 arising out of a police investigation that occurred on December 17 th , 2015. [ 2 ] Police Constable Thompson lawfully stopped the defendant pursuant to his statutory authority as she was operating her motor vehicle at a high rate of speed.

She failed to properly stop for a stop sign, and he wanted to check her sobriety. [ 3 ] The officer promptly provided her with the reason for the traffic stop. During a conversation at the roadside, he noted that there was an odour of alcohol emanating from the interior of the vehicle. He also noted there were two other persons in the car who were intoxicated to some degree. The applicant told him that she was having an anxiety attack due to the intoxication of one of the passengers. The officer asked the applicant to get out of her vehicle to investigate her sobriety.

His questions properly focused on that issue. He received an admission that the applicant had recently consumed alcohol. He also isolated an odour of alcohol emanating from the applicant’s breath. [ 4 ] At 2:21 a.m., the officer formed a reasonable suspicion.

He was equipped with a properly calibrated and functioning approved screening device, and he communicated the requisite demand, forthwith. [ 5 ] The applicant failed the approved screening device test at 2:22 a.m., and she was immediately arrested, ‘For exceeding the legal limit.’ [ 6 ] This part of the investigation was seamless and expeditious. [ 7 ] Thereafter, the officer failed to immediately communicate s.10(

b) Charter rights to the defendant upon arrest. There was a 10 minute delay between the arrest and the provision of rights to counsel. I find that this period of delay was not adequately justified by reasons of officer safety or public safety. [ 8 ] The applicant has established a breach of s.10(

b) of the Charter. [ 9 ] Notwithstanding my finding there was a breach, the applicant has failed to establish that the breath samples should be excluded

pursuant to s.24(2) of the Charter. [10] The s.10(

b) Charter application is dismissed as well as the related s.8 complaint. [11] The defendant asserted one trial-related argument that the officer did not make the breath demand, “as soon as practicable.” Forthe reasons outlined in this judgment, the entirety of the time span was explained, and I am satisfied that the breath demand was made assoon as practicable. Further, I am satisfied that the officer acted reasonably. See Her Majesty the Queen v. Vanderberg. [12] The defendant is convicted of Over 80. These are my reasons. II. THE CHARTER APPLICATION - S.10(B) (

A) ONUS AND BURDEN OF PROOF: [13] The matter proceeded by way of blended application and trial. [14] The focus of the s.10(

b) Charter breach complaint was on the fact that the officer failed to provide rights to counsel immediatelyupon arrest. The applicant asserted that there was an inexcusable delay between the arrest and compliance with s.10(b). The applicantsubmits that this conduct impugns the warrantless seizure of breath samples per s.8 of the Charter and seeks exclusion pursuant tos.24(2) of the Charter. [15] The applicant bears the onus on the s.10(

b) issue on a balance of probabilities. (See R. v. Bush, paras.77-82.) (

B) ANALYSIS -

SECTION 10(B): [16] This focuses on the constitutional requirement that police officers advise detainees of their right to counsel immediately upondetention or arrest. (See Her Majesty the Queen v. Suberu, 2009 SCC 33 , [2009] 2 S.C.R. 460 (S.C.C.) paras.40-41.) [17] That presumptive constitutional obligation is suspended by operation of s.1 of the Charter during roadside sobrietyinvestigations. See Her Majesty the Queen v. Thomsen, (SCC), [1988] 1 S.C.R. 640 (S.C.C.); R. v.

Orbanski 2005 SCC37 , [2005] 2 S.C.R. 3(S.C.C.). [18] In effect, the criminal law permits police officers to breach the Charter while investigating drinking and driving.

This is premisedupon a focused and efficient use of police investigative power in aid of preventing the carnage associated with drinking and driving. [19] Once the detainee is arrested, the rationale for the suspension of rights is gone. [20] The police are required to provide rights to counsel immediately upon arrest. [21] It has been many years since the Supreme Court of Canada in Suberu provided clear guidance concerning the timing of theprovision of rights to counsel, contemplated by s.10(

b) of the Charter: ‘

(40) As with “detention”, any

interpretation of the phrase “without delay” must be consistent with a purposive understanding ofthe Charter provision in which it occurs. As this Court noted in R. v. Therens, (SCC), [1985] 1 S.C.R. 613, at pp.641-42, and in R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, the purpose of s.10(

b) is to ensure that individuals know of theirright to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion whichleaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant toassist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.

