R. v. Plaha, 2020 MBPC 50

CITATION: R. v. Plaha , 2020 MBPC 50 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) ) T. Boult for the Crown - and - ) ) ) Ryan Plaha Accused ) ) ) ) S. Inness for the Accused ) Reasons for Decision ) Delivered: October 14, 2020 C.A. DEVINE, P.J. Introduction [ 1 ] Mr. Plaha was charged with impaired driving and having a blood alcohol reading of .08 or more on March 15, 2019. He filed a Charter motion alleging a violation of his right to counsel in Charter s. 10(

b) and applying to have the breath sample evidence excluded pursuant to Charter s. 24(2). [ 2 ] I heard the Charter motion and trial on September 2, 2020. The only witness was the arresting police officer, RCMP Constable Newans. Mr. Plaha did not call any evidence. At the conclusion of the evidence, the Crown stayed the impaired driving charge. There was no evidence of impaired driving. The remaining charge of driving with a blood alcohol level in excess of the legal limit remained. [ 3 ] The Defence argued that Mr. Plaha’s Charter s. 10(

b) rights were violated because the police pre-emptively contacted Legal Aid, and after he spoke with Legal Aid, ignored his communication that he was not entirely satisfied with the advice he received, thereby denying him his right to counsel of choice. [ 4 ] We entered into a voir dire for the determination of these questions. It was agreed that the evidence called in the voir dire would also be applicable to the trial proper. This is my decision on the voir dire.

Constable Newans’ Evidence [ 5 ] Constable Newans had been an RCMP officer for 8½ years and at the time was working in the Headingley rural detachment. He testified that he deals with impaired driving daily, and before he became a police officer, he worked in a bar for six years, so he was accustomed to dealing with individuals impaired by alcohol. He took the Approved Screening Device (ASD) training in March, 2013 and has been a breath technician since 2014. He has conducted over 50 impaired driving investigations and has testified in impaired driving trials.

He has performed over 100 breathalyzer tests and over 50 ASD screenings. [ 6 ] The police received a call about possible impaired driving involving a semi-trailer at around 8:00 a.m. on Friday, March 15, 2019, west of Headingley, Manitoba. Constable Newans investigated. He observed the vehicle in question, a semi-tractor tandem with attached dump truck. There was no evidence of impairment in the manner of driving. Constable Newans activated his siren and lights and the truck pulled over. [ 7 ] He approached the driver’s side and stepped up on the running board and spoke to Mr. Plaha.

He demanded an ASD, not because he had any suspicion that Mr. Plaha had alcohol in his body, but because he is now authorized to do so under the Criminal Code . Constable Newans testified that he now requests an ASD if there is a third party complaint. [ 8 ] He advised Mr. Plaha of the third party complaint and made the ASD demand. [ 9 ] Constable Newans testified that Mr. Plaha was not detained at that time; he was merely stopped under the Highway Traffic Act ( HTA ). He testified that the right to counsel arises upon detention or arrest, but in his mind, that right had not yet arisen, because Mr.

Plaha was not detained. [ 10 ] Mr. Plaha complied with the ASD demand. The result was a “Fail”, which is at least .10 blood alcohol content (BAC), and

accordingly, over the legal limit of .08 or more. Constable Newans testified on cross-examination that there were no other indicia of impairment. [ 11 ] He told Mr. Plaha that he was under arrest for impaired driving. Constable Newans testified that because he had now arrested Mr. Plaha, his right to counsel was engaged. He was no longer just “stopped” under the HTA . [ 12 ] There was nothing in Constable Newans’ notes about providing Mr. Plaha his right to counsel at that point. But he testified that told Mr. Plaha he had a right to counsel and that Mr. Plaha said nothing. [ 13 ] He asked Mr.

Plaha to get out of the vehicle. He did a search for officer safety and then handcuffed Mr. Plaha and took him to the back of the police vehicle. Once in the police vehicle, at 8:14 a.m., he again advised Mr. Plaha of his notice of arrest and then provided him his right to counsel, reading from the card at the back of his notebook as follows: You have the right to retain and instruct counsel in private without delay. This means that before we proceed with our investigation, you may call any lawyer you wish or get free legal advice from Duty Counsel immediately.

