R. v. Delaney, 2014 ONCJ 83

Citation: R. v. Delaney , 2014 ONCJ 83 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DAVID DELANEY Before Justice Peter Harris Judgment on Charter of Rights Applications February 14, 2014. Ms. J. Bruno..….................................................................................................... for the Crown Mr. J. Shime…...................................................................................................... for the Defence Harris, J.: Introduction [ 1 ] David Delaney was charged with “impaired operation” and “excess alcohol” on the 6 th day of December, 2012. [ 2 ] The defendant applies under sections 8 , 10 (

b) and 24(2) of the Charter for the exclusion of the breath sample evidence on the basis that police demanded and obtained samples of the Applicant’s breath into an A.S.D. and later an Intoxilyzer, in violation of his s.8 and 10(

b) rights. The Facts [ 3 ] On December 6, 2012, P.C. Seth Reitkoetter was dispatched to the scene of a collision between a pedestrian and a vehicle at Dundas St. West and Palmerston Boulevard in Toronto. The officer was directed to the driver of the vehicle by witnesses. They described the driver as chewing gum vigorously. He asked him to spit it out because, in his experience, “people use gum to mask the smell of alcohol”. The officer stated that when he spoke to the driver, he turned his face away – which he believed was another concealment technique.

The officer asked the driver to shut off his vehicle and gave evidence that while he spoke to him through the open driver’s window, there was an odour of alcohol coming from his breath. [ 4 ] P.C. Reitkoetter testified he formed the opinion there was alcohol in the driver’s body which was the basis for making the A.S.D. demand. The grounds for the opinion were: (1) the smell of alcohol on the driver’s breath; (2) the fact he was casual and nonchalant in spite of what was a personal injury accident; and (3) the fact he collided with a pedestrian in a lighted area of the road where the pavement was dry.

Under cross-examination, P.C. Reitkoetter agreed that his notebook entry reference to “grounds” was the following: “I formed a reasonable suspicion he has been consuming alcohol”. [ 5 ] In addition to the forgoing, the in-car video of the officer’s interactions with Mr. Delaney offers a glimpse of the “suspect” who can be observed to be looking detached and unresponsive at times.

[6] Following the A.S.D. demand, the use of the roadside instrument and an “F” reading, a demand was made for breath samplesand rights to counsel provided. Initially, Mr. Delaney made no response to the usual questions about counsel but prior to arriving at 14Division he had advised that he wished to consult a lawyer and at the Division he advised he wanted to speak to a lawyer named J.B.Piekes. The officer proceeded to make an online search of the name and determined that the lawyer requested was an estate lawyer. Hegave evidence that he advised Mr.

Delaney that the lawyer he had chosen was not a criminal lawyer and asked “how he would like toproceed with contacting counsel”. The defendant indicated that he wished to call Mr. Piekes and the officer stated he called the numberlisted on the website and left a call back message at 1:45 a.m. He then called the emergency number which was not answered. He didhave not any notes as to whether he left a message on the emergency line. At 1:48 he advised Mr. Delaney there was no answer at eithernumber and that he had left a voicemail.

The officer then asked if he wished to speak to any other counsel “and the indication was that hedid not”. He stated he again asked, “You do not wish to talk any other lawyer?” – to which the defendant indicated that was “Correct”.No return call was received from Mr. Piekes by the time the officer reported off duty at 7:00 a.m. [7] At 2:00 a.m. the defendant was taken into the breath room and at 2:08 the first breath test was completed. P.C.

Reitkoettertestified that after the first breath test he again offered the defendant the opportunity to speak with a “lawyer or someone else” to whichthere was no response, after which “he fell asleep immediately”. Under cross-examination P.C. Reitkoetter agreed that he waited 14minutes between 1:46 and 2:00 a.m. for counsel to return the call before ushering Mr. Delaney into the breath technician’s office.

Healso agreed that he was not aware of the “Prosper” (SCC), [1994] 3 S.C.R. 236 obligation to hold off from trying toobtain incriminating evidence while an accused person is waiting for an opportunity to contact counsel. As well the officer agreed thathe had not given Mr. Delaney the “Prosper caution” – in other words informed him that the police have the obligation to give him areasonable opportunity to speak with counsel of choice and they should hold off eliciting evidence until such time as “you have anopportunity to consult with your counsel”. P.C.

Reitkoetter gave evidence that he did not know “that legal privilege”. Analysis: Reasonable Suspicion [8] The

section 8 issue can be described as: did the arresting officer apply the correct test for the ASD demand and was theresufficient evidence to meet the test? [9] The requisite screening device test and constitutional precondition for a lawful search under s.8 of the Charter is - did the officerreasonably suspect that the operator of a motor vehicle had alcohol in his body? The Charter provides that the officer must have thissubjective belief and there must be objective evidence to support that conclusion: R. v. Storrey (SCC), [1990] 1 S.C.R.241 (S.C.C.). Mr.

