HER MAJESTY THE QUEEN — v. —, 2017 ONCJ 199

ONTARIO COURT OF JUSTICE CITATION: R. v. Clayton, 2017 ONCJ 199 DATE: March 27, 2017 BETWEEN: HER MAJESTY THE QUEEN — AND — ANDREW CLAYTON Before Justice Peter Harris Judgment on Charter of Rights Applications Mr. C. Kalantzis……………………................................................................... for the Crown Mr. D. Brown……………………..................................................................... for the Defence Harris, J.: Introduction [ 1 ] Andrew Clayton was charged with “excess alcohol” on the 6 th day of December, 2015. [ 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 instrument, in violation of his s.8 and 10(

b) rights. The Facts [ 3 ] On December 6, 2015, P.C. Robert Liscoumb and his partner P.C. Sean McGuiness were on routine patrol in a marked police vehicle travelling westbound on Dundas St. West in Toronto when they saw a vehicle travelling eastbound at high speed. They turned and at about 2:10 am approached the same vehicle, which had then stopped at a gas service centre a short distance away. They approached the driver who was standing outside the vehicle and questioned him about speeding. The driver, Andrew Clayton, was asked if he had been consuming alcohol and he replied that he had not.

He was asked to go and sit in the rear seat of the police vehicle to allow for a “better look at your ability.” [ 4 ] Mr. Clayton was asked a number of questions in the car and an officer is heard to say: “I did get a whiff of alcohol” and “I smell an odour of alcohol and I think it’s from you.” Following that a demand was made for a roadside breath test at 2:18 am a request for an ASD was broadcast to other officers in the vicinity resulting in the delivery of a unit within three minutes of the call. The ASD test was administered resulting in a “fail” result.

[ 5 ] P.C. Liscoumb testified he was concerned about the defendant’s ability to drive and he made an ASD demand. His grounds were (1) the observation of the defendant’s car speeding; (2) the faint smell of alcohol on his breath while standing outside his vehicle; and (3) he could smell alcohol in the police vehicle, “strong enough to conclude it came from his mouth.” Following the “fail” result the officer arrested the defendant for ‘over 80’; the officer stated; “he had over 80 mgs of alcohol in 100 mls. of blood.” [ 6 ] Mr.

Clayton was advised of his rights to counsel and according to the arresting officer; he “said he had a lawyer but could not provide his name or contact number.” P.C. Liscoumb testified that Mr. Clayton said he had a cell phone in his pocket and “I kept it for safekeeping.” (In fact the officer later admitted he had not kept the cell phone but in fact it had been left with a female in the defendant’s car.) On route to the station the officer is heard to say to Mr. Clayton: “You are going to asked to give two samples. You have no choice.

If you don’t do it, you’ll be charged.” In explaining the right to counsel the officer is heard to tell the defendant: “You can have discussions with a lawyer if you have one… or duty counsel if you don’t.” Later in the police vehicle, P.C. McGuiness said to the defendant that he “will get reasonable use of the phone at the division [to call a lawyer].” Prior to entering the station, P.C. Liscoumb asks: “what’s your lawyer’s name?” Mr. Clayton responds: “honestly I have no idea.” “My father knows him.” The officer then says: “we’ll call you duty counsel then, okay?” Mr.

Clayton says: “all right.” [ 7 ] In the booking area of the station, Mr. Clayton is read a sign about his rights to counsel and the Staff Sergeant is told: “he does wish to call a lawyer.” The Sergeant asks: “do you have a lawyer in mind?” Mr. Clayton is heard to say on the booking video: “I’ll have to find the number. I believe it’s Daniel Brown.” The Staff Sergeant then tells him that he will have “reasonable use of the phone to call him.” Mr. Clayton is then told his brother has called the station inquiring about him. He was then placed in a station holding room at 3:07 am. [ 8 ] P.C.

Liscoumb testified that they tried to call Daniel Brown first and when that was not successful, they called duty counsel. P.C. Liscoumb then admitted that was incorrect and that duty counsel was called first. Based on the call log (Exhibit 3) it was clear that P.C. Liscoumb called duty counsel at 3:15 am, P.C. McGuiness placed a call to Daniel Brown’s office at 3:17 am and left a message, and duty counsel called back at 3:18 am at which time the officers placed Mr. Clayton on the phone with duty counsel. P.C. Liscoumb stated that Mr.

Clayton spoke to duty counsel for five minutes and at 3:23 am he was taken into the breath room to provide a sample. This officer gave evidence he had no notes about what was said to Mr. Clayton about his rights to counsel at this point and did not recall any conversation about his rights. He was asked if questioned Mr. Clayton about whether he was satisfied with duty counsel or whether the defendant expressed any dissatisfaction with duty counsel and he said, “I don’t recall.” [ 9 ] P.C.

McGuiness testified he “got the lawyer’s phone number from the Law Society data base.” He stated there was no answer at this number so he left a message to call back. Exhibit 4 is a recording of the message he left. In the message he is heard to say: “I’m probably sure you don’t take calls at home. It’s now 3:17, he would like to talk to you but we already made a call to allow him to talk to duty counsel as well.” The officer was asked why duty counsel was called first and he replied, “I don’t see any harm in calling two lawyers.” Asked if this was not contrary to his training, he said: “No.

There’s no training on that.” He was asked if he had any other conversation with Mr. Clayton after he left the message and he replied: I don’t recall.” He was asked if he had any other conversation with the Applicant after he spoke to duty counsel, about his lawyer or any other lawyer and he replied: I don’t recall.” If fact, P.C. McGuiness had no note of any conversation with Mr. Clayton about counsel after the booking procedure on entering the police division. [ 10 ] On the Breath room video, Exhibit 2, the breath technician, P.C. Sanders is heard to say to Mr.

Clayton: “ The officers have done everything they can to contact your lawyer. They have called and left a message. It’s now 3:23 on a Sunday morning. He didn’t call back. You spoke to duty counsel. Are you in agreement to provide a sample of your breath now? Mr. Clayton says: “Yes.” Asked why he said the officers have done everything they can, he replied: “If they called the numbers they had, I thought that’s really all they could do.” He stated: “I assume there was some time for the lawyer to call back while he was speaking to duty counsel.” P.C.

