R. v. Maciel, 2016 ONCJ 563

COURT FILE NO. Brampton/15-178 DATE: 2016-09-15 CITATION: R. v. Maciel , 2016 ONCJ 563 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - STEVEN MACIEL Before Justice James Stribopoulos Heard on January 7, 8, and June 20, 2016. Reasons for Judgment Released on September 15, 2016 Ms. Angela MacArthur………..……………......…………..……..………………… … for the Crown Mr. David Locke……...……..………...…………………….………………….……..…for Mr.

Maciel STRIBOPOULOS, J.: Introduction [ 1 ] The defendant, Steven Maciel, is charged with two offences: operating a motor vehicle while his ability to do so was impaired by alcohol, and refusing to provide a breath sample, contrary to subsections 253(1) and 254(5) of the Criminal Code , respectively. [ 2 ] Shortly after 2:00 p.m. on Christmas Day, 2014, a pick-up truck left the roadway on a residential street and struck the backyard fence of a home located at 24 Sunset Boulevard, in the City of Brampton. The driver of the truck then abandoned the vehicle.

The collision caused substantial damage to both the fence and the homeowner’s garden. [ 3 ] Shortly after the accident, a police officer located Mr. Maciel walking in a schoolyard not far from the scene of the crash. He was initially detained for failing to remain at the scene of the accident because he matched the description of the driver provided by a witness, and took flight when first approached by police. Within minutes of his detention, the officer decided to arrest Mr. Maciel for impaired driving.

This was followed by a demand that he furnish samples of his breath to determine the concentration of alcohol in his blood. Back at the police division, Mr. Maciel ultimately refused to provide a breath sample. He was charged accordingly. [ 4 ] At the completion of the trial, the defence made a number of concessions that served to narrow the live issues in this case. As a result, in order to decide this matter, the Court must resolve three issues: • Whether the Crown has established beyond a reasonable doubt that Mr. Maciel’s ability to operate a motor vehicle was impaired by alcohol? • Whether Mr.

Maciel has established, on a balance of probabilities, that his s. 10(

b) Charter right to speak with counsel of his choosing was violated? • If a constitutional violation has been established, whether the admission of the evidence regarding Mr. Maciel’s refusal to provide a breath sample would bring the administration of justice into disrepute and therefore warrant exclusion under section 24(2) of the

Charter ? After summarizing the evidence at trial, I will turn to an analysis of the live issues in this case. The Evidence at Trial [ 5 ] None of the witnesses at trial actually observed the truck leave the roadway and strike the fence. Instead, the Crown called Mr. Jamieson, who lived a short distance away and happened to be outside at around 2:15 p.m. when he heard the crash and decided to investigate. As he approached, he saw a man running away from the scene of the crash and towards a nearby school. Mr.

Jamieson saw the man remove his coat and leave it by the side entrance of the school, before then returning to the scene of the crash. Over the objections of Mr. Jamieson, who, by that point, had called police, the man entered the passenger compartment of the pick-up, where he removed some personal property, before once again running back to the school. The man then retrieved his coat before disappearing behind the school. [ 6 ] Mr. Jamieson provided a detailed description of the man he saw, in terms of his appearance and his clothing.

He also testified that as the man ran, he did “not seem quite steady” and appeared to be “a little shaky”. During cross-examination, he went on to describe the man’s gait as “deliberate” while also noting that, “he did look stable”. [ 7 ] At 2:35 p.m., Constable Tingle, a police officer with the Peel Regional Police, arrived at the scene of the accident and briefly spoke with Mr. Jamieson. After receiving a description of the man that Mr. Jamieson described as the “driver”, Constable Tingle headed towards the school to look for him. In a green space behind the school, he soon encountered Mr.

Maciel, who matched the description provided by Mr. Jamieson to a tee. There was no one else in the vicinity. [ 8 ] When first observed by Constable Tingle, Mr. Maciel was walking towards a pathway that links the green space behind the school to a residential neighbourhood. The officer activated the lights and siren on his cruiser to get Mr. Maciel’s attention. Mr. Maciel responded by looking over his shoulder before beginning to run in the opposite direction from the officer. The officer accelerated his vehicle to catch up with Mr. Maciel, who then stopped running.