Shime has argued that the smell of alcohol coming from the driver’s breath is objectively insufficient and non-compliant with the statutory test in section 254(2). Respectfully, I disagree. In R. v. Lindsay (ON CA), [1999] O.J.No. 870 (Ont. C.A.), the Court of Appeal held that the smell of alcohol alone coming from a driver’s breath is sufficient grounds for ascreening test (see also R. v. Zarokovic [1998] O.J.

No. 2668 (C.A.) [10] As to the officer’s subjective belief, even if I accept the defence premise that the most reliable indication of the officer’s subjectivegrounds was found in his notebook: “I formed the reasonable suspicion he has been consuming alcohol,” – that still amounts to areasonable suspicion that Mr. Delaney had alcohol in his body, for the following reasons:

(1) The perceptual juxtaposition of the smell of alcohol on the breath and the reasonable suspicion of consuming alcohol logicallyamounts to a reasonable suspicion of alcohol in the body; I cannot imagine how one could consume alcohol without it somehow enteringthe body.

(2) The words “reasonable suspicion” of alcohol in the body” are not some magical incantation or formula that must be utteredprecisely by the witness: R. v. Harris [2000] O.J. No. 675 (Ont. S.C.) at paragraph 45.; R. v. Stauch [2007] A.J. 142 (Q.B.); R. v.Gibbons [2009] O.J. No. 3233 (Ont. C.J.)

(3) The cases referred to by the defence are distinguishable on the facts. In R. v. Dignum 2012 ONCJ 668 (Can LII) (Ont. C.J.) TheCourt held that the evidence that the officer formed a suspicion that the defendant, “Was impaired by alcohol” even though he observedno signs of impairment prior to taking the roadside screening demand, amounted to employing the wrong statutory test in the absence ofany evidence. In R. v.

Fetterley 2004 BCPC 321 (Can LII) the Court found that the officer’s reasonable suspicion the accused “had beenconsuming alcohol” was inadequate because the officer did not say he suspected there was alcohol in his body at the time the driver asoperating a motor vehicle. This result would likely have been overturned on appeal in Ontario. This really was a “failure to say the magicwords” conclusion particularly where an accused said his last drink was “one-half hour ago”. As well, there was an exclusion ofevidence in this case without any s. 24(2) analysis.

(4) Finally, the law in Ontario is that the officer’s subjective belief does not have to be anything more than a suspicion a driver hasalcohol in his body: R. v. MacPerson (ON CA), [2000] O.J. No. 4777 (Ont. C.A.); R. v. Swietorzecki (ON CA), [1995] O.J. No. 816 (Ont. C.A.).

All of the circumstances outlined by the arresting officer would at least constitute asincerely held subjective opinion amounting to a suspicion of alcohol in the defendant’s body even if gum chewing, the turning away ofthe face and the collision might not objectively amount to a reasonable suspicion. [11] Consequently, I have concluded that the arresting officer in the instant case applied phraseology that was sufficiently close to thecorrect test and that from a subjective and objective point of view there was sufficient evidence to meet that test. Analysis:

Section 10(

b) Charter of Rights [12] The second issue involves a Defence assertion that the defendant’s 10(

b) rights were violated as a result of the officer’s failure togive a “Prosper warning” and establish an unequivocal waiver of his right to counsel. P.C. Reitkoetter admitted he did not explain to thedefendant the duty to hold off, or that he had a right to a reasonable opportunity to consult counsel, nor did he explain what he was givingup or clarify whether Mr. Delaney had any appreciation of what he was giving up. Essentially, then there was no “Prosper warning” andno unequivocal waiver of the right to counsel.

The Crown takes the position that the defendant was not being reasonably diligent in theexercise of his right to counsel having turned down the offer to contact another lawyer when his lawyer of choice could not be reached,and accordingly, the correlative duties of the police were suspended and there was no impediment to the continuation of the investigationand the request for a breath sample. [13] The foregoing is a replay of the classic debate about the interrelationship between the respective “Prosper” duties of the policeand the need for an accused to be reasonably diligent in the exercise of his right to counsel, particularly when counsel of choice cannotbe reached and the accused is offered a chance to contact another lawyer or duty counsel. [14] In fact, one very troubling feature of this case is the fact that P.C.

