R. v. Balgobin, 2011 ONCJ 108

Citation: R. v. Balgobin , 2011 ONCJ 108 ONTARIO COURT OF JUSTICE TORONTO REGION BETWEEN: HER MAJESTY THE QUEEN Respondent - and - RICKFORD BALGOBIN Applicant Ruling on Application to Exclude Evidence of Breath Test Results Heard : 11 February 2011; Judgment : 4 March 2011 Counsel for Applicant: R. Posner Counsel for Respondent: J.

Klein Libman J.: - Introduction [ 1 ] In December, 2008, the month that this defendant was charged with impaired driving and driving over the legal limit, Legal Aid Ontario received 998 requests for “Brydges” duty counsel service for drinking and driving offences. [1] According to the Director of the Legal Assistance Division of Sykes Assistance Services Corporation, the company that Legal Aid Ontario has sourced the provision of Brydges duty counsel services, all of these requests, with the exception of 5, were responded to in 45 minutes or less; all 998 of these requests were responded to in 60 minutes or less.

In total, in the Province of Ontario, for all manner of offences, 93% of the 4829 requests for Brydges duty counsel service in December, 2008, were responded to in 45 minutes or less. [2] [ 2 ] However, the breath test operator in this case, Constable Muller, a career traffic investigator from the O.P.P.

Port Credit detachment who was dealing with the defendant, Rickford Balgobin, a 20-year old young man who had never been arrested by the police before, stated that it could take anywhere from “two minutes to two hours” for duty counsel to call back when he was asked how long it would take for the defendant to exercise his right to call a duty counsel lawyer.

In the course of a 40 minute interview that followed between the defendant and this police officer, of which the first 12 minutes were largely devoted to questions concerning the length of time it would take to call and hear back from a duty counsel lawyer, Mr. Balgobin was told that he could be waiting in a jail cell for two hours before he spoke to duty counsel. Thereafter, he declined to call a lawyer and agreed to provide breath tests instead, reasoning it would be faster for him to be released if he did so.

Subsequently, he registered two breath test results of 133 mgs. [ 3 ]During the interview between the two breath tests, which Mr.

Balgobin participated in without the benefit of legal advice, he was asked numerous questions by the officer as to his pattern of alcohol consumption generally, as well as the evening in question, including: rating himself on a scale of 0 (no effects) to 10 (extreme effects) as to what effect his consuming alcohol had on his ability to drive that night (he answered 3.5); why he drove the vehicle that evening; and what reason was there to drink alcohol knowing that he would later be driving his motor vehicle.

The breath tests concluded with the officer asking the defendant to repeat the amount of alcohol he had consumed (three martinis and two beer) “just so that I get the numbers accurate.” A charge of impaired driving was laid after this interview, in addition to driving over 80mgs. [ 4 ] I consider that the conduct of the breath test operator in discouraging the defendant from contacting duty counsel by misleading him into believing that he could be waiting in a jail cell for up to two hours for his telephone call to be returned, whereas the Brydges duty counsel service statistics indicate that it almost certainly would have been returned within the 40 minute period that the breath tests and interview were conducted, amounts to a very serious violation of the right to counsel, as guaranteed by s.10(

b) of the Charter of Rights and Freedoms . [3] In the circumstances, Mr. Balgobin’s waiver of his right to counsel was not a valid or informed one. [ 5 ] I am further of the opinion that this conduct of the breath test operator in seeking to dissuade a young person, who is inexperienced in

dealing with the police and has been charged with drinking and driving offences, from speaking to a lawyer and obtaining legal advice, must be denounced in the strongest and clearest terms; indifference to constitutional standards cannot be tolerated. In this particular case, it results in the administration of justice being brought into disrepute. Consequently, the evidence of the defendant’s breath test readings must be excluded pursuant to s.24(2) of the Charter . In the reasons that follow I will explain why I have reached this decision.

