R. v. Beaudoin, 2016 ONCJ 884

CITATION: R. v. Beaudoin , 2016 ONCJ 884 DATE: December 22, 2016 Info No. 142109 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JONATHAN BEAUDOIN R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE R.W. BENINGER on December 22, 2016, at PETERBOROUGH, Ontario APPEARANCES :

J.T. Martin Counsel for the Crown D. McFadden Counsel for Jonathan Beaudoin THURSDAY, December 22, 2016 R E A S O N S F O R J U D G M E N T BENINGER, J. (Orally): I have reasons for decision in Mr. Beaudoin’s matter. Jonathan Beaudoin is charged with operating a motor vehicle while having over 80 milligrams of alcohol in 100 millilitres of blood on October 3 rd , 2014. I heard trial evidence and submissions from counsel on November 22 nd , 2016. I gave Crown and defence an opportunity to file further cases for review, if they wished, by December 9.

I received a further case book from the Crown and I have reviewed those cases. First of all, on the facts - on October 3, 2014, Police Constable McNab was operating a marked police cruiser on Lansdowne Street in Peterborough. He made observations of the driving actions of a yellow van that drew his attention. He decided to stop the van and make inquiries as to the sobriety of the driver and to ask for required vehicle documents. Police Constable McNab stopped the van and told the driver the reason for the stop. The driver was the defendant.

It quickly came to PC McNab’s attention that the defendant’s first language was not English. The van had Quebec license plates. The defendant had an address in Quebec. It was clear to PC McNab that the defendant’s first language was French. Upon making further observations, PC McNab formed a reasonable suspicion that the defendant had alcohol in his system and he made a demand to the driver for an approved screening device roadside sample. The result was a fail and the defendant was arrested at 2:20 a.m.

In speaking with the defendant, PC McNab made his best efforts to communicate with the defendant so that he could understand the process. He had the defendant read the approved screening device demand which was written in French on a police card. PC McNab attempted to speak French. He made some of the explanations in English and PC McNab was left with the impression that the defendant was understanding what he was told. In particular, PC McNab believed that the defendant understood the right to counsel warning that he was given.

Under cross-examination, PC McNab agreed that he was nowhere near fluent in the French language and would have difficulty carrying on conversation in French. While he used his best attempts to communicate with the defendant, PC McNab felt that the defendant was getting impatient with PC McNab’s communications once a number of warnings had been read. When asked if he wished to call a lawyer, the defendant responded, “I have no idea.” While being transported back to the police station for breath testing, the defendant asked to speak to a French speaking duty counsel lawyer.

Soon after arriving at the police station, PC McNab phoned the duty counsel phone line at 2:46 a.m. and requested a French speaking lawyer to speak to the defendant. PC McNab then waited for a French speaking duty counsel lawyer to return the phone call. When there was no return phone call, PC McNab made additional phone calls at 3:30 a.m., 3:46 a.m., 4:03 a.m., 4:13 a.m. and 4:33 a.m. He made a total of six phone calls to obtain the services of a French speaking duty counsel to speak to the defendant. At 4:46 a.m., a French speaking duty counsel returned PC McNab’s calls.

It took two hours for a duty counsel phone call to be returned and a French speaking duty counsel made available to speak to the defendant. The defendant was given privacy and spoke to the duty counsel. The defendant finished the phone call at 4:49 a.m. and told PC McNab that he was satisfied with the advice he had been given. The defendant did not ask for any further opportunity to speak to a lawyer. The defendant’s custody was transferred to a qualified breath technician, PC Knier.

PC Knier received two suitable breath samples from the defendant being 113 milligrams of alcohol in 100 millilitres of blood at 4:56 a.m. and 107 milligrams of alcohol in 100 millilitres of blood at 5:17 a.m. PC Knier spoke to the defendant in English and the defendant responded to him in English. PC Knier was of the opinion that there was no language barrier in his conversation with the defendant. He believed that the defendant understood what he was saying to him.

PC McNab received custody of the defendant back at 5:22 a.m. PC McNab drove the defendant back to his motel. The Crown filed a Letter of Opinion from Karen Wall, a forensic scientist in toxicology, as Exhibit 4 at trial. The opinion stated by Ms. Wall was that the defendant’s blood alcohol concentration at 2:05 a.m. was in the range of 110 to 160 milligrams of alcohol in 100 millilitres of blood. Her opinion relies upon the evidence of the breath samples obtained by PC Knier.

The defence filed an application at trial submitting that the defendant’s rights under the Canadian Charter of Rights and Freedoms were breached. The defence application was heard as a blended application along with trial evidence. In particular, the defence submits that the defendant’s right under

section 10(

b) of the Charter to retain and instruct counsel without delay was breached. The defence bears the onus for proving the breach on a balance of probabilities. The defendant testified with the assistance of an interpreter on the Charter application. Based on the defendant’s evidence and all of the other evidence I heard in this case, I am making a finding that the defendant’s primary language is French. I find that he has a limited capacity to understand and communicate in English. I put limited weight on other aspects of the defendant’s evidence.

I was left with the impression that the defendant was minimizing his ability to understand the process the night that he was arrested. For example, he said in his evidence that he was not satisfied with the advice he received from the French speaking duty counsel. However, he filed an affidavit stating that when he was able to speak to a lawyer who spoke French, “I felt relieved that I could finally get answers to all the questions I had.” The defence argues that there was a violation of the requirement that breath samples be taken as soon as practicable as required under the Criminal Code , section 258(1) (c).