(41) 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.

(42) To allow for a delay between the outset of a detention and the engagement of the police duties under s.10(

b) creates an ill- defined and unworkable test of the application of the s.10(

b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words “without delay” mean “immediately” for the purposes of s.10(b).

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.’ [ 22 ] In my respectful view, this area is well settled and clear. [ 23 ] Police officers should presumptively provide rights to counsel immediately upon detention or arrest.

The only basis for failing to provide rights to counsel is “subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s.1 of the Charter .” ( See Suberu , para.42) [ 24 ] The respondent Crown Attorney asserts that the justifications provided by the officer in this case fall under this exception. [ 25 ] I disagree. [ 26 ] The officer testified that he was aware of his obligation to provide rights to counsel immediately upon detention or arrest, but given the circumstances of the investigation he chose to engage in activities associated with his public duty, public safety and officer safety. [ 27 ] The justifications asserted by the officer may be grouped into the following areas: 1.

A concern that the passengers in the applicant’s vehicle would react negatively once they realized the applicant was arrested (both officer and public safety.) 2. A concern that the passengers in the applicant’s vehicle might get out of the vehicle to approach the officer (both officer and public safety.) 3. A concern that the intoxicated passengers in the applicant’s vehicle might get out of the vehicle thereby impacting their own personal safety or the safety of others using the road (public safety). 4.

A concern for the welfare of the passengers in the applicant’s vehicle given the traffic stop was in a “bad part of town” (public safety; 5. A concern for the welfare of the passengers in the applicant’s vehicle in the sense of making arrangements for their safe passage home given the car was to be towed (for public safety); and, 6. Delay in the provision of rights to counsel because of officer safety considerations.

[ 28 ] Despite the able articulation of these justifications by the Crown Attorney during argument, I conclude that the applicant has established a breach of s.10(

b) on a balance of probabilities. (

C) CIRCUMSTANCES OF THE TRAFFIC STOP AND INVESTIGATON: [ 29 ] The officer testified that the entire time he was dealing with the applicant, she was displaying anxiety, crying and almost hyperventilating. He accepted that her emotional reaction was legitimate. This is why he handcuffed her to the front rather than the rear. [ 30 ] After arresting the applicant, he radioed his dispatch that he had the applicant in police custody.

He requested access to an Intoxilyzer technician and a tow truck to attend the location as the applicant’s vehicle was going to be towed. [ 31 ] He advised the applicant that her car was going to be towed, and asked if she wished anything from the vehicle. The applicant asked for her keys and her cell phone from her vehicle. [ 32 ] When the officer returned to the applicant’s vehicle there was a delay of approximately six minutes while he sought the keys and cell phone from the occupants in the vehicle. He further explained in court, that the occupants had several questions for him.

He had to explain that the car was going to be towed, and that other arrangements had to be made for their transportation. [ 33 ] The officer further testified that he was alone that night and did not expect assistance because of how busy it was. He sought to speak to the occupants of the vehicle to head off any potential conflict as had occurred in the past in similar traffic stops. This was an officer safety issue.

He also testified to a public safety concern about the welfare of the two intoxicated passengers, the fact that they were in a bad part of town, and he would have to make arrangements for them to get home. [ 34 ] I accept that there could be public safety considerations associated with the passengers in the vehicle.

But, I do not accept that these considerations were of primary consideration for the officer that night, and even if they were, they did not present a bar to the immediate provision of rights to counsel. [ 35 ] The expressed public safety concerns associated with the passengers ring hollow when I consider the evidence that the officer left the two intoxicated passengers in the applicant’s vehicle, with the engine running, and the keys in the ignition while he investigated the applicant without concern.

