) ) HER MAJESTY THE QUEEN Applicant – v. –, 2013 ONSC 6558

CITATION : R. v. Morin-Leblanc, 2013 ONSC 6558 COURT FILE NO.: 11-11845 DATE: 2013/10/30 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Applicant – and – MAXIME MORIN-LEBLANC Respondent ) ) ) ) ) ) ) ) )) ) ) )) Matthew Humphreys, for the Crown Lorne J. Goldstein, for the Respondent ) ) HEARD: October 15-16, 2013 decision on charter issues lalonde j. [ 1 ] The accused has brought an application challenging the voluntariness of statements made to police in connection with his arrest refusal to provide a breath sample-death contrary to section 255(3.2) of the Criminal Code , R.S.C. 1985, c.

C-46. The applicant also asserts that his rights were violated contrary to sections 10(a), and s. 10(

b) of the Canadian Charter of Rights and Freedoms,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [ 2 ] The applicant takes no position on the question that the other utterances made by the applicant to Constable Daniel Levesque after being cautioned while inside the cellblock area of the Ottawa Police Station are voluntary. I make a finding, that after hearing the evidence of Constable Daniel Levesque, the Crown has proven beyond a reasonable doubt that these utterances were voluntary.

Also, after viewing the audio/video statement made by the accused while being interviewed by Detective Nigel Emaman, and as the applicant takes no position, I find that this statement was also voluntary. [ 3 ] The accused argues that the statements in which he refused to provide a breath sample to Constable Kari Launen should be excluded because of a breach of his s. 10(

b) Charter right to be informed of his right to counsel without delay. [ 4 ] It is the position of the Crown that his refusal is admissible as there was no change in the jeopardy faced by the accused from the time in which he was provided a 10(

b) caution and spoke to his lawyer and the time when he refused an intoxilyzer demand. The Crown asserts that there was no duty on Constable Launen to inform the accused of the consequences of a refusal. Facts [ 5 ] I have reviewed the facts as Crown counsel sets out in his factum and I will use them as they are acceptable. They reflect accurately the evidence heard from police officers on this voir dire. [ 6 ] On October 15, 2011 at 3:03 a.m. the applicant drove his Honda Accord with his two passengers the wrong way down St.

Patrick Street from Dalhousie Street to Cumberland Street. [ 7 ] At the intersection of St. Patrick and Cumberland Street he struck and killed Ms. Alexandra Dodger as she was crossing the street.

[ 8 ] Constable Daniel Levesque, a member of the Ottawa Police Service, arrived on the scene and observed the applicant’s car parked, facing the wrong way on St. Patrick Street. [ 9 ] Cst. Leveque learned that the applicant was the driver of the motor vehicle. The officer detected a strong odour of alcohol coming from the applicant’s breath and noticed the applicant’s eyes were red and glossy. When asked if he had any alcoholic beverages that evening the applicant replied yes, and according to Cst.

Levesque, the applicant admitted to the consumption of several alcoholic drinks. [ 10 ] Following a conversation with the applicant and after ensuring the victim was under the care of paramedics, Cst. Levesque demanded that the applicant provide a sample of his breath into an approved screening device. The applicant did so and he registered a “fail.” [ 11 ] The accused was then placed under arrest for impaired driving causing bodily harm and driving with over 80 milligrams of alcohol in 100 millilitres of blood causing bodily harm.

The maximum penalty for these offences is 10 years imprisonment respectively. [ 12 ] Cst. Levesque informed the applicant of his right to counsel and provided him with the primary and secondary caution. The applicant indicated that he understood all of these cautions. At 3:21 a.m. Cst. Levesque read the accused the intoxilyzer demand in French. [ 13 ] The applicant was placed in the police vehicle and taken to the police station. Before the applicant spoke with his lawyer, Cst. Levesque learned that Ms. Dodger had died.

At 3:48 a.m. re-arrested the applicant for impaired driving causing death pursuant to section 255(3) which carries a maximum penalty of life imprisonment and driving with over 80 milligrams of alcohol in 100 millilitres of blood causing death pursuant to section 255(3.1) which carries a maximum penalty of life imprisonment. The following is the sequence of the conversations between officers and the accused once these new charges were laid: 1. At 3:53 a.m., after the re-arrest, Cst. Levesque again informed the applicant of his right to counsel and provided him with the primary and secondary caution. Cst.

