R. v. Kersey, 2012 ONCJ 407

COURT FILE No.: Toronto DATE: 2012.06.21 Citation: R. v. Kersey , 2012 ONCJ 407 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JEFFREY KERSEY Before Justice Fergus ODonnell Heard on 15 February, 2012 Reasons for judgment released on 21 June, 2012 Mr. J. Tupper........................................................................................................... for the Crown Mr. J. Mass.............................................................................. for the defendant, Jeffrey Kersey ODonnell, J.: Overview 1 . Mr.

Jeffrey Kersey was charged with operating a motor vehicle with excess blood alcohol. The principal issue at trial was whether an admitted breach of Mr. Kersey’s Charter rights should lead to the exclusion of the breath results under s. 24(2) of the Charter . The admitted breach was that, while Mr. Kersey was allowed access to duty counsel, the first duty counsel he was given access to was very difficult to understand, something about which Mr. Kersey complained to the officers. Between the first and second breath tests, Mr. Kersey was given access to a second duty counsel, whom he understood. 2 .

After hearing argument on the issues, I dismissed Mr. Kersey’s application to exclude the evidence and found him guilty of the offence, with reasons to follow. These are those reasons. The Evidence 3 . Constable Mario Catenaccio and Constable David Christian were stopped at a red light at Sentinel Drive and Finch Avenue West in Toronto when they saw Mr. Kersey driving fast on wet roads and proceeding through the intersection after his traffic light had already turned red. They pulled Mr.

Kersey over and noticed a box of Budweiser beer on the floor behind the driver’s seat, but could not recall if they were opened or not. While dealing with Mr. Kersey, the officers noticed that he had a very strong smell of an alcoholic beverage on his breath and that his eyes were very dilated. Mr. Kersey admitted to having drunk the last of four beers about half an hour earlier. When he got out of the car, Mr. Kersey had trouble with his balance. 4 . Constable Catenaccio read Mr. Kersey the approved screening device demand. Mr.

Kersey provided a breath sample and the device registered a “fail”, indicating a blood alcohol concentration of more than 100 mg of alcohol/100 ml of blood. Mr. Kersey was arrested and read his rights to counsel in full and was taken to 32 Division where he was paraded and a call was made to duty counsel on his behalf. He was read the breath demand en route to the station. 5 . Duty counsel called back at 1:38 a.m. and Constable Christian testified that Mr. Kersey was upset when he came out of the privacy booth after finishing the call, saying he was not satisfied with counsel. Constable Christian explained to Mr.

Kersey that he didn’t control the duty counsel process. Constable Christian took him to the breath room, where the breathalyzer technician, Constable Robert Kerr was ready for him. [1] 6 . The breath room DVD portrays everything that happened during the two samples. In the first sample session Mr. Kersey was clearly upset. He complained about not having understood the duty counsel lawyer because the duty counsel lawyer had a poor grasp of English. He was resistant to the idea of providing a sample until he had had a meaningful opportunity to speak to counsel.

He pointed out that it would be much like the officer speaking to him in French: they would have had a conversation, but that wouldn’t be of much assistance to Mr. Kersey.

7 . In the first breath video, Constable Kerr explained his perspective, which was that he had no control over the system that provides duty counsel and it was a touchy area because it was not proper for him to get into issues between a defendant and his lawyer. Constable Kerr also expressed the view that perhaps Mr. Kersey had trouble understanding the lawyer because Mr. Kersey was drunk. He said that he had a role to play in the structure of things and that the courts have a role and perhaps a court would find Mr. Kersey’s concerns to be a reason for acquittal.

Constable Kerr made sure that the lawyer’s name was recorded on the breath room video for any future use Mr. Kersey might want to make of it. It is clear from this video that the police were genuinely of the view that there was only one duty counsel available for the night, so the lawyer Mr. Kersey got was the lawyer he got. 8 . Ultimately, after much to-ing and fro-ing, and after being cautioned about the offence of refusing to provide a sample, Mr. Kersey provided his first sample.

Once that sample has been provided, Constable Kerr offered to call the duty counsel line back and see if anything could be done. 9 . After the first sample, Constable Kerr contacted the duty counsel number again and actually succeeded in getting a different duty counsel to call back and speak to Mr. Kersey between the two tests. Mr. Kersey spoke with the second lawyer before providing the second sample. Constable Christian described him as appearing to understand the process better and said that he was happy that he was getting the representation he needed. The video confirms this: when Mr.