Through the open window of his cruiser, the officer directed Mr. Maciel to get on the ground but Mr.Maciel instead responded by walking towards the officer. As he did so, without any prompting, Mr. Maciel told the officer that he had been out for a walk and had only gone near the truck because he wanted to make sure no one needed help. [ 9 ] At that point, Constable Tingle exited his vehicle and once again directed Mr. Maciel to get on the ground. This time he complied. By this point, it was 2:37 p.m. Due to safety concerns, the officer decided to handcuff Mr. Maciel behind his back.

As he did so, the officer told him that he was detaining him in relation to “a fail to remain investigation”. (The officer testified that, at that point, he was not sure if Mr. Maciel was the driver of the pick-up, as he had some information suggesting that there might have been two occupants of the vehicle.) The officer did not inform Mr. Maciel of his right to retain and instruct counsel at this stage. He then stood Mr. Maciel up and walked him a few feet back to his police cruiser. [ 10 ] At the police cruiser, the officer patted-down Mr. Maciel to ensure that he did not have any weapons.

As he did so, the officer noticed that he was wearing a hooded sweater that bore the logo and name for “Pro Star Towing”. When he asked him if he worked for that company, Mr. Maciel responded that he worked for “Blue Dragon Paving”. As he was interacting with Mr. Maciel, Constable Tingle noticed that he had red-rimmed, watery eyes and also detected the odour of an alcoholic beverage on his breath. [ 11 ] After he received information from another police officer over his radio that the pick-up truck involved in the accident was registered to Blue Dragon Paving, Constable Tingle decided to arrest Mr.

Maciel for impaired driving and proceeded to do so at 2:41 p.m. (At trial, the Crown called the owner of Blue Dragon Paving, who acknowledged that the pick-up involved in the accident belonged to his company. He also testified that during the Christmas holidays in 2014, Mr. Maciel, who was one of his employees at that time, was given permission to take it for his own personal use.) [ 12 ] Constable Tingle gave evidence regarding his decision to arrest Mr. Maciel when he did. He explained that his decision was based on all of the circumstances, including: Mr.

Maciel’s connection to the pick-up truck (both in terms of his affiliation with the company that owned it and the witness description of the driver); his involvement in a single vehicle accident in circumstances where the roads were clear and dry; his flight from the scene of the accident; his red-rimmed watery eyes; and the odour of alcohol on his breath. Based on all these factors, the officer concluded that Mr. Maciel’s ability to drive was impaired by alcohol. [ 13 ] Following the arrest, Constable Tingle informed Mr. Maciel of his right to counsel. He responded by indicating he wanted to call a lawyer.

When asked if he had a specific lawyer that he wanted to contact, Mr. Maciel said “David Locke”. Rights to counsel were

completed by 2:45 p.m. At that point, the officer read the primary common law caution to Mr. Maciel, followed by the approved instrument breath demand. [ 14 ] Mr. Maciel was then transported directly to 22 Division of the Peel Regional Police, arriving there at 3:05 p.m. Once at the division, he was subject to the ordinary booking procedures. [ 15 ] At 3:09 p.m., Constable Tingle placed a call to Mr. Locke’s office phone number. The officer then placed a call to a second phone number that he believed to be Mr. Locke’s cellular phone number.

There was no answer at either number, and the officer left a voice mail message at both requesting a call back. The officer did not note, nor did he recollect, where he obtained either of the numbers that he telephoned. [ 16 ] After leaving voice mail messages, Constable Tingle waited a few minutes for Mr. Locke to return his calls. At 3:12 p.m., he offered Mr. Maciel the opportunity to call duty counsel instead of Mr. Locke. Mr. Maciel declined, indicating that he wanted to speak with Mr. Locke.

Constable Tingle testified that he thought it sensible to wait 20 or 30 minutes to receive a call back before making further efforts to contact counsel. [ 17 ] Constable Tingle called the same two phone numbers again at 3:32 p.m. and 3:34 p.m. respectively. There was no answer at either number and he left further voice mail messages. At 3:35 p.m., Constable Tingle once more offered Mr. Maciel an opportunity to call duty counsel, which he again declined, still maintaining his desire to speak with Mr. Locke. [ 18 ] Constable Tingle then detailed his grounds for arresting Mr.

