2022 QCCQ 2465, 2022 QCCQ 2465

R. c. Romy 2022 QCCQ 2465 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU TOWN OF GATINEAU CRIMINAL Division No: 550-01-115715-205 DATE: April 29, 2022 * ______________________________________________________________________ BY THE HONOURABLE RÉAL R. LAPOINTE, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor-Respondent v. ROMY, Koroth-Yacob Defendant-Applicant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] This Court must rule on an Application made under

Section 10

b) of the Charter of Rights and Freedom (hereinafter the Charter ) to exclude evidence, as is made possible by

Section 24, 2) of the aforesaid Charter . * [ 2 ] The Applicant is a 34-year-old man, who was involved in an automobile accident, while he was driving late on November 17, 2019. [ 3 ] The Applicant was arrested since police officers called to the scene of the accident believed he had driven and operated a conveyance while his ability to do so was impaired by alcohol. Seeing he was to be transferred to the nearest hospital, the officer attending made a demand for a blood sample (320.2, 320,28

a) ii) Criminal Code of Canada ) . [ 4 ] The police claim the Applicant refused that demand, and he was charged accordingly under

Section 320.15 C.cr . for failure or refusing to comply. [ 5 ] The Application requests that this Court order to exclude all utterances made by Mr. Koroth Yacob, the Applicant. It is alleged that the police breached the man’s rights in several ways. [ 6 ] It appears from evidence that Constable J. Lévesque arrived at the scene of the accident at 22h37. Very shortly thereafter, he arrested the man for driving while impaired: it was 22h38.

He did so according to his testimony, because the man who was assisted, thanks to a by-stander, had red-glassy eyes, there was a strong odor of alcohol emanating from his breath and he spoke slowly with a slur, explaining he had pain in his back. [ 7 ] In light of these symptoms, Constable Lévesque testifies he had “reasonable grounds to believe” the man had driven while impaired and arrested him for so doing. He states he gave him his rights to remain silent and his right to counsel “verbally”, i.e. without the use of a card or notes.

It was thus an incomplete informational component according to the constable himself. The constable then took the man to the ambulance and noticed he was tottering as well. [ 8 ] From this point at 22h40, which coincides with the arrival of a second police constable and the availability of the paramedics, an audio recording of what happened in the ambulance is available (VD- 1D2). The recording seems quite complete and audible and lasts for more than 31 minutes until 23h11. [ 9 ] At about 22h54, the ambulance arrives at the hospital and Constable Lévesque joins his colleague who had travelled with the patient.

At 22h56, he read the man his rights (though it seems it was at 22h59 at some point of his testimony (see transcription of June 1, 2021, p. 57, line 14). [ 10 ] In the course of this informational exercise by which the man was to be informed of his rights and ordered to give a blood sample after being charged with impaired driving, a printed form was used (Exhibit VD-1). Nevertheless several irregularities and/or omissions occurred. [ 11 ] Firstly, in regard to the “Rights Upon Arrest” section, it was not read fully, though the right to remain silent and the warning were read twice. The Right to Counsel

section was also read, though four lines were omitted. These referred to the toll-free numbers

made available by both the Bar and Legal Aid. [ 12 ] And, it was not asked of the man thus charged, if he understood this part. Also importantly, it was not asked of the man if indeed he wished to consult a duty counsel or any other lawyer for that matter. [ 13 ] Secondly, the Order to Provide a Blood Sample was read in part only. The constable turned over the text to the Applicant and asked him to read. This was done only partly by Mr.

Koroth and incorrectly. [ 14 ] The police constable then read out loud that part of the order that he had requested the Applicant to read by himself, as well as the rest of the “Order to Provide a Blood Sample” and asked the man if he understood, [ 15 ] The constable then asks the man if he “…accept(

s) to follow the procedures so we can take a blood sample. (…)”. The answer is “Yeah, but I do have pain…”. [ 16 ] Though this question is premature, surprisingly it is not the first time the constable enquires.

Already, after the patient had himself read, only in part and incorrectly the second of four paragraphs of this Order, and before Constable Lévesque had read for the first time all of the order, the question is put to the Applicant for the first time: “Okay, do you accept that we take a blood sample?” for which the Applicant responds “It’s up to you” (p. 17, line 12). [ 17 ] And strangely, though the Applicant has responded positively the second time he was asked, the police constable goes on to give various explanations about who will take the blood sample and the consequences of not accepting the process and asks again “… so what do you say you want us to take a blood sample or you refuse?