Kersey appeared for the second test, his demeanour was entirely different from the first test session. He expressed his appreciation for the opportunity to speak to counsel and his understanding of the situation. In contrast with the first session, he provided the second sample without hesitation. 10 . All of the videos show the police behaving in a professional, fair, calm and respectful manner throughout. The mood was slightly tense at some points because Mr. Kersey was so upset, which is entirely understandable. While Mr.

Kersey was clearly upset and understandably persistent about his concern, he was never rude or impolite or aggressive. 11 . Mr. Kersey’s breath samples showed 137 and 134 mg of alcohol/100 ml of blood on the two tests. 12 . Constable Kerr had been a police officer for 33 years and had worked with traffic services for about thirteen years at the time of this event. He had never encountered a situation like this before. He had confidence in the system and said that some defendants make up false claims so it is hard to know if they have a genuine concern or are just making things up.

When asked if he would do things differently now than he did then, he answered: ...that’s a question I’ve been thinking about through lunch. I don’t know how---the problem with it is it’s such a grey area because of the confidentiality, so it’s difficult to probe about the conversation because I’m not supposed to do that or know about the conversation, so maybe I would have, yes, but I don’t know necessarily specifically how I would have done it, but with hindsight I can see that the problem arose and it wasn’t Mr. Kersey’s fault that it arose. Constable Kerr said there was no ambiguity in Mr.

Kersey’s complaints about duty counsel, the only ambiguity in Constable Kerr’s mind was whether it was genuine. 13 . Constable Kerr’s notations showed that Mr. Kersey’s breath smelled of alcohol, his eyes were glassy and watery, his speech was slightly slurred and his face was flushed and red. The Right To Counsel Issue 14 . In what follows it is a given that there was a breach of Mr. Kersey’s right to counsel relating to his first conversation with duty counsel. The Crown has admitted the breach.

The seriousness and consequences of the breach, in particular whether the breach should lead to exclusion of evidence, are contested. The focus of Mr. Kersey’s argument was on the polie duty to facilitate meaningful access to duty counsel. 15 . The test for exclusion is defined by the Supreme Court of Canada decision in R. v. Grant . [2] In order to determine whether or not the admission of evidence would bring the administration of justice into disrepute, the test requires analysis and ultimately balancing of three components, namely: a. The seriousness of the Charter -infringing state conduct; b.

The impact on the defendant’s Charter- protected interests; c. Society’s interest in an adjudication on the merits. 16 . The focus under the first branch is the preservation of public confidence in the rule of law as illuminated by Charter rights. It is well recognized that Charter- infringing conduct may fall anywhere on an extremely broad range, from the deliberate and egregious to the unintentional and trifling. The placement of the police conduct on that line is an important consideration under s. 24(2).

Obviously, intentional and major breaches of the Charter will more likely (perhaps almost certainly) lead to exclusion. 17 . Although I fully understand Mr. Kersey’s frustration as seen on the video, I cannot accept his contention at trial that the police conduct here falls towards the more serious end of the spectrum. To the contrary, I believe the police behaviour in this case falls very much towards the benign end of the spectrum of Charter breaches.

I do not believe that any other conclusion is reasonably open to me in light of the testimony at trial, the videotape of the breath sessions and the unique and perhaps unprecedented circumstances of this case. 18 . I should make it clear that I was left with great confidence in the evidence of the officers at trial. [3] In particular, it seemed to me that the Intoxilyzer technician, Constable Kerr, who played the central role, was fair, balanced, sensitive and respectful throughout the process. In his testimony, he struck me as genuinely sensitive to Mr.

Kersey’s predicament, even if he felt powerless to do anything

about it. His “Monday-morning quarterbacking” of what he himself had done that night struck me as heart-felt. His care to ensure that the duty counsel’s name was recorded on the tape for Mr. Kersey’s future use and his comment that Mr. Kersey might wish to raise the issue as a defence at trial seemed genuine. This was not a police officer running roughshod over Charter rights; it was an officer doing his job in circumstances not before encountered and honestly respectful of the relative roles of the police and the courts. 19 .

I do not think it undermines Constable Kerr’s credibility or colours his conduct that he was sceptical of Mr. Kersey’s assertion before the first breath sample. It is noteworthy that even with about thirteen years of experience in this particular area (among thirty- three years of policing experience in total), he had never before encountered the issue of the incomprehensible duty counsel. In thirteen years of this type of work he had encountered many stratagems.

He was dealing with a defendant who, on the evidence including the video, was quite clearly impaired. [4] It was not at all unreasonable for him to be sceptical of Mr. Kersey’s story that duty counsel services were being provided by a lawyer who could not make himself understood in the English language. If Crown counsel had not conceded that very point from his own personal dealings with the lawyer in question, I would myself have found Mr. Kersey’s assertion to be implausible in the extreme. [5] 20 .