Sanders explained that: “once a message is left, there is no set amount of time to wait. We can start the test. At 3:23 on Sunday morning, I don’t expect anyone to call back.” [ 11 ] Andrew Clayton testified he was 20 years of age at the time and had been at a bar in downtown Toronto with friends and they were on their way back to Markham where he lived, when approached by police. He said the police asked him about speeding, but when they asked him to sit in the back of the squad car he did not know it was a drinking/driving investigation.

After he failed the roadside breath test he said he was asked whether he wanted to speak to a lawyer and he said: “yes.” He testified he was asked for a contact number and he said it was in his cell phone in his car. He said he thought the officer went to his car to get his cellphone. He stated he later asked the officer if he had his cell phone and the officer said: “no.” Mr. Clayton gave evidence that he was asked at the station if he knew his lawyer’s name and because of anxiety issues he did not recall the name at that time but said his father had the contact number.

At Booking he remembered his lawyer’s name, Daniel Brown. On the basis of what the officer told him (“If you don’t have a contact number, we’ll call duty counsel for you”) he thought he would not be permitted to call his father. He thought it was a case of: “either I have the number or I call duty counsel.” Mr. Clayton testified that after Booking he was placed in a cell for 5 minutes and then taken to a private room and told, “I am speaking to legal aid.” He said he was not asked for help reaching his lawyer or offered a chance to speak to a different lawyer.

[12] In his call with duty counsel he said the person on the phone had a prepared script and told me what to do and hung up. “Ididn’t ask questions. I expected to talk to my lawyer.” The defendant stated: “there was no further discussion about my lawyer orwhether I was satisfied with duty counsel.” When asked what he wanted to ask his lawyer Mr. Clayton said: “Do I refuse to take the test?The officer said I had no defence.

Did I?” When the Breath technician said the officers had done “everything they could to reach yourlawyer”, he thought the breath officer was saying they had called his office, called his cell phone, tried to reach him by text and email. Ifasked he stated he would have tried to reach counsel by calling his own cell phone or by calling his father or brother. He stated he did notknow he had the choice to wait or call another lawyer and “would have used a phone book or called his father to do it.” Mr.

Claytontestified that if he knew the officers had only called his lawyer’s office, he would have tried to reach counsel on his cellphone: (directinghis comment to his lawyer) “You always got back to me. The cell number is on the [lawyer’s] website, as is the email address. I wouldhave called other lawyers in your firm.” Asked why he didn’t suggest the officers try to call his father, his brother or his cell phone, hesaid, “They were being strict with me. I asked a lot of questions. I didn’t want to push it. I didn’t think I had other options.” [13] In cross-examination Mr.

Clayton was asked: “in the car you had no trouble asking questions of the officers. He replied: “no.”He said, “If I’m nervous I’ll talk a lot.” He was asked: “when you were told they couldn’t reach your lawyer, why didn’t you say I knowhow to call him…. You asked so many questions before?” He replied that: “I was told by the booking officer that they would put me intouch with my lawyer.

I never thought I was not going to speak to my lawyer until the breath room.” He was reminded that he said hethought he would only get duty counsel if he did not have his lawyers contact number. “Now you say you thought you were still going tospeak to your lawyer?” He replied: “With the officers I felt like I was not allowed to ask questions….In their custody they are telling mewhat to do. I’m not trying to give them a hard time. I feel like I have no power, no say.” It was pointed out to Mr.

Clayton that on thebreath video he is seen to be asking [because of a course he needed to study for an exam] ‘can we hurry this up?’ It was suggested to himthat his main interest was not speaking to his lawyer, but getting the process over quickly. He replied that he didn’t want to hurry it up:“not at the expense of not speaking to my lawyer.” Analysis: The

Section 8 Charter Argument [14] The

section 8 issue can be described as: did the arresting officer have sufficient evidence to meet the reasonable suspicion testfor the ASD demand and was he able to provide evidence that the ASD was working properly so as to subjectively and objectivelyestablish reasonable grounds for an arrest and an Intoxilyzer demand based on a “fail” result? [15] 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. Brown has argued in his Form 1 Application that P.C. Liscoumb lacked reasonable suspicion to make the ASDdemand. Respectfully, I disagree. In R. v. Lindsay (ON CA), [1999] O.J. No. 870 (Ont. C.A.), the Court of Appealheld that the smell of alcohol alone coming from a driver’s breath is sufficient grounds for a screening test (see also R. v. Zarokovic[1998] O.J. No. 2668 (C.A.). In the case at bar, P.C.

Liscoumb is heard to say on the in-car video that: I did get a whiff of alcohol. Ismell an odour of alcohol and I think it’s from you.” He testified that he could smell the odour of an alcoholic beverage while Mr.Clayton was seated in the police car and it was strong enough to conclude it came from his breath.” The smell of alcohol on the breathamounts to a perception or suspicion that the suspect had consumed alcohol. I cannot imagine how one could consume alcohol without itsomehow entering the body. I am satisfied that the test for the ASD demand had been met in this case.

The words “reasonable suspicion”of alcohol in the body” are not some magical incantation or formula that must be uttered precisely 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.) [16] As to the second question, whether the ASD was working properly so as to subjectively and objectively establish reasonablegrounds for an arrest and an Intoxilyzer demand based on a “fail” result, in my view this issue has been settled in R. v. Coutts (1999) (ON CA), 45 O.R. (3d) 288 (Ont. C.A.).

The Ontario Court of Appeal dealt with the question of the need for proof theASD was working properly in order to support an arrest and breath demand. In that case there was no evidence the ASD was calibratedfor a “fail” reading or that the device was in proper working order.