Investigation and Arrest of Defendant [ 6 ] Constable Lad of the O.P.P. was patrolling Highway 401 in Toronto west of Morningside when he noticed a motor vehicle weave in front of him just after 2:30am. Its speed varied from 105km to 130 km. The officer stopped the car near Kennedy Road at 2:40am to investigate and speak to the driver. It was the defendant. His driving documents were in order and indicated that he was 20 years old. According to the witness, Mr. Balgobin had an odour of alcohol on his breath, as well as red glassy eyes; he admitted to consuming alcohol earlier that evening.

Upon the defendant registering a fail on the approved screening device, he was arrested for driving over 80 mgs at 2:45am. [ 7 ] Having read a breath sample demand to the defendant and his rights to counsel and a caution, the two set out at 2:53am for the Toronto Detachment of the O.P.P. at Keele and the 401. Constable Lad testified that en route the defendant uttered a number of questions about his right to counsel, asking the officer if he thought that he needed a lawyer, as well as stating that he did not have his own lawyer. The officer told him that he could call a lawyer for him from the detachment.

He also stated that he would not advise the defendant what to do, but that he had the right to free advice from a legal aid lawyer. To this the defendant replied that he just wanted to give his breath samples and go home. [ 8 ] The defendant and Constable Lad arrived at the police station where he was lodged into the cell area. At this time he told Lad that he wanted duty counsel, but he also wanted to do whatever would get him out of the station the fastest. The officer explained that it was for the defendant to make this choice.

According to Constable Lad, it was clear to him that the defendant did not want to talk to duty counsel as this would delay the process; instead he wished to go ahead with the two breath tests. As a result, at 3:18a.m., the officer took Mr. Balgobin to see Constable Muller, the qualified Intoxilyzer operator. Taking the Defendant’s Breath Samples [ 9 ] Constable Muller is a qualified technician. He was designated in 2005 to operate the Intoxilyer 5000C approved instrument. He began his career in 1999 as a traffic enforcement officer.

As an O.P.P. officer assigned to the Port Credit detachment, his division patrols the 400 series highways in the Toronto Region. Mr. Balgobin was the 153 rd person Constable Muller had tested to determine his blood alcohol concentration. [ 10 ]The officer acknowledged that it was “fairly evident” that the defendant was anxious while dealing with him. Mr. Balgobin asked him “lots of questions”. He was “highly cooperative” and “highly responsive” throughout.

While it appeared that he was not sure whether he should call a lawyer before taking the breath tests, the officer testified that he made it clear to the defendant that he could not tell him what to do, and that the choice was up to him. As he stated, “either way” he was going to demand that he provide breath samples into the approved instrument, and it was up to the defendant whether he wanted to talk to a lawyer before or after doing so.

When the defendant asked the officer what evidence would be admissible in court, he replied “everything”. [ 11 ] During the initial stages of the interview between Constable Muller and Mr. Balgobin, the latter said, “I want to talk to a lawyer, but I want to get out of here as quickly as possible.” When asked how long it would take for duty counsel to call back, Muller told him he did not know, and it could be anywhere between “two minutes to two hours”. He advised the defendant that he could be waiting in a jail cell for up to two hours for duty counsel to call him. After Mr.

Balgobin asked if he could, in fact, call duty counsel, the officer replied that the police would call duty counsel for him. The defendant then asked if he declined calling duty counsel, would he be able to speak to him/her after the test, stating “I’m just trying … I just want to get out of here as quickly as possible… I just want to know my options.” The officer repeated the various choices Mr. Balgobin had, adding that the lawyer could not be present in person when the defendant asked if this was possible, and told him “It’s a simple choice… I need a yes or no.” When Mr.

Balgobin stated he would do the breath tests, the officer told him to look into the camera and repeat that he was declining to call a lawyer. The defendant did so, and then slumped down into his chair while Muller readied the machine for the breath tests, [ 12 ] At 3:33am the defendant provided his first breath sample. Immediately afterward he asked the officer whether he failed the test and if he would be going to jail. Constable Muller told him that the machine was analyzing the result.