Reitkoetter candidly admits that he did not know it was the lawin Canada that he was under an obligation to provide a “Prosper warning” or obtain an informed, unequivocal waiver of the right tocounsel before taking the next investigative step. [15] At page 83 and 84 the transcript of December 3, 2013, defence counsel Mr. Shime asks the officer if he was aware of hisobligation to provide a “Prosper warning”: Q. An additional informational obligation on police is triggered once a detainee who has previously asserted the right to counselindicates a change of mind and no longer wants legal advice.

The police must at that point tell the detainee of the right to a reasonableopportunity to contact counsel and that the obligation on the part of the police to hold off during that period. Any indication of a changeof mind must be clear and the burden of establishing an unequivocal waiver is on the Crown. Were you aware that was the status of the law on December sixth, 2013? A. Not specifically, no. Q. No. Nowhere in your notes do you reflect that you told Mr. Delaney first of all, that he had a reasonable opportunity to consult withcounsel, right? A. Outside of the rights to counsel, no. Q.

Nowhere in your notes do you convey – is it reflected that you conveyed to Mr. Delaney that you, as a police officer, have anobligation to hold off from eliciting evidence against him, correct? A. That is correct. Q. Nowhere in your notes does Mr. Delaney reflect that he’s waiving his right to counsel, does it? A. Correct. Q. Mr. Delaney was 28-years-old at the time right? A. I believe so. Q. Mr. Delaney has never had any prior engagement with the criminal justice system, correct? A. I would have to refer to the arrest screen – I don’t believe so.

The Prosper Duties [16] In the seminal decision on rights to counsel in R. v. Prosper, supra, Lamer C.J. delivered the majority judgment: 34. As this Court has stated on a number of occasions, s. 10(

b) imposes both informational and implementational duties on stateauthorities who arrest or detain a person. (See Bartle, at pp. 192-94; R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233, at pp.1241-42; R. v. Evans, (SCC), [1991] 1 S.C.R. 869, at p. 890; Brydges, at pp. 203-4.) Once a detainee has indicated adesire to exercise his or her right to counsel, the state is required to provide him or her with a reasonable opportunity in which to do so. Inaddition, state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonableopportunity to reach counsel.

As the majority indicated in R. v. Ross, (SCC), [1989] 1 S.C.R. 3, at p. 12, once adetainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decision or participate in a processwhich could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity toexercise that right.

In other words, the police are obliged to "hold off" from attempting to elicit incriminatory evidence from the detaineeuntil he or she has had a reasonable opportunity to reach counsel. 43. …courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additionalinformational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he orshe has changed his or her mind and no longer wants legal advice.

At this point, police will be required to tell the detainee of his or herright to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take anystatements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonableopportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right tocounsel will know what it is that he or she is actually giving up. 44.

Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right theremust be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on theCrown: Ross, at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirectcompulsion. This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel isvery high: Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, Manninen, and Evans.

As I said in Bartle, at pp. 192-94and 206, a person who waives a right must know what he or she is giving up if the waiver is to be valid. That being said, it stands toreason that the right to counsel guaranteed under s. 10(

b) must not be turned into an obligation on detainees to seek the advice of alawyer. 45. Finally, I wish to point out that there may be compelling and urgent circumstances in which, despite a detainee's being unable tocontact a lawyer due to the unavailability of a "Brydges duty counsel" system, police will not be required under s. 10(

b) to hold off.However, in the context of impaired driving cases, I am satisfied that the existence of the two-hour evidentiary presumption available tothe Crown under s. 258(1)(c)(ii) of the Code does not, by itself, constitute such a compelling or urgent circumstance. "Urgency" of thekind referred to by this Court in cases such as Manninen, supra, and R. v. Strachan, (SCC), [1988] 2 S.C.R. 980, is notcreated by mere investigatory and evidentiary expediency in circumstances where duty counsel is unavailable to detainees whohave asserted their desire to contact a lawyer and been duly diligent in exercising their s. 10(

b) rights. A detainee's Charter-guaranteedright to counsel must take precedence over the statutory right afforded to the Crown which allows it to rely on an evidentiarypresumption about what a breathalyser reading would have been at the time of care and control of a vehicle. The Defendant’s Duty to Exercise Reasonable Diligence [17] In R. v. Brydges (SCC), [1990] 1 S.C.R. 190 (S.C.C.) the Supreme Court of Canada summarized the principlesrelating to “reasonable diligence on the part of the detainee” in the context of

section 10 (

b) rights: Fair treatment of an accused person who has been arrested or detained necessarily implies that he be given a reasonable opportunity toexercise the right to counsel because the detainee is in the control of the police, and as such is not at liberty to exercise the privileges thathe otherwise would be free to pursue.

