This week’s top three summaries: R v Whiskeyjack, 2022 ABCA 76: co-accused #credibility , R v CT., 2022 ONCA 163: #credibility as accused, and R v Sefton, 2022 ONSC 1429: #24(2) impact on right.
This week’s top two cases deal with impermissible inferences related to the testimony of an accused. If you want to dig deeper into the topic, I recommend the Emond title below dealing with law of Evidence. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
MODERN CRIMINAL EVIDENCE
By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace
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R v Whiskeyjack, 2022 ABCA 76
[March 1, 2022] Evidence: Unavailable Inferences for the Crown in Co-Accused Trial [Peter Martin, Michelle Crighton, and Ritu Khullar JJ.A.]
AUTHOR’S NOTE: This case deals with the interaction between Vetrovec principles in a co-accused trial and impermissible inferences related to the evidence of an accused in a criminal trial. Typically, a Vetrovec witness (ie. someone with a history of lying or motive to fabricate in the particular case) will be the subject of a caution to the jury about accepting their evidence without corroboration in other evidence. However, when that witness is the accused, the court also has to deal with the fact that a motive to avoid conviction cannot be the subject of permissible inferences that lead to a conviction against that accused. The instruction given at trial in the below case failed to account for the fact that inferences against an accused are not permissible by virtue of their charged status and implied motive to avoid conviction. A new trial resulted.
Facts
[1] On September 21st, 2018, Lindsay Jackson was beaten and thrown off a bridge to her death. In time, three people were charged with her murder. The appellant, Mr. Whiskeyjack, and his co- accused Jena Hunter were tried together by a judge and jury. Both were convicted of first-degree murder. The third accused, Jermaine Steinhauer, was tried separately by a judge alone and was acquitted.
[4] The appellant told police that Ms. Hunter and Ms. Jackson began to argue. All were then told to leave the house. The appellant says he did so, followed by Hunter and Steinhauer, who “threw” the victim in the back of his vehicle and continued to beat her. The appellant told police that he asked Hunter and Steinhauer to stop assaulting the victim and “just let her go”, but Steinhauer, who had a gun, told him to keep driving and directed him where to go. The appellant followed those instructions, which had him stopping at the Duvernay Bridge, some distance from the Saddle Lake Reserve. According to the appellant, once at the bridge, the victim ran from his vehicle but was pursued and caught by Hunter and Steinhauer:
And then Jermaine and Jena were beating her up on the road. And then … I kept saying “don’t …” I said I kept saying “don’t, don’t kill her don’t kill her. Just let her go, let her go. Let’s go, let’s get outta here.” And then Jena and Jermaine they were kept beating her up while they were on the road. And then, they were screaming and yelling telling me to come help them. And I said “no just let’s go, let’s get out here.” So, they… started lifting her up, onto the railing. And they were like, I could already notice that they were tryin’ to throw her over. ‘Cause Jermaine had her by the legs and Jena had her by the arms. And they’re like kinda like scooping her up. And by then I was “ah fuck.” I didn’t know what to do after that. And they kept yelling I was gonna go tell ‘em to stop and by then they already had her partially like… moved over the bridge. And then like they told me to help so I was like kinda like puttin’ my hands there. And I was like “fuck you guys, man I’m what the hell you guys doing?” And then they just kinda like… both of them just kinda like… threw her … But she was… she was still alive when they did that … And then after that we… they both went running to my vehicle. And I went jumped in the driver’s side. And I drove away. And that’s what I could say about that night: EKE(A) at 75-76 (emphasis added).
[6] The statement was introduced at trial. The appellant then testified to explain that when he said, “I was kinda like puttin’ my hands there”, he meant he was gesturing with his hands while telling Hunter and Steinhauer to stop and let the victim go. He explained that he did not participate in throwing the victim off the bridge.
