R v Cullen, 2015 SKCA 142

Court of Appeal for Saskatchewan Docket: CACR2559 Citation: R v Cullen , 2015 SKCA 142 Date: 2015-10-23 Between: Ryan Gordon William Cullen Appellant And Her Majesty the Queen Respondent Before: Jackson, Ottenbreit and Ryan-Froslie JJ.A. Disposition: Leave to appeal granted, appeal allowed, acquittal restored (orally) Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Madam Justice Ryan-Froslie On Appeal From: 2014 SKQB 422 , Regina Heard: 23 October 2015 Counsel: Paul Wood for the Appellant Bev Klatt for the Respondent Jackson J.A. I. INTRODUCTION [ 1 ] This appeal concerns the right to counsel under s. 10(

b) of the Charter in the context of an arrest for impaired driving and driving in excess of the legal blood alcohol limit. [ 2 ] On March 4, 2014, the learned trial judge acquitted Ryan Cullen and excluded the certificate of analysis that would have led to his conviction on the basis his right to counsel had been infringed ( R v Cullen , [2014] SJ No 782 (QL) (Sask PC) [ Trial Decision ] ). The Crown appealed to the

summary conviction appeal court. [ 3 ] The learned

summary conviction appeal judge took a different view of the law and the evidence than the trial judge did. The

summary conviction appeal judge found Mr. Cullen’s s. 10(

b) rights had not been infringed ( R v Cullen , 2014 SKQB 422 [ QB Decision ]). He set aside Mr. Cullen’s acquittal and entered a conviction. Mr. Cullen appeals to this Court. [ 4 ] As often happens, the appeal comes to us in a more refined state than what was presented to the

summary conviction appeal court. In essence, this appeal turns on whether the

summary conviction appeal judge committed a reversible error of law with respect to his assessment of the trial judge’s reasons and evidence. It is significant to the resolution of this issue that the trier of fact did not have to rely upon oral testimony alone. The arresting officer had electronically recorded all of his interactions with Mr. Cullen. These electronic recordings form part of the record (Exhibit P-2: In-Car Video (In-Car Video) and Exhibit P-3: DVD Video File #2130 (DVD Video)). [ 5 ] When this Court heard Mr. Cullen’s appeal, we determined that the

summary conviction appeal judge erred with respect to his assessment of the trial judge’s reasons and the evidence and we restored Mr. Cullen’s acquittal. These are our written reasons for doing so. II. BACKGROUND AND THE TRIAL JUDGE’S REASONS [ 6 ] At approximately midnight on February 16, 2013, Cst. Simons stopped a vehicle that was being driven without functioning taillights. Cst. Simons smelled alcohol coming from the vehicle. He administered a road side test with an ASD, which Mr. Cullen failed. Cst. Simons arrested Mr.

Cullen for being over .08, demanded that he provide a breath sample, and read him his rights from the standard card the officer kept in his cruiser. [ 7 ] There are two electronic recordings: one covering the initial stop on a street in Regina (In-Car Video), and a second covering what transpired at the Regina Police Service (DVD Video). Part of the In-Car Video records the conversation between Cst. Simons and Mr. Cullen at the point when the latter asks for an explanation as to what is happening. As the trial judge notes, Mr. Cullen appears nervous and confused and Cst.

Simons does not clearly answer his questions: [ 8 ] … And Constable Simons gives a rather poor explanation of the difference between the ASD and the other subsequent test. And he also gives an explanation of the results of the refusal -- of a refusal to comply. And his explanation in both instances is not particularly clear. The accused asks further following questions, which underscore the fact that the officer’s explanations were not particularly clear, and were, in fact confusing.

The end result was that the warning regarding the consequences of refusal was not very well done , but nothing turns on that, except that it is another example, or an example of an instance where Constable Simons’ explanations are not very clear.

[ 9 ] In the video in the car, then there is a recitation of the right to counsel, which involves a reference to Legal Aid. Constable Simons then tells the accused that he is to accompany him to the station, Regina Police Service, for tests. At this point, a more detailed discussion occurs regarding access to a lawyer. Constable Simons asks if he wants to call a lawyer, and the accused says he does not have a lawyer.

Constable Simons does say he can call any lawyer, but he mentions that -- but the way that Constable Simons discusses it, does put some pressure on the accused to make a decision as to call a lawyer at the scene of the investigation, even though there is no immediate ability to exercise that right. The accused says that he is nervous and it’s apparent that he is confused about the situation . [ 10 ] At one point in the car, the accused is confused and asks for advice, but the Constable declines to give advice, and tells him he needs a yes or no answer.

Then the constable goes ahead and gives a right to remain silent . (Emphasis added, Trial Decision ) [8] The DVD Video records the interactions between Mr. Cullen and Cst. Simons at the Regina Police Service. Again, the trial judge finds the police officer did not clearly explain the options to Mr. Cullen: [13] The accused says again, that he has no lawyer in that situation, and the constable then says that he can call Legal Aid, and they are available 24 hours a day.