There is a duty then, on the police to facilitate contact with counsel because, as I stated in R. v.Manninen, (SCC), [1987] 1 S.C.R. 1233, at pp. 1242-43: The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but,equally if not more important, to obtain advice as to how to exercise those rights. ... For the right to counsel to be effective, the detaineemust have access to this advice before he is questioned or otherwise required to provide evidence. As a result, s. 10 (

b) of the Charter imposes at least two duties on the police in addition to the duty to inform the detainee of his rights.First the police must give the accused or detained person a reasonable opportunity to exercise the right to retain and instruct counsel, andsecond, the police must refrain from questioning or attempting to elicit evidence from the detainee until the detainee has had thatreasonable opportunity.

The second duty includes a bar on the police from compelling the detainee to make a decision or participate in aprocess which could ultimately have an adverse effect in the conduct of an eventual trial until the person has had a reasonableopportunity to exercise the right to counsel: R. v. Ross, (SCC), [1989] 1 S.C.R. 3, at p. 12: It is the case, however, that the rights set out in the Charter are not absolute. Indeed, this Court has held that the right to retain andinstruct counsel must be exercised diligently by the detainee.

If the detainee is not diligent, the correlative duties on the police aresuspended: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435. What constitutes reasonable diligence on the part of thedetainee has been considered by this Court in R. v. Ross, supra, at p. 11: Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detainedperson. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercisereasonable diligence accordingly.

By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no suchimmediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen

cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel bycalling another lawyer. A detainee may, either explicitly or implicitly, waive his right to retain and instruct counsel,although the standard will be very high where the alleged waiver is implicit.

A majority of this Court in Clarkson,supra, concluded as follows in respect the right to counsel at pp. 394-95, a passage that has been cited with approval in subsequent cases dealing with s. 10(b): ... it is evident that any alleged waiver of this right by an accused must be carefully considered and that the accused's awareness of theconsequences of what he or she is saying is crucial. Indeed, this Court stated with respect to the waiver of statutory procedural guaranteesin Korponay v.

Attorney General of Canada, (SCC), [1982] 1 S.C.R. 41, at p. 49, that any waiver "... is dependent uponit being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights theprocedure was enacted to protect and of the effect the waiver will have on those rights in the process". [Emphasis in original.] This then, briefly stated, is a

summary of the principles developed thus far. Reconciling the Police Duties and Reasonable Diligence on the Part of the Accused [18] Applying the facts to all of the foregoing, it is clear that Mr. Delaney indicated that he wished to consult with counsel of choiceand he was as diligent as he could be in doing so. He requested a named counsel and did what was expected by waiting from the time amessage was left at 1:46 a.m.

It is clear the officer intended to terminate the waiting at 2:00 am a.m., fourteen minutes later and offer thedefendant an alternative opportunity to consult with counsel, but in the absence of any note-taking as to the questions asked, it isimpossible to know precisely what the defendant responses meant or what he elected to do (see transcript above). The officer was of thebelief that Mr.

Delaney was declining the offer to “speak to duty counsel or any other counsel.” There is no alternative but to accept P.C.Reitkoetter’s version of what transpired, but it is clear that he did not think the questions and answers regarding rights to counsel wereimportant enough to memorialize in his notebook. [19] The point is ─ that if, as the officer says the defendant in fact declined an offer to speak with duty counsel or any other counsel,the logic of the two bedrock decisions noted above is that when the police cannot reach counsel of choice, and the defendant indicates hehas changed his mind and no longer wants legal advice, the “Prosper duties” must be complied with and an unequivocal waiver obtained ─ and only then will a defendant’s failure to avail himself of duty counsel amount to a failure to exercise reasonable diligence.

In myview, ‘reasonable diligence’ on the part of the defendant never comes into play in this case. [20] The only way that Prosper and all the ‘reasonable diligence’ cases can be reconciled is by giving effect to the case authoritiesnoted above and placing the police duties and the accused’s right to counsel obligations in their natural order. When counsel of choicecannot be reached after a reasonable waiting period, and an accused wishes to speak with alternate counsel, or duty counsel, an accusedhas to pursue that choice with reasonable diligence.

Where an accused indicates that he or she has changed his or her mind and no longerwants legal advice, police must provide constitutionally sufficient information (the Prosper caution) in order to allow him or her to makea fully informed decision. This “additional informational requirement” on police “ensures that a detainee who persists in wanting towaive the right to counsel will know what it is that he or she is actually giving up,” according to R. v.