If you want to call Duty Counsel, we will provide you with a telephone and telephone numbers. If you wish to contact any other lawyer, a telephone and a telephone book will be provided. If you are charged with an offence, you may also apply to Legal Aid for assistance. Do you understand? Do you want to call Duty Counsel or any other lawyer? [ 14 ] In his notebook, Constable Newans had quotation marks around words ascribed to Mr. Plaha, which he testified indicated that the answers were verbatim.

He testified and his notes stated, that in response to the question about whether he understood his right to counsel, Mr. Plaha stated, “Yeah, I understand.” When he was asked if he wanted to contact counsel, Mr. Plaha answered, “Not right now.” [ 15 ] Constable Newans testified there was no conversation on the way to the detachment. [ 16 ] He testified that he realized he had not made the breath demand, so when they arrived at the detachment, while still in the police vehicle, he made the breath demand and advised Mr.

Plaha of his right to counsel again, because the jeopardy now included a breath demand, and because Mr. Plaha had earlier said “not right now” with respect to contacting counsel. When he asked Mr. Plaha if he understood the breath demand and the right to counsel, Mr. Plaha answered, “Yeah, yeah, yeah.” [ 17 ] This time, in response to the question about whether he wished to contact counsel, Mr. Plaha stated “I can do it after I go.” Although Constable Newans testified that he would have clarified what “after” meant, he had nothing in his notes about that. It was not clear whether Mr.

Plaha had asked to go to the washroom on the way to the detachment or at the detachment. Mr. Plaha used the washroom at the detachment. [ 18 ] Constable Newans testified in his direct examination that: I asked him which counsel he wished to speak to and he did not have anybody and did not indicate anybody’s name and at 8:36 I called Legal Aid as he had directed. [ 19 ] On cross-examination when he was asked what choices he provided to Mr.

Plaha in terms of contacting a specific lawyer, or finding the name of a lawyer or contacting Legal Aid, Constable Newans testified that: I have that I woulda just put him in contact with Jane Harrington of Legal Aid, and that would be because he never requested a lawyer from me. [ 20 ] The following exchange took place when Constable Newans was asked again during cross-examination about Mr. Plaha’s response to being offered all the choices encompassed by the right to counsel in s. 10(

b) from the card in his notebook that he had read earlier: A. He did not provide – he did not say Legal Aid, he did not provide a name or a phone number or any – or ask to use a telephone book. That would have been written in there if it was a verbatim request. Q. And you didn’t clarify that with him and say “Which do you want to do?” A. No I don’t, ‘til we’re at the room.” [ 21 ] When asked where his notes were about what he said once they were at the room, he answered, “I don’t have any notes.” He admitted to having no notes about clarifying with Mr.

Plaha which of the three options he wanted or who he wished to call. He testified as the reason for that: That’s right, because if he woulda asked for a specific somebody or used the phone book I would have had the name written in there. So, by me identifying Legal Aid, that is what he chose. [ 22 ] The next note in Constable Newans’ notebook says only “Writer called Legal Aid.” He testified that his notes are written that way to indicate the choice made by the accused person.

He testified that this is what he does every time, “That’s how I write their requests for lawyers.” [ 23 ] Constable Newans testified that he “would have” asked Mr. Plaha after he went to the washroom who he wanted to contact. He testified that Mr. Plaha did not have the name of a particular lawyer. He testified that when Mr. Plaha came out of the washroom, in

response to contacting a lawyer, Mr. Plaha said he wanted to call his employer. When it was suggested on cross examination that perhaps Mr. Plaha wanted to call his employer to get the name of a lawyer to contact, Constable Newans disagreed with the suggestion. In any event, Constable Newans testified that he would not allow that call. He will allow people only to contact a lawyer, unless the person told him that their employer has the phone number of a lawyer and then the officer would contact the employer to get that number. [ 24 ] There was nothing in his notes about the reason that Mr.