The accused says, “I guess so”, and it’s obvious he has no great enthusiasm for Legal Aid, or doesn’t understand really what Legal Aid is versus calling another lawyer. At no time, does the constable make any clear explanation, such as Legal Aid is a publicly funded service. They will talk to you anytime but there are other lawyers who may answer, even at times outside ordinary business hours . … [15] Just before the breath test is to be given, the breath technician, another constable, came out and raises the question of calling a lawyer. And the accused, again said, he had no one to call.

Constable Simons, in his evidence, said it was determined that the accused would call Legal Aid. The actual video doesn’t make such a determination particularly clear, but in fact, Legal Aid was called. And it became apparent, in the evidence of Constable Simons, that no telephone book was made available, but the yellow pages for the legal profession were laminated and taped to the wall.

There is no suggestion that these were actually pointed out to the accused, and I think it is possible that under the circumstances, a person might not take note of that, and might simply be regarded as something posted in an unfamiliar surrounding that they really haven’t taken the trouble to walk up to and read. It wouldn’t be something that could be read at a distance in larger print. (Emphasis added) [9] At his trial, Mr. Cullen testified he was confused about the situation. In considering Mr.

Cullen’s demeanour on the DVD Video and on the stand, the trial judge referred to him as not presenting himself as being a person of particular sophistication. He also makes a specific finding that Mr. Cullen did not present as being deliberately obtuse or obstructionist: [19] Mr. Cullen, on the witness stand, did not present himself as a person of particular sophistication with respect to the use of lawyers or police procedures. He did not present himself as being deliberately obtuse or obstructionist in the video.

I think he was confused, he didn’t know what his options were. (Bold emphasis in original) [10] From this, the trial judge made what we find are the critical findings: (i) “at no point, was there anything said [to Mr. Cullen] that would suggest that it was an option to try calling any [other] lawyers” (at para 17); and (ii) “Mr.

Cullen was being reasonable and diligent in wanting to call a lawyer, but it was presented to him that Legal Aid was the only real option available to him” (at para 19). [ 11 ] The trial judge then reviewed R v Willier , 2010 SCC 37 , [2010] 2 SCR 429 [ Willier ] and R v McCrimmon , 2010 SCC 36 , [2010] 2 SCR 402 [ McCrimmon ]. He concluded that Mr. Cullen had not been informed of his right to counsel in accordance with those decisions. Given the fundamental nature of the right to counsel, the trial judge held that the only reasonable remedy was to exclude the certificate of analysis and to acquit Mr. Cullen.

The Crown appealed to the

summary conviction appeal court. III.

SUMMARY CONVICTION APPEAL JUDGE’S REASONS [ 12 ] The

summary conviction appeal judge reviewed what he believed were the essential aspects of the trial judge’s reasons by highlighting passages from the transcript of the trial judge’s reasons (later published as the Trial Decision ): [17] At p. 5, lines 17–21 [at para 7] of the Decision the trial judge, commenting upon the audio tape of the events that occurred in the police cruiser when Mr.

Cullen was first stopped, concluded: … The accused’s conversation responses show him as calm and quite clear throughout, not only that evening, but that similar manner was reflected in his evidence in court. … [18] At p. 6, lines 15–26 and p. 7, lines 1–5 of the Decision [at para 9] the trial judge concluded as follows: In the video in the car, then there is a recitation of the right to counsel, which involves a reference to Legal Aid. Constable Simons then tells the accused that he is to be accompanying him, and will be accompanying him to the station, Regina Police Service, for tests.

At this point, a more detailed discussion occurs regarding access to a lawyer. Constable Simons asks if he wants to call a lawyer, and the accused says he does not have a lawyer. Constable Simons does say he can call any lawyer , but he mentions that --- but the way that Constable Simons discusses it, does put some pressure on the accused to make a decision as to calling a lawyer at the scene of the

investigation, even though there is no immediate ability to exercise that right. Mr. Cullen says that he is nervous and it’s apparent that he is confused about the situation. [Bold emphasis added in the QB Decision ] [19] After recounting the initial events that occurred when Cst. Simons and Mr.

Cullen arrived at the police station, including “… some further talk about … calling a lawyer”, the trial judge comments at p. 8, lines 20–26 and p. 9, lines 1–5 of the Decision [at para 13]: The accused says again, that he has no lawyer in that situation, and the constable then says he can call Legal Aid, and they are available 24 hours a day. The accused says, “I guess so”, and it’s obvious he has no great enthusiasm for Legal Aid, or doesn’t understand really what Legal Aid is versus calling another lawyer.

At no time, does the constable make any clear explanation, such as Legal Aid is a publically funded service. They will talk to you at any time, but there are other lawyers who may answer, even at times outside ordinary business hours. [20] The trial judge then observes at pps. 9 and 10 [at para 15] of the Decision “… that no telephone book was made available, but the Yellow Pages for the legal profession were laminated and taped to the wall” (a reference to the wall of the secure telephone room).