Prosper. [21] At this point, the police either have an informed, unequivocal waiver or a renewed interest in consulting counsel in respect towhich, the accused must exercise reasonable diligence. This is a simple formula that could be reduced to print in the back of a memobook. As the Ontario Court of Appeal stated in R. v. Devries, 2009 ONCA 477 , [2009] O.J. No. 2421 (C.A.), “There is value inthe use of a standardized s. 10 (

b) caution which complies with the informational requirements established in the Supreme Court ofCanada jurisprudence.” And police should be instructed to make careful notes of the accused’s responses. Ideally, to avoid the perpetualcontest about what information was conveyed and what answers were given, this information/waiver process should take place on videoprior to any request to provide breath samples. [22] The essence of Prosper is the fact that it sets out the fundamental principles that marshal our understanding of the Charter rightto counsel. The central concepts are clearly stated:

(1) Courts must ensure that the Charter-protected right to counsel is not too easilywaived, and

(2) Given the importance of the right to counsel…the standard required for an effective waiver of the right to counsel is veryhigh: Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, Manninen, and Evans, and

(3) The evidentiary presumptionunder s. 258(1)(

d) of the Code, which provides that readings taken within two hours of an alleged offence are proof of the blood alcohollevel at the time of the offence, is not a sufficiently "urgent" factor to override a detainee's right to counsel under s. 10(b), and

(4) It isnow well accepted that s. 10(

b) serves to protect the privilege against self-incrimination, a basic tenet of our criminal justice systemwhich has been recognized by members of this Court to be a "principle of fundamental justice" under s. 7 of the Charter: R. v. P. (M.B.), (SCC), [1994] 1 S.C.R. 555, and R. v. Jones, (SCC), [1994] 2 S.C.R. 229. [23] In my respectful opinion, somewhere along the jurisprudential trail many of the

section 10(

b) principles have had a tendency to

be lost in a “blended analysis of the overall situation” and police duties and the diligence of the accused have a tendency to becomejammed together. For example, in R. v. Richfield [2003] 0.J. 3230 (C.A.) the Ontario Court of Appeal considered the question of“reasonable diligence:” and concluded that: 12 The appellant, upon being informed that the lawyer that he had asked the police to call had not called back, did not ask to make afurther call to his counsel of choice or to another counsel. When asked if he wished the assistance of duty counsel, the appellant indicatedthat he did not.

The appellant was not reasonably diligent in exercising his right to counsel in the circumstances. The fact that the policecould have made greater efforts earlier does not detract from the appellant's own lack of diligence at a later stage in exercising his rightto counsel. [24] As well, in R .v Blackett, [2006] O.J. 2999 (S.C.J.) Ferguson J. dealt with held with police duties and diligence in the followingcommentary: 25 It seems inescapable that the appellate courts have decided that, where duty counsel is available, the scope of the police duty tofacilitate contact with counsel of choice is minimal.

It would appear from the decision in Richfield that a good faith perfunctory effort bythe police to locate counsel of choice is sufficient to "suspend the correlative duties on the police" if it is followed by an offeringof access to duty counsel and the failure by the accused to take advantage of duty counsel. [25] At first blush, these oft-quoted paragraphs appear to proceed on the basis that a minimalist, perfunctory approach to

section 10(b)was all that was required and that the Prosper duties and an unequivocal waiver were no longer necessary. In fact the above cases areentirely consistent with the Supreme Court jurisprudence. It is noteworthy that in both Richfield and Blackett the accused requestedcounsel of choice and when counsel was not available, the accused were offered duty counsel, which they refused, and continued toinsist on counsel of choice. (See also R. v. Van Binnendyk, 2007 ONCA 537, R. v. Boyce, (Ont.S.C.), ─ decisionsthat followed Richfield in which accused steadfastly insisted on their own unavailable counsel).

These Courts quite properly found thatthe accused were not being reasonably diligent in exercising their right to counsel. That is a much different set of circumstances fromthose in which accused change their minds and no longer wish to exercise the right to counsel.

That classic scenario continues to begoverned by the Supreme Court jurisprudence and the traditional high standards required for an effective informational/waiver processwill still be required to ensure an accused knows what it is that he or she is actually giving up. [26] A number of jurists have recognized this distinction such as Beninger J. in R. v. Bourgeois, 2009 ONCJ 336 (Ont.C.J.) where hemakes the following ruling: The Crown states that the accused failed to exercise due diligence in contacting a lawyer. R. v.