Analysis
[8] Regarding the appellant’s testimony, the trial judge instructed the jury as follows:
Julian Whiskeyjack testified that his co-accused Jena Hunter along with Jermaine Steinhauer threw Lindsay Jackson off the Duvernay Bridge while denying that he did so. As with all witnesses, you may believe all, some, or none of his testimony… You must consider his testimony with a great deal of caution, for in implicating Jena Hunter, he may be seeking to deflect attention from his own responsibility for what occurred. You will consider his testimony in the context of all of the evidence. You may consider his testimony in deciding the case against not only himself but Jena Hunter as well: TR at 655/29-656/3 (emphasis added).
[10] It may be helpful to begin by clarifying the concern arising from this instruction. This was a joint trial. Of the two accused, only the appellant testified at the trial proper. He implicated his co-accused in the killing while asserting his non-involvement. The worry about the appellant’s testimony in this case was that he may be falsely implicating his co-accused to escape liability himself. That prospect required the appellant’s testimony be assessed with caution when considering the case against the co-accused. The jury should usually be advised of that. But when such an instruction is given, the jury should also be told that no such concern applies when considering the case against the appellant: See R v Ryan, 2014 ABCA 85 at para 24; R v Hoilett (1991), 1991 CanLII 7285 (ON CA), 3 OR (3d) 449 at para 9, 46 OAC 168; R v Vassel, 2018 ONCA 721 at paras 136-70; R v Abdulle, 2020 ONCA 106 at para 78. Importantly, the trial judge did not distinguish between these two positions. In this way, he left the impression that the appellant’s testimony could be relied upon by the jury in deciding the case against him but only after being assessed with “a great deal of caution”; in other words, only after being subjected to special scrutiny.
[12] With respect, the trial judge was in error. The applicable caution, often referred to as an Oliver caution, is designed to protect the fair trial rights of the co-accused. When appropriate, it requires an instruction telling the jury that the accused’s testimony incriminating a co-accused should be treated with caution in considering the case against the co-accused. But when that instruction is given, the jury should also be told that the caution does not apply to the case against the accused who gave that testimony: R v Oliver (2005), 2005 CanLII 3582 (ON CA), 194 OAC 284 paras 57-60, 194 CCC (3d) 92.
[13] As explained by Doherty JA in Oliver:
The need to balance the fair trial rights of co-accused is a case specific exercise. Morrison’s right to a fair trial included his right to have his testimony as it applied to him considered free of any suggestion that it was inherently suspect because of Morrison’s status as an accused. Oliver’s right to a fair trial included his right to have factors that could undermine the credibility of evidence implicating him brought to the attention of the jury: at para 56.
[14] The concern here ultimately gives rise to the same apprehension arising from an instruction that an accused’s testimony may be assessed from the perspective that he has a motive to lie to avoid conviction: See R v Laboucan, 2010 SCC 12; R v B (L) (1993), 1993 CanLII 8508 (ON CA), 13 OR (3d) 796, 64 OAC 15. That instruction is said to contravene the presumption of innocence because it presumes an accused will lie to secure an acquittal. In Laboucan, the court explained:
The common sense proposition that a witness’s interest in the proceedings may have an impact on credibility also applies to an accused person who testifies in his or her defence. The fact that a witness is the accused, however, raises a specific concern. The concern arises from the fact that both the innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accused has a greater interest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome: at paras 11-12.
[17] The instruction in the case at bar directed the jury that in considering the case against the appellant they could rely on his testimony only after scrutinizing it with “a great deal of caution”. That placed a higher burden of proof on the appellant, as the accused, than the law imposes. In that way it undermined the presumption of innocence. To that extent, the instruction was in error.
[18] Unfortunately, that misdirection was not rectified elsewhere in the judge’s charge, and we disagree with Crown counsel that the error was effectively cured by the W(D) instruction. In our opinion, it was not because by following the instructions the jury would not have filtered the appellant’s testimony through the W(D) analysis until they had scrutinized it with a “great deal of caution”. Applying that higher standard of proof, the jury may have rejected the testimony entirely and found it incapable of raising even a reasonable doubt, thus bypassing the first two arms of the W(D) analysis. Of note, no similar instruction was given regarding the testimony of any other witness. In the result, the jury was told to apply that special scrutiny only to the appellant’s testimony.