I accept that the officers genuinely believed at the time of the first breath sample that the assigned duty counsel was the assigned duty counsel and that the idea of trying to call back in the hope of accessing a different lawyer did not occur to Constable Kerr until the end of the first breath sample. 21 . I do not propose to descend deep into the debate about what constitutes “good faith.” Suffice to say that what happened in this case was light years removed from bad faith.

While the cases seem clear that the absence of bad faith does not necessarily equate with good faith, there is less precision with respect to precisely what constitutes good faith. In years past, good faith might have been seen to be limited to reliance on laws in force that were subsequently found to violate the Charter , a perspective that appears to have evolved since. Certainly, if wilful blindness on an officer’s

part is a disqualifier for “good faith”, which would seem to make sense and which the cases suggest, the present facts are very far removed from wilful blindness. Given the sensitivity relating to the privilege surrounding a defendant’s consultation with counsel, it is understandable that the officers felt in a difficult position here. 22 . On the evidence before me, these were honest officers operating in unfamiliar territory.

While it might be suggested that they should have placed another call to duty counsel (time was not an issue), the understanding expressed by Constable Christian in the video means that that step would have seemed pointless at the time. The fact that a subsequent call to duty counsel resulted in a different result does not invalidate their previous reasoning any more than the finding of contraband would validate a search conducted without reasonable grounds. All things considered, the state conduct in this case that resulted in the breach was at the low end of the scale. [6] 23 .

Consideration of the impact of the breach, “ calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed.” [7] For example, some breaches of the right to counsel will result in the extraction of an incriminating statement and certain violations of s. 8 rights might involve particularly intrusive searches or seizures such as a strip search or a seizure of psychiatric records.

The clear wording of Grant , relating as it does to the extent to which the violation “actually undermined” protected interests, necessarily requires going beyond a mere categorization of the type of breach to consider the real-life effect of that breach on the underlying interests in a particular fact scenario. 24 . This is not a trivial point.

For many good reasons, a breach of the right to counsel is instinctively seen as a serious breach, but if we do not consider what interests access to counsel protects in a particular case and what actual impact the violation had, we have not done what the Supreme Court of Canada requires us to do in the s. 24(2) process. Context matters.

Thus, for a defendant charged with a robbery or a sexual assault or a homicide, for example, a breach of the right to counsel that is followed by the giving of an incriminating statement is almost certain to have a hugely deleterious impact on one of the most vital interests in the criminal law: the right to silence. As Grant tells us, a statement obtained by a breach of the right to counsel is very likely to be excluded under s. 24(2) of the Charter.

A breach of the right to counsel in a border search case might very well be outrageous insofar as access to counsel could inform an otherwise unaware traveler of the right to supervisory review of the Customs officer’s decision to perform a highly intrusive personal search under s. 98 of the Customs Act . These are but two examples. 25 . The context here is very different.

A defendant has an unconstrained right to keep his silence and not to increase his jeopardy by his own words. [8] Access to counsel in that context serves a vital role to ensure that a defendant hears of that right from someone in his corner and has an opportunity to obtain independent advice about the pros and cons of speaking or remaining silent in the particular circumstances of his case. Mr. Kersey’s context is radically different from, e.g., the robbery defendant who is asked to give a statement without access to counsel.

By stark contrast, the Criminal Code specifically requires a driver, in defined circumstances, to provide samples of his breath, with stark penal consequences for an unjustified refusal to do so. This environment is the legal equivalent of a country mile from the right to silence.

Undoubtedly, both involve an element of self-incrimination, but the difference between self- incrimination as something that is vigilantly protected against by the Charter in most cases and the self-incrimination through breath testing that is specifically required by Criminal Cod e sections that have survived Charter scrutiny is the difference between night and day. 26 .

That is not to say that access to counsel in drink-driving cases should be trivialized. [9] While the field of play open to a defendant in such cases may have been circumscribed by statute and case-law, there may in particular cases still be room for counsel to advise clients of their optimal course of conduct. For example, there may be circumstances recounted to counsel by the detainee that lead counsel to advise that the officers lack reasonable grounds for the demand and setting out the options open to a driver in those circumstances.

However, it is noteworthy that after having been provided access to duty counsel whom he could actually understand, Mr. Kersey proceeded to provide the second sample with no objection whatsoever. This, again, is not a trivial fact. [10] 27 . It is important to note also, that the treatment of the two situations differently is specifically sanctioned by the Supreme Court of Canada in Grant .