Richfield, supra, states that an accusedperson must be reasonably diligent in exercising their right to counsel. An important consideration in R. v. Richfield was the availabilityof duty counsel, the use of which was not pursued by the accused in that case. In this case, Mr. Bourgeois was adamant in rejecting theavailability of duty counsel services. However, in R. v. Richfield, there were significant efforts made by police to facilitate the right tocounsel for the accused. I distinguish the facts in this case from R. v. Richfield, in that

a) there is a change of mind by this accused whichtriggers the Prosper requirements….(See also R. v. Bell, 2008 ONCJ 151 (Ont.C.J.); R. v. DesRosiers, 2005 ONCJ 212 (Ont.C.J.); R. v.Spurrell 2012 ONCJ 576 (Ont.C.J.) to the same effect) [27] The final point to be made is that when an individual finds himself (or herself) in a police Division under arrest and in detention,the relationship between the individual and the police is not a level playing field.

It stands to reason that a person in custody for the firsttime, under the influence of some level of alcohol and being required to make some very stressful choices about counsel and whether toprovide a breath sample, is likely to feel quite overwhelmed. This is precisely why the Prosper informational/waiver process is so vitallyimportant. The conclusions of the Court in R. v. Bourgeois are entirely applicable to the case at bar: With reference to the circumstances of this accused, I note that, once he as under detention, any potential access to a lawyer wascompletely controlled by the police.

The only access by the accused to a phone was through the police. For such access, the procedurewas for the police to make the phone calls and receive the phone calls, with the accused person only then being able to speak tosomeone, who had already been screened by the police, on the phone. The police had the phone books, which provided the informationrequired to contact a lawyer. The police had established a Mobile Command Centre (a modified Winnebago trailer) in a location of theirconvenience to expediently and efficiently process their investigations.

With that level of control over the accused, the duty on thepolice to fulfill their informational and implementation duties under s. 10(

b) of the Charter is substantial. [28] As well, in R v. Brydges (1990) (SCC), 53 CCC (3d) 330 (S.C.C.), the Court stated, “fair treatment of anaccused person who has been arrested or detained necessarily implies that he has been given a reasonable opportunity to exercise theright to counsel because the detainee is in the control of the police and as such is not at liberty to exercise the privilege that he otherwisewould be free to pursue.” [29] In regard to the discourse between P.C. Reitkoetter and Mr.

Delaney at the Division regarding the exercise of the right to counsel,I find there was not a clear and unequivocal waiver of the right to counsel by the defendant. The information given by the defendant tothe officer was ambiguous as a result of the lack of a full and proper record or notebook entry. Additionally, the arresting officer did notmeet the Prosper requirements.

He admitted he did not explain the duty to hold off, or that the defendant had a right to a reasonableopportunity to consult counsel, nor did he explain to the accused what he was giving up or ascertain that the accused had anyappreciation of what he was giving up. He agreed there was no waiver. Consequently, there is no basis for concluding that the defendantwas provided with an informed understanding of the right he was giving up. Given the high standard for waiver set out by the Supreme

Court in Prosper, Clarkson and subsequent cases, I find in all the circumstances that the rights of the accused under s. 10 (

b) of theCharter were breached. The Section 24 (2) Analysis – (R. v. Grant) [30] According to the majority in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the fact of a Charter breach means that damage hasalready been done to the administration of justice – understood in this long term prospective sense of maintaining public confidence inthe justice system viewed in the long term. The inquiry is objective. It asks whether a reasonable person, informed of all the relevantcircumstances would conclude that the admission of evidence would bring the administration of justice into disrepute.

Section 24(2)starts from the proposition that the Charter breach means that damage has already been done to the administration of justice and seeks toensure that evidence obtained through that breach does not do further damage to the repute of the justice system. There is one furtherpurpose achieved by a determination under s. 24(2) according to R. v. Grant: [70] Finally, s. 24(2)’s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused,but rather at systemic concerns.

The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of thejustice system. [31] As noted in Grant, the s. 24(2) inquiry engages 3 avenues of inquiry – each rooted in public interests engaged by s. 24(2) viewedin a long term, forward looking, and societal perspective. First Inquiry: Seriousness of Charter Infringing Conduct [32] The Grant decision sets the parameters for this analysis. There are several considerations to be applied.

The more severe ordeliberate the conduct the more the need for courts to dissociate themselves from that conduct to preserve public confidence in the ruleof law and its processes. The point being made is that the rule of law requires state authorities to uphold the rights guaranteed by theCharter. There is a spectrum from inadvertent or minor to instances where evidence is obtained through wilful or reckless disregard ofthe Charter which would inevitably have a negative effect on public confidence in the rule of law.

Extenuating circumstances, such asthe need to prevent the disappearance of evidence may attenuate the seriousness of police conduct. Good faith will reduce the need forthe Court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded and negligenceor willful blindness cannot be equated with good faith. [33] The majority in Grant provided some additional guidance. Deliberate police conduct in violation of established Charter standardsmay require that the Court disassociate itself from such conduct. It follows that such conduct tends to support exclusion.