Plaha wanted to call his employer. Constable Newans testified it was because he was concerned about the truck on the side of the highway. Constable Newans had testified that another officer was at the scene waiting for a tow truck. [ 25 ] He called Legal Aid and put Mr.

Plaha on the phone with Jane Harrington, a lawyer at Legal Aid: Then we talked about it, what he wanted to do and he just wanted to speak to counsel so that’s why he was put in contact with Legal Aid. [ 26 ] This testimony was going from memory and “how I make my notes.” [ 27 ] The room has a large glass window that can be seen in the instrument area where Constable Newans was standing and observing. A video of the entire time Mr. Plaha was at the detachment in that room was filed in evidence. There is no audio, only video. [ 28 ] One minute into the call, Mr. Plaha motioned for Constable Newans.

They spoke briefly and then again he was left alone to speak with counsel. Constable Newans could not remember, nor did he have a note of what Mr. Plaha wanted to speak to him about. [ 29 ] Constable Newans noted that the call was finished at 8:48 a.m. Mr. Plaha came out of the telephone room at 8:49:24, according to the time stamp on the video. It was approximately eight minutes. [ 30 ] Constable Newans had no way of knowing that Mr. Plaha was speaking with Ms. Harrington during that entire time, but he stated he could see that his lips were moving in the video, so he assumed so. [ 31 ] When Mr.

Plaha came out of the room, Constable Newans asked him if he was satisfied with counsel, to ensure that he was satisfied with provision of his right to counsel. He testified that he asked that question because if the person said they were not satisfied, he would allow them to speak to a different lawyer to ensure they was satisfied with provision of the right. [ 32 ] Mr. Plaha answered “50-50 satisfied.” Constable Newans agreed in cross-examination that the answer did not express Mr. Plaha’s satisfaction with his right to counsel. [ 33 ] He took no further steps to attempt to clarify, confirm or ensure Mr.

Plaha’s satisfaction with counsel. [ 34 ] Instead, he proceeded to obtain evidence from Mr. Plaha. He explained the breath sample process to Mr. Plaha. He told Mr. Plaha that after he provided a sample he would be released and Mr. Plaha stated, “I’ll blow and my owner can come.” [ 35 ] The breath technician officer who was going to obtain the breath samples was called out to a traffic fatality, so Constable Newans assumed the breath technician’s tasks. He reviewed a breath technician’s check sheet with Mr.

Plaha, obtaining information about his drinking history. [ 36 ] One of the questions on the breath technician’s form, which Constable Newans asked is, “Do you want to contact a lawyer or free Legal Aid?” Constable Newans checked the answer, “Yes,” indicating that Mr. Plaha had answered in the affirmative. [ 37 ] Constable Newans did not allow Mr. Plaha to contact a lawyer however, because he believed that Mr. Plaha had already spoken to a lawyer. [ 38 ] Constable Newans obtained two breath samples and provided the Certificate of a Qualified Technician and the Notice of Intention to Produce the Certificate to Mr.

Plaha. Mr. Plaha waited in a cell and was released at 11:48 a.m. with those documents, his appearance notice for court, notice of seizure and notice of suspension. Findings of Fact [ 39 ] After considering the direct and cross-examination of Constable Newans, I have made the following findings of fact. In doing so, I have analyzed the evidence of Constable Newans in terms of its credibility and reliability. [ 40 ] Constable Newans’ evidence was generally credible, articulate and confident, but there were some issues with respect to its reliability.

Constable Newans did not have a note of several critical issues in the trial and sometimes testified about what he “would have” done. [ 41 ] I find as a fact that Constable Newans contacted Legal Aid without ascertaining Mr. Plaha’s choice of counsel. Constable Newans did not offer Mr. Plaha the full informational rights as outlined in the card he had earlier read to Mr. Plaha about this right to counsel. That is, he did not ask Mr. Plaha if he had a lawyer, or wanted to contact a particular lawyer, or look up a lawyer in the phone book or contact Legal Aid. [ 42 ] I make this finding for the following reasons.