Conclusion
[20] The only direct evidence implicating the appellant in this murder was his statement to police. In his testimony he explained and qualified the incriminating portion of that statement. He was entitled to have that evidence assessed by the same standard applied to the testimony of any other witness. The trial judge’s instruction that the jury consider his evidence with “a great deal of caution” distinguished the appellant’s testimony from that of other witnesses and placed a higher burden of proof on the appellant than the law permits. That error was not corrected.
[21] Accordingly, we allow the appeal and order a new trial.
R v C.T., 2022 ONCA 163
[February 25, 2022] Evidence: Accused Credibility Affected by Access to Disclosure and Hearing of Evidence [B.W. Miller, Gary Trotter, B. Zarnett JJ.A.]
AUTHOR’S NOTE: The principle of full answer and defence is fundamental to our adversarial criminal justice system. It how we can tell that we are not operating a Kafkaesque world where we should know what we are charged with and what to say even through the authorities tell us nothing. However, sometimes these rights are characterised by triers of fact as “unfair advantages” and weaponized to undermine the credibility of the accused. The accused is claimed to be unworthy of belief because their evidence is “tailored” to fit the disclosure or evidence they have heard prior to testifying. The poisonous nature of these rationalizations for disbelieving an accused cannot be overstated. The rationalisation is both illogical and undermines basic Charter rights. It undermines the right to full answer and defence through disclosure and the right to know the case to meet before being called to answer in defence. It also makes no sense. A factually innocent person has as much motive to answer the case by answering the evidence led by the Crown as the guilty. In this sense, all defence evidence is “tailored” to answer the disclosure or evidence heard. This is not a basis for disbelieving an accused.
Reasons for Decision
[1] It is an error of law for a trial judge to discount the credibility of an accused’s evidence on the basis that it was tailored to fit Crown disclosure, or evidence or argument heard in court prior to the accused testifying. Drawing the inference that advance notice of the case against the accused has allowed the tailoring of evidence and thus made it suspect, though a natural temptation, is impermissible. It would create a constitutional trap, turning the right to be present at trial under s. 650(1) of the Criminal Code, R.S.C. 1985, c. C-46 and the rights to full answer and defence under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms against the accused: R. v. White (1999), 132 C.C.C. (3d) (Ont. C.A.), at para. 20; R. v. Schell (2000), 2000 CanLII 16917 (ON CA), 148 C.C.C. (3d) 219 (Ont. C.A.); R. v. Thain, 2009 ONCA 223, 243 C.C.C. (3d) 230; R. v. Jorgge, 2013 ONCA 485, 4 C.R. (7th) 170, at para. 12; R. v. M.D., 2020 ONCA 290, 392 C.C.C. (3d) 29; R. v. G.V., 2020 ONCA 291, 392 C.C.C. (3d) 14; R. v. B.L., 2021 ONCA 373, at paras. 44-47.
[2] The trial judge committed exactly that error in this case.
[6] The trial judge’s analysis of the credibility of the appellant’s evidence, his rejection of it and his finding it raised no reasonable doubt, leaned heavily and repeatedly on the trial judge’s inference that his evidence had been tailored to fit disclosure or prior evidence.
[7] In the introductory portion of his reasons, the trial judge stated:
I found the evidence of the accused was fundamentally unreliable and tainted by fantasy, insincerity or both in many instances. Insincerity, once detected, becomes like the thirteenth chime of a clock. It cast doubt upon the twelve that preceded it. There were aspects of his evidence that I did accept but only if adequately corroborated by other sources. On the whole, I concluded that he told the truth only where it suited his purpose while the remainder of his evidence was carefully tailored to fit, however awkwardly, the evidence of which he was aware. [Emphasis added.]