Levesque then made an intoxilyzer demand and re-read the applicant the intoxilyzer demand which involves a caution simpliciter that the accused may refuse to provide a breath sample but that the consequence will be an additional criminal charge. 2. After being cautioned the second time, the accused stated in French: “Je m’excuse. J’ai voulu eviter le vehicule: and “Fuck man, j’aurais du rentrer dans le char, tata.” This translates to: I’m sorry, I wanted to avoid the vehicle” and “Fuck man, I should have hit the car” in English. 3. At 3:57 the applicant spoke to his lawyer for approximately 17 minutes. 4.

While the applicant was speaking with his lawyer, Cst. Levesque realized that he had not advised the applicant that he was also under arrest for dangerous operation of a motor vehicle causing death pursuant to section 249(1)(

a) which carries a sanction of fourteen years. 5. After the applicant had finished speaking with his lawyer, Cst. Levesque informed the applicant that he was also facing a charge of dangerous operation of a motor vehicle causing death by summarizing for the applicant that charges had been increased to dangerous operation of a motor vehicle causing death, impaired operation of a motor vehicle causing death, and over 80 milligrams of alcohol in 100 millilitres of blood causing death. 6. Cst. Levesque then again informed the accused of his right to counsel and provided him with primary and secondary caution.

The accused replied, “oui, oui, c’est fait” indicating that he understood the caution. 7. At 4:48 a.m. the applicant was taken to a room to perform the intoxilyzer breath test. 8. In the interview, the applicant was told on multiple occasions what three charges he was facing, and that he could contact his lawyer. 9. In the interview, the applicant was requested to provide a breath sample. He asked if he could refuse and the officer provided the applicant with a caution simpliciter that the accused may refuse to provide a breath sample but that the consequence will be an additional criminal charge.

The applicant refused to give the breath sample. 10. The applicant was informed that there he would now facing a new charge (a new jeopardy) and was given the opportunity to contact his lawyer. 11. The applicant was arrested for refusal to provide a breath sample as demanded and the officer informed the applicant of his right to counsel and provided him with primary and secondary caution. 12.

Eventually, the Crown proceeded by charging the applicant with criminal negligence causing death, impaired operation of a motor vehicle causing death and refusal to provide a breath sample where death was caused. [ 14 ] I note that before the applicant chose to refuse to provide a breath sample he had been arrested for impaired driving having caused death pursuant to s. 255(3) of the Code and received advice from his counsel of choice. The maximum penalty pursuant to s. 255(3) is life imprisonment – the same penalty or jeopardy as s. 255(3.2) of the Code . The Issue [ 15 ] Have the accused’s s. 10(

a) and s. 10(

b) rights under the Charter been violated?

The Applicant’s Position [16] Counsel for the applicant points out that the court cannot be certain what the accused understood he was refusing when herefused to give a breath sample. In this case, the set of circumstances in relation to the charges changed when the victim died. Once theapplicant was informed that the pedestrian had died, charges were varied to take that fact into consideration.

Just as a charge of assaultcan change into a charge of assault causing bodily harm, then to aggravated assault and then to manslaughter over the course of aninvestigation, in this case, as the facts changed (the death of the injured pedestrian), charges became more serious. Similarly, thejeopardy faced for a refusal to give a breath sample simpliciter that calls for a maximum of five years imprisonment is increased to apenalty of up to life imprisonment when the accident caused a death.

The applicant states that since the jeopardy for the “refusal toprovide a sample” offence changed when the victim died, the accused ought to have been informed of this fact so that he could exercisehis 10(

b) rights with the knowledge of what jeopardy he was facing. [17] The applicant’s counsel relies on R. v. Black, (SCC), [1989] 2 S.C.R. 138 at paras. 23, 24 and 25 whereWilson J. stated: 23 This Court has on numerous occasions stated that a purposive analysis must be undertaken when interpreting Charter provisions: seeHunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, and R. v. Big M Drug Mart Ltd., (SCC), [1985] 1S.C.R. 295. The Court held in Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, that s. 10(

b) was concerned withfostering the principles of adjudicative fairness. Quoting from p. 394: This constitutional provision is clearly unconcerned with the probative value of any evidence obtained by the police but rather, in thewords of Le Dain J. in Therens, supra, at pp. 641-42, its aim is "to ensure that in certain situations a person is made aware of the right tocounsel" where he or she is detained by the police in a situation which may give rise to a "significant legal consequence". 24 Moreover, s. 10(

b) should not be read in isolation. Its ambit must be considered in light of s. 10(a).