Moldaver J.A. (as he then was) held that, “Manifestly, where aroadside test is being used solely for the purpose of confirming or rejecting a police officer’s suspicion that a motorist might be impairedor over the legal limit, none of these [functionality] facts need be proved.” Accordingly, for the foregoing reasons, the s. 8 Charterapplication will be dismissed. Analysis:

Section 10(

a) and 10(

b) Charter of Rights [17] The second major issue involves a Defence assertion that the applicant’s s. 10(

a) and s. 10(

b) rights were violated as a result of (1)the officer’s failure to advise the defendant as to why he was being detained - (s. 10(a)); and (2) the officer’s failure to permit theapplicant an opportunity to speak with counsel while they waited for the ASD to be delivered to the scene by another officer – (s. 10(b));and (3) the officer’s failure to provide the applicant with an opportunity to contact counsel of choice and facilitate that contact withreasonable diligence pursuant to routine police obligations under s. 10(

b) of the Charter. [18] The

section 10(

a) question can also be summarily resolved. First, it is common knowledge that driving a vehicle on a public roadis a highly regulated activity and motorists may be expected to be stopped with a view to determining their entitlement and capacity todrive: R. v. Weik [2012] M.J. No. 181 (Man Q.B.). Not only do police officers have the statutory authorization to determine a driver’ssobriety, they have a legal duty to do so: R. v. Orbanski; R. v. Elias, 2005 SCC 37 .

In my view, general statements and inquiriesmade by an investigating officer at the roadside will be a sufficient signal to the driver as to why he or she has been detained and willusually provide sufficient information about the detention to satisfy

section 10(

a) of the Charter. There is no need for a formaldeclaration as to the reason for the detention in a motor vehicle roadside investigation because it should be assumed that drivers will

know they can be stopped and investigated to check license and registration, vehicle fitness and motorist sobriety. I do not acceptAndrew Clayton’s evidence that he did not know why he was asked to sit in the back of the police vehicle. The on-board videoequipment in the vehicle clearly records the officers asking him why he was speeding and whether he had any alcohol to drink and anofficer is heard asking him if he would, “sit in the back of my police car. I just want a better look at your ability.” In the car there was anongoing discussion as to whether the officer could smell alcohol. In my view, Mr.

Clayton was advised in clear and simple language ofthe reasons for the detention: R. v. Mann 2004 SCC 52 , [2004] 3 S.C.R. 59 (S.C.C.) The defendant knew the officer wasinvestigating him for unsafe driving (speeding), with alcohol as a potential cause. All of this discourse effectively communicated thereason for the detention as a speed and sobriety investigation and accordingly the Charter requirements were sufficiently satisfied in thiscase and the s. 10(

a) application is therefore dismissed. [19] The defence submission to the effect that a s. 10(

b) breach resulted from P.C. Liscoumb’s failure to permit the applicant anopportunity to speak with counsel while they waited for the ASD to be delivered to the scene - will also be dismissed. The evidence wasthat the ASD was delivered to the scene by P.C. Hughes, within three minutes of the time it was requested. During the three minutes theon-board video discloses that P.C. Liscoumb answered Mr. Clayton’s questions and explained the roadside test procedures: “I havecalled for an officer for a device and you will be asked to provide a sample.” The discussion continues. Mr.

Clayton is telling the officerabout the exam he has “on Monday” and then the officer announces, “The device is here.” Any review of the video (Exhibit 1) clearlyestablishes that there was no reasonable opportunity to provide contact with counsel during this brief period of 3 minutes at 2:18 in themorning. Based on case authorities, the Applicant had no realistic opportunity to consult counsel during the period of delay between theissuance of a demand and the production of a breath sample: R. v. George (ON CA), [2004] O.J. No. 3287 (Ont.C.A.) The s. 10(

b) Right to Counsel of Choice Argument (

a) Credibility [20] I have carefully reviewed the evidence of the witnesses, the submissions of counsel, and the onus on the applicant on a balance ofprobabilities to satisfy the court that a breach of s. 10(

b) of the Charter has occurred. I have applied the requirements set out in R. v. W.(D), (SCC), [1991] 1 SCR 742, (with appropriate modifications for a Charter voir dire) for the purpose of analyzing thetestimony of witnesses who have given evidence in court. I am alive to the real dangers in a case such as this where there are policewitnesses and a defendant. One must continually strive to guard against the tendency to treat the evidence in this case as a credibilitycontest between the police and an accused.

Equally important is the need to ensure that there is never a different standard applied in thecourt’s approach to the assessment and evaluation of the Crown’s evidence and the defence evidence. I have found all witnesses to becredible and persuasive with the exception of a few minor issues.

I do not accept the police evidence about ‘right to counsel’ discussionswith the defendant in the absence of notebook entries of those conversations particularly on such an important matter. “Reliable,independent and contemporaneous police officer notes are central to the integrity of the administration of criminal justice”: Schaeffer v.Woods 2011 ONCA 716. [21] As well, as noted above, Mr. Clayton’s evidence that he did not know why he had been detained is not consistent with thedialogue on the police car video. Additionally, I do not accept Mr.

Clayton’s testimony to the effect that he thought he would only beallowed to speak to duty counsel if he did not have his lawyer’s contact information, particularly because that statement conflicts with hisevidence that he thought he would still be permitted to speak to his own lawyer after he spoke to duty counsel. For all witnesses, theseconcerns can best be characterized as representative of the normal human tendency to fill in what cannot be recalled rather than asserious credibility deficits. (

b) Informational and Implementation Duties [22] In the seminal decision on rights to counsel in R. v. Prosper (SCC), [1994] 3 SCR 236 Lamer C.J. delivered themajority judgment: [i]. As this Court has stated on a number of occasions, s. 10(

b) imposes both informational and implementation duties on state authoritieswho 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 a desire toexercise his or her right to counsel, the state is required to provide him or her with a reasonable opportunity in which to do so. In addition,state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reachcounsel.

As the majority indicated in R. v. Ross, (SCC), [1989] 1 S.C.R. 3, at p. 12, once a detainee asserts his or herright to counsel, the police cannot in any way compel him or her to make a decision or participate in a process which could ultimatelyhave an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity to exercise that right. In otherwords, the police are obliged to "hold off" from attempting to elicit incriminatory evidence from the detainee until he or she has had areasonable opportunity to reach counsel. [ii].

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 who haveasserted their desire to contact a lawyer and been duly diligent in exercising their s. 10(

b) rights. A detainee's Charter-guaranteed right tocounsel must take precedence over the statutory right afforded to the Crown which allows it to rely on an evidentiary presumption aboutwhat a breathalyser reading would have been at the time of care and control of a vehicle.

[23] 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 hisrights. First the police must give the accused or detained person a reasonable opportunity to exercise the right to communicate withcounsel, and second, the police must refrain from compelling the detainee to make a decision or participate in a process which couldultimately have an adverse effect in the conduct of an eventual trial until the person has had a reasonable opportunity to exercise the rightto counsel.