Further, he testified curiously that upon his return to the vehicle, he enlisted one of the intoxicated passengers pass him the keys to the vehicle, obtaining them from the ignition. [ 36 ] The officer also testified that he needed to have his hands free for safety reasons when administering rights to counsel from his police notebook. Yet, he had just finished communicating the approved screening device demand and arrested the applicant while being physically right next to her. The only thing that had changed is she was now handcuffed and secured in the rear of his police cruiser.

If the change in circumstances as so acute, he could have simply sat in the driver’s seat and provided rights to counsel from within the vehicle. [ 37 ] There is also little excuse for the officer, upon his return to the police cruiser, delaying 60 to 90 seconds preparing notes rather than addressing rights to counsel. That being said, were this the only period of delay, I would not found a 10(

b) breach on that short period of delay on the facts in this case. It may be that a short delay was needed to ensure that the applicant could calm down. The officer rolled down a window to provide her with air and assist with her comfort. He was concerned that she comprehend the communicated rights.

In any event, on this record, I would be inclined to excuse that short delay of 60 to 90 seconds to make notes given the exposure that officers have to cross-examination at trials focussed on the importance of contemporaneous and detailed notes. [ 38 ] I do not accept, however, that the activities the officer performed justified a delay in the provision of rights to counsel. While it was kind and considerate for the officer to ask the applicant if she wanted anything from this vehicle, this gesture should not supersede the primacy of providing rights to counsel.

The car was not going anywhere until a tow truck arrived. [ 39 ] Under skilled cross-examination by Mr. Balka, the officer’s testimony presented, frankly, more as an after-the-fact excuse. For example, the “bad neighbourhood” justification was revealed just before trial in response to the Charter application.

[40] The effective cross-examination by Mr. Balka provided the foundational support for the applicant to establish a 10(

b) breach. D. SECTION 24(2) OF THE CHARTER: 1. “Obtained in a Manner”: [41] Section 24(2) of the Charter reads as follows: ‘

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or deniedany rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.’ [42] Section 24(2) requires a flexible, purposive, and generous analysis of the nexus between the breach and the impugned evidencepermitting the Court to move to the core of the analysis: Whether the application has established on a balance of probabilities that: (1) the evidence sought to be excluded was obtained in a manner that infringed a Charter right; and, (2) that the admission of the evidence would bring the administration of justice into disrepute: R. v.

Pino,

(2016) O.N.C.A. 389. [43] The analysis requires the following considerations outlined by Mr.

Justice Laskin in Pino at paragraph 72: • The approach should be generous, consistent with the purpose of s.24(2). • The Court should consider the entire “chain of events” between the accused and the police. • The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct. • The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these threeconnections. • But the connection cannot be either too tenuous or too remote. [44] Even with due regard to the required purposive and generous approach it is tenuous to suggest that the breath sample readings inthis case were “obtained in a manner” that infringed or denied any rights or freedoms. [45] First of all, the approved screening device demand communicated by the officer was “forthwith”.

There was no George issue inthis case: R. v. George, (ON CA), [2004] O.J. No. 3287 (Ont. C.A.). [46] Second, breath samples are compelled by statute. In such circumstances, the scope of any legal advice, while I recognize is stillimportant, is limited. See: R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 at paras. 57-62. [47] Third, the applicant has not satisfied me that had she received her rights to counsel 10 minutes earlier, it would have caused somechange in the course of the investigation.

Had the officer spent 30 to 40 seconds communicating rights to counsel immediately afterarrest, it would not changed the progress of the investigation in this case on this record. [48] Fourth, while it should be clear that the Court should not and cannot countenance a Charter breach of this kind, the officer didnot engage in evidence gathering or otherwise prejudice the interests of the applicant during that 10 minute delay.

While I appreciateduring cross-examination the officer was challenged on this point, and it was asserted that he questioned the applicant about whetherthere would be drugs in her vehicle, I note that the questions asked by counsel are not evidence, and the officer categorically denied thisline of questioning.

