R v. McFadden, 2016 ONCJ 777

CITATION: R v. McFadden , 2016 ONCJ 777 DATE: December 1, 2016 Information No. 15-13935 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. VIRGINIA MCFADDEN R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE JUSTICE P. BAND on December 1, 2016 at BRAMPTON, Ontario

APPEARANCES : M. Basso Counsel for the Crown T. Hawtin Counsel for Virginia McFadden ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S REASONS FOR JUDGMENT 1 LEGEND [ sic ] Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) Indicates preceding word has been spelled phonetically. Transcript Ordered: December 2, 2016 Transcript Completed: Ordering Party Notified: December 19, 2016 December 19 , 2016 THURSDAY, DECEMBER 1, 2016 R E A S O N S F O R J U D G M E N T

BAND, J. (Orally): On October 5, 2015, Ms. McFadden was charged with the offence of Driving with Excess Blood Alcohol after she was pulled over on Hwy 410 shortly after 2:14 in the morning. At the station, she provided samples of her breath. The results were both almost twice the legal limit. At the outset of trial, the defence admitted the Crown's case on the merits and advised that the only issue was whether Ms. McFadden's right to speak to her counsel of choice had been breached.

Based on the evidence as it developed, the issue is whether the police lived up to their obligation to fully inform her of her right and to facilitate access to counsel of choice. The defence argues the police fell short of both the informational and implementational duties that

Section 10(

b) of the Charter imposes on them. As a result, the results of the breath tests ought to be excluded. The Crown argues that the evidence shows that Ms. McFadden chose to speak to duty counsel. If she wanted to speak to private counsel, she failed in her obligation to be duly diligent in that regard by forbidding the police to call her boyfriend on her behalf. The Evidence PC Carullo was both the arresting officer and the qualified breath technician that day. When he brought Ms. McFadden to the detachment, she interacted with a PC Aygun, who was working at the lodging desk with Sergeant Cole.

PC Aygun had been an officer for less than a year and was still on probation on the day of this investigation. Sergeant Cole has been an OPP officer for 18 years. Rights at the Roadside After arresting Ms. McFadden and making a Section 254(3) demand PC Carullo informed her of her right to counsel by reading from a card in his possession. When he asked if she understood, she said "No." He explained it again, and she indicated that she understood. PC Carullo did not inform Ms. McFadden that she had the right to retain and instruct counsel without delay . The timing of the right to counsel is included in his card.

It states, "Do you wish to call a lawyer right now?" but it is his practice to omit that question because he does not want to make a promise to an arrestee that he cannot keep. PC Carullo testified that he asked Ms. McFadden if she wished to speak to duty counsel. He did not have a note of doing so, but he explained that it is his practice to ask that question. He also testified that she had, in fact, requested to speak to duty counsel. But her request was not in his notes.

He explained that his failure to make these notations was because Ms. McFadden was uncooperative and hysterical at the time. He also explained that if a detainee indicates that he or she does not wish to speak to duty counsel, he'll, "Ask again at the detachment and that would go in his notes as well." They then went to the detachment. En route there was no further discussion of the right to counsel. Events at the lodging desk. PC Carullo's Evidence of the events at the lodging desk. PC Carullo explained that they arrived at the detachment at 2:53 a.m., and began the lodging process at 2:55 a.m.

Sergeant Cole was the supervisor that day. PC Carullo provided information to Sergeant Cole. He believed that PC Aygun was there as well. At 3:06 a.m., PC Carullo went to call duty counsel. He would not return until approximately 3:14, when duty counsel called back. He testified that even though Ms. McFadden requested to speak to duty counsel, it was not in his notes. But, he explained, the only reason he would have placed the call is if she had stated that she wished to speak to duty counsel. In cross examination, PC Carullo acknowledged that he had not noted Ms.

McFadden's request for duty counsel in the recap portion of the alcohol influence report that he completed as the qualified breath technician nor was it included in the discussion he had with her on video in the breath room.