Grant explicitly states that it is wrong to equate bodily samples with a defendant’s statement: [11] In most situations, statements and bodily samples raise very different considerations from the point of view of the administration of justice. Equating them under the umbrella of conscription risks erasing relevant distinctions and compromising the ultimate analysis of systemic disrepute. As Professor Paciocco has observed, “in equating intimate bodily substances with testimony we are not so much

reacting to the compelled participation of the accused as we are to the violation of the privacy and dignity of the person that obtaining such evidence involves” (“ Stillman , Disproportion and the Fair Trial Dichotomy under Section 24(2) ”, at p. 170). Nor does the taking of a bodily sample trench on the accused’s autonomy in the same way as may the unlawful taking of a statement.

The pre-trial right to silence under s. 7 , the right against testimonial self-incrimination in s. 11 ( c ), and the right against subsequent use of self-incriminating evidence in s. 13 have informed the treatment of statements under s. 24(2) . These concepts do not apply coherently to bodily samples, which are not communicative in nature, weakening self - incrimination as the sole criterion for determining their admissibility. 28 .

Any assessment of the seriousness of the impact of the Charter breach must necessarily consider, “ the degree to which the search and seizure intruded upon the privacy, bodily integrity and human dignity of the accused,” as directed by the Supreme Court of Canada in Grant . [12] The Supreme Court speaks of a range from fingerprints and iris recognition at the low end to “forcible” taking of blood samples or dental impressions at the high end. I would place breath samples at the low end, along with fingerprints and iris recognition.

There is little or no affront to human dignity in any of those types of searches and, while the breath sample may be more intrusive than fingerprints or iris-scan technology at the time of taking, it is less intrusive to an individual’s long term privacy interests than those technologies because a breath sample is useful to the state only in relation to a moment in time, whereas fingerprint and iris-scan technology puts the state in ongoing possession of data that could affect a defendant’s privacy interests for decades to come. 29 . When I consider the overall impact of the breach on Mr.

Kersey’s Charter -protected interests, I conclude that the impact is relatively minor. 30 . The public interest in an adjudication of criminal cases on their merits is the third consideration under the Grant test. This factor stresses that the search for truth is an important consideration, but in a system infused by Charter values it is not determinative. The reliability of the evidence is a valid consideration; in this case breath sample evidence, reflecting as it does a mature technology that has been tested in a judicial crucible for decades, is typically highly reliable.

Finally, the offence involved here is a serious one insofar as drink-driving offences have a massive impact on public safety. That being said, the Supreme Court’s treatment of the seriousness of the offence as a consideration in Grant is sufficiently ambivalent that it would be imprudent to place any weight one way or the other on this factor. 31 . I note that the Supreme Court of Canada in Grant makes repeated reference to the status of breath samples in the 24(2) analysis.

It is fair to say that the Supreme Court appears more than mildly perplexed at the frequency with which breath samples were excluded pre- Grant, in circumstances where the Supreme Court found it difficult to imagine that the administration of justice would be brought into disrepute. Despite the Supreme Court’s prominent and repeated observations, it would appear that the juridical disconnect on this issue has not been rectified. To the contrary, the data set out in the article, “ Empirical Data on Section 24(2) under R. v.

Grant ”, [13] which provides a statistical analysis of post- Grant exclusion cases, show a remarkable 68% exclusion rate for breathalyser evidence in Charter applications. These data suggest either a scandalously high frequency of egregious police behaviour, etc. in breathalyser cases post- Grant or an egregious disregard by courts for the guidance of the Supreme Court of Canada.

It would be more than mildly ironic if one were forced to conclude that, while applying the Charter , which has the rule of law at its core as does the judicial function itself, many lower courts have had as much difficulty understanding (or following) the Supreme Court of Canada’s guidance as Mr. Kersey had difficulty understanding the first duty counsel the night he was stopped.

While it is entirely fair to note, as at least one case has noted, [14] that the Supreme Court of Canada’s comments about breathalyser evidence in Grant ought not to be determinative of all exclusion applications in drink-driving cases, the starkness of the data suggests that very much the opposite has occurred. While each case must be determined on its own facts, the data suggest that when it comes to the admissibility of breath samples under s. 24(2) of the Charter , “something is rotten in the state of Denmark”. 32 .

Leaving aside any general issues, this case, like all others, must be determined on its own facts. The ultimate question under s. 24(2) of the Charter is, applying a long-term and prospective view, “ whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter , would conclude that the admission of the evidence would bring the administration of justice into disrepute.” [15] I have no doubt that a reasonable, informed person would empathize with the frustration felt by Mr. Kersey in his interaction with the first duty counsel, but that is not the question.