You refuse?” Mr. Koroth does not answer. He now responds with a query. (p. 19, lines 7 to 11). [ 18 ] And Constable Lévesque goes on: “If you don’t refuse… so what do you want to do?” (p. 19, lines 16 to 19). [ 19 ] Finally, after additional dialogue, Constable Lévesque says: “It’s an order I’m giving you ok, so you still can refuse (…) So what do you say?” (p. 20, lines 15 to 23). [ 20 ] And there is more. After Mr.

Koroth has spoken with the attending nurse, the constable again asks: “So what do you want to do? (…) My staff sergeant is coming, I’ll check with him how I can manage you to speak with a lawyer, to receive counsel, okay.” (p. 24, line 22 and p. 25, lines 7, 8 and 9). [ 21 ] In all, Mr.

Koroth has been asked six times what he wishes to do, of which five of these questions were referring clearly to his intentions in regards to the Blood Sample Order, the essence of the refusal charge. [ 22 ] The Applicant’s Counsel argues that despite the Applicant’s answering affirmatively, the officer continued to press for an answer rather than immediately facilitating a call to counsel, that there was much unnecessary questions and dialogue, all of which was prior to 23h11. Analysis [ 23 ] The foregoing reveals the basic issues in this matter.

Another question was identified and can be dismissed readily. [ 24 ] It was raised as a breach of the Applicant’s constitutional rights that he did not speak privately to a lawyer when he did have access to one. [ 25 ] This Court believes that this is false. The Applicant was left in private in order to do so. The Applicant’s testimony is unsure in this regard and that of the police constable appears clear and reliable. And it flows from the transcript of the dialogue between Mr.

Koroth and the officer that the latter endeavoured to insure a private conversation (p. 26, lines 8 to 23) and mostly at p. 21 where the constable responds to Mr. Koroth this way: “Yeah, you can have a lawyer but right now it’s impossible for me to let you talk to a lawyer in a private conversation”. [ 26 ] Also, from the sketch prepared by Constable Lévesque, it appears clear there was an opportunity to provide confidentiality by using small rooms on the premises.

And the constable testifies he and the staff sergeant waited outside the door during the telephone conversation. [ 27 ] The significance of the right to counsel issue lies clearly in whether the informational component was given within an acceptable delay. Clearly it was not. The Supreme Court of Canada states in R. v. Suberu, [2009] 3 S.C.R. 160, paragraphs 41 & 42 : 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 affected. 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 […] 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. [ 28 ] The information could have been furnished at the very outset upon arrest at 22h38 instead of the incomplete verbal version,

something of a

summary for an unclear purpose and so partially, it finally serves no purpose. [29] If not then, the informational component could have been formulated during the travelling time, by the constable assistingConstable Lévesque or by the latter, if the necessary arrangements had been made for him to accompany Mr. Koroth. [30] If finally, the information was given at 22h56 and completed before 22h59, it remains, this was bout 20 minutes after beingarrested. That does not conform to the immediacy principle in these circumstances. [31] And the Court takes cognizance that the informational component was never complete.

There remains an important omissioni.e., no reference to the toll-free numbers of the Bar, and Legal Aid. Crown has acknowledged this as a breach of the Applicant’s rights.However, it does not concede it is sufficient to trigger a

Section 24, 2) Charter exclusion. [32] Borrowing from Applicant Counsel’s submission, he reminds this Court that Chief Justice Lamer wrote, in R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, par. 37: The 1-800 number, or at least the existence of a toll-free telephone number, should have been conveyed to the appellant upon his arrestat the roadside even though there were no telephones available.

Indeed, the police should have explained to the appellant that, as soon asthey reached the police station, he would be permitted to use a telephone for the purpose of calling a lawyer, including duty counselwhich was available to give him immediate, free legal advice. It can hardly be described as an undue hardship on police to require themto provide detainees with this basic information, especially when the toll-free number is already printed on their caution cards. I amsatisfied that the 1-800 number was part of the informational requirement under s. 10(

b) of the Charter. I agree with counsel for theappellant that, in today’s highly technological and computerized world, 1-800 numbers are simple and effective means of conveying thesense of immediacy and universal availability of legal assistance which the majority of this Court in Bridges said must be conveyed aspart of the standard s. 10(

b) warning in jurisdictions where such a service exists. [33] Similarly, the police managed to prepare a setting in which Mr. Koroth was allowed to speak to a duty counsel. It was close to45 minutes after his arrest before he could do so. We know from case law that hospitals are not charter free zone or havens. It has notbeen demonstrated by DCPP that such a delay was reasonable. [34] Also, during this 45-minute period much had gone on which could and should have been postponed.