Section 10(

a) requires the policeto advise an individual who is arrested or detained of the reasons for such arrest or detention. The rights accruing to a person under s.10(

b) arise because he or she has been arrested or detained for a particular reason. An individual can only exercise his s. 10(

b) right in ameaningful way if he knows the extent of his jeopardy. … 26 The Crown argued that, despite the change in the charge, the preliminary legal advice which the appellant received might well havebeen unchanged. This may be so. On the other hand, given the differences in the charges as discussed above, to conclude that the advicewould inevitably have been the same is sheer conjecture. In my opinion, it is improper for a court to speculate about the type of legaladvice which would have been given had the accused actually succeeded in contacting counsel after the charge was changed.

If theCrown's argument on this point were sound, each time an accused was asked to blow into a breathalyzer there would be no need to advisethe accused of his s. 10(

b) rights since it might be assumed that counsel would advise the accused that he should submit to thebreathalyzer on the basis that failure to do so constitutes a criminal offence. Such reasoning runs directly afoul of this Court's judgmentsin R. v. Therens, (SCC), [1985] 1 S.C.R. 613, and Trask v. The Queen, (SCC), [1985] 1 S.C.R. 655. Italso totally defeats the purpose of s. 10(b). [Emphasis added.] [18] Two officers testified in the case at bar that they did not know the extent of the jeopardy in section 235(3.2) of the CriminalCode.

As a result, no meaningful consideration could be given to the accused’s rights.

Counsel for the applicant argues that once theaccused’s jeopardy for refusing to give a breath sample changed to life imprisonment, he had a right to be informed of such a change andspeak to his lawyer a second time. [19] Quoting para. 39 of the Black decision, counsel for the applicant argues that allowing the evidence of his client’s refusal inevidence would adversely affect the fairness of the trial by impinging the accused’s rights against self-incrimination, a right that wouldhave been protected had the accused spoken to his counsel.

Defence counsel relies on the Black case for the fact that the statement wasexcluded even though the police officers acted in good faith and he asserts that similarly, in the case at bar, the refusal statement shouldbe excluded. [20] The case of R. v. Borden, (SCC), [1994] 3 S.C.R. 145 involved sexual assault charges against the accused.

Paragraphs 42, 43 and 44 read as follows and are relied on by the applicant to have his statement refusing to provide a sample excluded: 42 This non-disclosure on the part of the police of their dual purpose in seizing the respondent's blood also forms the basis for the claimthat the s. 10(

a) and (

b) rights of the respondent were infringed. The appellant argued that the respondent's s. 10(

a) and (

b) rights werenot triggered in this appeal, in that he was never arrested or detained in relation to the October sexual assault. Rather, the entire time thathe was in the custody of the police, he was detained for the motel sexual assault. 43 This argument, however, contradicts the testimony of the police officers, who admitted that their predominant intention in taking a

sample of the respondent's blood was the investigation of the assault on the elderly woman by a comparison of the DNA in the bloodwith the DNA in the semen found on her blanket. As already mentioned, the taking of the blood represented both a consensual taking inrespect of the motel offence, and a seizure of it in respect of the October offence. Once matters reached a point at which the officerswere investigating two offences, the respondent was detained in relation to both of them, and had the right to be informed of this dualinvestigative intention. Therefore, I find that the right of the respondent under s. 10(

a) of the Charter to be informed of the reasons forhis detention was violated in this case. 44 As this Court has previously stated, the rights in s. 10(

a) and 10(

b) of the Charter are linked. One of the primary purposes ofrequiring the police to inform a person of the reasons for his or her detention is so that person may make an informed choice whether toexercise the right to counsel, and if so, to obtain sound advice based on an understanding of the extent of his or her jeopardy: R. v. Black, (SCC), [1989] 2 S.C.R. 138, at pp. 152-53; and R. v. Smith, (SCC), [1991] 1 S.C.R. 714, at p. 728.