And the exercise of the right to counsel takes precedence over any time pressures created by the two-hour evidentiarypresumption available to the Crown under s. 258(1)(c)(ii) of the Code. Additionally, a reasonable opportunity to exercise the right tocounsel is required because the detainee is in the control of the police, and as such is not at liberty to exercise the privileges that heotherwise would be free to pursue: R. v. Brydges (SCC), [1990] 1 S.C.R. 190 (S.C.C.).

In other words, the police mustbe diligent in facilitating the exercise of the right to counsel because as has often been said, a police division is not a level playing field.Still, the rights set out in the Charter are not absolute and case authorities require the right to retain and instruct counsel be exerciseddiligently by the detainee. If the detainee is not diligent, the correlative duties on the police are suspended: R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435.

Nevertheless, detained persons have a right to choose their counsel and it is only if the lawyer chosencannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel bycalling another lawyer: R. v. Ross, (SCC), [1989] 1 S.C.R. 3. (

c) The Importance of Facilitating the Right to Counsel of Choice [24] Some might argue that since the defendant accepted duty counsel, and did not register any complaint about the advice received,surely he had the fullest opportunity to obtain competent, immediate temporary legal advice – all of which, it has been submitted,amounts to a substantive exercise of his right to counsel. In other words, one might ask – how has Mr. Clayton been prejudiced in theexercise of his s. 10(

b) rights? What is the practical difference whether an accused obtains advice from one counsel rather than another?Lamer J, in R. v. Brydges, supra, answers this perennial question with the following response: “the decision to retain counsel is, ofcourse, one that remains with the detainee.” O’Connor J.A. in R. v. McCallen (1999) (ON CA), 131 CCC (3d) 518(Ont.

C.A.) held that the right of an accused to retain counsel of his choice has long been recognized as common law as a fundamentalright and has been inferentially entrenched in the Charter of Rights (paras. 34-39): [i] There are sound reasons why this right was considered to be a fundamental component of the criminal justice system well before the enactment of the Charter and why it was recognized as a right deserving of constitutional protection in the Charter.

The solicitor-client relationship is anchored on the premise that clients should be able to have complete trust and confidence in the counsel who represent their interests. Clients must feel free to disclose the most personal, intimate and sometimes damaging information to their counsel, secure in the understanding that the information will be treated in confidence and will be used or not used, within the boundaries of counsels’ ethical constraints, in the clients’ best interests.

The law recognizes the uniqueness of this confidential relationship by providing special protection from compelled disclosure of information that is exchanged between clients and their counsel. [ii] In addition, the relationship of counsel and client requires clients, typically untrained in the law and lacking the skills of advocates, to entrust the management and conduct of their cases to the counsel who act on their behalf. There should be no room for doubt about counsel’s loyalty and dedication to the client’s case.

It is human nature that the trust and confidence that are essential for the relationship to be effective will be promoted and more readily realized if clients have not only the right to retain counsel but to retain counsel of their choice.

[iii] The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected.

Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf. [iv] In addition to constituting a valuable personal right to clients, s. 10(

b) provides a right that is an important component in the objective perception of fairness of the criminal justice system. Criminal proceedings are adversarial in nature and pit the accused against the authority of the state. Without adequate safeguards the resulting contest may be unfairly weighted in favour of the state. The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against them.

Including with this fundamental right to counsel, the additional right to choose one’s own counsel enhances the objective perception of fairness because it avoids the spectre of state or court interference in a decision that quite properly should be the personal decision of the individual whose interests are at stake and whose interests the counsel will represent. [v] The corollary to this point, which is central to this case, is that the perception of fairness will be damaged, and in many cases severely so, if accused persons are improperly or unfairly denied the opportunity to be represented by the counsel they choose. [vi] Although it may be said that in some cases there will not be any practical difference whether an accused is represented by one

counsel rather than another, nevertheless, the intangible value to the accused and the symbolic value to the system of criminal justice of the s. 10(

b) right are of fundamental importance and must be vindicated when breached. [ 25 ] To summarize the conclusions reached by O’Connor J.A. in McCallen – the government or its agents should not be involved in decisions about which counsel a person chooses and the subjective choice of the accused must be respected and protected and that the spectre of state inference in the choice of counsel must be avoided. Agents of the state have a duty to fastidiously avoid any interference with the personal decision (as to counsel of choice) of the individual whose interests are at stake and must make every reasonable effort to ensure that contact with the counsel of choice is facilitated. (

d) Was Andrew Clayton Diligent in Pursuing Access to Counsel of Choice ? [ 26 ] A pplying the facts to all of the foregoing, it is clear that Mr. Clayton indicated that he wished to consult with counsel of choice, Daniel Brown. The defence argues he was as diligent as he could be in asserting his right to preferred counsel. Crown counsel argues that Mr. Clayton was not being diligent in pursuit of his right to counsel because he made no complaint about the advice from duty counsel, and therefore, the correlative duties on the police were suspended : R. v. Tremblay , supra. Here, the context is everything.

First, Mr. Clayton was 20 years of age at the time of his arrest and detention at the police Division. He gave evidence that he did not complain about duty counsel because he thought he would still be able to speak to his lawyer up to the point he entered the breath room.

Second , I find as a fact, that prior to entering the breath room, there was no consultation with him by the arresting officers as to how to contact his lawyer, how to reach his father or brother to obtain contact information, nor did they tell him what they had done to try to contact his lawyer and how long they would wait for a return call from counsel or whether he wished to speak to an alternate lawyer. He had no idea he was potentially trading away his opportunity to consult with counsel of choice by speaking to duty counsel. Third , the entire right to counsel exercise took eight minutes.

Police called duty counsel first at 3:15 am; at 3:17 am they placed a call to Mr. Brown’s office and left a message. Duty counsel called back at 3:18 am and the defendant was placed on the phone until 3:23 am. At 3:23 am, right after he was off the phone, he was taken into the breath room to provide a sample. In my view, the overwhelming impression left with this 20 year-old in police custody was that the right to counsel of choice was a matter to be hurried along and not taken seriously, and any complaint about duty counsel was pointless. Fourth, as if to reinforce that impression, P.C.