A reasonable, informed person would not, in my opinion, agree that the admission of Mr. Kersey’s two breath results at his trial would bring the administration of justice into disrepute. Indeed, the contrary would be true. When I balance what I find to be a rather minor transgression by the state in all the circumstances with at best a slight real world impact on Mr.

Kersey’s Charter -protected interests relating to highly probative evidence that is essential to the Crown’s case, I am far from satisfied that the defence has demonstrated on a balance of probabilities that the admission of the breath results would bring the administration of justice into disrepute. The Breath Demand 33 . Mr. Kersey also argues that the breath demand was not read to him “as soon as practicable” as required by s. 254(3) of the Criminal Code , thereby generating a violation of either s. 8 or s. 9 of the Charter. The facts show that Mr.

Kersey was arrested by Constable Catenaccio at 12:43 a.m., after which he was read his rights to counsel and was handcuffed and searched. That process, including Mr. Kersey’s responses and the search would not likely have taken more than a couple of minutes. However, Mr. Kersey was not read the demand for the approved instrument until 12:56 a.m. That was done by Constable Christian while in the police cruiser. The evidence shows that they had waited on scene until 12:50 a.m. for other officers to arrive to take care of Mr. Kersey’s car, which was to be impounded. 34 .

The case law is clear that the concept of “as soon as practicable” in the drink-driving provisions of the Criminal Code (where it appears more than once), does not mean “immediately” but rather means “within a reasonably prompt time under the circumstances”. [16] It has been the law in Ontario for at least thirty years that “as soon as practicable” does not mean “as soon as possible”. [17] In this case, there was no inquiry by either counsel with respect to the reasons for the delay.

The Court of Appeal’s decision in Vanderbruggen (at paragraph 13 ), specifically states that, “ there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody.”

35 . In a situation where there were two officers present with a cooperative detainee, it is certainly fair to suggest that it would appear to have been possible for one of them to make the approved instrument demand either while waiting for the other officers to arrive or in the first few minutes in the police cruiser, but that is not the test. Considering the philosophy espoused by the Court of Appeal in Vanderbruggen and other decisions, I am not satisfied on these facts that a breach of the “as soon as practicable” requirement is made out for this relatively short duration. 36 .

Even if the delay here constituted a violation of the “as soon as practicable” requirement, thus leading to a violation of s. 8 or s. 9 of the Charter, I do not see that violation as leading, either alone or in conjunction with the right to counsel issue, to exclusion of the evidence. The nature of any such Charter breach is relatively minor and transitory. The seriousness of the breach is very low on the scale; it consisted of a brief oversight by the officers to provide Mr.

Kersey with one informational component to which he was entitled; there is no suggestion of any other shortcoming in that respect and no suggestion of advantage being taken of Mr. Kersey by virtue of the police not having made the demand to him. There is no basis upon which I could conclude that the delay was intentional or motivated by any improper motive. In terms of any s. 8 violation, it is clear that Mr. Kersey was given the demand well before he was presented to the Intoxilyzer technician. With respect to any

section 9 violation as suggested by Mr. Mass, any “arbitrariness” in Mr. Kersey’s detention at this point was purely informational and for a very short period of time. Mr. Kersey knew he was under arrest and he knew what he was under arrest for. Any violation consisted of him not being told, for no more than eleven minutes, that he was required to provide a breath sample at the station. Accordingly, the impact of any violation on Mr. Kersey’s Charter -protected rights is at the very low end of the scale.

Finally, when it comes to the public interest of adjudication on the merits and balancing, I do not propose to repeat what I said earlier about the right to counsel issue since the “as soon as practicable” issue is of even lesser significance than the right to counsel issue. 37 . It goes without saying that while various individual breaches might not, of themselves, lead to exclusion, an accumulation of breaches has the potential to change the equation.

However, when I consider all of the circumstances surrounding these two breaches, one admitted by the Crown, one less certain, the evidence still falls well short of demonstrating that the admission of the breath results would bring the administration of justice into disrepute. Conclusion 38 . It is for these reasons that I dismissed Mr. Kersey’s application to exclude his breath results on his trial. Otherwise, the offence of operating a motor vehicle with excess blood alcohol was clearly proved beyond a reasonable doubt and I found him guilty.

Released: 21 June, 2012 [13] Criminal Reports (6th Series), Vol. 78, pp. 278-290, 2011 .