Tothe credit of the police in this appeal, they were extremely fair in facilitating the exercise of the respondent's right to counsel in respect ofthe sexual assault for which he had been arrested. Obviously, the respondent ignored the advice of his lawyer not to tell the policeanything. [21] Counsel points out that the Supreme Court in para. 50 of the Borden decision state that the good faith of the police did notsave an admission that would render the trial unfair. [22] Counsel also relies on R. v.

Sawatsky, (ON CA), 35 O.R. (3d) 767, where Doherty J.A. dealt with thequestion of whether an infringement of a s. 10(

b) right was a technical obstacle only. In that case, the accused was charged in connectionwith an arson in Peterborough. The female accused told the police officers that she had set the fire to get even with her boyfriend andthat she also had set a fire in Kingston, Ontario two years earlier. The trial judge had rejected the argument that the accused’s s. 10(b)right should have been reinstated once the accused began to discuss a second fire. Doherty J. A. stated at paras. 23-26: 23 The right to counsel enshrined in s. 10(

b) of the Charter is a principle of fundamental justice and reflects a commitment to the fairtreatment of persons detained by the police even at the expense of investigative efficiency; R. v. Clarkson (1986),(SCC), 25 C.C.C. (3d) 207 at 217-18 (S.C.C.).

Section 10(

b) recognizes that persons detained by the police operate under a very realdisadvantage and must be able to seek the assistance of counsel in a timely fashion. 24 Chief Justice Lamer described the purpose of s. 10(

b) in these terms in R. v. Bartle (1994), (SCC), 92 C.C.C. (3d)289 at 300 (S.C.C.): The purpose of the right to counsel guaranteed by s. 10(

b) of the Charter is to provide detainees with an opportunity to be informed oftheir rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfill thoseobligations: [citations omitted]. This opportunity is made available because, when an individual is detained by the state authorities, he orshe is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this personmay be at risk of incriminating him or herself.

Accordingly, a person who is “detained” within the meaning of s. 10 of the Charter is inimmediate 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 herliberty: … [Emphasis added.] 25 The noble purposes underlying s. 10(

b) identified by the Chief Justice must animate any consideration of its application to a givenfact situation. A s. 10(

b) claim cannot be approached as if it were an attempt to place a technical obstacle in the way of effective lawenforcement. 26

Section 10(

b) places certain obligations on the police. Foremost among these is the duty to tell a detained person without delay thatshe has a right to speak with a lawyer. This obligation is imposed on the police s a detained person can decide whether to exercise herright to counsel before any further interaction with the police: R. v. Bartle, supra, at pp. 301-302.

To make the exercise of the right tocounsel meaningful, the detained person must be in a position to make an informed decision as to whether to seek counsel’s assistance.To do so, the detained person must at least know why she is detained and why the police wish to question her or involve her in someother investigative process: R. v. Borden, supra, at p. 419; R. v. Young (1992), (ON CA), 73 C.C.C. (3d) 289 at 297(Ont. C.A.). [23] Counsel for the applicant also relies on the decision of R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R.310 to support theproposition that where a detainee has been given his s. 10(

b) rights at the outset of an investigation he has the constitutional right tofurther consultations with counsel during the course of the investigation when there is a change in the jeopardy he is facing. McLachlinC.J. and Charron J. state at para. 2: 2 We conclude that s. 10(

b) does not mandate the presence of defence counsel throughout a custodial interrogation. We further conclude

that in most cases, an initial warning, coupled with a reasonable opportunity to consult when the detainee invokes the right, satisfies s.10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in thecourse of the investigation make this necessary to serve the purpose underlying s. 10(

b) of providing the detainee with legal advicerelevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognitionof the right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee; achange in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient. The categories are notclosed. [24] The Justices in the Sinclair case also address the situation where more than one consultation is needed at paras. 47, 48, 51 and52: 47

Section 10(

b) should be interpreted in a way that fully respects its purpose of supporting the detainee’s s. 7 right to choose whether ornot to cooperate with the police investigation. Normally, this purpose is achieved by a single consultation at the time of detention orshortly thereafter. This gives the detainee the information he needs to make a meaningful choice as to whether to cooperate with theinvestigation or decline to do so.