Maciel to the qualified technician, Constable Darcy. At 3:38 p.m. Mr. Maciel was moved into the breath room, where Constable Darcy took custody of him. The events inside the breath room were audio and video recorded in their entirety. That recording became an exhibit at trial. [ 19 ] Inside the breath room, Constable Darcy explained to Mr. Maciel the efforts that had been made to get a hold of Mr. Locke. He then offered Mr. Maciel the opportunity to call duty counsel. Once again, Mr. Maciel declined, indicating that he wanted to speak with his own lawyer.

Constable Darcy then proceeded to read the formal breath demand to Mr. Maciel. He responded by indicating that he would prefer to wait for his lawyer. At that point, Constable Darcy explained the consequences of failing to provide a breath sample and told Mr. Maciel that waiting to speak to his lawyer was not a reasonable excuse given that the police had already waited a reasonable amount of time for counsel to call back. The officer again reiterated the demand, and Mr. Maciel again refused, citing his desire to speak with his lawyer first. They went back and forth like this a number of times, with Mr.

Maciel saying at one point: “I understand that, you guys have been trying as much as you can, I would want to speak to my lawyer first; if you were in my shoes, you’d want to speak with your lawyer first too.” Finally, after clearly warning Mr. Maciel that he was being given one last chance, and Mr. Maciel responding, “I need to speak with my lawyer.” Constable Darcy indicated that he was interpreting his response as a refusal to provide a breath sample and informed him that he would be charged accordingly. [ 20 ] Constable Darcy testified that he was responsible for tracking down the phone numbers for Mr.

Locke, which he then provided to Constable Tingle. He testified that he obtained the office number for Mr. Locke from the Law Society’s website, and the second number by conducting “a Google search”. Constable Darcy could not recall what website he actually consulted to secure the second number for Mr. Locke, nor could he say what kind of number it was, for example whether it was a home number or a cellular number. The officer did not make any notes detailing the online inquiries he made that day. [ 21 ] The parties agreed upon certain facts and to the filing of a number of documents.

These establish that on December 25, 2014, there was a website on the Internet for Mr. Locke’s law firm. Anyone visiting the homepage for that website would note that it includes a “Contact Us” hyperlink. If one clicked on that link, a second page would become visible listing both Mr. Locke’s e-mail address and his cell phone number. During cross-examination, Constable Darcy conceded that he did not consult Mr. Locke’s website in an effort to locate a phone number for him. The second phone number that Constable Tingle telephoned was not Mr. Locke’s cell phone number but his home phone number.

On Christmas Day 2014, Mr. Locke was not at home; he was in Ottawa visiting family. That said, Mr. Locke had his cell phone with him that day and he would have been contactable if the police had called him on his cell phone. [ 22 ] It would appear from the evidence heard at trial that the practice of the Peel Regional Police is to make telephone calls to counsel on behalf of a person in custody who has asked to speak with either duty counsel or a specific lawyer. Those in police custody are not provided with a phone book, access to the Internet, and the use of a phone to contact counsel of their choosing.

Rather, it is the police who make these efforts on behalf of persons in their custody.

[ 23 ] Constable Darcy explained that Mr. Maciel was brought into the breath room at 3:38 p.m. because by that point they had called the numbers they had located for Mr. Locke twice, twenty-five minutes had passed, and they had still not heard back from him. Mindful that it was Christmas Day and not a regular workday, he thought it unlikely that they would hear back from Mr. Locke if they waited any longer.

Given this, and the obligation to collect breath samples as soon as practicable, Constable Darcy testified that he was of the view that they had waited long enough. [ 24 ] It would appear that at no point did either police officer ask Mr. Maciel if he had a contact number for Mr. Locke. Nor did they ask him if he knew someone who did. Neither officer was able to provide an explanation for this. Law and Analysis [ 25 ] I turn next to the specific issues that must be resolved in deciding this case. Again, the issues were narrowed significantly by a number of concessions made by defence counsel.

For example, it is unnecessary to address whether or not the evidence establishes beyond a reasonable doubt that Mr. Maciel was the driver of the pick-up truck on the date in question. Although no witness saw him behind the wheel, the circumstantial evidence overwhelmingly supports a conclusion that he was in fact the driver. Defence counsel quite sensibly conceded as much. Given that concession, I will turn to what are the live issues in this case. A.