He concludes in that regard at p. 10, lines 2–9 [at para 15] of the Decision: … There is no suggestion that these were actually pointed out to Mr. Cullen, and I think it is possible that under the circumstances, a person might not take note of that, and might simply regard it as something posted in an unfamiliar surrounding that they really haven’t taken the trouble to walk up to and read.

It wouldn’t be something that could be read at a distance in large print. [21] The learned trial judge goes on to observe at p. 10, lines 10–22; p. 11, lines 1–5 and lines 9–11 and p. 12, lines 13–23 [at paras 16– 18]: In any event, in cross examination, Constable Simons went over again, the issue of contacting counsel. And it is apparent that the accused was confused as to what rights he had to call a lawyer. He does not appear to understand what Legal Aid Service really is, or what other options would be apparent or available. Constable Simons at one point, says “Ryan, do you want to call Legal Aid?

It’s free and open 24 hours”. I believe it’s quite possible that a person in this relatively uncomfortable situation would have the impression that the only viable option is to exercise a call to Legal Aid. … … I’ve noted that, at no point, was there anything said that would suggest it was an option to try calling other lawyers. …Legal Aid was called, he did talk to someone.

I believe this option was presented as the only viable option. … … … And it may well be a factor in considering these options, that exercising the right to call multiple lawyers over – in circumstances where a person has no already established connection to a lawyer, could be challenging.

I do not know what, precisely, was going on in Constable Simons’ mind, but his presentation of this situation was, in my opinion, as the defence has argued, a situation where they were presenting Legal Aid as the most reasonable and only viable option to pursue. [22] The trial judge concluded, in part, as follows at pps. 13, 14 and 15 of … his Decision [at paras 19–23]: …But it seems to me, and I make this finding, that Mr.

Cullen was being reasonable and diligent in wanting to call a lawyer, but it was presented to him that Legal Aid was the only real option available to him. [p. 13, lines 10–14 of the Decision] … … But in this case, I find that Mr. Cullen was asking questions. He was obviously confused, and he did eventually call a lawyer, but I do not believe that lawyer was his lawyer of choice. [p. 13, lines 23–26; p. 14, line 1 of the Decision] I believe that Mr.

Cullen exercised due diligence in making contact with counsel, and it may be that the advice he received there was as good as he could have gotten from other sources on the telephone in the middle of the night. But at the same time, his right to counsel of choice was not given to him. And that is a fundamental right which has been established, and, as result, I conclude that the only reasonable remedy for that breach of that right is to exclude the certificate of analysis…. [p. 14, lines 23–26; p. 15, lines1–7 of the Decision] ( QB Decision ) [ 13 ] Like the trial judge, the

summary conviction appeal judge relied on Willier and McCrimmon , as well as R v Edgington , 2010 SKQB 381 , 367 Sask R 44 [ Edgington ] and R v Rice , 2011 SKQB 412 , 386 Sask R 69 [ Rice ]. He found that the latter two decisions involve factual circumstances very similar to the case before him ( QB Decision at para 24). [ 14 ] Applying these decisions, the

summary conviction appeal judge concluded his reasons in this way: [31] I find and conclude that the decisions of this Court in Edgington and Rice informed, as both were, by an analysis of the Supreme Court’s decisions in Willier and McCrimmon apply fully to the disposition of the appeal presently before the court. I find and conclude, with the greatest respect to the trial judge, that in the facts and circumstances of this case, upon application of the aforesaid legal case

authorities which the trial judge had referred to him, it was an error in law for him to conclude, as he did, that Mr. Cullen’s s. 10(b)Charter rights were violated. Such a conclusion was contrary to the authorities and it represents an unreasonable verdict. (Emphasis added) IV. ANALYSIS A. Did the

summary conviction appeal judge err by not upholding the trialjudge’s finding of a breach of s. 10(b)? 1. Does this appeal deal with questions of law for which leave should be granted? [15] Mr. Cullen brings his appeal to this Court and applies for leave to do so under s. 839(1) of the Criminal Code: Appeal on question of law 839(1) Subject to subsection (1.1), an appeal to the court of appeal as defined in

section 673 may, with leave of that court or a judgethereof, be taken on any ground that involves a question of law alone, against (

a) a decision of a court in respect of an appeal under

section 822; or (

b) a decision of an appeal court under

section 834, except where that court is the court of appeal. [16] In our view, this appeal raises two questions: (

i) did the

summary conviction appeal judge err by substituting his view of thefacts for that of the trial judge without finding a palpable or overriding error of fact; and (ii) if not, did the

summary conviction appealjudge err by finding that Mr. Cullen’s s. 10(

b) rights had not been infringed. The preliminary issue that must be addressed is whetherthese questions are questions of law within the purview of s. 839(1) of the Criminal Code. We found these to be questions of law, forwhich leave should be granted. [17] The first question concerns the Crown’s right of appeal and the powers of the

summary conviction appeal court. Section813(b)(

i) of the Criminal Code grants the Crown a right of appeal from an order dismissing an information in

summary convictionmatters: Appeal by defendant, informant or Attorney General 813 Except where otherwise provided by law … (

b) the informant, the Attorney General or his agent in proceedings under this Part may appeal to the appeal court (