[ 49 ] Fifth, I am satisfied that there was an intervening “fresh start” event between the Charter breach and the acquisition of breath samples -- the provision of rights to counsel 10 minutes after the 10(

b) Charter breach. During the 10 minute delay in the provisions of rights to counsel as I have noted, nothing of significance occurred in this case. Further, I find it significant that the officer ensured prompt access to counsel after providing rights to counsel. He took steps to expedite access while delay in a line-up of cruisers at the police station. As an aside, while I would prefer that police officers provide the full 1-800 number rather than paraphrase, I do not find that the police must provide the full phone number in order to comply with s.10(b).

In any event, I have no evidence that this shortcut prejudiced the applicant. [ 50 ] The provision of rights to counsel 10 minutes after the Charter breach and access to counsel back at the station prior to the acquisition of breath samples, provided an intervening “antidote” inoculating the breath samples obtained at the station. (See R. v. Simon, para.70.) This “fresh start” involved the provision of rights to counsel and the exercise of those rights, prior to the breath samples. In my respectful view, the subsequent conduct of the officer clearly severed the 10(

b) breach from the acquisition of breath samples. The officer cured his earlier breach. (See R. v. Manchulencho ,

(2013) O.N.C.A 543 paras. 68-70, and the authorities cited therein, including R. v. Wittwer

(2008) S.C.C. 33; R. v. Simon, supra .) [ 51 ] As the Ontario Court of Appeal has observed, there is no reason to confine the “fresh start” jurisprudence to statement cases. (See R. v. Manchulencho , supra, para.70.) [ 52 ] In the end, the Charter breach produced one result -- a 10 minute delay. [ 53 ] This delay did not prejudice the applicant.

No evidence was gathered, no incriminating statements recorded. [ 54 ] The delay was largely due to the officer’s failure to prioritize rights to counsel over facilitating the return of the applicant’s car keys, cell phone and addressing the passengers in her vehicle. [ 55 ] It is doubtful that the breath sample evidence sought to be excluded in this case, was “obtained in a manner” that infringed the rights of the applicant. [ 56 ] Having regard to all of the circumstances, the admission of the evidence in this case, on this record, would not bring the administration of justice into disrepute. [ 57 ] The applicant has not met the onus with respect to the 24(2) remedy and I would end the analysis here. [ 58 ] In case I have failed to afford the nexus issue, the appropriate flexibility, I will go on to briefly address the Grant analysis.

E. GRANT ANALYSIS: [ 59 ] Drinking and driving prosecutions often require the Court to resolve a tension between a breach of the Charter of Rights and Freedoms [ Charter ] , the admission of evidence, and the ultimate disposition of a trial on its merits. [ 60 ] On the one hand, the Charter is the supreme law of the land. A breach of the supreme law of the land should concern a Court. On the other hand, the investigation, detection and prevention of drinking and driving is a foremost public safety concern. 1.

Seriousness of the Charter- infringing State Conduct : [ 61 ] The officer in this case was fully aware of his obligations. [ 62 ] He had eight years experience. He fairly and immediately conceded that he was aware of s.10(

b) obligations.

[ 63 ] It appears that the officer was trying to address a very emotional detainee who had identified a mental health issue directly, anxiety, related to the intoxication of her passengers. His conduct was understandable. He was sensitive to the emotional state of the applicant. His conduct was not abusive or egregious. [ 64 ] On the other hand, many years after the Supreme Court of Canada’s guidance in Suberu , there should be little room for doubt as to the proper procedure after arrest.

Barring exigent circumstances relating to public safety or officer safety, the provision of rights to counsel should be immediate. [ 65 ] The officer in this case prioritized other considerations including securing the applicant’s cell phone and car keys, engaging the passengers in the vehicle, and making notes.

While this is well-meaning, this well-meaning approach subjugated the provision of the applicant’s rights to counsel. [ 66 ] While the good repute of the criminal justice system does not require the Court to distance itself from the conduct of the officer, that being said, this approach to the provision of rights to counsel cannot be supported. [ 67 ] The Court cannot condone a failure by the officer to comply with well-known, clear obligations that he understood. [ 68 ] This factor favours exclusion of the evidence. 2.