The defendant then asked for his chapstick; the officer asked Officer Lad to retrieve it for him, which he did. [ 13 ] Constable Muller proceeded to explain that there had to be a 20 minute interval before taking the second breath test. He advised the defendant that he would conduct an interview with him during this period and ask a number of questions, which he was not required to answer. A series of questions followed, including those concerning the defendant’s general pattern of alcohol consumption and how it compared to the evening in question. Mr.

Balgobin readily admitted to drinking three martinis, as well as two beer (Canadian), over a six hour period, but stated that he did not feel that he was impaired. He was also asked to rate himself on a scale of 0 (no effects) to 10 (extreme effects) as to what effect his consuming alcohol had on his ability to drive that night (he answered 3.5); why he drove the vehicle that evening; and what reason was there to drink alcohol knowing that he would later be driving his motor vehicle. [ 14 ] The defendant asked if he was “in trouble” following this portion of the interview.

Muller replied “a little bit” and informed him of the results of the first reading being 133 mgs. The time of the analysis of this breath sample was 3:33am. The officer was then asked how long the defendant’s license would be suspended. He replied that that would depend on the results of the next breath test. [ 15 ] A second sample of the defendant’s breath was taken at 3:54am. Mr. Balgobin immediately asked if he failed the test. The officer told him he registered the same result, 133 mgs.

Before concluding the interview, the officer asked the defendant to repeat the amount of alcohol he had consumed (three martinis and two beer) “just so that I get the numbers accurate.” [ 16 ] Constable Muller testified that it was not his intention to prevent the defendant from speaking to counsel. He stated that had Mr.

Balgobin wished to speak to a lawyer he would have stopped the breath tests and called duty counsel. However, he was satisfied that thedefendant understood his rights and wished instead to provide his breath samples. [17] In cross-examination, the officer agreed that the defendant was “sitting on the fence” as to whether or not he should call a lawyer.He acknowledged that his questions seemed genuine and legitimate about speaking to a lawyer, but that he also wanted to go home. Thiswas clear, he conceded, within moments of Mr.

Balgobin entering the breath testing room. [18] Constable Muller was asked why he would tell the defendant that it could take up to two hours to hear back from duty counsel. Hereplied that he was being “forthright” with him, giving him a range of two minutes to two hours, based on his experiences with dutycounsel. In some cases the telephone call was immediately returned; other times he had to call back because of the delay. He was merelyattempting to point out that exercising the right to counsel could entail a substantial delay when Mr.

Balgobin expressed his concernabout being released from custody as soon as possible. [19] The officer was asked if he was aware that according to the Director of the Legal Assistance Division of Sykes Assistance ServicesCorporation, the company that Legal Aid Ontario has sourced the provision of Brydges duty counsel services, all of these requests, inDecember, 2008, with the exception of 5, were responded to in 45 minutes or less, and that all 998 of these requests were responded to in60 minutes or less. Constable Muller replied that he was not familiar with these statistics.

However, he maintained that in his experienceit could take up to two hours for duty counsel to call back, stating that this had happened in one case. When asked to describe thecircumstances of that case and the name of the individual involved, the officer testified that he could not remember. [20] It was Constable Muller’s view that all he had done was provide the defendant with a range of time that it could take duty counsel tocall back based on his involvement with the Brydges duty counsel service, notwithstanding that almost every call to duty counsel inDecember, 2008, was returned in 45 minutes or less.

There was no malice or intimidation on his part, he stated. Neither did he think hehad effectively discouraged Mr. Balgobin from calling duty counsel when he told him that he could be sitting in a jail cell for two hoursbefore he heard back from a lawyer. [21] The breath tests taken from the defendant and his interview with Constable Muller are captured in a dvd that has been marked as anexhibit in these proceedings. It is just over 40 minutes in length. Over the first 12 minutes there is a discussion between Mr.

Balgobinand the officer that consists for the most part of the defendant asking numerous questions about his legal rights, primarily whether he canspeak to a lawyer, and how long this might take if he called duty counsel. By my count, in reviewing this dvd (there is no transcript), thedefendant asked over 30 questions about his legal rights during this initial 12 minute period. Evidence of the Defendant [22] No evidence was called by the defence in these proceedings. However, Mr. Balgobin provided an affidavit as part of his Charter ofRights application. He was not cross-examined on it.