For everyCharter breach, many others may go unidentified and unaddressed because they do not turn up evidence that leads to a charge. Therecognition of evidence that the Charter -infringing conduct was part of a pattern of abuse tends to support exclusion. [34] It is noteworthy that the arresting officer in this case was not aware of any obligation on police officers to provide a Prosperwarning in the event of a change of mind about contacting counsel.

Further, in a context involving a detainee who was 28 years of agewith no prior arrests, there was no effort made to advise him he had a reasonable opportunity to consult with counsel (aside from therights that were read) or advise that he had, as a police officer, an obligation to hold off from eliciting evidence against him pending anopportunity to exercise his rights and an obligation to obtain an unequivocal waiver should he decide against consulting counsel.

Mostimportantly, the administration of the defendant’s right to counsel was a matter of so little importance that the officer “neglected” to putin his notes what specific questions he asked, and testified, “I’ve simply only put down his responses.” This was a perfunctory exercise inwhich there was a faulty understanding of police duties, a neglectful recordkeeping process and failure to conduct a constitutionallyappropriate information/waiver inquiry amounting to a lack of awareness of his obligations under the Charter.

While good faith mayreduce the need for the Court to disassociate itself from the police conduct, a major gap in the officer’s training resulting in a lack ofappreciation of Charter standards must not be rewarded. The Prosper requirements have existed for some twenty years and should bewell known and well recognized by the police who are called upon to uphold those standards. There is no question this Charter-infringing conduct was serious. [35] Additionally, while the general rule that “conscriptive evidence obtained in violation of an accused’s s. 10(

b) rights shouldautomatically be excluded” (R. v. Collins (1987) (SCC), 33 C.C.C. (3d) 1 (S.C.C.)) is no longer the law given therevised s. 24(2) framework in Grant, a violation of the right to counsel is a breach of fundamental rights (see para. 20, above) and is aserious matter.

As the majority in Prosper concluded, “Neither the undeniable good faith of the police, nor the relative seriousness of thedrinking and driving offence with which the appellant was charged can compensate for the adjudicative unfairness which I findadmission of the evidence would produce.” Second Inquiry: Impact of Charter Protected Interests of the Accused [36] This inquiry focuses on the extent to which the breach actually undermined the interests protected by the right infringed.

According to R. v. Grant, the impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The moreserious the impact on the accused’s protected interests, the greater the risk that the admission of the evidence may signal to the publicthat Charter rights are of little avail to the citizen breeding public cynicism and bringing the administration of justice into disrepute. [37] In terms of the breach’s impact on protected interests – it must be said that the protected interests under

section 10(

b) of theCharter are the rights against self- incrimination and ultimately the protected interests of security of the person, privacy and humandignity as a result of being taken to a police detachment in handcuffs. Both the taking of a statement and breath sample evidenceconstitute a conscriptive search of the body in respect to which the defendant enjoys a constitutional protection against self-incrimination.Consequently, any breach of an accused’s s. 10(

b) rights followed by the obtaining of incriminating evidence is deemed more seriousthan another type of intrusion upon protected interests because of the impact of a violation on the defendant’s fair trial interests. Theright to counsel “information and implementation” duties prevent the police from compelling the detainee to make a decision orparticipate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until the person has had areasonable opportunity to exercise the right to counsel: R. v. Ross, supra.

These type of violations favour exclusion in order that the courtis not seen to condone or associate itself with trial unfairness. [38] Even though Charron J. in Grant, in a wide-ranging discussion, referred to breathalizer tests as being relatively non-intrusive, themajority in R. v.

Bernshaw (SCC), [1995] 1 S.C.R 254 (S.C.C.) thought otherwise and in my view the intrusivenessfactor associated with the process of arrest, handcuffs, search, detention, parading before a staff sergeant, a more extensive search, andbeing held in custody for hours and deprived of contact with friends and family, amounts to a relatively serious incursion into theprotected interests of privacy, liberty and security of the person. I would adopt the phraseology in R. v.

Bartle [1994] (S.C.C.), “Not onlyhas this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him ─ or herself.” In my view, theimpact on these Charter-protected interests is serious and would also favour exclusion.

Third inquiry: Society’s Interest in an Adjudication on the Merits [39] The Court in Grant emphasizes that the public generally expects that a criminal allegation will be adjudicated on the merits.Consequently, the third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by theadmission of the evidence or by its exclusion. The exclusion of relevant and reliable evidence may undermine the truth seeking functionof the justice system and render the trial unfair.