Has the Crown proven the charge of impaired operation of a motor vehicle beyond a reasonable doubt? [ 26 ] I must decide whether the evidence establishes beyond a reasonable doubt that Mr. Maciel’s ability to operate his vehicle was impaired by alcohol.

The Court of Appeal has explained that: “If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.” [1] I therefore turn to an analysis of the evidence in this case in light of that standard. [ 27 ] The Crown’s case in support of the impaired driving charge relies on the combined effect of the following: • Mr. Maciel’s involvement in a single-vehicle accident, wherein he left the roadway and crashed into a fence in circumstances where the road was clear and dry; • Mr.

Maciel’s flight from the scene of the accident, as well as his somewhat erratic behaviour in that regard, in terms of hiding his jacket, then returning to scene, before running away again, and then briefly running once more when first approached by Constable Tingle; • Mr. Jamieson’s evidence that as Mr.Maciel ran, he seemed “a little bit shaky”; • Mr. Maciel’s red-rimmed and watery eyes; • The odour of an alcoholic beverage on Mr. Maciel’s breath. This collection of circumstances provides a strong foundation from which to draw an inference that Mr.

Maciel’s ability to operate a motor vehicle was impaired by alcohol at least to a slight degree at the time of the accident. [ 28 ] That said, it would constitute a serious error to simply view the incriminating evidence in isolation. There was a fair amount of evidence at trial that would appear to be exculpatory on the issue of impairment. That evidence must obviously also be taken into account in deciding whether or not the Crown has proven the charge. The exculpatory evidence included: • Mr. Jamieson’s concession, during cross-examination, that when running, Mr.

Maciel appeared to be stable; • That at no time after his detention, and later his arrest, did Mr. Maciel appear to exhibit any difficulties with his balance, coordination or fine motor skills; • That at no time after his detention, and later his arrest, did Mr. Maciel’s attitude or demeanour suggest that he was impaired. For example, there were no inappropriate emotional outbursts, and he was not belligerent or combative. To the contrary, he was cooperative and polite throughout his dealings with the police. • And, finally, there was nothing about Mr.

Maciel’s speech to suggest he was impaired, for example no slurring of his words or use of language (such as profanity) that would be inappropriate in the context. [ 29 ] A finding of guilt requires that I be satisfied beyond a reasonable doubt that at the time of driving, Mr. Maciel’s ability to operate a motor vehicle was impaired by alcohol to at least a slight degree. In deciding whether that burden has been met, I must consider all of the evidence together, both inculpatory and exculpatory. After carefully weighing all of the evidence, I think it is reasonably capable of supporting two competing

interpretations. On one

interpretation, Mr. Maciel consumed alcohol to the point of impairment, as a result of which he lost control of his vehicle, struck a fence, and then fled the scene because he knew he was drunk and wanted to avoid detection. An alternative

interpretation, however, is that Mr. Maciel had consumed some alcohol that day but was not impaired, left the roadway because of some inattentive driving on his part unrelated to his alcohol consumption, and ran from the scene because he did not want to

deal with consequences of his careless driving (both in terms of the damage to his employer’s pick-up truck, and to the homeowner’s fence and garden). [ 30 ] To be sure, as between these two competing

interpretations, I think the former is far more probable than the latter. However, that is not the criminal standard of proof.

The law is clear: where the Crown’s case rests on circumstantial evidence, as it invariably does in most impaired driving cases, [2] the proof beyond a reasonable doubt standard requires that the only rational inference that can be drawn from the evidence is that the defendant is guilty. [3] Applying that standard here, after weighing all of the evidence, including the absence of evidence regarding the driving that preceded the accident or evidence that the defendant exhibited any physical signs of alcohol impairment, I am ultimately left in a state of reasonable doubt.