i) from an order that stays proceedings on an information or dismisses an information …. [18] As to the powers of a

summary conviction appeal court, s. 822(1) of the Criminal Code makes ss. 683 to 689 applicable withcertain exceptions: Certain sections applicable to appeals 822(1) Where an appeal is taken under

section 813 in respect of any conviction, acquittal, sentence, verdict or order, sections 683 to 689,with the exception of subsections 683(3) and 686(5), apply, with such modifications as the circumstances require. Of the applicable sections, s. 686(4) is of note: Appeal from acquittal 686(4) If an appeal is from an acquittal or verdict that the appellant or respondent was unfit to stand trial or not criminally responsible onaccount of mental disorder, the court of appeal may (

a) dismiss the appeal; or (

b) allow the appeal, set aside the verdict and (

i) order a new trial, or (ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which,in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remitthe matter to the trial court and direct the trial court to impose a sentence that is warranted in law. [19] Unlike with respect to the Crown’s right of appeal from an acquittal in indictable matters—which is limited to questions oflaw—the Crown is not limited by s. 813(b)(

i) to an appeal on a question of law alone, but may appeal on a question of fact: R v Andres(1982), (SK CA), 1 Sask R 96 (CA) at para 8 [Andres]. Even though the Crown may appeal on a question of fact, it isan error of law to take a different view of the evidence (Andres at para 9) in the absence of a finding of palpable and overriding error offact: see H.L. v Canada (Attorney General), 2005 SCC 25 at paras 55–56, [2005] 1 SCR 401 [H.L.] and R v O’Connor, 2015 SKCA 9 atpara 2, 451 Sask R 240. It is also an error of law to misconstrue a trial judge’s reasons: R v McCullagh, (ON CA),[1993] 53 CCC (3d) 130 (Ont CA) at 132. [20] It is noted that the

summary conviction appeal judge also refers to the trial judge’s conclusion as representing an unreasonableverdict. Since the verdict in this case was an acquittal, the

summary conviction appeal judge’s reasons on this particular point could also

give rise to a further question of law, notably, whether a

summary conviction appeal court has the power to set aside an acquittal on the basis it is unreasonable (see R v Paice , 2005 SCC 22 at para 21 , [2005] 1 SCR 339). However, we have interpreted this aspect of the

summary conviction appeal judge’s reasons as not being essential to his reasoning process and, therefore, have left the resolution of that issue for another day. [ 21 ] With respect to the second issue, it is settled law in this jurisdiction that whether an accused has been properly afforded his or her s. 10(

b) rights is also a question of law: R v Basko , 2007 SKCA 111 at para 32 , 304 Sask R 108 and R v Ramos , 2011 SKCA 63 at para 19 , 371 Sask R 308. 2. Did the

summary conviction appeal judge err by substituting his view of the facts for that of the trial judge without finding a palpable or overriding error of fact? [ 22 ] In our respectful view, the

summary conviction appeal judge fell into error either by not accepting some of the critical facts as found by the trial judge and then substituting his view of the evidence for that of the trial judge or by misconstruing the trial judge’s reasons. It is clearly open to a judge hearing a

summary conviction appeal to set aside a finding of fact, but, in order to do so, the

summary conviction appeal judge must be prepared to find a palpable and overriding error of fact ( H.L. at paras 55–56 ). In this case, the appeal judge did not make such a finding, and, in our opinion, it is not possible in this case to do so. [ 23 ] The trial judge made these findings of fact with respect to the comportment and the understanding of Mr. Cullen during his interactions with the police on the night of February 16, 2013: (

a) it was apparent Mr. Cullen was confused as to his rights when he was with the officer in the latter’s vehicle ( Trial Decision at paras 9 and 10) and at the police station (at para 17); (

b) Mr. Cullen did not present himself as a person of particular sophistication with respect to the use of lawyers or police procedures (at para 14); and (

c) Mr. Cullen was not indifferent or careless in exercising his right to counsel (at para 20). [ 24 ] It is those findings of fact that underscore the trial judge’s ultimate conclusions: (

a) Mr. Cullen was asking questions and asking for advice (at paras 9, 10, and 20); (

b) at no point was anything said that would suggest that it was an option to try calling other lawyers (at para 17); (

c) it was presented to Mr. Cullen that Legal Aid was the only real option available to him (at para 19); and (

d) the lawyer that he called was not his lawyer of choice (at para 20). [ 25 ] As the

summary conviction appeal judge noted, the trial judge did say “Mr. Cullen’s conversation responses show him as calm and quite clear throughout, not only that evening, but that similar manner was reflected in his evidence in court” (at para 7). This is said, however, immediately before the trial judge states, “There is no evidence of impairment that is observable from the video,” which is part of a long narrative leading to his conclusions recounted above, and, in particular, to lend credence to his finding that Mr.