Constable Newans’ testimony was inconsistent on this issue. He had verbatim notes of other responses made by the accused with respect to his legal rights, but nothing on the issue of what was told to Mr. Plaha and what Mr. Plaha answered about his choice of counsel. I do not accept that this is the way he always indicates choice of counsel in impaired driving investigations. Constable Newans is a seasoned police officer and has particular training and experience dealing with impaired driving investigations.

He testified that he understood the importance of keeping notes of critical elements of the impaired driving investigation. It is not plausible that on the one hand he would bother to write a verbatim response like, “Yeah yeah yeah,” but choose not to write down far more complex questions and answers about the choice of counsel.

[43] Without notes to refresh his memory on this point, Constable Newans was guessing, and providing evidence of what he “wouldhave” or should have done. [44] Constable Newans accepted that Mr. Plaha wanted to contact his employer, but did not believe that it was to inquire aboutwhether the employer had a particular lawyer his drivers should call when arrested or stopped by the police. I can infer from the fact thatMr. Plaha wanted to contact his employer that it could have been to ask about which lawyer to contact. Again, there was no note aboutthe reason that Mr.

Plaha asked to call his employer. [45] Finally, I accept that Mr. Plaha was not fully satisfied with provision of his right to counsel when he stated, “50–50 satisfied.” Analysis of the Alleged Violation of

Section 10(

b) of the Charter [46] Like the Supreme Court of Canada case of R. v. Willier, 2010 SCC 37, this case deals with one of the facets of s. 10(

b) of theCharter, the right to counsel of choice. The purpose of the right to counsel is to mitigate the disadvantaged state of the person detainedby police whose liberty is constrained and who may incriminate themselves. Immediate legal advice is needed to protect against self-incrimination and assist in regaining their liberty. (Willier, at paras. 27-28; R. v. Bartle, [1994] 23 S.C.R. 173 at p. 191) [47] The Crown cannot suggest that choice of counsel is not a right embedded in s. 10(

b) notwithstanding that the wording of thesection does not mention choice of counsel. The Supreme Court addressed that issue specifically in Willier, where Chief JusticeMcLachlin and Justice Charron for the majority stated:

Section 10(

b) provides: 10. Everyone has the right on arrest or detention (

b) to retain and instruct counsel without delay and to be informed of that right. While s. 10(b)’s text remains the starting point in its

interpretation, an understanding of its animating purposes is essential to a fullunderstanding of its content. This is especially true in this case, as the text of s. 10(

b) makes no explicit mention of the right to counsel ofchoice. (at para. 26) [48] The majority in Willier went on to state: Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(

b) entitles them to a reasonable opportunityto contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right torefuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. . . (at para. 35) [49] In this case, the police did not comply with their informational obligations relating to s. 10(

b) when Constable Newans failed toconfirm whether Mr. Plaha wished to contact a particular lawyer. [50] Instead, Constable Newans pre-emptively contacted Legal Aid. [51] That is not allowing Mr. Plaha to have a choice of counsel. The Crown’s argument that Mr. Plaha did not request a specificlawyer in the particular circumstances created by the police, which precluded any discussion about contacting a particular lawyer,prioritizes form over substance.

It is like asking a person over and over what kind of donut they would like, when in fact, they can haveany dessert, not just a donut. [52] Pre-emptively contacting Legal Aid denies the arrestee a reasonable opportunity to exercise that right. [53] Both the informational and implementational rights were violated in one pre-emptive action. [54] Although the onus is on the Applicant to prove that their Charter right was violated, the onus shifts in these interactionsbetween the state and detained individuals.