However, if a breach (such as one that effectively results in incriminatory evidence)undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. [40] According to Grant, the Court must balance the interests of truth with the integrity of the justice system (see also R. v. Mann2004 SCC 52 , [2004] 3 S.C.R. 59 (S.C.C.) per Iacobucci J). The Court must ask whether the exclusion of evidence exacts toogreat a toll on the truth-seeking goal of the criminal trial.

The importance of the evidence to the prosecution’s case is another factor thatmay be considered in this line of inquiry. The admission of evidence of questionable reliability is more likely to bring the administrationinto disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence mayimpact more negatively on the administration of justice where the remedy effectively guts the prosecution. Finally, the goals furtheredby s. 24(2) operate independently of the type of crime for which the individual stands accused: R. v.

Burlingham (SCC),[1995] 2 S.C.R. 206 (para 51). [41] The evidence being considered for exclusion in this case is mainly the intoxilizer readings. This highly reliable evidence is thecore of the crown’s case on the very serious charge of operating a motor vehicle with excess alcohol in the blood. As had been said sooften, the public expects the justice system to reliably deal harshly with conduct that is perennially so dangerous to life and limb. Thisfavours inclusion. However, as noted above, there is another aspect to the societal interest besides the adjudication of a criminal chargeon the merits.

Section 24(2) is focused on the broad impact of admission of the evidence on the long-term repute of the justice system.Which is to say there is a strong public interest in the law being followed as intended by the Supreme Court of Canada, particularly inregard to vitally important procedural requirements that ensure meaningful compliance with a Charter-protected right that is, “A basictenet of our criminal justice system which has been recognized by members of this Court to be a "principle of fundamental justice" unders. 7 of the Charter”: R. v. Prosper. [42] One of the purposes of

section 10(

b) is to provide detainees with an opportunity to make informed choices about whether toexercise their legal rights or waive them. This opportunity is no less significant when police officers intend to obtain incriminating breathsample evidence. Law enforcement officers play a vital role in facilitating a detainee’s right to counsel. This right is of such a super-ordinate importance that the burden of establishing an unequivocal waiver falls on the Crown and the standard required for an effectivewaiver of the right to counsel is very high. Here, the Crown cannot meet the burden of establishing that Mr.

Delaney knew what theofficer’s obligations were or what he was giving up by changing his mind about consulting counsel. P.C. Reitkoetter essentially askedthe defendant twice whether he wanted to “speak to any other counsel” and received a negative response both times. This not onlyamounts to a complete failure to adhere to constitutional standards of conduct, it appears that the officer had no idea what those standardswere. Additionally, the error was compounded by the failure to keep a careful record of this communication about the right to counsel.

[ 43 ] The casual institutional disregard for an individual’s

section 10(

b) rights in this case suggests a systemic deficiency and a major gap in police training. On the one hand, the reception into evidence of the defendant’s breath samples would be in the interests of justice based on the fact the public generally expects criminal allegations to be adjudicated on the merits.

On the other hand, in terms of protecting societal values ─ where the police have fallen far below accepted constitutional standards, the admission of the intoxilyzer results would bring the administration of justice into disrepute. [ 44 ] I can well imagine the pressure to rush through what might seem to be a meaningless ritual to police in order to procure the first breath sample ‘as soon as practicable’ and within the two-hour evidentiary presumption available to the Crown under s. 258(1)(c)(ii) of the Code. The fact is Mr.

Delaney was arrested at 1:13 a.m. and at 2:00 a.m. he was taken into the breath technician’s office. The first breath sample was obtained by 2:08 a.m. With more than one hour remaining on the “clock” and the overriding Prosper principle that an accused’s rights to counsel trump the two-hour evidentiary presumption, there was no justification for such a thoughtless, mechanical and hurried response to the defendant’s change of mind about contacting counsel.

The significance of an individual’s right to counsel on arrest or detention must be communicated to policing agencies: it is one key feature that differentiates constitutional democracies from regimes in which individuals are detained and held incommunicado for lengthy periods while state agents attempt to procure incriminating evidence.

Conclusion [ 45 ] Having made the above three inquiries, which encapsulate considerations of “all the circumstances of the case”, I have determined that, after engaging in a balancing process, and having regard for s. 24(2)’s focus on “systemic concerns” ( Grant , paragraph 70 ), the admission of the evidence obtained by this Charter breach would bring the administration of justice into disrepute in the long term. Accordingly, the breath sample evidence and any statements obtained following the breach of the defendant’s

section 10(

b) rights will be excluded pursuant to section 24(2) of the Charter . Harris, J. February 14, 2014 .