The Crown filed a Letter of Opinion in this case and is not relying upon the section 258(1) (

c) presumption. Accordingly, I agree with the Crown submission that a failure to take the breath samples as soon as practicable does not provide a statutory defence. The principal defence argument is that the defendant’s

section 10(

b) Charter right to retain and instruct counsel without delay was breached. The defence argues that the two hour delay in securing a French speaking duty counsel to advise the defendant was a Charter violation and the subsequent breath samples should be excluded from evidence. In response, the Crown notes that a French speaking duty counsel was secured to speak to the defendant and the defendant was satisfied with the advice that he received. The police made their best efforts to obtain the services of the French speaking duty counsel. The police held off from continuing the investigation and taking breath samples until after the defendant’s right to counsel was addressed.

Section 10(

b) of the Charter states, “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” There are two components to

section 10(b), being the informational component and the implementation component. On the evidence I heard, I am satisfied that the informational component of the

section was met. Police Constable McNab was careful to advise the defendant of his rights and that included having the defendant read the French

section of the police card. The defendant understood what his rights were and he waited to speak to a French speaking duty counsel. As to implementation, I have the following evidence: 1) The delay in obtaining a French speaking duty counsel to speak to the defendant was two hours. PC McNab made six phone calls to duty counsel. 2) I have evidence from PC McNab regarding his usual experience in contacting duty counsel. I note that PC McNab is a very experienced police officer having joined the O.P.P. in 1987.

In his experience, the usual time for a call-back over the past five to ten years has been 10 to 15 minutes. It is rare now for a call-back to take longer than a half hour to an hour. PC McNab’s evidence was that the delay in this case was unusual. His expectation was that a return call from a French duty counsel would take less than two hours. When the call was finally returned, the information PC McNab received was that the delay was as a result of a French speaking duty counsel being required.

As a factor in my decision, I consider that the language in question was French. The Official Languages Act was passed in 1969 as the cornerstone of institutional bilingualism in Canada. Guarantees for the equal status of two official languages of English and French are provided in sections 16 through 23 of the Canadian Charter of Rights and Freedoms which became law in 1982. Section 530(1) of the Criminal Code sets out substantive official language rights for accused persons in Canada. The equal status of the French language in Canada as an official language has been established for a substantial period of time.

I have to ask whether it is reasonable for a person under arrest or detention to wait two hours to speak to a lawyer in one of Canada’s official languages. I find that it is not reasonable.

Section 10(

b) says that the right to counsel is to be exercised “without delay”. I cannot find that a two hour wait to provide access to counsel in one of our official languages is “without delay”. I find that the delay in this case was not reasonable and was a breach of the defendant’s

section 10(

b) Charter rights. I have considered the Crown argument that the defence had an obligation to call additional evidence to prove that the delay was related to a systemic failure. I do not agree with the Crown argument. I heard sufficient evidence on the application. I find that the defence has met the necessary onus on a balance of probabilities based on the evidence that I heard. I have also considered the Crown argument that the delay deficiency was cured by the police holding off in continuing their investigation until the defendant could speak to counsel. I do not agree with that argument either.

By that analysis, any length of delay would be permissible as long as the police held off. By that analysis, there was no meaning to the

section 10(

b) requirement of “without delay”. I further find that the defendant exercised due diligence in asking to speak to a French speaking duty counsel. There was nothing else the defendant could do. His access to legal counsel depended upon the Legal Aid duty counsel service. Having found a Charter breach, I have to apply the Grant test from the Supreme Court of Canada in considering whether subsequent evidence obtained by the police should be excluded. In this case, the foundation of the Crown case is the admission of the breath sample results. As noted in R. v.

Grant in the Supreme Court of Canada at paragraph 85 and I quote: The three lines of inquiry identified above — the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits — reflect what the s. 24(2)judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice.

Having made these inquiries, which encapsulate consideration of “all the circumstances” of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

I will review the three lines of inquiry in this case. Firstly, seriousness of the conduct - in this case, I find no bad faith on the part of the police. In fact, PC McNab made extensive efforts to implement the defendant’s right to access a French speaking duty counsel. PC McNab’s efforts were frustrated by a lack of timely response from the duty counsel services which were available. When a person is under arrest or detention, they are completely dependent for access to legal advice upon the police and whatever access is provided by the State. They do not have any other options.

I find the inability of the State to provide access to counsel in one of Canada’s official languages in a reasonable period of time to be a serious breach. The seriousness of the breach favours exclusion of the evidence. Secondly, impact upon the defendant - the

section 10(

b) right to counsel is a fundamental legal argument under our Charter . A person under arrest or detention needs to be able to exercise that right without delay. I find that the inability to exercise that right in a reasonable period of time had a serious impact upon the defendant. The impact on the defendant’s Charter -protected rights favours exclusion of evidence. Next, adjudication on the merits - the Grant case, specifically, notes that breath tests should normally be admitted into evidence.

That being said, I note that the failure to implement the defendant’s right to counsel was on the face of it a systematic failure. The fact of and the reason for the delay speaks for itself. If there is no sanction for the failure of the State to deliver an essential legal service, there is little incentive to address the deficiency in the future. I find adjudication on the merits as a line of inquiry in this case to be a neutral factor with respect to admission or exclusion of evidence.

In conclusion, having considered the three lines of inquiry under the Grant test, I find that the admission of the breath tests in this case would bring the administration of justice into disrepute. The breath test evidence is excluded. Accordingly, the Crown is unable to rely upon the breath test evidence as a foundation for the Letter of Opinion prepared by the toxicologist. As the Crown does not have evidence to prove an essential element of its case, the charge against the defendant of operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood is dismissed.

Those are my reasons. **********