In the case of s. 10(b), when an arrestee invokes their right to counsel, the Crown has theburden of establishing that the arrestee was provided a reasonable opportunity to exercise that right. (R. v. Luong, 2000 ABCA 301, [2000] A.J. No. 1310 (Alta.C.A.) at para. 12, cited in R. v. George, 2010 SKPC 41 at para. 23) [55] The Crown argued that “a detainee’s unexpressed desire to speak with a particular counsel cannot result in a s. 10(

b) breach,citing R. v. Zoghaib, [2006] O.J. No. 1023 (ONCA). But in that case, the accused was fully advised of her right to counsel. Andunderstood those rights. The trial judge made a finding of fact that the misapprehension by the accused that she could not contact herown lawyer was in her head and she did not express that misapprehension to the police.

That is not the situation here. [56] In this case, I have found as a fact that the informational and implementational rights were lacking in clear information to theaccused that he had a right to contact his own lawyer, or a lawyer of his choice, or failing that, Legal Aid counsel. The informationalcomponent is broad. It includes information that the person can wait a reasonable period of time to contact their lawyer of choice. (R. v.Mattie, 2018 ONCJ 907 at para. 17) [57] The Crown has characterized the police contacting Legal Aid as fulfilling part of their implementational obligation. I disagree.

Without telling Mr. Plaha that he could call any lawyer, and providing him with the means to do so, such as a telephone book or access tothe internet to obtain the name and number of a lawyer, and then, when he did not immediately exercise his right, calling Legal Aid, is

not fulfilling the police obligation. It is actually breaching the duty. The components of the implementational duty are not discrete; theyare joint and several. Mr. Plaha was presented with part of the puzzle. And then he was given one piece. [58] The Crown relied on R. v. Wolbeck, 2010 ABCA 65 for that proposition. But Wolbeck is distinguishable. In that case, theaccused requested Legal Aid. (at paras. 5, 16, 25) [59] I agree with the Alberta Court of Appeal in Wolbeck when it is stated: . . .

There is no Charter prohibition on the police assisting an accused in contacting counsel, only a prohibition on the police interferingwith the right to contact counsel. That the police provided some assistance (whether requested or not) is a neutral factor unless there isevidence of interference in the right to contact counsel. . . . (at para. 23) [60] In the particular circumstances of this case, I find that the police interfered. Pre-emptively contacting Legal Aid is interferingwith the right to counsel. [61] In stating this, I am mindful that Constable Newans read the complete s. 10(

b) notification of rights from the card in hisnotebook, which clearly states that a person may call any lawyer. But when subsequently there is only one option provided, the previousinformation, read from the card, becomes subsumed in the more recent information, replaced by the most recent thing said. [62] The context in which communication between police officers and citizens who have just been arrested is stressful. [63] Contacting Legal Aid for a detainee or arrestee pre-empts one of the facets of the right to counsel, that being the right tocounsel of choice. It is a right protected by s. 10(

b) and the police have a corresponding obligation to facilitate the choice. [64] There was a further issue in this case. After speaking with Legal Aid, Mr. Pleha told police he was “50 – 50” satisfied.

Insimilar circumstances in George, the police officer asked if the accused wanted to call another lawyer, which the trial judge characterizesas “Constable Angestadt properly asks if he wants to call another lawyer…” (at para. 28) [65] An accused who speaks to Legal Aid counsel must “furnish an evidentiary basis for the court to find, at a minimum, that he orshe expressed some dissatisfaction with duty counsel (R. v. Littleford, (ON CA), [2001] O.J. No. 2437 (C.A.) at para.8, cited in R. v. Grant, 2017 ONCJ 239 at para. 34). Mr.

Plaha did so in this case. [66] Where there is any confusion or equivocation from the accused about whether they have understood their right to counsel orsatisfactorily exercised their right to counsel, the police have an obligation to clarify that. (Grant, ONCJ at para. 18; Mattie at para. 25) [67] The response from Mr. Plaha should have signaled to Constable Newans that he had to ensure Mr. Plaha was satisfied with theexercise of his right to counsel.