[8] In the section of his reasons entitled “General Comments on Credibility”, the trial judge returned to the same impermissible reasoning. He stated:
…At length, I reached the conclusion that [the appellant] could not be relied upon to tell the truth at all. He appeared to be looking to fit his evidence to the disclosure he had received rather than to be recalling things from his own lived experience. [Emphasis added.]
[9] In addition to these general comments, applicable to the credibility assessment in relation to all of the charges, the trial judge used this reasoning when dealing with specific events. In rejecting the appellant’s version of what occurred in relation to the December 2013 offences, the trial judge stated: “This was one instance and not the only one where I formed the view that [the appellant] sought to tailor his evidence to suit” (emphasis added). When dealing with the offences in March 2014, the trial judge took the same approach: “Once again I found [the appellant’s] version of these events to be a product of fantasy or a deliberate fabrication to fit disclosed evidence. I am unable to afford any credence at all” (emphasis added).
[11] … The proviso will not be applied where the impermissible tailoring inference “appears to have played a large role in the trial judge’s rejection of the appellant’s version of what occurred”, even if there were other reasons for that rejection: B.L., at para. 50.
[14] … The appeal is allowed, and a new trial is ordered. Accordingly, we do not reach the sentence appeal.
R v Sefton, 2022 ONSC 1429
[March 4, 2022] 24(2) – The Impact on the Charter Protected Interests of an Accused in the s.10(b) Context [Justice Hebner sitting in Summary Conviction Appeals Court]
AUTHOR’S NOTE: Not many appellate cases turn on the application of s.24(2). Deference is owed to 24(2) assessments at trial particularly where the court got the law right on the breaches. Herein, Justice Hebner focused on the impact of a s.10(b) breach on the Charter protected interest of an accused caught within the snare of an impaired/Over 80 investigation. Some case law, including a simplistic reading of Grant 2009 suggests that the impact will always be minimal in these circumstances. However, the power of a phone call to a lawyer when in the clutches of the state cannot be underestimated. This call represents a lifeline to every person accused of a crime.
Overview and Facts
[1] On February 19, 2019, Sarah Sefton was charged with the offences of (1) driving a motor vehicle while her ability was impaired by alcohol and (2) while her blood alcohol level measured equal to or greater than 80 mg in 100 ml of blood within the previous two hours, contrary to ss. 320.14(1)(a) and (b) …
[2] At trial, the accused brought a Charter application claiming that her rights under s. 10(b) of the Charter had been violated and that the evidence of the breath test results ought to be excluded pursuant to s. 24(2) of the Charter. The trial judge dismissed the application.
[4] Ms. Sefton has appealed the conviction. The argument on appeal was that the trial judge erred in dismissing the Charter application. These are my reasons for judgment on the appeal.
[6] … At 12:15 a.m., Officer Seguin observed the vehicle being driven by the appellant. At the time, the officers were proceeding southbound on Walker Road in Tecumseh. The appellant was driving the vehicle ahead of them. Officer Seguin observed the appellant’s vehicle swerve between the solid white line that runs along the far side of the roadway (described as the “fog line”) and the centre line three to four times. This caught his attention. The officers decided to conduct a vehicle stop.
[7] Once the vehicle was stopped, Officer Seguin approached the driver’s door and spoke to the appellant through the open window. He detected a strong odour of an alcoholic beverage. He made additional observations detailed by the trial judge in her ruling. The appellant exited her vehicle and was placed under arrest at 12:20 a.m. Officer Seguin read the appellant her rights from his issued OPP card.
[8] … When she was asked about whether she wanted to contact a lawyer, the appellant responded with the name of Bob DiPietro. Officer Seguin then made a breath demand.
[9] Officer Seguin told the appellant that he intended to contact Mr. DiPietro when he could give the appellant privacy to speak to counsel. He said he could not permit her to speak to counsel at the roadside because he could not afford her privacy at the roadside. He did not ask the appellant if she had a cell phone. He testified that he felt he could not permit her to use his cell phone because her hands were handcuffed behind her back. He said he could not permit the appellant to sit in her vehicle so that she could have privacy and use his cell phone while he retained the keys. He gave no reason for this decision, other than safety and privacy.