Cullen did not present as being deliberately obtuse or indifferent or careless about exercising his right to counsel. [ 26 ] The trial judge’s findings rest on the credibility of Mr. Cullen and the arresting officer, and on the trial judge’s

interpretation of the video evidence. Having reviewed the two electronic files, this Court is of the view that they clearly support all of the trial judge’s findings. None of what is shown on the electronic recordings is undermined by the police officer or Mr. Cullen’s testimony. Indeed, their testimony confirms the trial judge’s findings. [ 27 ] Mr. Cullen repeatedly asked for clarification in a genuine attempt to understand why, having blown into the ASD, he must also be taken to the police station to blow again. When Mr.

Cullen asked for advice, the police officer insisted on a yes or no answer as to whether he wanted to call a lawyer in circumstances where it was obvious a lawyer could not be contacted. At the police station, none of this was rectified, as the trial judge noted: [12] There was some delay before the tests could be given, and the accused is shown sitting on this bench, and there is small talk, as well as some further talk about calling a police officer -- calling a lawyer.

The officer and the accused are, as I say, waiting in this hallway, and it is not a situation which would cause a person to tarry there very long. And indeed, I think the situation is one which would add some impetus to get this whole process over with in some degree of efficiency and dispatch. [ 28 ] In considering this aspect of this appeal, we cannot overstate the significance of the recorded evidence and the extent to which it supports the trial judge’s findings regarding what the police did and said and how Mr. Cullen comported himself, both in the vehicle and at the police station. 3. Did the

summary conviction appeal judge err by finding that Mr. Cullen’s s. 10(

b) rights had not been infringed? [ 29 ] The Crown’s position on appeal is that even if the Court were to find error on the part of the

summary conviction appeal judge, his result is correct and his decision should be sustained on that basis. As I have indicated, whether an accused has been properly

afforded his or her s. 10(

b) rights is a question of law. Thus, the issue raised by the Crown is an appropriate issue for this Court to consider under s. 839 of the Criminal Code . [ 30 ] In support of her position, Crown counsel sought to rely upon the same authorities as the

summary conviction appeal judge: McCrimmon , Willier , Edgington and Rice —all of which, in our opinion, are distinguishable from the facts of this case. [ 31 ] In McCrimmon , unlike in the case before us, the accused understood that calling a private lawyer was possible. While there were several s. 10(

b) issues in McCrimmon , the one that only tangentially concerns us is whether s. 10(

b) had been breached because of a lack of effort on the part of the police officer in McCrimmon when she made no attempt to find the home number of the lawyer after there had been no answer at the lawyer’s office number. The accused eventually spoke with a Legal Aid lawyer and indicated he was satisfied with the legal advice he received (at para 7). The Supreme Court of Canada held that where counsel of choice is not immediately available, there will be no breach of s. 10(

b) where the accused exercises the right through speaking to Legal Aid counsel, expresses satisfaction with the advice received and is aware of his or her rights (at para 19). [ 32 ] In Willier , the accused was arrested for murder. He briefly spoke to Legal Aid. The next day, he tried to call his counsel of choice. A message was left on the answering machine. The accused said he would like to wait and hear back from his lawyer. The officer told him it was unlikely the lawyer would call back before the office opened the next day, and reminded the accused of the availability of Legal Aid.

The accused spoke with Legal Aid again and indicated he was satisfied with the advice he had received (at paras 10–12). The accused gave a statement to police without asking to speak to counsel again (at para 12). The Supreme Court of Canada held that simply reminding someone of the availability of Legal Aid and having it suggested that counsel of choice would likely only call back during office hours is not a violation of s. 10( b ) (paras 42, 43).

The majority in Willier also makes it clear that the police are entitled to assume a detainee is satisfied with the exercised right to counsel unless the detainee, diligently and reasonably, indicates that the advice he or she has received is inadequate. [ 33 ] The trial decision in Edgington was released before McCrimmon and Willier , which means the trial judge in Edgington did not have the benefit of the reasoning in those decisions. By the time Edgington was heard in the Court of Queen’s Bench, counsel for the Crown and defence were able to make arguments in relation to McCrimmon and Willier . While Mr.

Edgington contested what had happened regarding his s. 10(

b) rights, these are the essential facts: [6] Mr. Edgington had been stopped by RCMP at a roadside check stop. He failed a roadside screening test. RCMP Sgt. Gherasim told him that he was under arrest for impaired driving and demanded a breath sample. In so doing, Sgt. Gherasim provided the required warnings to Mr. Edgington. Sgt. Gherasim told Mr. Edgington, and Mr. Edgington understood, that he had the right to talk to a lawyer. Sgt. Gherasim asked Mr. Edgington whether he wanted to talk to a lawyer, and Mr. Edgington replied that he did not have a lawyer. Sgt. Gherasim told Mr.

Edgington that duty counsel was available free of charge, and that the police could put him in touch with duty counsel. Mr. Edgington agreed . Sgt. Gherasim then drove Mr. Edgington to the Delisle RCMP detachment. [7] At the RCMP detachment Mr. Edgington was placed in a small room, in which there was a desk with a telephone and a telephone directory. Sgt. Gherasim asked Mr. Edgington whether he wanted to talk to a lawyer, and Mr. Edgington again replied that he did not have a lawyer. Sgt. Gherasim then told Mr. Edgington that duty counsel was available free of charge, and he asked whether Mr.