He also explained that it is common for a discussion about duty counsel to take place at lodging as follows, "As soon as we bring an arrest back to the office...especially if it's an impaired, just to hurry the process along, because times are important, we'll begin the booking process and then as soon as an officer comes to assist I'll ask do they want to speak to duty, if so, that officer will take over while you make a phone call to duty." When asked if he provided her with a phone book to look for a lawyer, PC Carullo answered, "There'd be no point to look for a lawyer.

She doesn't have one and we offer duty counsel." As for a lawyer's directory, PC Carullo explained the following: " ...what we use that book for is if the accused suggests they have a lawyer we confirm that it is listed in that book and we phone that lawyer. Most of the time they know the lawyer's name they just don't know the number." He then agreed with the suggestion that it is a, "Police resource to use." He had not heard about Ms. McFadden's boyfriend's parents' connection to a lawyer until she was in the breath room.

He felt that, "Her behaviour did not indicate that she knew for sure that the boyfriend's parents had lawyers or anything like that."

He then added: "She was quite confused and uncooperative through the whole process so discussion we had on multiple occasions about not having her own lawyers and she agreed she didn't because she never needed them before. And you know I did ask her if she was satisfied with her conversation with duty counsel and she said she was." PC Aygun's Evidence of the events at the lodging desk. PC Aygun testified that his involvement with Ms. McFadden began at 3:13 a.m. She was talking constantly while he was attempting to fill out the lodging form.

He told her, "Can we just get through this process." She was crying and pleading to speak to someone her boyfriend knew. He and Sergeant Cole gave her her iPhone. He wasn't sure what she was going to extract from it. She wasn't very clear. At first, he indicated that she did not want to give information as to next of kin, so they just chose the boyfriend as the chosen contact. He saw the contact information himself, including the boyfriend's phone number, and put it in the lodging sheet. Sergeant Cole was present at the time. He did not believe that Ms. McFadden asked him to contact her boyfriend for her.

In cross-examination, PC Aygun testified that there was no discussion about calling duty counsel when he was present. He was present during the discussion about someone that Ms. McFadden's boyfriend knew. He was asked if, "Implicit in that is that it's counsel." His response was, "It could be the case, yes.” He also knew that by "real lawyer" she meant someone other than duty counsel. He listed the potential concerns that can arise when third parties are called, "they come in, they're starting trouble in the area that you’re trying to get this person processed, speak to their lawyer, get their rights....

But then there's other people just kind of creating a distraction...." He then testified that he would not call the boyfriend to find out who the potential counsel was, "Unless someone told me to do so." While he believed that anyone could be in a position to make the decision whether to call the boyfriend or anyone else, he himself would have had to go through someone higher than him given that he was on probation. From what he could tell, Ms. McFadden did not want him to call her boyfriend. Sergeant Cole's Evidence of the events at the lodging desk.

Sergeant Cole testified that his first involvement in the matter was at approximately 3:00 a.m.

He assisted PC Carullo with lodging and paperwork. He seized Ms. McFadden's property and filled out the property form. She refused to sign it. He explained that Ms. McFadden was upset. She was also hyperventilating. I pause here to note that there is no suggestion that she was malingering. As for the issue of counsel, his understanding of what she had been saying is that, “she wanted to call her boyfriend who in turn would call his father to get legal advice from some parties that the father knew." However, she did not want to provide her boyfriend's number to police. She wanted to call him herself.

Sergeant Cole would not allow this. He explained, "We are required to make any outgoing phone calls for people in custody." The reason is so that they can know who the party is that is being called. Sergeant Cole explained this to Ms. McFadden. He then attempted to explain to her that she could speak to a free legal aid lawyer. He then explained the procedure as to lodging and obtaining breath samples. Sergeant Cole also testified that Ms. McFadden had said that her boyfriend's father, "Knew a lot of rich people." And that she knew a Peel police officer who had told her what would happen in such a situation.

Sergeant Cole asked her if her boyfriend's father was a lawyer. Her response was, "No.” Ms. McFadden also told Sergeant Cole, "I was not communicated my rights.” He did not respond to that or take further steps to communicate to Ms. McFadden her rights. He described the fuss that Ms. McFadden put up when they tried to put her into a cell. She resisted and they had to use force. She ultimately spoke to duty counsel. In cross-examination, he testified that he did not understand Ms. McFadden's reference to her boyfriend's father to be about a lawyer. He didn't get that feeling.