[10] Officers Seguin and Bose waited at the scene until approximately 12:48 a.m. due to the need to wait for another police officer to arrive to wait for the tow truck. It did not occur to either officer for one of them to transfer the appellant while the other waited for the relief officer or for the tow truck. During the wait, the appellant slipped the handcuffs off her wrists and handed them to Officer Seguin through the barrier between the front and back seats of the cruiser.
[11] The officers then started to drive the appellant to the Harrow OPP detachment but were rerouted to the Kingsville OPP detachment, as there was no operational intoxilyzer located at the Harrow detachment. They arrived at the Kingsville detachment at 1:13 a.m. At that point, the appellant had been under arrest for 53 minutes.
[12] Officer Seguin made his first attempt to contact Mr. DiPietro at 1:18 a.m., or approximately 58 minutes after the arrest. He called the office telephone for Mr. DiPietro and left a voicemail message. He called Mr. DiPietro’s cell phone number at 1:24 a.m. and left a message asking Mr. DiPietro to call the Kingsville detachment as the appellant was under arrest and wanted to speak to him. At 1:26 a.m., or within two minutes of calling Mr. DiPietro’s cell phone, Officer Seguin told the appellant that her counsel of choice had not returned the two calls and advised her that she had the option of calling duty counsel. Officer Seguin did not inform the appellant of her right to wait a reasonable time for Mr. DiPietro to return the call. Officer Seguin initially said that he was unaware of a duty to inform the appellant that she had a right to wait, and then agreed that he was aware of the duty.
[13] A call was placed to duty counsel at 1:33 a.m. At this point, the appellant had been under arrest for one hour and 13 minutes. The appellant spoke to duty counsel until 1:50 a.m. at which point she advised Officer Seguin that duty counsel had hung up on her.
[14] Officer Seguin took the appellant to a holding cell. He turned her over to the breath tech, Detective Sampogna, and confirmed that she had spoken to duty counsel. Officer Seguin then called and spoke to the same duty counsel at 2:10 a.m. The duty counsel assured Officer Seguin that the call had ended “appropriately.” Officer Seguin said that at that point, he was satisfied that the appellant spoke to counsel. He did not ask the appellant if she was satisfied with the call. There was no evidence that Officer Seguin told the appellant anything about his conversation with duty counsel.
[15] The appellant indicated to the breath tech officer that she was satisfied with her call to duty counsel. She said she felt she had no other choice.
Findings of the Trial Judge
[16] The trial judge made the following comments in her ruling: …
- There was no explanation as to why Officer Seguin contacted the office telephone number of Mr. DiPietro and then waited six minutes before he called Mr. DiPietro’s cell phone number. The cell phone number was on the list at the detachment. Officer Seguin left a voice message on Mr. DiPietro’s cell phone number and almost immediately told the appellant that her lawyer is not calling back and suggested that she could speak to duty counsel.
- Officer Seguin’s evidence varied from not being aware of his duty to inform the appellant’s right to wait a reasonable time. to being aware of that right but failing to inform the appellant. Officer Bose was not aware of the obligation, “which suggests a systemic problem regarding training, rather than a single officer falling short.”
[18] As to the first question, the trial judge found that the appellant’s Charter rights were breached by the actions of police in delaying the facilitating of her right to consult with counsel.
[19] As to the second question, the trial judge found that the appellant’s Charter rights were breached by Officer Seguin’s failure to advise the appellant of her right to wait a reasonable period of time for her counsel of choice to call back.
[20] As to the third question, the trial judge found that the evidence should not be excluded and dismissed the Charter application.