In other words, I am simply not sure that Mr. Maciel’s ability to drive was impaired by alcohol. I am therefore obliged to dismiss the impaired driving charge against him. B. Was the defendant’s right to consult counsel of his choosing violated? [ 31 ] I turn next to assess Mr. Maciel’s claim that the police violated his

section 10 (

b) Charter right to speak with counsel of his choosing. In assessing that claim, I will begin with the governing principles in relation to the right to counsel more generally before turning to the jurisprudence specific to the right of those who are detained or arrested to consult a lawyer of their choosing. [ 32 ] The Supreme Court of Canada has recognized that the purpose of the right to retain and instruct counsel guaranteed by

section 10(

b) of the Charter 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”. [4] A person who is detained or arrested is, “in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty”. [5] The assistance of counsel helps to ensure that those who are in custody, and therefore in legal jeopardy, are positioned to make a voluntary and informed decision whether or not to speak, or otherwise cooperate, with the police. [6] [ 33 ] In Bartle , the Supreme Court succinctly summarized the duties that

section 10(

b) imposes upon the police when they detain or arrest an individual, these include: (1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; (2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and (3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger). [7] [ 34 ] Once there has been an assertion of the right, the Supreme Court has made clear that the police are under a duty to facilitate contact with counsel at the first reasonably available opportunity. [8] As a result, the police have a duty to provide access to a telephone as soon as practicable. [9] Although an urgent or dangerous situation may justify a delay in facilitating contact with counsel, [10] the Court has explained that: “[b]arriers to access must be proven, not assumed, and proactive steps are required to turn the right to counsel into access to counsel.” [11] [ 35 ] Once the police have fulfilled their obligation to provide the person in detention with a reasonable opportunity to consult a lawyer, they are entitled to proceed with questioning or otherwise eliciting evidence, regardless of whether a detainee has spoken to a lawyer. [12] A person in detention must therefore be “reasonably diligent” in exercising his or her right to counsel. [13] Otherwise, the Court has explained, they could unduly frustrate the ability of police to collect evidence that may not be available in perpetuity. [14] [ 36 ] The Supreme Court of Canada has also interpreted the right to retain and instruct counsel, guaranteed by

section 10(

b) of the Charter , as including a concomitant right to consult a lawyer of one’s choosing. [15] In Ross , the Court’s first decision recognizing that

section 10(

b) includes the right to consult a specific lawyer, two detainees were unable to contact their lawyers at 2:00 a.m. Before they were able to call their lawyers’ offices in the morning, police placed them in an identification line-up. This violated

section 10( b ), the Court held, because detainees have a “right to choose their counsel”. [16] They are only expected to call another lawyer if their chosen lawyer “cannot be available within a reasonable time.” [17] The duration of this period, it suggested, might be shortened by circumstances of “urgency” or some other “compelling reason”, but in that case, the line-up could have easily been held “a few hours later”. [18] [ 37 ] In Willier, the Supreme Court of Canada reaffirmed its holding in Ross regarding the right to counsel of choice. [19] Importantly, the Court in Willier made clear that

section 10(

b) requires not only that the police afford those detained a reasonable opportunity to

contact a lawyer of their choosing but also imposes a positive duty on the police “to facilitate that contact”. [20] In Willier, the Court also elaborated on what will qualify as a reasonable period of time to wait for counsel of choice, explaining that this will depend “ on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation”. [21] [38] The Supreme Court has also explained that urgency capable of displacing the right to consult counsel does not arise in drinking and driving cases simply because the passage of time may jeopardize the Crown’s reliance on the two-hour statutory presumption found in subsection 258(1)( c )(ii) of the Code .

This is because even where delay in contacting counsel forecloses reliance on the presumption, the Crown will still be able to adduce expert evidence to relate lower test results back to the blood-alcohol level at the time of the offence. [22] [39] Finally, in assessing how long the police can be expected to wait for a detainee to contact counsel of their choosing, the Supreme Court has suggested that the availability of free and immediate advice from duty counsel is a relevant consideration.

At a certain point, after efforts to contact counsel of choice have proven unsuccessful, the detainee will be expected to contact duty counsel or risk a finding that they were not reasonably diligent in the circumstances. [23] [40] With the governing legal principles firmly in mind, I turn to a consideration of the circumstances of this case. It is clear from the record before me that from the moment he was first apprised of his right to retain and instruct counsel, Mr. Maciel repeatedly asserted his right to speak with his own lawyer - Mr. Locke.

Although he was repeatedly offered the chance to call duty counsel, he was quite clearly not interested in that alternative. He did not want to speak to just any lawyer. Rather, he wanted to speak to his lawyer. In taking that position, Mr. Maciel forcefully asserted his constitutional right to consult with a lawyer of his choosing. [41] For reasons that went unexplained before me, the evidence at trial made clear that the Peel Regional Police have assumed the responsibility of contacting counsel on behalf of those who are in police custody.