Edgington would like to speak with duty counsel. Mr. Edgington said that he would, and he then had a private telephone conversation with duty counsel, Sgt. Gherasim having left the room. [8] Following the conversation Mr. Edgington waved through the window of the room to Sgt. Gherasim, and he told Sgt. Gherasim that he had completed his conversation with duty counsel. Sgt. Gherasim then turned Mr. Edgington over to another member of the RCMP who was a breathalyzer technician. (Emphasis added, Edgington ) [ 34 ] None of the findings that the trial judge made in the case at bar were made in relation to Mr.

Edgington. Unlike Mr. Cullen, Mr. Edgington was not confused as to his rights. He was given options and he accepted one. [ 35 ] In Rice , the trial judge found the accused had been confused and disoriented, but the

summary conviction appeal judge did not accept these facts and gave no effect to them. He found Ms. Rice’s responses to the police inquiries were “reasonably interpreted to mean that she did not know anyone appropriate to call” (at para 29), which makes Rice more like Willier than the case at bar. [ 36 ] Similarly, in this case, the Crown’s submission depends on findings that the trial judge did not make, as the following paragraphs taken from Crown counsel’s factum illustrate: 35. The trial judge erred in focussing on the appellant’s statement he made to Cst.

Simons that he did not have a “legal aid” to call, rather than the adequacy of the information that was earlier conveyed to him . The evidence disclosed that at the roadside, the appellant actively questioned Cst. Simons about the consequences of refusing when he was confused about that. While the appellant did not know whether he should exercise his rights to counsel, there was no apparent confusion at that time about what those rights were . There can be no serious question that Cst. Simons complied with his informational duty. … 37.

The trial judge found that the appellant understood the only viable option was Legal Aid. It certainly may have been the only viable option for the appellant because he did not know any lawyer to call. When Cst. Simons arrived at the police station with the appellant, he was operating under the reasonable assumption that the appellant understood his rights because he said he did . He also knew that the appellant had said he did not want to call counsel. Cst. Simons could have left it at that but he went further to ensure that the appellant

had a chance to speak to a lawyer who could explain the jeopardy he was facing. (Emphasis added) [37] The reference in paragraph 35 of the Crown’s factum, to Mr. Cullen’s statement that he did not have a “legal aid” to call,comes from the DVD Video where Cst. Simon says, “‘Ryan, do you want to talk to Legal Aid? Remember what I said, it’s free.’”Mr. Cullen replied “‘I don’t know any Legal Aid to call.’” Cst. Simons then said, “‘Well Legal Aid is free, they are open 24 hours a day.Do you want to talk to them?” Mr. Cullen responded, “‘Sure. I guess so.’” Immediately, a call is placed for Mr.

Cullen to the dutycounsel. As soon as the call is finished, there is no further exchange between Mr. Cullen and the police officer and Mr. Cullen is taken tothe breathalyzer room. [38] The second emphasized portion in paragraph 35 of the Crown’s factum refers to an exchange that is recorded on the In-CarVideo where Cst. Simons asks Mr. Cullen to give him a yes or no answer as to whether he wants a lawyer and Mr. Cullen declines.Cst.

Simons then says that contacting a lawyer or Legal Aid is free and that “you can speak to a lawyer—it’s Legal Aid and that’s free”(DVD Video). [39] The emphasized portion of paragraph 37 of the Crown factum is contrary to the evidence.

The police officer justified hisrepetition of this information by saying “I knew that he didn’t really maybe understand it, so I wanted to make sure it was clear” (trialtranscript, 31 October 2013, p. 43). [40] In Willier, the Court described the informational duty imposed on the police when an accused positively indicates a lack ofunderstanding of his or her right to counsel: [31] The informational duty imposed on the police is relatively straightforward.

However, should a detainee positively indicate that he orshe does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate thatunderstanding: R. v. Evans, (SCC), [1991] 1 S.C.R. 869. [41] Given the importance of the point in this case, it is useful to look at what the Court said in R v Evans, (SCC),[1991] 1 SCR 869 at 891–892 [Evans]: Dealing first with the initial arrest, I am satisfied that the police did not comply with s. 10(b). It is true that they informed the appellantof his right to counsel.

But they did not explain that right when he indicated that he did not understand it. A person who does notunderstand his or her right cannot be expected to assert it. The purpose of s. 10(

b) is to require the police to communicate the right tocounsel to the detainee. In most cases one can infer from the circumstances that the accused understands what he has been told. In suchcases, the police are required to go no further (unless the detainee indicates a desire to retain counsel, in which case they must complywith the second and third duties set out above).

But where, as here, there is a positive indication that the accused does not understand hisright to counsel, the police cannot rely on their mechanical recitation of the right to the accused; they must take steps to facilitate thatunderstanding. This is recognized in R. v. Anderson (1984), (ON CA), 10 C.C.C. (3d) 417 (Ont.