Analysis of 24(2) Ruling
The Secondary Inquiry
[29] The trial judge’s assessment of the second inquiry was relatively brief. She noted, at para. 51, that “[b]reath testing results have been observed to be minimally intrusive as opposed to self-incriminating statements or warrantless searches.” The trial judge continued that she “heard nothing about the breath testing procedure that would elevate this assessment to one that would favour exclusion.” She concluded, at para. 51: “Since the obligation is on the defence to provide evidence that the minimally intrusive nature of breath testing in this case was elevated to something more intrusive or concerning, this factor favours inclusion.”
Analysis
[32] The argument on appeal focused on the second line of inquiry in the trial judge’s s. 24(2) analysis. Appellant’s counsel, Mr. Golish, argued that the trial judge based her analysis on the breath testing procedure itself as opposed to the impact of the Charter breach on the appellant. For reasons that follow, I agree.
[33] The second line of inquiry in the s. 24(2) analysis is explained as follows, at paras. 76-77 of Grant:
This inquiry focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused’s protected interests, 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.
To determine the seriousness of the infringement from this perspective, we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests.
[34] At issue here is the proper approach to the second line of inquiry in a breath demand case.
[38] As explained by Miller J. in Jennings, the line of authority led by Au-Yeung requires a trial judge to consider not just the impact of the administration of the breath sample procedure but also the entirety of the procedure faced by the accused after arrest. The second line of authority rejected this approach and limited the second Grant factor to addressing the intrusiveness of the breath sample procedure itself.
[43] … There must be a case-by-case analysis to assess the impact of particular breaches on the particular appellant. In this case, in my view, the trial judge did not embark on the required analysis when considering the second Grant enquiry.
[44] I turn to another summary conviction appeal decision of this court, namely the decision of Dawson J. in R. v. Skurski, 2019 ONSC 2943. That case was also reviewed by the trial judge and dealt with a breach of s. 10(b) of the Charter. In that case, the accused was Polish speaking. He did not understand his rights to counsel when they were read in English. The arresting officers arranged for a Polish-speaking officer to translate the rights to counsel and breath demand from English to Polish. Arrangements were also made for the accused to speak to a Polish-speaking duty counsel. After speaking with duty counsel, the accused wrote down the name of a specific lawyer, Mr. Jagielski, and indicated that he wished to speak to him. The police left a voicemail message for Mr. Jagielski and waited approximately 40 minutes for a call back. When no call came, police decided to proceed with the breath test.
[45] The trial judge found that there was a s. 10(b) violation because the accused had told the Polish-speaking police officer that duty counsel had declined to provide him with any advice because he had his own lawyer. The breath tests were nevertheless administered.
[46] … When addressing the second Grant factor, Dawson J. said the following in Skurski, at paras. 28-30:
Turning to the second Grant factor, the impact of the breach on the Charter protected interests of the respondent, the appellant submits that the trial judge erred by failing to recognize that breath tests should generally be admitted. In its factum the appellant went so far as to submit that breath tests are “presumptively admissible”. The appellant relied upon R v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460 in support of this submission. In its factum the appellant submits that the trial judge erred by distinguishing, rather than applying, Jennings.
In my view the trial judge provided sound reasons for rejecting the Crown’s submission that Jennings virtually mandated the conclusion that the Charter breach had minimal impact on the Charter protected interests of the respondent.
After explaining why he excluded the evidence the trial judge addressed Jennings specifically. He observed that in Jennings the Court of Appeal was responding to and rejected a line of cases which had created an almost automatic rule of exclusion of breath tests obtained in a manner which violated the Charter. He also said, correctly in my view, that in doing so the Court of Appeal did not create an automatic inclusionary rule. He also relied on the fact that the Court of Appeal in Jennings was not dealing with the sort of Charter breach he had found in the present case.
[47] At para. 31, Dawson J. said:
I am unable to see these comments of the trial judge as reflective of error….