Sanders, the breath technician, perhaps unintentionally, but falsely, advised the defendant that: “ The officers have done everything they can to contact your lawyer. He didn’t call back. You spoke to duty counsel. Are you in agreement to provide a breath sample now?” After waiting until he was in the breath room and being told ‘Everything has been done’, one can ask rhetorically whether there is any wonder that Mr. Clayton felt the prospect of speaking to his lawyer was hopeless (“I didn’t want to push it.

I didn’t think I had other options”) and as a result made no protest or request that further efforts be made to contact counsel of choice. Fifth , he felt he had “no say” in the matter of his rights to counsel and was in no position to question the usefulness of duty counsel. As he stated in evidence, the officer told him he had to give a sample, “You have no choice. If you don’t do it, you’ll be charged;” duty counsel seemed to be reciting from a script and he asked no questions; he wanted to ask his lawyer if he had to take the breath test. He said: “They are telling me what to do.

I’m not trying to give them a hard time. I feel like I have no power, no say.” On the basis of the foregoing, I have concluded that this 20 year old was as diligent as could be expected in circumstances where he was in custody and being advised essentially that any contact with his lawyer was hopeless. In these circumstances, it is unrealistic to expect a 20 year old to know he must express dissatisfaction with duty counsel and know he can insist on waiting to speak to a lawyer of his choice. In my view, t he correlative duties on the police were not suspended as per R. v. Tremblay , supra.

Additionally, Crown counsel makes a valid point in arguing that in the breath room, Mr. Clayton was asking the officers to “hurry this up”, as if his rights were farthest from his mind. I have thought about this carefully and concluded that this was a position he adopted after his right to counsel of choice was made to seem unattainable by P.C. Sanders. As he stated, he didn’t want to hurry the process [because of a pending exam for which he needed to prepare] “at the expense of not speaking to my lawyer.” (

e) Were the Police Officers Diligent in Facilitating Access to Counsel of Choice [ 27 ] As noted above, in my view, ‘reasonable diligence in pursuit of counsel of choice’ on the part of the defendant never comes into play in this case. Over a period of 8 minutes, he was kept in the dark about contact with his lawyer, he was placed on the phone to duty counsel, he was immediately escorted into the breath room and told erroneously, “ The officers have done everything they can to contact your lawyer. He didn’t call back.” He was then put on the spot and asked to provide a breath sample.

The expedited process adopted by police had the effect of closing down any meaningful opportunity to access counsel of choice or question the value of duty counsel. In my view there was a reasonable probability on the evidence that Mr. Brown or an alternate lawyer from his firm or another firm could have been contacted by police, either by obtaining an after hours contact number on the lawyer’s website, by using text, email or by contacting Mr. Clayton’s father (police were told by Mr.

Clayton that his father had the lawyer’s phone number) or his brother (who had called the station) or by permitting him to retrieve and use his cell phone. In my view, in this case the police practice in facilitating access to counsel of choice was deficient in the following ways:

(1) The act of contacting duty counsel before any attempt was made to reach counsel of choice demonstrates a complete disregard for the importance of allowing a defendant the right to make his own choice as to counsel to be consulted. The law is clear that state agents should not interfere in any way with the defendant’s choice of counsel (R. v. Bridges, supra; R. v. McCallen , supra) much less turn the right to counsel process into a race to see which lawyer calls back first. In fact the senior officer, P.C. McGuiness knew it was wrong to

call duty counsel first but for some unfathomable reason did not make his views known to his partner, although he saw, “no harm in calling two lawyers.”

(2) Neither arresting officer was prepared to permit a reasonable waiting period to see if counsel of choice would return the call in accordance with case authorities such as R. v. Ross , supra. Neither officer could recall receiving any training about the need to allow a reasonable period time for a call back from counsel.

(3) Both officers heard Mr. Clayton say that his father had his lawyer’s contact number, but both chose to ignore this obvious strategy for facilitating access to Daniel Brown.

(4) P.C. Liscoumb’s training in the area of the right to counsel seemed quite deficient. He was heard to say on the in-car video that if Mr. Clayton did not have his lawyer’s contact information: “Well we’ll call you duty counsel, okay?” (It should be noted that Durno J. in R. v. Kumarasamy, [2002] O.J. No. 303 (ONSC) , stated that police must facilitate contact with counsel whether the accused has the number or not. Access to duty counsel cannot be used to trump a detainee’s right to counsel of choice). P.C. Liscoumb did not recall whether he told Mr.

Clayton that the person he was to speak to on the phone was duty counsel, not his own lawyer. “Is it possible you just walked him in and placed him before the phone? Answer: “Yes.” “There was no conversation you can recall that explains what’s happening with Daniel Brown?” Answer: “No. I don’t recall.”

(5) P.C. McGuiness was the more experience officer, yet his ‘right to counsel’ practice left much to be desired. He was the officer who placed the single call to Mr. Brown’s office at 3:17 am. He was asked whether there was: “no reason here why you couldn’t have waited for the lawyer or tried other methods to reach the lawyer?” He answered: “Not really.” He agreed that when he was not able to reach Mr. Brown at the office there were: “probably other ways to reach me [Mr. Brown]?” He answered: “Yes.” He was asked: “After 3:17 [when he called Mr.

Brown at the office and left a message], you don’t go back to Clayton about his lawyer?” The officer replied: “I don’t recall.” He was asked: “To wait one minute [between the call to his lawyer and putting him on the phone to duty counsel] is not respecting his Charter rights?” Answer: “He should have been allowed more time to wait for his lawyer.” P.C. McGuiness was asked: “ He was walked right into the breath test without being told about the call to Brown?” He answered: “I don’t recall but that would have been completely unnatural.”

(6) P.C. Sanders was asked why he said to Mr. Clayton that the officers have done everything they could to reach his lawyer? He answered that: “At the time I was satisfied but I don’t have any recall what they did.” The officer was asked if there should be some waiting period for his lawyer to call back. He replied: “Once the message is left, there is no set amount of time to wait. We can start the test.”