In his affidavit he states that this was the first time he was arrested and he had “noknowledge” of his legal rights.

As a result, he did not know whether it would be in his “best interests to speak to a lawyer.” When thearresting officer, Constable Lad, advised him that he could not give him advice in this regard, he told the officer that “I just really wantedto go home and therefore I would not speak to a lawyer.” [23] With respect to his dealings with the breath test operator, Constable Muller, the defendant had this to say: Constable Lad turned me over to Officer Muller, the breath technician, at the police station. At that point, I still wanted to go home.

I didnot fully understand my legal rights and I found the whole situation confusing and intimidating. Officer Muller advised me that if Iwanted to, I could speak to a duty counsel. I began to think that it would probably be a good idea to speak to a lawyer to fully understandwhat my rights were and what the legal consequences of blowing or not blowing into the breath machine would be. However, ConstableMuller told me that it might take two hours for a duty counsel to provide me with legal advice.

I was scared about being in a policestation and the thought that I would have to sit in a jail cell for two hours waiting to speak to a lawyer was not something I could bear.Although I very much wanted to get some legal advice, I was too overwhelmed to wait for two hours and was therefore dissuaded fromspeaking to duty counsel. The Defendant’s s.10(

b) Charter Rights [24]

Section 10(

b) of the Charter of Rights imposes both an informational duty on the police to fully inform a person who is arrested ordetained of his/her right to counsel, as well as implementational duties once the person expresses a desire to speak to counsel, those beingto provide him/her with a reasonable opportunity to exercise the right and to refrain from eliciting information until such a reasonableopportunity has been provided, unless there are cogent and urgent circumstances to the contrary: R. v. Bartle, (SCC),[1994] 3 S.C.R. 173; R. v.

Prosper, (SCC), [1994] 3 S.C.R. 236. [25] Speaking for a unanimous Court in R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233 at 1242-1243, Lamer J. describedthe importance of the s.10(

b) Charter right in these terms: 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. [26] More recently, in R. v. Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310 at 329, McLachlin C.J. and Charron J. explained thatthe purpose of s.10(

b) is to provide the detainee with an opportunity to obtain legal advice “relevant to his legal situation.” Referring toManninen, it was stated at 329-330, “The emphasis, therefore, is on assuring that the detainee’s decision to cooperate with theinvestigation or decline to do so is free and informed.

Section 10(

b) does not guarantee that the detainee’s decision is wise; nor does itguard against subjective factors that may influence the decision. Its purpose is simply to give detainees the opportunity to access legaladvice relevant to that choice.” [27] Detained or arrested persons such as the defendant in this case are particularly in need of access to such legal advice. Mr. Balgobin

was 20 years old at the time; he had never been arrested or charged with an offence before. He was unsure of his legal rights. He askednumerous questions about them. He did not know a lawyer. He wondered if one could attend the police station in person. The experienceof being charged with a serious criminal offence, such as drinking and driving, clearly left him anxious and scared. In his words, he was“overwhelmed”.

This is readily apparent by his asking Constable Muller numerous times whether he was he was “in trouble,” and if hewas going to jail. [28] The defendant also looked to Constable Muller for guidance and advice. He confided in him that he was going through a difficulttime as he had just broken up with his girlfriend, and that he had been out that evening with friends. He expressed regret for his actions;he called the situation in which he found himself a “nightmare.” He asked Constable Muller about his family, and spoke to him politelyand respectfully throughout, referring to him as “officer”.

In contrast, the officer addressed Mr. Balgobin as “dude” at one point, whengiving him instructions as to how provide a proper breath sample. [29]Mr. Balgobin was not dealing, though, with this experienced breath test operator on a level playing field. It was the latter’s task togather evidence to prove that the defendant had committed a criminal offence. Indeed, until the time he was investigated by ConstableMuller, there was only evidence that provided the authorities with the grounds to believe that a drinking and driving offence had beencommitted.