This is in contrast to the practice elsewhere in the country, where the police discharge their duty to provide persons in custody with a reasonable opportunity to contact counsel by providing them with the means to do so.

For example, it would appear that in Alberta, those who assert their right to counsel are given access to a telephone, a lawyer’s directory, phone books and are even provided with access to the Internet. [24] In contrast, the Peel Regional Police have assumed the responsibility of consulting such resources on behalf of persons in their custody who assert their right to consult a lawyer of their choosing. [42] Quite obviously, it is not my role to second-guess police operational procedures. [25] And, to be clear, I do not believe there is anything constitutionally objectionable with the police assuming the responsibility of contacting counsel on behalf of those in their custody.

That said, it is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts.

Of course, this begs the question as to what standard should be used in evaluating the adequacy of police efforts. [43] If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing.

In that regard, I completely agree with the comments of Justice Horkins, who noted: When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply. [26] I believe this standard is in keeping with the duty upon the police to facilitate contact with a detainee’s counsel of choice.

I therefore intend to apply it in assessing the adequacy of the police efforts in this case. [44] I turn next to an assessment of the adequacy of police efforts in this case to put Mr. Maciel in touch with counsel of his choosing. It would appear that Constable Darcy used the Internet to look up Mr. Locke’s office number on the Law Society of Upper Canada’s website. In addition, he conducted what he described as a “Google search” and managed to locate a second number for Mr. Locke (which turned out to be a home phone number).

Messages were left at both of these phone numbers, first at around 3:10 p.m., and then again about twenty minutes later. Unfortunately, Constable Darcy did not actually look at the website maintained by Mr. Locke’s law firm. He had no explanation for failing to do so. If he had, he would have noted that like most business websites, it includes a “Contact Us” link. Had he clicked on that link, he would have obtained both Mr. Locke’s e-mail address and his cell phone number. [45] In my view, in an era when practically every lawyer and law firm has a website, that would be the most sensible starting point

for anyone trying to get in touch with a particular lawyer. This is where a lawyer is most likely to share information with prospective clients about how to go about contacting them. As is the case with Mr. Locke, a criminal lawyer’s website will often note his or her cell phone number or e-mail address, which are both ideal ways to get a hold of a criminal lawyer, especially outside of ordinary business hours. [46] Beyond the unexplained failure to consult Mr. Locke’s website, I am also of the view that the police did not discharge their responsibilities to the required standard when they failed to even ask Mr.

Maciel whether he had, or possibly knew someone who had, a contact number for Mr. Locke. I would think this would be the first and most obvious step that the police should take when a person in custody asserts their right to speak with a particular lawyer. [47] In a jurisdiction like Peel, where the police have assumed the responsibility to contact counsel of choice, I think it sensible to outline the sort of steps that should be undertaken to obtain counsel’s contact details in order to satisfy the reasonable diligence standard.

In my view, common sense suggests that at a minimum this should include: • Asking the person in custody if they have a telephone number, or know anyone who has a telephone number, for the lawyer they want to contact; • Giving the person in custody access to their cellular phone or smart phone, where they advise that they have the lawyer’s number stored on such a device; • Conducting an Internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or e-mail address for the lawyer, and calling, texting, and/or e-mailing these; • Using the Internet to search any available online directories, for example Canada 411 , CanadianLawList , or the Law Society of Upper Canada’s Paralegal and Lawyer Directory. • Using any available conventional paper based directories, both for lawyers and for phone numbers more generally (i.e.

The White or Yellow Pages). [48] In my view, in this day and age, these are the sorts of very basic steps that any reasonably diligent individual who was attempting to contact a lawyer would undertake. These are entirely in keeping with the Supreme Court’s direction that the police are required to take proactive steps to turn the right to counsel into access to counsel.

Further, given the obligation upon the police to be reasonably diligent in contacting counsel of choice, it would make good sense for them to properly memorialize the steps that they undertake as they endeavour to discharge their constitutional obligations. [49] Beyond the failure of the police to exercise reasonable diligence in their efforts to contact counsel of choice on behalf of Mr. Maciel, I have also concluded that the police violated his

section 10(

b) Charter rights when they only waited twenty-five minutes for Mr. Locke to call back. On a practical level, the failure to wait longer in this case had no real effect, given that Mr. Locke was away from the office and not at home on Christmas Day. Of course, the police did not know this at the time. When the police insisted on proceeding with breath testing, the window for relying on the presumption of identity under subsection 258(1)( c )(ii) was still open for almost forty more minutes.