He told her she could only speak to a lawyer. However, he acknowledged that his past practice was to allow people to call family members if they had legal contact information that they needed. It simply wasn't the impression he got from Ms. McFadden that night. So, he told her she could speak to Duty counsel.

She did not accept that. He testified that he would have "possibly" contacted Ms. McFadden's boyfriend to see if he knew a lawyer if he had been given his phone number. I mentioned earlier that the phone number was placed on the intake sheet by PC Aygun. I understood this to be in the presence of Sergeant Cole. He was cognizant of his responsibility to facilitate contact with counsel of choice. Sergeant Cole also testified that PC Carullo convinced Ms. McFadden to speak to duty counsel.

He could not recall how that took place, but acknowledged that it "possibly" meant that she did not want to speak to duty counsel. He did not recall her saying she wanted to speak to a "real lawyer.” Ms. McFadden's evidence of the events in the lodging area. Ms. McFadden testified that she did not want to speak to Duty counsel. She requested to speak to her boyfriend so that she could get information about counsel. She knew his family would know a lawyer and she knew her boyfriend would be home. She had spoken to him earlier that night.

She wanted to speak to him directly because she was embarrassed and humiliated and thought it would be better for him to hear about her predicament from her. The police told her she was not allowed to do so. They said they would call him for her. She initially did not want them to. But if she had understood that the options were limited to having them call her boyfriend on one hand, and her having to speak to duty counsel on the other, she would have wanted police to call him. When talking about a "real lawyer" Ms. McFadden meant someone her boyfriend's family knew. Not duty counsel.

About going in to speak to duty counsel in the private booth, Ms. McFadden said, “It seemed to be the only option I was given. If I wanted to speak to a lawyer, I had to speak to duty counsel." As for her behaviour, Ms. McFadden explained that she was very upset that night. She was a little hysterical. She was definitely hyperventilating. She was terrified and mortified. In cross-examination, Ms. McFadden said she recalled PC Carullo reading her rights, but said she did not exactly understand what he was saying. She remembers saying "No" when asked if she understood. He gave her further explanations.

She was confused. This was not necessarily or only because of alcohol consumption. She was in shock, and felt stressed, anxious and terrified. She had never been in a situation like that. At the station, Ms. McFadden was not aware that PC Carullo had gone to call duty counsel on her behalf. The Duty Counsel Call

Duty counsel called back at 3:14 in the morning. This is when PC Carullo returned to the lodging area. He retrieved Ms. McFadden from the cell area, and explained to her that she could speak to a lawyer. She was confused. He tried to reason with her and calm her down by explaining that she could speak to a lawyer. As he put it in chief, "Eventually I was able to have Ms. McFadden placed in the booth to speak to duty counsel." In cross-examination, he acknowledged that Ms. McFadden initially did not want to speak to duty counsel. He elaborated as follows: "She was very upset. Again, I think she was confused.

She didn't understand exactly what was going on so I tried to sit her through, be patient, explained everything that's going on and the process." At the time, she expressed a desire to speak to a "real lawyer.” He denied that he understood the phrase "real lawyer" to mean something other than duty counsel. He believed that this indicated that Ms. McFadden did not understand what duty counsel was. In re-examination, PC Carullo indicated that some accused think duty counsel is a police officer. So, he explained the role of duty counsel. According to him, Ms. McFadden then agreed to speak to duty counsel.

According to PC Aygun, Ms. McFadden was verbally challenging everything. “There was a lot of insulting and challenging every question asked, just actively resisting pulling away falling down on her own, not listening.” Such that she had to be convinced that duty counsel could help her. Initially, she refused to speak to duty counsel. She was saying she wanted a real lawyer to help her. To him, that meant she did not want to speak to duty counsel. He explained that the convincing was done by PC Carullo, who convinced her that duty counsel could help because he was a lawyer. This took him a couple of minutes.