However, as the cases illustrate, sometimes developments occur which require a second consultation, inorder to allow the accused to get the advice he needs to exercise his right to choose in the new situation. 48 The general idea that underlies the cases where the Court has upheld a second right to consult with counsel is that changedcircumstances suggest that reconsultation is necessary in order for the detainee to have the information relevant to choosing whether tocooperate with the police investigation or not.

The concern is that in the new or newly revealed circumstances, the initial advice may nolonger be adequate. … 51 The detainee is advised upon detention of the reasons for the detention: s. 10(a). The s. 10(

b) advice and opportunity to consultcounsel follows this. The advice given will be tailored to the situation as the detainee and his lawyer then understand it. If theinvestigation takes a new and more serious turn as events unfold, that advice may no longer be adequate to the actual situation, orjeopardy, the detainee faces. In order to fulfill the purpose of s. 10(b), the detainee must be given a further opportunity to consult withcounsel and obtain advice on the new situation.

See Evans and Black. 52 If events indicate that a detainee who has waived his right to counsel may not have understood his right, the police should reiteratehis right to consult counsel, to ensure that the purpose of s. 10(

b) is fulfilled: Prosper. More broadly, this may be taken to suggest thatcircumstances indicating that the detainee may not have understood the initial s. 10(

b) advice of his right to counsel impose on the policea duty to give him a further opportunity to talk to a lawyer. Similarly, if the police undermine the legal advice that the detainee hasreceived, this may have the effect of distorting or nullifying it. This undercuts the purpose of s. 10(b). In order to counteract this effect, ithas been found necessary to give the detainee a further right to consult counsel. See Burlingham. The Crown’s Position [25] The Crown argues that the applicant was informed of his s. 10(

b) Charter Rights without delay. Further, the accused’srefusal to give a breath sample is admissible as there was no change in jeopardy nor was there a duty upon Constable Launen to informthe accused of the sentencing consequences of a refusal to provide a breath sample. [26] In his factum Crown counsel set out the jurisprudence on the basic refusal to give a breath sample as follows: • R. v. Danychuk, 70 O.R. No. 615 at paras. 19 and 21 (C.

A) supports the proposition that there are no provisions in the CriminalCode or at common law that places a duty on a police officer to explain to a detainee the process and consequences of his failure tocomply to a demand for a breath sample; • R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 at para. 45 establishes that persons to whom demands to give breath samples aremade must comply immediately and not later at a time of their choosing when they have decided to stop refusing. • R. v.

Rivera, 2011 ONCA 225, 104 O.R. (3d) 561 at para. 50 stand for the proposition that where statements of an accusedconstitute the gravamen or foundation of the offence, such statements are admissible without the need for a voir dire to establishvoluntariness. [27] Crown counsel relies on the decision in R. v. Smith, (SCC), [1991] 1 S.C.R. 714 for the fact that an accusedcan validly waived their right to counsel if he or she understood the sort of jeopardy they faced when they made the decision to dispensewith counsel or as in the present case to receive legal advice.

[28] In Smith, the accused was arrested for a “shooting incident” at which time Charter rights were extended to him. During theensuing interview with the police, the interviewing officer learned that the victim had died and that the accused would be facing amurder charge. The officer neglected to inform the accused of this change or renew the Charter rights reflecting the new circumstances. The Supreme Court concluded that the accused’s rights were not violated since he understood generally the situation he was in andcould have appreciated the consequences of deciding for or against counsel.

McLachlin J. (as she then was) stated the following atparas. 27 and 28: 27 It has never been suggested, however, that full information is required for a valid waiver. Indeed, if this were the case, waiverswould seldom be valid, since the police typically do not know the whole story when the accused is arrested. Nor is the failure of thepolice to precisely identify the charge faced in the words of the Criminal Code necessarily fatal. In the initial stages of an investigationthe police themselves may not know the precise offence with which the accused will be charged.