In these circumstances, I am of the view that the police were not faced with a situation of urgency and were constitutionally obligated to wait longer for Mr. Locke to return their calls. [50] For all of these reasons, I have concluded that the police violated Mr. Maciel’s

section 10(

b) Charter right to consult a lawyer of his choosing. C. Should the refusal to provide a breath sample be excluded under s. 24(2)? [51] I must next consider whether or not the evidence regarding Mr. Maciel’s refusal to provide a breath sample should be admitted or excluded under section 24(2) of the Charter . [52] Following the analytical framework supplied by the Supreme Court of Canada in R. v.

Grant , [27] I am required to assess and balance the effect of admitting or excluding the evidence on society’s confidence in the justice system, having regard to: 1) the seriousness of the Charter infringing state conduct; 2) the impact of the breach on Mr.Maceil’s Charter protected interests; and 3) society’s interest in the adjudication of the case on its merits.

[53] In the end, I must balance my assessment of each of these considerations in order to determine whether, considering all of the circumstances, the admission or the exclusion of the evidence would bring the administration of justice into disrepute. [28] [54] I begin by assessing the seriousness of the Charter infringing state conduct. [29] In this case, there is no basis to conclude that the police deliberately violated Mr. Maciel’s right to counsel of choice.

Far more likely, in my view, is that neither Constable Tingle nor Constable Darcy appreciated the full extent of their Charter obligations as they relate to their duty to facilitate the exercise, by detained persons, of the right to consult with counsel of their choosing.

This does not however substantially mitigate the seriousness of the resulting Charter violation. [30] As the Supreme Court made clear in Grant , “ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.” [31] This is because the police “are rightly expected to know what the law is”. [32] [55] Also aggravating, in my view, is that this case would appear to be reflective of a pattern in this jurisdiction of police officers being insufficiently aware of the extent of their duty to facilitate contact between those in their custody and counsel of choice. [33] As the Supreme Court has made clear, “evidence of a systemic problem can properly aggravate the seriousness of the breach and weigh in favour of exclusion.” [34] [56] I am next required to consider the impact of the violation on Mr.

Maciel’s constitutionally protected interests. “The more serious the impact on the accused’s protected interests,” the majority in Grant noted, “the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute.” [35] [57] The violation of Mr. Maciel’s

section 10(

b) Charter right was both temporally and causally connected to his refusal to provide a breath sample, a criminal offence. Had Mr. Maciel’s right to speak to a lawyer of his choosing been respected, he may very well have complied with the breath demand and thereby avoided incriminating himself in the way that he did. Given all of this, I think the impact of the breach on Mr. Maciel’s constitutionally protected interests was rather significant. [58] I must next consider society’s interest in having this case adjudicated on its merits.

In that regard, I am required to consider whether truth seeking would be better served by the admission or the exclusion of the evidence. [36] In this case, the exclusion of the evidence regarding Mr. Maciel’s refusal to provide a breath sample will prove fatal to the Crown’s case with respect to that charge. That said, it is again worth noting here that the evidence of the refusal might not have come into existence had Mr.

Maciel’s right to counsel of his choosing been respected. [59] In the end, after considering the three lines of inquiry contemplated by the Supreme Court, which reflect all the circumstances of the case, in deciding whether or not to admit or to exclude the evidence, I am to balance the interests of truth seeking with the need to maintain the long-term integrity of the administration of justice. [37] [60] In this case, after considering the serious nature of the violation and the impact on Mr.

Maciel’s constitutionally protected interests, while also remembering society’s interest in having the case adjudicated on its merits, I believe that exclusion of the evidence would better serve the long-term repute of the administration of justice. Conclusion [61] For the reasons detailed above, the charge of impaired driving is dismissed. With respect to the charge of refusing to provide a breath sample, the exclusion of the evidence from inside the breath room means there is no evidence before the court to support that charge. As a result, it is also dismissed.

Released: September 15, 2016 __________________________ Justice James Stribopoulos