C.A.), where the Court, perTarnopolsky J.A., stated at p. 431: … I am of the view that, absent proof of circumstances indicating that the accused did not understand his right to retain counsel when hewas informed of it, the onus has to be on him to prove that he asked for the right but it was denied or he was denied any opportunity toeven ask for it. No such evidence was put forth in this case. [Underline emphasis added in Evans] The question is whether the circumstances here indicated that the accused did not understand his right to retain counsel. In my view,they did.

Asked whether he understood his rights, he replied in the negative. The police had no reason to assume otherwise, given theirknowledge of his limited mental capacity. The only question is whether his subsequent statement to his brother that he was aware of hisright to counsel can be reasonably seen as indicating that the appellant, despite his initial indication to the contrary, in fact understood hisright. In my view, it cannot.

While the appellant had some idea—based on U.S. television—that he was allowed to speak to a lawyer, it isfar from clear that the appellant understood from the outset when he was entitled to exercise his right to counsel and how he waspermitted to do so. In these circumstances, the failure of the police to make a reasonable effort to explain to the accused his right tocounsel violated s. 10(

b) of the Charter. (Bold emphasis in original, italic emphasis added) Thus, the trial judge in the case before us legitimately addressed the question of Mr. Cullen’s apparent confusion in making the findingsthat he did. [42] In the case at bar, Mr. Cullen was not operating under a mental disability such as what was seen in Evans, but we do haveexpress findings by the trial judge as to what Mr. Cullen understood. As I have indicated, the trial judge reviewed the electronicrecordings and heard the testimony of Cst. Simons and Mr.

Cullen and he made something different of this evidence than what Crowncounsel suggests. At the risk of excessive repetition, the trial judge found on the basis of this evidence that no clear explanation had beengiven to Mr. Cullen and he was confused—a point made six times in the trial judge’s reasons: [13] The accused says again, that he has no lawyer in that situation, and the constable then says that he can call Legal Aid, and they areavailable 24 hours a day.

The accused says, “I guess so”, and it’s obvious he has no great enthusiasm for Legal Aid, or doesn’tunderstand really what Legal Aid is versus calling another lawyer. At no time, does the constable make any clear explanation, such asLegal Aid is a publically funded service. They will talk to you at any time, but there are other lawyers who may answer, even at timesoutside ordinary business hours.

[14] There is, of course, a good deal of law as to how much is required for an officer to give under various circumstances by way of information. And that will depend on a number of things, including the sophistication and experience of the person they are dealing with. It is apparent in this case that Mr.

Cullen was not a person who had very much understanding of the legal system or Legal Aid, or even was distinguishing very well between Legal Aid and other legal services . … [17] He gave evidence, as well, and he indicated that he was confused about this situation, which is also apparent in the video. (Emphasis added, Trial Decision ) [ 43 ] Unlike in Rice and in McCrimmon , the trial judge found that Mr. Cullen was diligent—as well as confused. Unlike in McCrimmon and Willier , the trial judge found the police officer did not just remind Mr.

Cullen of the services of Legal Aid—it was presented as the only option ( Trial Decision at para 17). As to whether the trial judge could have found the police were entitled to assume he was satisfied with the advice he had received, the trial judge addressed that issue too: [20] The question then arises, does this comply with the obligations of the Charter under

section 10( b ), and the case law that has expanded on the original and simply stated right to counsel that is in the Charter ? The accused, of course, must be reasonable and diligent in exercising that right. And if a person is indifferent or careless about exercising it, then the fact that the giving of that right is not perfect, will not assist. But in this case, I find that Mr. Cullen was asking questions, he was obviously confused, and he did eventually call a lawyer, but I do not believe that lawyer was his lawyer of choice. … [23] I believe that Mr.

Cullen exercised due diligence in making contact with counsel, and it may be that the advice he received there was as good as he could have gotten from other sources on the telephone in the middle of the night. But at the same time, his right to counsel of choice was not given to him. I take the trial judge as saying here that Mr. Cullen was acting diligently and it is not possible to assume Mr.

Cullen was satisfied with the advice he received when he had not been informed of his right to seek private counsel in the first place. [ 44 ] In Willier , the Supreme Court of Canada makes it clear that what is reasonable will depend on all of the circumstances of the case (at paras 33–35). In the case before us, the trial judge did no more than apply that principle. [ 45 ] Thus, we conclude there is no basis to interfere with the trial judge’s decision that Mr. Cullen’s s. 10(

b) rights had been infringed. B. Did the trial judge err by excluding the certificate of analysis pursuant to s. 24(2) of the Charter ? [ 46 ] That brings us to whether the trial judge erred by excluding the certificate of analysis under s. 24(2) of the Charter . Since the

summary conviction appeal judge convicted Mr. Cullen, he was not required to address this issue. [ 47 ] When a court is faced with an application for exclusion under s. 24(2), the court must assess and balance the effect of admitting the evidence obtained in breach of a Charter right on society’s confidence in the justice system having regard for the following matters: (

i) the seriousness of the Charter -infringing state conduct (admission may send the message the court condones serious police misconduct), (ii) the impact of the breach on the Charter -protected interests of the accused (admission may send the message that Charter rights do not count), and (iii) the public’s interest in the adjudication of the case on its merits (usually favouring admission in cases involving bodily samples)—see R v Grant , 2009 SCC 32 at paras 71 , 108–110, [2009] 2 SCR 353 [ Grant ].