Moreover, the words of the Code maybe less helpful to a lay person than more common parlance in communicating the extent of jeopardy. Finally, the degree of awarenesswhich the accused may be reasonably assumed to possess in all the circumstances may play a role in determining whether what thepolice said was sufficient to bring home to him the extent of his jeopardy and the consequences of declining his right to counsel. 28 The question reduces to this: in this case was the accused possessed of sufficient information to make his waiver of counsel valid?

Tomy mind, to establish a valid waiver of the right to counsel the trial judge must be satisfied that in all the circumstances revealed by theevidence the accused generally understood the sort of jeopardy he faced when he or she made the decision to dispense with counsel. Theaccused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. Whatis required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether tospeak to a lawyer or not.

The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused,rather than on technical detail of what the accused may or may not have been told. [29] Crown counsel points out that in this case, the applicant never failed to appreciate the seriousness of the situation he faced onthe day of his arrest.

He knew he had been driving after consuming many alcoholic drinks, that the victim in his words was lying on thepavement like “a ragdoll”, he had witnessed the emergency personnel at the accident scene, he was informed that the victim had died, hewas re-arrested on an impaired driving charge causing death, a driving over .08 charge causing death and a breath sample demand wasmade; all this happened before the accused entered the telephone booth at the police station to speak with the lawyer of his choice. [30] The British Columbia Court of Appeal interpreted R. v. Smith in R. v.

Shaw (1995), (BC CA), 68 B.C.A.C.314 at para. 8 and held that a second Charter warning is not required if the accused understood the sort of jeopardy he or she faced whenhe or she made the decision to dispense with receiving legal advice. [31] Crown counsel argues on the authority of R. v. Schmautz, (SCC), [1990] 1 S.C.R. 398 at paras. 26 and 28that a new right to counsel arises only when the extent of the legal jeopardy changes significantly.

The Crown argues that in this case,the extent of jeopardy did not change as before the applicant spoke with his lawyer, he was facing penalties of up to life imprisonmentfor impaired driving causing death and driving with an alcohol content in his blood of over .80 causing death which also calls for apenalty of up to life imprisonment. [32] In R. v.

Evans, (SCC), [1991] 1 S.C.R. 869 at para. 48, Sopinka J. explained that there has to be a discretechange in the investigation involving a different unrelated offence than that contemplated at the time of the warning to cause the police togive the accused a right to counsel anew. Sopinka J. stated: 48 I should not be taken as suggesting that the police, in the course of an exploratory investigation, must reiterate the right to counselevery time that the investigation touches on a different offence.

I do, however, affirm that in order to comply with the first of the threeduties set out above, the police must restate the accused's right to counsel when there is a fundamental and discrete change in the purposeof the investigation, one involving a different and unrelated offence or a significantly more serious offence than that contemplated at thetime of the warning. [Emphasis added.] [33] The New Brunswick Court of Appeal interpreted the Supreme Court’s decision in Smith when it decided R. v. O’Donnell(1991), (NB CA), 118 N.B.R. (2d) 91 (C.A.).

Angers J. stated at para. 12: Corporal Theriault, when he gave the demand, could not anticipate the precise charge. He was not, in my opinion, obliged to tell Mr.O’Donnell either the maximum sentences or the range of sentences imposed for the charges, all of which involve the consumption ofalcohol while driving, that could result from this incident. In my view, jeopardy means more than simply knowing the maximum orlikely penalties a person is facing. It includes, as McLachlin, J. points out, that person’s general awareness of the situation he faces.[Emphasis added.] [34] In R. v.

O’Donnell, the accused was involved in a motor vehicle accident in which a child was seriously injured. The accusedwas told that the police were investigating an offence under s. 253 of the Criminal Code, a breathalyzer demand was made and theaccused was given his Charter rights. However, between the taking of the first and second breath samples the child died. The accusedwas not informed and the next breath sample was taken. Ultimately, the conviction for impaired driving causing death was upheld on the

grounds that the police officer was not obliged to anticipate the precise charge that the accused would face nor was he required to inform the accused of the range of sentences applicable to each of the possible charges. An application for leave to appeal was dismissed by the Supreme Court of Canada: [1991] S.C.C.A. No. 335. [ 35 ] Crown counsel concludes that in this case Constable Launen was not required to advise the accused of the consequences of his failure to provide a breath sample. The actus reus of the offence was made out at the time of the refusal.