(7) The most perplexing aspect of the police ‘right to counsel’ practice in this case is the fact that there are no police notes or recollection of any communication with the defendant in connection with his right to counsel after the Booking procedure and prior to the breath room video. In the absence of any note- taking, it is impossible to know precisely what the defendant was told about his counsel or duty counsel, if anything, before being escorted into the breath room.

In an area of this importance, I am not prepared to rely on what each officer thinks would have taken place without any specific notebook entry. It is apparent that none of the police officers thought the right to counsel process was important enough to memorialize in their notebooks. This is an issue of training.

Ideally, police should be instructed to make careful notes of all right to counsel communications to the accused and the accused’s responses to avoid the perpetual contest about what information was conveyed and what answers were given and this information process should take place on video prior to any request to provide breath samples: R. v. Swaida 2015 ONCJ 346 . (

f) Did the Right to Counsel Practice in this Case Fall Below Constitutional Standards? [ 28 ] The first question is: does the ‘police obligation’ to provide a reasonable opportunity to exercise the s. 10(

b) right to counsel of choice require nothing more than a quick call to a lawyer’s office late at night followed by the placing of an accused on the phone to duty counsel one minute later ? It seems to me that the effort to contact counsel of choice can become so minimalist as to constitute nothing more than an empty gesture. The calling of duty counsel first and the setting in motion a race to see which lawyer calls back first is essentially an attempt to use the office of duty counsel to negate a detainee’s right to counsel of choice: R. v. Kumarasamy, supra. As Durno J. explained in Kumarasamy: A.

What the cases do not establish is that police officers can go directly to duty counsel when a detainee wants to contact his or her counsel of choice. With respect, I disagree with the trial judge’s conclusion that the police are not obliged to contact counsel of choice where a detainee has spoken to duty counsel. The availability of duty counsel 24 hours a day cannot be used to trump a detainee’s right to counsel of choice. (Emphasis added.) B. On this record the appellant sought his own counsel before he spoke to duty counsel, and the officers did nothing to assist him in his efforts to contact Mr. Engel.

They erroneously felt they could use the duty counsel as a short cut to circumvent the right to counsel of choice, or felt that as long as a detainee spoke to any lawyer they had complied with s. 10(b). On either analysis the officers were wrong. [ 29 ] In my view the effort made to contact Mr. Clayton’s lawyer of choice was equally negligible. P.C. Liscoumb called duty counsel at 3:15 am. P.C. McGuiness called Mr. Brown’s office at 3:17 am and left a message to call back: (Exhibit 4) “I’m sure your office is closed. We’ve also called duty counsel.” One minute after that call, at 3:18 am, the officers put Mr.

Clayton on the phone to duty counsel, with whom he spoke for 5 minutes, to 3:23 am. At 3:23 am Mr. Clayton was escorted into the breath room. Just as in Kumarasamy, the police went directly to duty counsel as a short cut, and then acted as if it was sufficient compliance with their Charter obligations as long as Mr. Clayton spoke to any lawyer. At para. 25 of Kumarasamy, the Court held that the duty of the police includes “permitting a phone call to a friend or relative to obtain the name of counsel of choice” ( see also R. v. Traicheff, 2010 ONCA 851 ). That

is what should have happened in the instant case given the fact the police were told by Mr. Clayton that his father had the contactnumber for his lawyer, Mr. Brown. To summarize, there was a failure to inform the Applicant that he had a right to wait a reasonableperiod of time to contact counsel and to allow him that reasonable period of waiting time and a failure to take all reasonable stepsnecessary to attempt to contact counsel of choice. In my view, the officers were wrong in thinking their approach in this case was Chartercompliant. [30] It seems to me that the s. 10(

b) notions of police duties and the availability of duty counsel have had a tendency to be conflatedtogether as if police efforts will be simply a function of the presence or absence of duty counsel in every case. Crown counsel has arguedthat the trilogy of Court of Appeal decisions in R. v. Richfield, (ON CA), [2003] O.J. No. 3230, R. v. Littleford, (ON CA), [2001] O.J. No. 2437 and R. v. Eakin, (ON CA), [2000] O.J. No. 1670, in combinationwith the ruling in R. v.

Blackett, [2006] O.J. 2999 (S.C.J.), have eliminated the need for anything more than perfunctory efforts on thepart of police to contact counsel of choice where duty counsel is available. In Blackett, the Court held: i. 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 offering ofaccess to duty counsel and the failure by the accused to take advantage of duty counsel. [31] If one reads no further than the first paragraph, a perfunctory approach to

section 10(

b) seems to be all that is required where dutycounsel is available. In fact the above cases are entirely consistent with the Supreme Court jurisprudence. It is noteworthy that in bothRichfield and Blackett the accused requested counsel of choice and when counsel was not available, the accused were offered dutycounsel, which they refused, and continued to insist on counsel of choice. These Courts quite properly found that the accused were notbeing reasonably diligent in exercising their right to counsel − which suspends the police duties, according to R. v.

Tremblay, (S.C.C.):“If the detainee is not diligent, the correlative duties on the police are suspended.” [32] Equally, in Eakin, the accused was given an opportunity to find his lawyer’s phone number in a phone book, and made no earnestattempt to locate his lawyer, again, showing no diligence in pursuing counsel of choice. In Littleford, police called a lawyer’s office andwaited 36 minutes before taking a voluntary breath sample during which time the accused spoke to duty counsel. In dismissing theAppeal, the Court of Appeal concluded that the Appellant had not met the onus of proving a breach of s. 10(

b) of the Charter because thetrial judge found that “speaking to duty counsel seemed to satisfy him at the time” and he did not testify on the voir dire “to suggest thathe misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights.” In my view,Littleford is distinguishable from the instant case because police in the case at bar took Mr. Clayton into the breath test room within 6minutes of the call to his counsel without waiting for a reasonable opportunity to exercise the right to counsel (R. v.