Impact on the Charter-protected Interests of the Applicant: [ 69 ] The failure to provide rights to counsel immediately meant that for approximately 10 minutes, the applicant sat in the rear of the cruiser while the officer addressed other priorities outlined in this judgment. After this 10 minute delay, the officer provided rights to counsel. [ 70 ] As indicated, no evidence was gathered during this delay. [ 71 ] The case was not advanced in any way during this delay. [ 72 ] There was no attempt to secure evidence from the applicant or illicit incriminating evidence.

The officer sought to address things that he determined were important and immediate. The overall timeframe is short and explained. [ 73 ] While I might speculate that the lack of information concerning the process going forward had some meaningful impact on the applicant, and I am sympathetic to that view, I am not permitted to speculate that that is so. [ 74 ] The officer did not display a disregard for access to counsel. As I noted, he took steps to expedite her access to counsel during a delay at the police station.

He was waiting in a line-up of police cruisers to enter the sally port of the prisoner cell area of the police station, and in his mind, the delay was too long. In the end, he actually walked his prisoner into the police station, rather than waiting to go through the sally port in order to better expedite her access to counsel. I cannot recall ever hearing of such a step to expedite access to counsel. [ 75 ] In my view, the impact on the Charter -protected rights was minimal. [ 76 ] This ground favours inclusion. 3. Societies’ Interest in Adjudication on the Merits:

[77] Highly reliable breath samples were obtained and societies’ interest in an adjudication on its merits in drinking and driving casesis high. This favour favours inclusion. 4. Balancing: [79] The balance needed is outlined in Her Majesty the Queen v. Harrison, at para.36: ‘The balancing exercise mandated by s.24(2) is a qualitative one, not capable of mathematical precision. It is not simply a questionof whether the majority of the relevant factors favour exclusion in a particular case.

The evidence on each line of inquiry must beweighed in the balance, to determine whether, having regard to all of the circumstances, admission of the evidence would bring theadministration of justice into disrepute. Disassociation of the justice system from police conduct does not always trump the truth-seekinginterests of the criminal justice system. Nor is the converse true.

In all cases, it is the long-term repute of the administration of justicethat must be assessed. [80] While I am deeply sympathetic to the circumstances of the applicant in this case, the circumstances of this case favour admissionof the evidence. F. Conclusion: [81] There was a second argument concerning an independent s.8 breach. The applicant submitted that the officer did not possessgrounds to believe that the applicant was over the legal limit, given his viva voce testimony in Court. [82] I do not agree.

While it is true that the officer both miss-stated the legal limit, and arguably also incorrectly indicated at whatlevel the approved screening device provides a “fail” result, the error struck me as a mathematical one, involving decimal points to somedegree.

Further, while he arguably incorrectly identified at what level the approved screening device provides a “fail” result, I onlyknow that piece of evidence from a multitude of other cases and experience and there is no actual evidentiary basis to show that he iswrong in this case. [83] The officer testified further to a subjective belief that a failure on his functioning and calibrated approved screening device,meant that the applicant was over the legal limit.

His subjective belief was that the approved screening device was calibrated to fail atover the legal limit. [84] When I consider his evidence as a whole, I am satisfied he believed that the failure on the approved screening device meant thatthe defendant was over the legal limit. Given his overarching conclusion, he was not required to correctly state the math or percentagesaccurately. (See R. v. Bernshaw, (SCC), [1994], S.C.J. No. 87 para.49-50, R. v. MacDonnell, [2004] O.J. No. 927.) [85] As I have indicated, the Charter application is dismissed. [86] The defendant is found guilty.

THE COURT: May I see the information? MR. BALKA: Thank you, Your Honour. Having found Ms. Hunter guilty, I am prepared to make some submissions with respectto where we can go from here. We are prepared to proceed to sentence. (COURT REPORTER’S NOTE: At this time, submissions were made by Mr. Balka followed by submissions by Mr. Hendry and sentencing commenced.) *********