By the time the breath testing process was completed, he had been charged with impaired driving, as well as driving over thelegal limit. [30] As Justice Le Dain observed in R. v. Therens, (SCC), [1985] 1 S.C.R. 613 at 644, “it is not realistic, as a generalrule, to regard compliance with a demand or direction by a police officer as truly voluntary, in the sense that the citizens feels that he orshe has the choice to obey or not, even where there is in fact a lack of statutory or common law authority for the demand or direction andtherefore an absence of criminal liability for failure to comply with it.

Most citizens are not aware of the precise legal limits of policeauthority. Rather than risk the application of physical force or prosecution for wilful obstruction, the reasonable person is likely to err onthe side of caution, assume lawful authority and comply with the demand.” [31] In this case, there was not only lawful authority justifying the demand made by Constable Muller to the defendant, but a penalty forrefusing to comply with it. Nevertheless, given that one of the purposes of s.10(

b) is to provide persons such as Mr. Balgobin with anopportunity to make “informed choices” about one’s legal rights and obligations, this opportunity or choice is “no less significant whenbreathalyser charges are involved:” Bartle at para. 64. [32] There was no good reason, in my respectful view, to rush the defendant into providing the Intoxilyzer tests and engaging him in adiscussion as to the time it would take for duty counsel to call back. Mr. Balgobin was in the breath room within almost one-half hour ofbeing arrested.

Even had it taken duty counsel 45 to 60 minutes to call back, there still would have been ample time to conduct the breathtests within the requisite statutory period. [33] In the circumstances, to tell Mr.

Balgobin, who was clearly anxious being in police custody for the first time and wanted to go homeas soon as possible, that he could be sitting in a jail cell for two hours before he heard from duty counsel, would undermine his ability tomake an informed choice as to whether or not he should call a lawyer so as to access legal advice relevant to his rights and obligations. [34] The statistical evidence from the Brydges duty counsel service adduced before me underlies the inherent implausibility of thedefendant waiting for two hours for his telephone call from duty counsel to be returned, contrary to the statement of Constable Muller toMr.

Balgobin. Indeed, the officer is unable to provide any details as to the extraordinary case in which he says this happened. I findMuller’s statements to the defendant, therefore, to be a calculated use of rhetorical exaggeration (“two minutes to two hours”) designed topersuade a youthful, inexperienced and intimidated defendant that the quickest way out of custody was simply not to take the time toexercise his legal rights. [35] In a similar case before me, R. v. Clark (1998) 38 M.V.R. (3d) 120, [1998] O.J.

No. 5104 (QL) (Prov.Div.), the O.P.P. officer whoarrested the defendant after 1:00am placed a telephone call to duty counsel upon their arrival at the Port Credit detachment. It wasreturned within 20 minutes. However, at that time, the defendant, who was in his mid-20’s and dealing with the police for the first time,wished to speak with his parents so that they could refer him to a private lawyer, given their motor vehicle insurance business. Theofficer told him that he would be waking up his parents by calling them, and delaying the process if he did so. Mr.

Clark explained thathe felt contacting a lawyer after the officer said this would “jeopardize his position.” As a result, he stated, “Screw the delay” anddecided to go ahead and provide the breath samples. In the circumstances, it was held that the defendant’s s.10(

b) Charter rights wereinfringed. [36] Justice Harris arrived at a like result in R. v. Chalykoff, 2008 ONCJ 281 where the O.P.P. arresting officer discouraged thedefendant, who was an adult living in London and did not know any lawyers in Toronto, from contacting his daughter- in- law so that hecould speak to her about his predicament. The officer advised him not to do so, as she was a Crown Attorney. While the defendant wasnot a young man, like Mr. Balgobin he had never been arrested by the police before.

The effect of the statement made to him by thearresting officer is described in these terms by Justice Harris at para. 14, which I find comparable to Mr. Balgobin’s affidavit: When asked why he went along with the suggestion to speak to duty counsel instead of his daughter-in-law, the defendant said, “I wasterrified that night. I was scared. I’d never been arrested before and Constable Ariss had power over me.