Ross, supra) and Mr.Clayton did testify on the voir dire and made it known that he was not satisfied with the advice he received duty counsel, asked noquestions and wanted to ask his own lawyer whether he had to take the breath test. [33] It follows therefore that the court must look at the context and assess whether the accused was afforded a reasonable opportunity toconsult with counsel by considering all the surrounding circumstances: R. v. Prosper, supra; R. v. Ross, supra. I have utilized the helpfulthree-stage analysis in R. v. Blackett to determine whether there was a breach of s. 10(

b) of the Charter in this case: (

a) It appears to me that the case law dictates this three stage analysis of these s. 10(b) “right to counsel of choice” situations: (

a) Did the police fulfill their duty to act diligently in facilitating the right of the accused to consult counsel of choice? If the trial judgefinds they fulfilled their duty then there is no breach of s. 10(b). (

b) If the police did not fulfill their duty then there are two possibilities: (

i) If the police breached their duty because they took no step to facilitate the right to counsel, then a breach of s. 10(

b) is established:Kumarasamy. (ii) If the police breached their duty because they made some effort but it is found not to constitute “reasonable diligence”, the trialjudge must next decide whether the accused fulfilled his or her duty to act diligently to exercise the right to counsel. If the answer is yes,then a s. 10(

b) breach is made out. If the answer is no, then this trumps the breach of duty by the police and there is no breach of s.10(b): Brydges; Richfield. (

c) If a breach of s. 10(

b) is established the court must then go on to consider whether or not to exclude the consequent evidence under s.24(2). [34] First, I find that the police in this case did not fulfill their duty to act diligently in facilitating the right of the accused to consultcounsel of choice. In my view, the actions of the police fell below constitutional standards in seven respects:

(1) They called duty counselbefore attempting to facilitate access to counsel of choice and made no attempt to reach counsel by contacting his father who hadcounsel’s contact number;

(2) They waited only one minute after placing a call to counsel of choice before taking the defendant to aprivate room to speak to duty counsel;

(3) They escorted him into the breath room right after speaking to duty counsel without anyexplanation of what attempts had been made to reach his lawyer;

(4) He was told by the breath technician, erroneously, that everythingpossible had been done to reach his lawyer and he had not called back. The informational duty became a deception;

(5) The senior officeragreed he knew there were other ways he could have reached counsel of choice and that they had not waited a sufficient time to see if

counsel would call back. The implementation duty went unheeded;

(6) In R. v. Traicheff, 2010 ONCA 851 , the Court of Appealendorsed the need “to advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has comein from his lawyer and ask him if he would like to consult another lawyer.” Mr. Clayton was not asked if he wished to call anotherlawyer;

(7) The fact is there were no police notes or recollection of any communication with the defendant in connection with his right tocounsel after the Booking procedure and prior to the breath room video. In the absence of any note-taking, it is impossible to knowprecisely what the defendant was told about his counsel or duty counsel, if anything, before being escorted into the breath room. In allthe circumstances, I believe the actions of the officers in this case did not represent a reasonably diligent exercise of the right to counsel. [35] Returning to stage (

b) in Blackett, in my view the police s. 10(

b) duty was exercised in a manner that was so deficient and lackingin diligence that the effort could be said to have been negligible and the equivalent of doing nothing as in Kumarasamy: “If the policetook no step to facilitate the right to counsel, then a breach of s. 10(

b) is established.” Still, if it can be said they made “some effort”,having previously found that the effort was not reasonably diligent and that the defendant had fulfilled his duty to act diligently toexercise the right to counsel − according to the Blackett analysis, a s. 10(

b) breach is made out. [36] The final point to be made is that, as stated before, the circumstance of the individual in custody in a police division is one of lossof control. It stands to reason that a person of 20 years of age under the influence of some level of alcohol and being required to makesome stressful choices about counsel and whether to provide a breath sample, is likely to feel quite anxious and subdued. This isprecisely why the Prosper/Ross

section 10(

b) informational and implementation police duties are so vitally important. The conclusions ofthe Court in R. v. Bourgeois 2009 ONCJ 336 seem apposite in this context: 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. … With that level of control over the accused, the duty on the police to fulfill their informational andimplementation duties under s. 10(

b) of the Charter is substantial. [37] As well, in R v. Brydges, supra, the Court stated, “fair treatment of an accused person who has been arrested or detainednecessarily implies that he has been given a reasonable opportunity to exercise the right to counsel because the detainee is in the controlof the police and as such is not at liberty to exercise the privilege that he otherwise would be free to pursue.” [38] If one applies a “reasonability” test to the police management of the right to counsel in this case, the only conclusion available isthat it was seriously inadequate and a breach of the applicant’s s. 10(

b) rights. Given the standards expected for s. 10(

b) compliance asnoted in R. v. Prosper, supra, R. v. Ross, supra, R. v. Bridges, supra, R. v. Bourgeois, supra, I find in all the circumstances that the rightsof the defendant under s. 10(

b) of the Charter were breached. As the Supreme Court concluded in R. v. P. (M.B.), (SCC), [1994] 1 S.C.R. 555, and R. v. Jones, (SCC), [1994] 2 S.C.R. 229,

section 10(

b) serves to protect the privilegeagainst self-incrimination, which has been recognized to be a "principle of fundamental justice" under s. 7 of the Charter and deserving ofspecial respect by police who arrest and detain with a view to obtaining conscriptive evidence. The Section 24 (2) Analysis – (R. v. Grant) [39] 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. There is onefurther purpose achieved by a determination under s. 24(2) according to R. v. Grant: i. Finally, s. 24(2)’s focus is societal.

Section 24(2) is not aimed at punishing the police or providing compensation to the accused, butrather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justicesystem. [40] 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.

I must balance my assessment of each of these considerations in order todetermine whether, considering all the circumstances, the admission or the exclusion of the breath sample evidence would bring theadministration of justice into disrepute. First Inquiry: Seriousness of Charter Infringing Conduct [41] The Grant decision sets the parameters for this analysis. There are several considerations to be applied. Here there is no basis forconcluding that the police deliberately set out to violate Mr. Clayton’s right to counsel of choice.

In my view, P.C.s Liscoumb andMcGuiness did not understand the full extent of their Charter obligations and were simply indifferent about whether Mr. Clayton spoketo his lawyer or duty counsel. Having called duty counsel first and then, after placing one call to the lawyer’s office late at night, puttingthe defendant on the phone to duty counsel one minute later, it was clear that they both concluded that contact with any lawyer wouldsatisfy their duty to facilitate the exercise of the right to consult with counsel. This is what the Court in Kumarasamy, supra, called the

error of “using duty counsel to trump a detainee’s right to counsel of choice.” If this became acceptable Charter practice, there would beno purpose is even asking if a detainee had a lawyer he or she wished to call.