The applicant was already facing charges which carried maximum terms of life imprisonment. There was no change in jeopardy notwithstanding what the officer did or did not know about the penalty that a charge under 255(3.2) carried. There was no reason or obligation for the officer to inform the accused about an increased penalty associated with the failure to provide a breath sample where the accident resulted in a death. Therefore there was no breach of s. 10(

a) or (

b) of the Charter . Decision [ 36 ] There is nothing in s. 255(3.2) of the Criminal Code that states an accused must be cautioned about the penalty associated with the charge and given an opportunity to consult with his counsel prior to indicating to a breathalyzer technician a refusal to give a breath sample. There are no precedents in the jurisprudence that establish such a right. [ 37 ] It is significant that just prior to taking the accused to the breathalyzer room, the accused was offered the right to speak to counsel. The accused spoke to an experienced counsel for over 15 minutes.

While I cannot speculate what was exchanged between counsel and his client, I am mindful that the accused knew of the dire straits that he was in. [ 38 ] The circumstances facing the accused could not have been more serious. He had driven after drinking alcoholic beverages, had registered a fail on the roadside test at the scene of the accident and he knew that the pedestrian he hit had died. He had also been read an intoxilyzer demand and caution at the police station prior to speaking with his lawyer. [ 39 ] Once the accused refused to give a breath sample, the actus reus of the offence was made out.

This finding allows me to dispose of the voluntariness argument advanced by the applicant. As explained by the Court of Appeal in R. v. Rivera , although the voluntariness of statements made by an accused to a person in authority must normally be proven by the Crown, in a case where the words of refusal constitute the actus reus of the offence charged, it is not necessary to establish on a voir dire the voluntariness of the accused’s statement: at para. 101. [ 40 ] The applicant has the onus to establish on a balance of probabilities that his s. 10(

a) and (

b) rights were breached, he has failed to do so. Although a new charge was added after the applicant refused to provide a breath sample, the jeopardy faced by the applicant did not change. As explained by the court in R. v. O’Donnell at para. 12 , jeopardy means more than simply knowing the maximum or likely penalties a person is facing it includes the person’s general awareness of the situation he faces. Here, as was the case in O’Donnell , all of the charges arose from the same events that the applicant had full knowledge of.

The applicant knew he faced three charges in relation to an accident he caused that resulted in the death of the victim. Two of these charges made him liable to life imprisonment. The applicant also had notice that an intoxilyzer demand would be made by virtue of the warning he received when he arrived at the police station. He therefore did appreciate the jeopardy he was in and as such, the police did not have to re-caution the accused prior to his refusal to provide a sample of his breath. [ 41 ] I also rely on Justice Sopinka’s explanation in R. v.

Evans at para. 48 that an accused is only entitled to be re-informed of their right to counsel when there is a discrete change in the purpose of the investigation. There was no such change in this case. When the intoxilyzer demand in question was made, the purpose of the police investigation had not changed from that contemplated when the applicant was given an opportunity to speak to his lawyer. [ 42 ] With regard to the authorities relied on by the applicant, I find that read as a whole, these cases are only helpful for outlining the fundamental link between an accused’s s.10(

a) and (

b) rights. On that point, I agree with counsel that a purposive approach must be taken when interpreting these rights and an accused cannot meaningfully exercise his or her right to counsel without adequate disclosure of the nature and purpose of the police investigation and an appreciation of the scope of the jeopardy they face.

These fundamental principles are not undermined by the fact that an accused is only entitled to be re-cautioned when there is a fundamental change in the nature or scope of the investigation. [ 43 ] For the above reasons, I dismiss the accused’s application as I find that the accused was not under a new jeopardy and he was not facing a new, unrelated offence, as discussed in the case law submitted by the Crown. Lalonde J. Released: October 30, 2013 CITATION : R. v. Morin-Leblanc, 2013 ONSC 6558

COURT FILE NO.: 11-11845 DATE: 2013/10/30 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Applicant – and – MAXIME MORIN-LEBLANC Respondent DECISION ON CHARTER ISSUES Lalonde J. Released: October 30, 2013