He controlled the telephone andcontrolled who I spoke to.” A second reason was that “I didn’t want to hurt my daughter-in-law.” “Constable Ariss explained to me thatif I called her, I would be hurting her.” [37] Stated shortly, attempting to influence the decision that accused persons make as to whether they should speak to a lawyer, orparticipate without delay in the breath testing procedure, is a practice fraught with danger. It is also totally unnecessary. ConstableMuller’s comments to Mr.

Balgobin that “either way” he was going to be required to provide breath samples to him, that “everything”was admissible in court, and that if he called duty counsel he could be sitting in a jail cell for two hours, could not help but dissuade thisyoung man from choosing to speak to a lawyer. [38] I consider Justice Fraser’s remarks in R. v. Drescher, 1998 ABPC 125 at para. 16, instructive in this regard. In that drinking anddriving case, after reviewing numerous decisions involving statements by police officers which were said to dissuade the accused not to

exercise his/her right to counsel, the Court observed: For a police officer to offer legal advice or involve himself in the decision the accused has to make regarding exercising his s.10(

b) rightsis both dangerous and improper and should be discouraged. Nor should police officers attempt to explain the law to the accused. That isbest left to his counsel. [39] Finally, there is no basis to find that the defendant waived his Charter rights to contact counsel. The standard for waiver of thes.10(

b) right is “high”: Bartle, para. 43. Any voluntary waiver of the right to counsel under s.10(b), to be valid and effective, must bepremised on a true appreciation of the consequences of giving up that right. See R. v. Clarkson, (SCC), [1986] 1 S.C.R.383 at 395-396. Mr. Balgobin could hardly be said to be in a position where he could pass such an “awareness of the consequences” test. [40] I am therefore compelled to conclude that the conduct of Constable Muller in discouraging the defendant from contacting dutycounsel in the circumstances of the case amounts to a very serious violation of s.10(

b) of the Charter of Rights and Freedoms. Exclusion of Evidence of the Defendant’s Breath Samples under s.24(2) [41] Having found an infringement of Mr. Balgobin’s rights to counsel, I must now consider whether the reformulated test under s.24(2)of the Charter of Rights, as set out in R. v.

Grant, 2009 SCC 32, mandates exclusion or admission of the breath test results in this case. [42] In Grant, the Supreme Court explained that when faced with an application for exclusion under s.24(2), a court must assess andbalance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following considerations:(1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused,and (3) society’s interest in the adjudication of the case on its merits. [43] I will proceed to discuss each of these factors in turn, with reference to the particular circumstances of the instant case. [44] At the first stage of the Grant inquiry, the court is to consider the nature of the police conduct that infringed the Charter, and led tothe discovery of the evidence.

The more severe or deliberate the state conduct that led to the Charter violation, the greater the need forthe courts to disassociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve publicconfidence in and ensure state adherence to the rule of law. [45] This first factor operates strongly in favour of exclusion of the evidence, in my respectful opinion. Constable Muller’s explanationfor telling the defendant that he could be sitting in a jail cell for two hours before exercising his right to counsel was preposterous andoffensive.

In reality, it was designed to give this impressionable defendant a false impression of the time it would take for the Brydgesduty counsel service to respond to his call, so as to discourage him from exercising his right to counsel, and thereby delaying the breathtesting process. [46] When a breath test operator tells a young man like Mr. Balgobin, who is anxious to be released and go home, that he once had towait two hours for duty counsel to return a telephone call, but is then unable under oath to furnish even the slightest details of this case, itis extremely disconcerting.

It flies in the face of the statistical evidence from the providers of the Brydges duty counsel service thatalmost all calls are returned in 45 minutes or less. [47] The violation of the defendant’s s.10(

b) Charter rights in this case was therefore not inadvertent or technical. To the contrary, it wasdeliberate and calculated. As a result, I find Constable Muller’s blatant disregard for the accused’s Charter rights extremely serious andnot lightly to be condoned. [48] The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protectedby the infringed right.