Police might as well announce: ‘All we are expected to dois call duty counsel and then you will be asked to provide a breath sample.’ The point being made is that the rule of law requires stateauthorities to uphold the rights guaranteed by the Charter. [42] While good faith will reduce the need for the Court to disassociate itself from the police conduct, ignorance of Charter standardsmust not be rewarded and negligence, [here, indifference] or willful blindness cannot be equated with good faith: R. v. Grant, supra,para. 75.

I find that all of the police officers in this case were honest hard-working members of the force. However I cannot equate thelevel of Charter deficiency in this case − in facilitating the right to counsel − with good faith. P.C. Liscoumb’s approach to facilitatingaccess to counsel of choice was to call duty counsel first, place Mr. Clayton on the phone to duty counsel three minutes later and escorthim into the breath room right after the call. P.C. McGuiness’ acknowledged there were probably other ways to reach Mr. Brown andthat the Applicant “should have been allowed more time to wait for his lawyer.” P.C.

Sanders falsely presented the chance of contactinghis lawyer as hopeless: “The officers have done everything they can to contact your lawyer. He didn’t call back.” This seems more likecasual indifference rather than good faith. Police are rightly expected to know what the law is: R. v. Grant, supra, para. 133. As theSupreme Court made clear in R. v. Taylor [2014] 2 S.C.R. 485, “proactive steps are required to turn the right to counsel into access tocounsel.” And in R. v.

Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429, the Court reiterated its ruling in Ross, supra, regarding theright to counsel of choice, and underlined the fact that s. 10(

b) requires not only that the police afford those detained a reasonableopportunity to contact a lawyer of their choosing, but also imposes a positive duty on police to facilitate that contact. As well, the

section 10(

b) practice in this case has serious systemic implications. The officers in this case appear to have had no trainingas to what steps should reasonably be taken to contact counsel of choice and what will qualify as a reasonable period of time to wait forcounsel of choice in the circumstances as a whole, as made clear in R. v. Willier, supra, recognizing that the right to counsel supercedesany time pressures created by s. 258(1)(c)(ii) of the Code. Even more concerning, is the fact no notebook entries were made of anyinteraction with the defendant about his s. 10(

b) right after the booking procedure at the division. [43] This was a hurried exercise in which there was a faulty understanding of police duties, a neglectful record keeping process andfailure to conduct a constitutionally appropriate facilitation of the right to counsel of choice amounting to a neglect of, or indifference to,police obligations under the Charter. While I have some sympathy for the officers in this case who were not trained properly and likelywondered what difference it made whether Mr.

Clayton spoke to his lawyer or duty counsel, the fact is that that the Supreme Court hasmade it clear that police are under a duty to facilitate contact with counsel of choice, and the breach of the Charter in this case was quitesignificant and serious, with systemic implications. Police officers should understand that it is not enough to call counsel of choice, leavea message and then default to duty counsel: R. v. Vernon, 2015 ONSC 3943 , [2015] O.J. No. 4157 (Ont. S.C.); app’d [2016]O.J. No. 1383 (Ont. C.A.); R. v. Zaidi, (2007) (ON SC), 164 C.R.R. (2d) 271 (Ont. S.C.); R. v.

Kumarasamy, supra. [44] In my view, the Court should disassociate itself from this type of police s. 10(

b) practice, particularly where there appears to be amajor gap in the officer’s training resulting in a lack of appreciation of Charter standards. Second Inquiry: Impact of Charter Protected Interests of the Accused [45] 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:” R.v. Grant, supra. para. 76. [46] 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. The taking of a breath sample constitutes a conscriptive search ofthe body in respect to which the defendant enjoys a constitutional protection against self-incrimination. Consequently, any breach of anaccused’s s. 10(

b) rights followed by the obtaining of incriminating evidence is deemed more serious than another type of intrusion uponprotected interests because of the impact of a violation on the defendant’s fair trial interests. The right to counsel “information andimplementation” duties prevent the police from compelling the detainee to make a decision or participate in a process which couldultimately have an adverse effect in the conduct of an eventual trial until the person has had a reasonable opportunity to exercise the rightto counsel: R. v. Ross, supra.

It could be argued that these type of violations favour exclusion in order that the court is not seen tocondone or associate itself with trial unfairness. [47] Even though Charron J. in Grant, in a wide-ranging discussion, referred to breathalyser 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 rather significant and would also favour exclusion.

Third inquiry: Society’s Interest in an Adjudication on the Merits [48] 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. In this case the exclusion of evidence of Mr.

Clayton’s breath sample will prove fatal tothe Crown’s case on the ‘over 80’ charge. This favours inclusion. However, a serious breach such as occurred in this case, with systemicimplications, may have the effect of undermining the long-term integrity of the administration of justice. In this case there was not only acomplete failure to adhere to constitutional standards of conduct, it appears that the officers had no idea what those standards were.

Thispoints in the direction of exclusion of the evidence. [49] According to Grant, the Court must balance the interests of truth seeking with the integrity of the justice system (see 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 particularly having regard to the carnage on Canadian highways caused by thedrinking driver.

As had been said so often, the public expects the justice system to reliably deal harshly with conduct that is perenniallyso dangerous to life and limb. [50] Balancing the interests of truth seeking with the need to maintain the long-term integrity of the justice system and havingconsidered the three lines of inquiry contemplated by R. v. Grant, I have concluded that the exclusion of the evidence would better servethe long-term repute of the administration of justice.

The need for this court to disassociate itself from such a fundamentally deficientexercise in facilitating the right to counsel of choice (suggesting a major gap in police training with systemic implications) considerablyoutweighs the important societal values in admitting the evidence, particularly where the deficient s. 10(

b) practice was compounded bythe failure to keep a careful record of communications about the right to counsel. Conclusion [51] Having made the above three inquiries, and after engaging in a balancing process, and having regard for s. 24(2)’s focus on“systemic concerns” (Grant, paragraph 70), I have concluded that the admission of the evidence obtained by this Charter breach wouldbring the administration of justice into disrepute in the long term. Accordingly, the breath sample evidence will be excluded pursuant tosection 24(2) of the Charter. Harris, J. Released: March 27, 2017.