This is somewhat similar to the facts in Grant, where it was found that although the accused spoke withduty counsel, his subsequent comments that he was not entirely satisfied with that lawyer, should have signalled the need for police toconfirm whether he wanted to contact his own lawyer and not proceed further until he had the opportunity to do so. [68] The Crown argued that the accused’s right to counsel was not breached because he spoke to Legal Aid duty counsel and did notclearly indicate he was not satisfied. At worst, the Crown argued, it was a technical breach. The facts in Mr.

Plaha’s case can bedistinguished from Willier, because in Willier, the accused indicated his satisfaction with the legal advice he received from Legal Aid,whereas in this case, Mr. Plaha told police he was “50-50” satisfied. Willier states: . . . In this case, despite the brevity of Mr. Willier’s conversations with Legal Aid, Mr. Willier gave no indication that these consultationswere inadequate. Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning.Mr.

Willier is not entitled to express such satisfaction, remain silent in the face of offers from the police for further contact with counsel,remain silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and then seek a finding that the advicewas inadequate because of its brevity. A s. 10(

b) Charter breach cannot be founded upon an assertion of the inadequacy of Mr. Willier’slegal advice.(at para. 42) [69] Mr. Plaha was not silent. He gave some indication his consultation was inadequate. Constable Newans’ obligation to fulfil theimplementational duty was not yet complete. [70] Constable Newans essentially disregarded his answer and thereby disregarded his Charter right. [71] I have found that the police officer violated Mr. Plaha’s right to counsel, failing in both the informational and implementationalduties.

Finding the violation, it must be determined whether the evidence of the blood alcohol content should be excluded. Section 24(2) [72] The purpose of the remedy of exclusion of evidence should be revisited occasionally before the often pro forma three stageanalysis is engaged. The purpose is to avoid bringing the administration of justice into disrepute by convicting accused persons withevidence obtained in violation of their rights. In R. v.

Grant, 2009 SCC 32, Chief Justice McLachlin and Justice Charron stated: The phrase “bring the administration of justice into disrepute” must be understood in the long-term sense of maintaining the integrity of,and public confidence in, the justice system. Exclusion of evidence resulting in an acquittal may provoke immediate criticism. But s.24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system,viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective.

It asks whether a reasonableperson, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidencewould bring the administration of justice into disrepute. (at para. 68) [73] Following the three stage framework for analysis set out Grant, I have determined that the evidence should be excluded.

[ 74 ] A violation of right to counsel where a person has just been arrested is a very serious violation. The purpose of the immediate right to counsel is to regain liberty and ensure against unnecessary self-incrimination. Denial of the right trenches on other protected rights and interests. Chief Justice McLachlin and Justice Charron stated in Willier that: . . .

Section 10( b )’s provision of a reasonable opportunity to consult with counsel is a fundamental guarantee aimed at mitigating a detainee’s legal vulnerability while under state control. It affords detainees the chance to access information relevant to their self- incrimination and liberty interests: Bartle . . ) [ 75 ] As the defence correctly stated, where a breach of this right occurs, it is considered very serious and exclusion of any evidence obtained in breach of s. 10(

b) is often the result. It is the violation of the right that is critical at this juncture, not the nature of the evidence, that is, whether it is a statement or breath samples. ( R. v. Maudhub , 2015 SKPC 118 ; R. v. Duchek , 2013 SKPC 4 at para. 50 ) [ 76 ] In this case, both the informational component and the implementational component of the right to counsel were violated in several ways. [ 77 ] Mr. Plaha was not provided the full information about how he could contact a lawyer of his choice.

Constable Newans pre- emptively contacted Legal Aid without fully explaining, in the detachment, in plain language, the choices available to Mr. Plaha. [ 78 ] He did not understand that if Mr. Plaha wished to get more information about which lawyer to call, by contacting his employer, he had a right to do so.

Section 10(

b) is a broad right that accommodates third party calls to facilitate choice of counsel. [ 79 ] Constable Newans did not clarify whether Mr. Plaha was satisfied with his legal consultation. He demonstrated indifference towards Mr. Plaha’s comment that he was “50-50” satisfied with his conversation with Legal Aid. It makes one wonder why the police would ask the question if they were disinterested in the answer. [ 80 ] Finally, when he was filling out the impaired driver’s checksheet with Mr. Plaha, Constable Newans asked him again, this time in the role of breath-tec, if Mr.