The more serious the incursion on these interests, the greater the risk that admission of the evidence would bringthe administration of justice into disrepute. [49] This second factor also weighs heavily in favour of exclusion of the evidence. The breach of the defendant’s s.10(

b) right to counselresulted in a person who had never before been arrested or charged by the police remaining in a state of obvious confusion as to his legalrights and obligations, given that the officer dissuaded him from exercising his option to have this most important right explained to himby duty counsel. [50] The Charter infringement in this case was pronounced and extended over a significant time period. It exposed the defendant toproviding the authorities with the very evidence that was proffered at his trial to establish his guilt. It also implicated other Charterrights.

The state capture of the defendant’s breath samples triggered his rights under s.8 to be secure against unreasonable search andseizure; his statements as to alcohol consumption and drinking patterns were also of an incriminating nature, such that his right to silenceas protected by s.7 was impacted. Indeed, the charge of impaired driving was laid only after Mr. Balgobin participated in the interviewwith the breath test operator. [51] In short, the failure of the authorities to respect the defendant’s s.10(

b) Charter right to counsel effectively precluded him frommaking an informed choice as to his legal options. As a result, he did not have access to counsel during the first and only time he wasinvestigated by the police. The impact, therefore, of the infringement of the defendant’s rights under s.10(

b) is significant. [52] At the third stage of the inquiry mandated by Grant, a court is to ask whether the truth seeking function of the criminal trial processwould be better served by admission of the evidence or its exclusion. Factors such as the reliability of the evidence and its importance tothe Crown’s case are to be considered at this stage. [53] There seems little question that this component of the Grant test favours admission of the evidence. The breath test samples takenfrom the defendant are conclusive of his guilt on the driving over 80 mgs charge.

The evidence is highly reliable and is the product ofsophisticated breath testing equipment, the Intoxilyzer 5000C, which bears Parliament’s imprimatur as an approved instrument.

[54] Society generally expects that a criminal allegation will be adjudicated on its merits. Drinking and driving is a scourge. Society’sinterest in this case proceeding on its merits is therefore very high, and favours inclusion of the defendant’s breath test results. [54] Having set out the respective factors for consideration under Grant, I must now engage in a balancing and weighing of them. As theSupreme Court points out, it is society’s long term repute of the justice system that is the focus of s.24(2) of the Charter of Rights.

Onone hand, the public has a heightened interest in seeing a determination of a serious case on the merits; at the same time, it also has avital interest in having a justice system that is above reproach, especially when the penal stakes are high. (Grant, para. 84) [55] In considering all of the factors in this case, I am satisfied that the impact of the breaches of the accused’s Charter rights is at themost serious end of the scale.

I particularly find that the conduct of Constable Muller in seeking to discourage a young person, who wasdealing with the police for the very first time and clearly anxious and confused about his situation, from exercising his right to counsel,to be troubling.

It gives rise to the appearance of indifference to constitutional standards. [56] Consequently, even though the evidence obtained from the accused consists of breath test results that establish his blood alcoholconcentration being in excess of the legal limit, in the particular circumstances of this case I am of the opinion that the significant impactof the Charter of Rights breach of the right to counsel, and the lack of good faith on the part of the officer, weighs most heavily in favourof exclusion of the evidence.

Disposition [57]In the result, the application to exclude the evidence of the accused’s breath test results is granted. [1] R. v. Brydges, (SCC), [1990] 1 S.C.R. 190 holds that as part of the information component of the right to counselunder s.10(

b) of the Charter of Rights, a detainee should be informed in all cases of the existence and availability of the applicablesystems of duty counsel and Legal Aid plans in the jurisdiction, hence the term “Brydges” duty counsel service. [2] Exhibit 1, Letter of Riyad A Bacchus, Director – Legal Assistance Division, Sykes Assistance Services Corporation (26 April 2010). [3] Canadian Charter of Rights and Freedoms,

Schedule B, The Constitution Act, 1982.