PC Aygun was just there as back up. When asked by the Crown if she agreed to speak to duty counsel, PC Aygun's response was, "She eventually did speak to duty counsel."

He added that she was hysterical to that point. At no time did she ask for a specific lawyer by name. Ms. McFadden was in the private telephone booth from 3:22 to 3:28 a.m. After speaking with duty counsel, she did not express a desire to speak to another lawyer. Events in the Breath Room. First, a word about the portion of the breath room video that the parties showed me. Clearly, Ms. McFadden was a difficult detainee. She was very upset, and at times sarcastic. On the issue of the right to counsel, when PC Carullo confirmed that she spoke to a legal aid lawyer, Ms.

McFadden asked when that was supposed to happen. At the scene? When she was restrained? When she was forcefully put behind bars and screaming? PC Carullo's answer was, "As soon as practicable." She then told him that nobody let her speak to anybody until after she was put in the cell. His response was, “I told you you’re only able to speak to lawyer or Legal Aid lawyer and because you don't have a lawyer we called Legal Aid Ontario for you.” When PC Carullo asked her if she was satisfied with her discussion with duty counsel, Ms. McFadden responded "Sure". Her tone was clearly sarcastic.

PC Carullo then asked "Yes?" and she replied, again, "Sure." Later, she asked him if duty counsel was a police officer. He told her that duty counsel is a lawyer. I must point out that PC Carullo's demeanour towards Ms. McFadden is kind and patient. He addresses her by her first name and tells her, "you can talk to me." In cross-examination, it was put to PC Carullo that Ms. McFadden's response on the video was "Sure" and, as PC Carullo testified, "And I did correct her. I said "Yes?" and she said "Sure" again, which I took to mean we were on the same page.” Ms.

McFadden testified that she had told duty counsel that she was unsatisfied. But when PC Carullo asked her if she was satisfied and she said "Sure" she was being sarcastic. This is because she felt like she had not had a choice and she did not feel like any other response would have done her any good.

FINDINGS OF FACT Few of the facts in this case are in dispute. However, some must be resolved. First, at the scene, did Ms. McFadden tell PC Carullo that she wanted to speak to duty counsel? I am unable to rely on PC Carullo's testimony on this point. He has no notes of this important detail, and instead relies on his routine and on his sense that it is the only logical explanation for his call to duty counsel on her behalf. I am unable to see it his way. First, I believe Ms. McFadden that she did not want to speak to duty counsel. I do not believe that she told PC Carullo that she did, at the scene or elsewhere.

Her behaviour throughout makes that quite clear. She wanted to speak to her boyfriend. I also believe her that she was confused when her rights were given to her at the scene. PC Carullo's testimony confirms that she did not understand her rights. Second, PC Carullo's approach to the issue of counsel of choice versus duty counsel appears to be binary. That is, if you don't know a lawyer, you speak to duty counsel. His evidence bears this out. He testified that it is his practice to ask specifically whether someone wishes to speak to duty counsel.

He also explained that if a detainee indicates that he or she does not want to speak to duty counsel, he'll, "ask again at the detachment and that would go in his notes as well." To me, this shows that PC Carullo's approach, likely unintentional, is to funnel detainees who do not know a lawyer toward duty counsel. His explanation of the need to "hurry the process along", described above, is telling in this regard. As is his evidence that there is no point in looking for a lawyer in the directory.

"She doesn't have one and we offer duty counsel." As a result, I cannot adopt PC Carullo's explanation for making the call to duty counsel in this matter. Even if I am wrong about that, the situation was not static. By all accounts, the events during the lodging process show that Ms. McFadden did not want to speak to duty counsel. While PC Carullo was not present for all of that period, others were, including a sergeant with 18 years experience.

Did Ms. McFadden wish to contact counsel through her boyfriend? Notwithstanding Sergeant Cole's evidence about this, I find that it was obvious that Ms. McFadden's reason for wanting to contact herboyfriend was to be given access to private counsel. PC Aygun, with less than a year on the job, understood this immediately. He alsounderstood that to her, a "real lawyer" was not duty counsel. Did Police fully inform Ms. McFadden of her rights, did they facilitate her right to access counsel of choice and did she ultimately chooseto speak to duty counsel? PC Aygun's evidence alone demonstrates that she did not.