[48] In this case, as in Skurski, the protected interest is the right to “retain and instruct counsel without delay”. At para. 35 of her reasons, in her review of Skurski, the trial judge recognized the protected interest. However, in my view, the trial judge did not focus on this protected interest in her analysis when dealing with the second Grant inquiry. Instead, she focused on the taking of the breath sample itself. Having found that the taking of the breath sample was minimally invasive, what is lacking in the trial judge’s reasons is a consideration of the effect of the violation of the right to retain and instruct counsel without delay.
[49] The appellant was entitled to “retain and instruct counsel without delay.” The meaning of those words is clearly set out in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 42:
In our view, the words “without delay” mean “immediately” for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
[50] Here, the appellant was arrested, handcuffed with her hands behind her back, and placed in the back seat of a cruiser where she was left for 26 minutes. She was then driven to the Kingsville police station, by which time she had been under arrest for 53 minutes. The appellant was without the benefit of the immediate right to counsel, or any indication of when she might be allowed to speak to someone, for 53 minutes.
[51] When the appellant was arrested and read her rights to counsel, she said she wanted to speak to Mr. DiPietro. The police officers made no real attempt to contact the appellant’s counsel of choice until 64 minutes later, and then, after waiting only two minutes, they told the appellant that her counsel of choice had not called back.
[52] The right to immediately consult counsel exists in part so that the accused can obtain advice about self-incrimination and the legality of searches. However, it also exists so that the accused person may obtain reassurance and advice about how long detention might last and how liberty may be regained. In R. v. Rover, 2018 ONCA 745, Doherty J.A. said the following at para. 45:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. [PM Emphasis]
[53] The police did not take a statement from the appellant or otherwise obtain evidence as a direct result of the s. 10(b) breach. If they had, the impact of the breach would have been more significant. “But neither the fact that the police do not take a statement from the arrested person while violating the right to counsel, nor that there is no causal connection between the breach and evidence discovered, means that the breach will always lack a significant negative impact on the appellant’s Charter-protected rights: Rover, at paras. 43-47. The impact must be considered given the nature of the interests protected by the right to counsel, and the length of delay in providing it: Noel, at para. 27”: R. v. Jarrett, 2021 ONCA 758, at para. 53.
Balancing the Factors Anew
[55] The trial judge found that the first factor strongly favoured exclusion of the breath sample evidence for the reasons set out at para. 50 of her ruling. When she considered the third factor at para. 56, she said that “it would do more damage to the public’s confidence in the administration of justice to exclude the evidence than it would to admit it.”
[56] I consider the second factor anew. As noted by the trial judge, the minimally intrusive nature of the breath test is a consideration in the analysis. So, too, are the facts identified above, namely that:
-
- The appellant was handcuffed with her hands behind her back on arrest and placed in the back seat of a cruiser where she was left for 26 minutes.
- The appellant asked to speak to Mr. DiPietro. The police did not make any real attempt to contact Mr. DiPietro until 64 minutes later and then did not inform the appellant of her right to wait a reasonable period of time for him to call back.
- The appellant was given the option of duty counsel. When she spoke to duty counsel she said that he had hung up on her.
[57] The impact of the breaches on the Charter-protected interests of the appellant were not insignificant. Although she was required to take a minimally invasive breath test, she was left without her lifeline of access to counsel for one hour and 13 minutes. Her request to speak to her counsel of choice was given very short shrift with no real attempt to ensure she could do so. In my view, the second factor is, at best, a neutral factor.
[58] In my view, given the serious and multiple breaches of the appellant’s right to counsel that strongly favoured exclusion, a balancing of the three lines of enquiry requires that the breath test samples be excluded. The result is an acquittal on count 2.
Disposition
[59] For the reasons set out herein, I would allow the appeal and enter an acquittal on the charge of driving a vehicle with a blood alcohol level over 80 mgs in 100 ml of blood contrary to s. 320.14(1)(b) of the Criminal Code.
MODERN CRIMINAL EVIDENCE
By Matthew Gourlay, Brock Jones, Renee Pomerance, Glen Crisp & Jill D. Makepeace
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