Plaha would like to speak with a lawyer. Mr. Plaha said he did. Constable Newans did not allow him to contact a lawyer at that point however, because it was his opinion that Mr. Plaha had already spoken to a lawyer. Again, he was indifferent to Mr. Plaha’s answer and request. This is aggravating in light of his failure to clarify the “50-50” answer. [ 81 ] The Crown argued that the officer acted in good faith. I agree that Constable Newans was polite and courteous throughout. That is not the test.

In this case, there was a demonstration of lack of full understanding of the legal standards and the full panoply of rights and duties encompassed by s. 10(b). It started at the roadside; the officer testified that Mr. Plaha was not detained, rather he was just “stopped” under the highway traffic legislation. Mr. Plaha was detained. The violation of the immediate right to counsel is justified under Charter s. 1 at the roadside investigation of impaired driving because of the brief time that it takes to screen drivers and potentially send them on their way. ( R. v.

Orbanski , 2005 SCC 37 ) [ 82 ] It continued throughout the interaction, in not carefully setting out the choices involved in exercising the right to counsel, in apparently not knowing that a driver is allowed to contact a third party to obtain counsel of choice, in not ensuring what “50-50” meant, and in not revisiting contact with a lawyer in the breath sample stage of the investigation. [ 83 ] I would borrow Justice Konyer’s words from R. v. Grant , 2017 ONCJ 239 : Wilful ignorance of Charter standards cannot be equated with good faith.

Since the purpose of the right to counsel is to ensure fairness in interactions between the state and detained or arrested persons, conduct by the state which undermines this right impacts basic procedural fairness. It is important that courts dis-associate themselves from such conduct. This factor militates in favour of the exclusion of the evidence. (para. 43) [ 84 ] The breach here was serious. It was a compound breach of one Charter right and it was ongoing. There was at best a reckless disregard of the law and indifference to Mr. Plaha’s expression of not being fully satisfied with the provision of counsel.

The Court must dissociate itself from compound breaches of the right to counsel, in order to avoid an erosion of the public’s confidence in the rule of law and risk bringing the administration of justice into disrepute. [ 85 ] As for the impact of the breach on Mr. Plaha’s interests, I note that the interests in this type of case are liberty and the right against self-incrimination. As the defence trenchantly stated in this case, echoing Bartle , the only person who stands between the detainee and the state at the time of the arrest or detention is the lawyer of their choice. Notwithstanding that Mr.

Plaha spoke with a lawyer, I find that the impact on his interests was serious. [ 86 ] Mr. Plaha had never been arrested before, which was known to the officer. [ 87 ] The informational and implementational rights were both violated. Mr. Plaha’s right to full information about the extent of his right to counsel of choice was not provided, his dissatisfaction was ignored and his desire to call another lawyer was ignored. [ 88 ] These are significant impacts. [ 89 ] The evidence from the breathalyzer is deemed to be accurate and is complete evidence of the charge of driving at or over .08.

Without that evidence, Mr. Plaha would likely be acquitted. He works as a driver on the highways of Canada and the United States. It was early in the morning. He drives a huge vehicle. All of this is extremely concerning and dangerous. [ 90 ] The breach was serious and in the particular circumstances of this case, I also found the impact on Mr. Plaha’s interests to be serious. The consequence of not admitting the evidence is also serious. The court must not allow breaches in order to fulfil other objects of criminal law, however.

There was some ignorance of the law demonstrated in this case, which translates into a systemic breach. As

much as drinking and driving continues to be a significant concern in Canada, the investigation and interdiction of this crime must be done according to law, including Charter law. [ 91 ] The evidence of the Certificate of a Qualified Technician is excluded as evidence. “Original signed by:” DEVINE, P.J.