So does PC Carullo's, based on the fact that he took it upon himself toconvince her. Officers simply should not be in the business of convincing detainees to speak to duty counsel or any other particular lawyer for thatmatter. The fact that she made it clear that she did not want police to call her boyfriend on her behalf does not change this conclusion. Ms. McFadden believed that she only had two options: police speak to boyfriend or you speak to duty counsel. That belief wasreasonable, based on the events of that night.

In my view, if police policy is to forbid all detainees from contacting a third party directly, it ought to be revisited. It appears to be theOPP's position, as well as that of the Peel Regional Police Service. See R v. Maciel, 2016 ONCJ 563 , 2016 OJ. No. 4789, adecision of Justice Stribopolous. But it is by no means universal. I am not saying anything new. In R. v. Kumarasamy, [2002] O.J. NO. 303, Justice Durno wrote: This is not to say that a detainee is always entitled to make one or a series of calls to friends or relatives. The determination must bemade on a case by case basis.

No doubt there will be rare cases where a call to a friend or relative in private could jeopardize an ongoinginvestigation. For example, if the detainee has accomplices who had not been arrested, or if persons or property could be placed injeopardy by permitting a call to someone other than a lawyer, a delay might be justified. That is not the case here. That case, decided in 2002, involved charges of impaired driving and refuse breath sample. In any event, leaving the policy aside, I believe the officers should have done more to explain to Ms.

McFadden what they would do onher behalf in phoning her boyfriend in order to facilitate access to counsel of choice, despite her apparently forbidding them to do so. It is not uncommon for detainees to be reluctant to have their loved ones woken up in the middle of the night by a police officer. I believethat in those circumstances, it may be incumbent on officers to do more than simply take solace in the notion that the detainee forbadethem to call a third party to facilitate access to counsel.

The risk, as in this case, is that duty counsel is then foist upon a detainee who may very well have had a lawyer of choice. But even if I am wrong about that, the options police presented to Ms. McFadden were incomplete in this case. By creating a falsedichotomy, they failed to inform her that she, like any other detainee, has a third option: to contact any lawyer. That option, in this case,would have placed additional responsibilities on the police to facilitate contact by providing her with resources, such as a lawyers’

directory. Setting aside her general confusion, which was understandable, I find that Ms. McFadden was not fully informed of her right to counsel of choice. As a result, any apparent choice she made to speak to duty counsel was not fully informed and therefore not a choice. It is for these reasons that I do not find that Ms. McFadden failed to exercise due diligence by declining to have police call her boyfriend. As I see it, the police failed to live up to the informational requirements imposed on them by the Charter of Rights and Freedoms , and thereby deprived her of her right to speak to counsel of choice.

Could the police have reasonably believed that Ms. McFadden was satisfied with her conversation with duty counsel? Based on my findings, I do not believe that I need to resolve this question. Nonetheless, I will. Whether an accused tells police that they are unsatisfied with the advice they have received is a factor in the counsel of choice analysis, but it is not dispositive. The simple answer to this question is no. Having viewed the videotape, it is clear to me that Ms. McFadden was being sarcastic when she said "Sure" to PC Carullo. Certainly, she could have behaved better.

But there could really be no misunderstanding her response as meaning "yes." And, in fact PC Carullo did not. He felt the need to follow up on it. Unfortunately, as he put it, he chose to "correct" her. Having done that, he could not have relied on her subsequent apparently affirmative response. Even if he did, he should have been given pause when she later indicated that she still believed duty counsel was a police officer. Her dissatisfaction was apparent then as it was throughout. Should the Evidence be Excluded under Section 24(2) of the Charte r? In R. v.

Grant [2009] S.C.R. 353, the Supreme Court of Canada explained that courts must have in mind the long-term impact of admission or exclusion of evidence on the administration of justice. In doing so, I must consider three factors. First, I must consider the seriousness of the Charter -infringing state conduct. In my view, even though there was clearly no bad faith, and PC Carullo in particular was kind and pleasant with Ms. McFadden, the Charter infringing conduct was serious. PC Carullo improperly advised Ms.