As discussed earlier, therewas much confusion in reciting the whole of the man’s rights upon arrest and the order to provide a blood sample. There wasconsiderable questioning about the Applicant’s intentions when not only was it not necessary to do so but also when it was mostinopportune to do so. It was inopportune to do so for two basic reasons. Firstly, the man had not spoken to counsel about his rights andobligations. He could not know if he would go along with the request.

Secondly, if anything, the numerous questions only seemed tolead the man to more confusion, proof in itself, that the rule to hold off is not only warranted but justifiable. [35] The questioning led the man to go from an “it’s up to you” answer, to a “Yeah but I do have pain…” Mr. Koroth then went onto responding to the question with a question of his own, then to “No, just to be okay I have like pain” to “I don’t know but to be honest,can I talk?”.

And lastly, he remains uncertain… or more confused. [36] The pressure of this questioning, in light of his vulnerability resulting from the car accident, seems considerable. All so despitethe duty police have to hold off. [37] In the matter of R. v. Bagherli, [2014] M.J. No. 378, the Manitoba Court of Appeal revisits the duty incumbent upon police, tohold off questioning until a detainee has had a chance to consult counsel. 28 In practice, these objectives of s. 10(

b) are achieved by police observing certain duties in relation to the right to counsel. Theseduties were described in the following manner by McLachlin C.J. and Charron J in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310 (atpara 27):

Section 10(

b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called theinformational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This iscalled the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(

b) and resultsin a breach of the detainee’s rights: Manninen. Implied in the second component is a duty on the police to hold off questioning until thedetainee has had a reasonable opportunity to consult counsel. The police obligations flowing from s. 10(

b) are not absolute. Unless adetainee invokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonableopportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, (SCC), [1989] 2 S.C.R. 138, at pp. 154-55. [38] And at paragraph 29, the Appeal Court formulates clearly its

interpretation of the aforementioned Suberu rule. 29 Police are obligated to fulfill their informational and implementational duties relating to the right to counsel immediately. Theonly exceptions to the “without delay” rule are where there are concerns about officer or public safety, or the circumstances for the delayare a reasonable limit of the right to counsel within the meaning of s. 1 of the Charter (R. v. Suberu, 2009 SCC 33, at para. 42, [2009] 2S.C.R. 460). [39] Another issue was raised that could have a bearing on this case. It flows from the evidence that Mr.

Koroth was charged withthe actual refusal to give a blood sample offense and no charge was laid in regard to the suspected impaired driving which brought aboutall of the foregoing. The reasons for this remain unknown to the Court. It was revealed but not argued by the parties, that he was notgiven an opportunity to speak to a lawyer about this development. Accordingly, this Court will not rule on this issue, especiallyconsidering the outcome of the matters already discussed. [40] Considering the incomplete informational component of his rights, Court concludes to a breach of Mr. Koroth’s Charter right.

[ 41 ] And, clearly not holding off the questioning until the Applicant had an opportunity to seek counsel constitutes an additional breach. It can be said that it constitutes several breaches, in this case. [ 42 ] And finally, no explanation was given as to why the immediacy rule was not implemented. In fact, it seems as if not attempting to elicit evidence of a refusal to giving a blood sample would have allowed to implement constructively Mr. Koroth’s right to counsel within a better and more reasonable delay.

The continued probing contributed to an additional breach especially in the context that the patient would not be moved to another location for blood testing. [ 43 ] The evidence sought to be excluded by way of

Section 24, 2) of the Charter are all the utterances made by the Applicant prior to speaking or having the opportunity to speak to counsel. [ 44 ] As explained by Defense Counsel, these utterances and accompanying circumstances are not by nature highly reliable evidence like drugs or breath and blood samples. In the circumstances, they are the result of a man who was vulnerable and in an obvious state of confusion, the result at least in part of unnecessary verbiage and unfair questioning. [ 45 ] They should be excluded by reason of the sum of several breaches.

FOR ALL THESE REASONS, THIS COURT: ALLOWS the Application; RULES the Applicant’s rights have been breached; ORDERS that all utterances allegedly made by the Applicant be excluded from evidence at trial and stricken from record. __________________________________ Réal R. LAPOINTE, J.C.Q. M e Jennifer Morin Attorney Director of Criminal and Penal Prosecutions Me David Anber David Anber’s Legal office For the Defendant Dates of hearing: June 1 st 2021; July 22 nd 2021, January 18, 2022.