The court’s role is to balance the assessments under each of these lines of inquiry to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute. The balancing is qualitative in nature and, therefore, not capable of mathematical precision ( Grant at paras 86 and 140 ). [ 48 ] In Grant , the Court stated the following: [86] In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible.

However, the preceding analysis creates a decision tree, albeit more flexible than the Stillman self-incrimination test. We believe this to be required by the words of s. 24(2). We also take comfort in the fact that patterns emerge with respect to particular types of evidence. These patterns serve as guides to judges faced with s. 24(2) applications in future cases. In this way, a measure of certainty is achieved.

The Court concludes this paragraph by indicating that the roles of trial court and appellate courts are different, with the latter owing considerable deference to the former where the proper factors have been considered : “Where the trial judge has considered the proper factors, appellate courts should accord considerable deference to his or her ultimate determination” (at para 86). [ 49 ] In this case, the trial judge’s reasons do not demonstrate how he weighed or balanced the factors. In order to ensure that proper deference is accorded to his decision, it would have been preferable if he had done so.

However, one of his brother judges had very recently comprehensively reviewed the law, and concluded in a drinking and driving case that the police had not fulfilled their implementational obligations under s. 10(

b) of the Charter , and excluded the certificate under s. 24(2) ( R v Kreiser , 2013 SKPC 107 , 428 Sask R 191 [ Kreiser ]). It may be presumed that the trial judge relied on Kreiser when he stated the following: [23] I believe that Mr. Cullen exercised due diligence in making contact with counsel, and it may be that the advice he received there was as good as he could have gotten from other sources on the telephone in the middle of the night. But at the same time, his right to counsel

of choice was not given to him. And that is a fundamental right which has been established, and as a result, I conclude that the only reasonable remedy for that breach of that right is to exclude the certificate of analysis . So therefore, the ruling at the end of the case, which was conducted as a voir dire , is to exclude the certificate for the principles that I have stated. (Emphasis added, Trial Decision ) [ 50 ] Applying the Grant factors, we do not find the trial judge erred in his result. The first factor to consider is the seriousness of the Charter -infringing state conduct.

According to the transcript, the officer knew he had to inform Mr. Cullen of his right to counsel, and he knew that Mr. Cullen did not understand what he was being told. The trial judge found the only aspect of the informational component of the right to counsel that was given to Mr. Cullen was with respect to Legal Aid—and at that, the officer was not particularly clear. It was the officer’s view that the accused had only two choices, either to comply with the police demand or not, and that both would net him the same punishment.

It is evident from the record that the officer did not think the choice of counsel mattered and his beliefs appear to have affected the fulfillment of his obligation. In these circumstances, this breach of s. 10(

b) militates in favour of exclusion. [ 51 ] The second factor to be considered is the impact on the Charter -protected interests of the accused. Critical to assessing this factor, the trial judge found Mr. Cullen was confused, diligent and not deliberately obtuse or indifferent. While the officer was short with him and not very clear about what he was telling Mr. Cullen, he was not maltreated. As the trial judge stated, the advice he received from duty counsel may have been as good as what he could have received elsewhere, but s. 24(2) does not deal just with this case and this offence.

It has more far-reaching concerns than this one case presents. On balance, the impact of the breach is moderately serious, and weighs in favour of exclusion. [ 52 ] The third factor to be considered is society’s interest in adjudication of criminal cases on their merits. Drinking and driving offences remain a perennial problem in this jurisdiction.

Thus, this factor weighs in favour of admission. [ 53 ] In Grant , the Court commented that breath sample evidence may be admitted under s. 24(2) of the Charter more often than other types of conscripted evidence because of its reliability and because the intrusion on bodily integrity and dignity will be less severe (at para 111). On the other hand, breaches of the informational component of the right to counsel under s. 10(

b) are relatively rare and the failure to properly fulfill this right is significant to the administration of justice. The knowledge of one’s right to counsel, as the trial judge indicated, is a fundamental right without which all of the other Charter rights become less meaningful; it is considered to be the cornerstone to the proper functioning of the legal system. [ 54 ] This is a close case, but this trial judge with extensive experience in matters of this sort saw this breach as clearly calling for the exclusion of the evidence.

Since the trial judge did not give reasons for his decision, less deference is owed to this aspect of his decision as we are unable to assess his reasoning process, but his decision to exclude the certificate pursuant to s. 24(2) of the Charter is nonetheless an important factor to consider. [ 55 ] Balancing all of these factors, we conclude by saying they point more strongly in favour of exclusion than inclusion and, therefore, sustain this aspect of the trial judge’s decision as well. V. CONCLUSION [ 56 ] When this matter was heard, and for all of these reasons, we granted Mr.

Cullen leave to appeal and then allowed his appeal and restored his acquittal.