McFadden, a 23 year old detainee with no prior experience with the criminal justice system, as to the nature and extent of her constitutional right to counsel at the scene. When she told Sergeant Cole that she had not been advised of her rights, he did not take any further steps. The situation was compounded by PC Carullo further misinforming her of her right by putting it as a binary choice at the station. This, when she was in a hysterical state and hyperventilating.

That binary choice was the outcome of the failure of the officers to facilitate her access to counsel of choice by allowing her to call her boyfriend or taking more time to explain to her what they were willing to do on her behalf. That culminated in her being funnelled to

speak to duty counsel against her stated wishes. PC Carullo convinced her to do so. Thereafter, in the breath room, he could have beenunder no misunderstanding as to her dissatisfaction at that time or when she later repeated her concern that duty counsel was a policeofficer. I would add that the situation is all the more concerning because it involved three officers who understood, or should have understood,that Ms. McFadden wished to have access to counsel of choice. It is also concerning because, from PC Carullo's point of view, there was a need to hurry.

The authorities are clear that the timelines setout in the Criminal Code concerning breath samples are not such as to create urgency capable of displacing the right to counsel. For thatproposition see R. v. Prosper, (SCC), 1994 3 S.C.R. 236 at pp. 275-76. Again, while not the result of bad faith, taken in its totality, this is the sort of conduct from which the court must dissociate itself in orderto maintain the public's confidence in the administration of justice. This factor strongly favours exclusion. Second, I must consider the impact on Ms. McFadden's Charter-protected interests.

The right to counsel is an important fundamentalright in this country. The Supreme Court of Canada has reaffirmed its importance in R. v. Suberu 2009 SCC 33 , 2009 2 S.C.R.460. At paragraph 40, the Court explained that it exists to: Ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation ofliberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy.

Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination. As I stated above, as a result of the infringements of her right to counsel, Ms. McFadden was deprived of her freedom of choice andended up being compelled to speak to a lawyer she did not wish to speak to. It must also be remembered in this context that what flows from a breath demand is not only the seizure of breath samples that arerequired by law in any event.

Detainees are also compelled to sit in a room with a police officer for a period of time during which theymust decide how to comport themselves and whether or not to answer questions. The impact on Ms. McFadden's Charter protected right is relatively serious. This factor favours exclusion. Third, I must consider society's interest in adjudication on the merits. The relevant inquiry at this stage is whether the truth-seeking function of the trial process would be better served by admission orexclusion of the evidence.

The seriousness of the case, the reliability of the evidence and its importance to the prosecution are importantfactors. In R. v. Bernshaw, the Supreme Court of Canada highlighted the serious nature and potential consequences of impaired driving. I am also mindful of the fact that the seriousness of the offence ought not to take on disproportionate significance. See R. v. Harrison,2009 SCC 34 , [2009] 2 S.C.R. 494.

The breath samples are reliable, and no argument was made to the contrary. They are also of central importance to the Crown's case. This factor weighs in favour of admission. However, having considered these factors, I have come to the conclusion that the evidence must be excluded in order to best serve the long-term repute of the administration of justice.

While the public clearly has an interest in drunk driving prosecutions being resolved on their merits, I believe that a reasonable and informed member of that same public also has an interest in ensuring that these prosecutions are fair and that the police live up to what is expected of them under the Charter . As a result, the results of the breath samples are excluded and the charge against Ms. McFadden is dismissed.

Form 2 CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2)) Evidence Act I, Juanita Pantaleon , (Name of Authorized Person) certify that this document is a true and accurate transcript of the recording of Regina v. Virginia McFadden in the Ontario Court of Justice (Name of Case) (Name of Court) held at Brampton, Ontario (Court Address) taken from Recording 3111_103_20161201_094925__30_BANDP , which has been certified in Form 1. (Date) (Signature of Authorized Person(s)) Juanita Pantaleon ACT ID: 7166530047 1 -855-443-2748 jpantaleontranscripts@vptranscription.com