R. v. Sefton

Canadian criminal law case law consists of court rulings and decisions from past judicial hearings and appeals.

These precedents guide courts and judges to interpret laws, especially when similar circumstances arise with a case before them.

If a current case closely resembles one with past withdrawn charges, the same legal reasoning should apply. This process ensures that similar cases receive consistent treatment.

In the case “R. v. Sefton,” Sefton faced charges for driving with a blood alcohol level above the legal limit. During her trial in March 2021, Sefton argued that her right to counsel, as guaranteed by the Canadian Charter of Rights and Freedoms, was violated.

She requested the exclusion of breath test evidence under section 24(2) of the Charter. The trial judge dismissed this request and found Sefton guilty of driving over the legal blood alcohol limit, while acquitting her of impaired operation.

Sefton appealed this conviction, challenging the trial judge’s dismissal of her Charter application. The Ontario Superior Court of Justice reviewed the case and found that the trial judge had not adequately considered the impact of the Charter breach on Sefton’s rights. The court noted significant delays in Sefton’s access to legal counsel after her arrest, which constituted a serious violation of her rights.

Consequently, the court excluded the breath test evidence, leading to Sefton’s acquittal on the charge of driving over the legal blood alcohol limit.

On February 19, 2019, in Tecumseh, Ontario, police officers observed Sarah Sefton’s vehicle swerving between the white line and the center line of the road.

Officers Seguin and Bose, from the Ontario Provincial Police, decided to stop the vehicle based on this erratic driving behavior. Upon interacting with Sefton, Officer Seguin noticed a strong smell of alcohol and initiated further investigation.

Sefton was arrested at 12:20 a.m. and read her rights, including the right to counsel. However, after her arrest, there were significant delays in allowing her to contact a lawyer. She requested a specific lawyer, but the police efforts to facilitate this contact were delayed and inadequate, leading to issues with her access to legal counsel. These circumstances surrounding Sefton’s arrest and the violation of her right to counsel became pivotal in her trial and appeal.

In the trial, the judge found Sefton not guilty of impaired operation but guilty of driving with a blood alcohol level over the legal limit.

Sefton’s appeal focused on the trial judge’s dismissal of her Charter application, where she claimed her right to counsel was violated. The trial judge had initially dismissed this claim, leading to her conviction on one of the charges.

On appeal, the Ontario Superior Court of Justice found that the trial judge had not properly considered the impact of the Charter breach on Sefton’s rights. The court recognized the significant delays in Sefton’s access to legal counsel post-arrest as a serious violation of her rights. As a result, the court excluded the breath test evidence and overturned her conviction, leading to Sefton’s acquittal on the charge of driving over the legal blood alcohol limit.

The decision in “R. v. Sefton” reinforces the importance of upholding Charter rights in Canadian law, particularly the right to counsel as per section 10(b) of the Canadian Charter of Rights and Freedoms.

This case highlights the judiciary’s role in scrutinizing police conduct and procedural fairness during arrests, especially concerning individuals’ access to legal representation.

The ruling sets a precedent in Canadian law emphasizing the necessity of immediate and adequate access to legal counsel following an arrest. It underscores the potential for exclusion of evidence, such as breathalyzer results, if there is a breach of Charter rights. This case serves as a reminder to law enforcement agencies to adhere strictly to Charter obligations, reinforcing the protection of individual rights in the Canadian legal system.

COURT FILE NO.: CR-21-5152-AP

DATE: 20220304

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Sarah Sefton

HEARD: January 18, 2022

On appeal from the decision of Justice S. Murphy of the Ontario Court of Justice dated April 20, 2021.

REASONS ON APPEAL

HEBNER J.

[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), respectively, of the Criminal Code, R.S.C. 1985, c. C-46. The trial took place in the Ontario Court of Justice on March 22 and 23, 2021, before Justice S. Murphy.

[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.

[3] On April 20, 2021, the trial judge found Ms. Sefton not guilty of impaired operation (s. 320(14)(1)(a)) but guilty of driving over 80 (s. 320(14)(1)(b)).

[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.

Background

[5] The evidence on the Charter issue consisted of evidence from the appellant and two police officers, Officer Seguin and Officer Bose of the Ontario Provincial Police (“OPP”). The evidence of both officers and the appellant is summarized in detail in the trial judge’s ruling.

[6] On February 19, 2019, Officers Seguin and Bose were partners in a marked police cruiser in Tecumseh, Ontario. 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] Officer Seguin said that the appellant was defiant. He placed handcuffs on her with her hands behind her back and placed her in the rear seat of the police cruiser at 12:22 a.m. At that time, she was read her rights to counsel and cautioned. She appeared to understand. 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 and Observations of the Trial Judge

[16] The trial judge made the following comments in her ruling:

• Officer Seguin was evasive and coy when giving his evidence on whether he was aware of a duty to inform the appellant that she had a right to wait a reasonable amount of time for Mr. DiPietro to call back. She said that “[h]e refused to answer direct questions put to him and he became argumentative.”

• Officer Seguin may have assured himself that the appellant’s call with duty counsel ended “appropriately”, but his obligation was to ensure that the appellant was satisfied with the call to duty counsel.

• 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.”

• Officer Bose testified that his training was to call counsel as soon as possible. He acknowledged that they could have stopped in Harrow but did not “as it would have been out of the way.”

The Trial Judge’s Ruling on the Charter Application

[17] The trial judge started her analysis by setting out the following points to be addressed:

i) Were the appellant’s Charter rights, pursuant to s. 10(b), breached by the failure of the police to implement her right to consult with counsel immediately and without delay?

ii) Were the appellant’s Charter rights breached by the failure of the police to advise her of her right to wait a reasonable period of time for her counsel of choice to call back?

iii) If the appellant’s Charter rights were breached, does the balancing required pursuant to R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 favour inclusion or exclusion of the breath testing results?

[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.

The Issue on Appeal

[21] The issue on appeal is whether the trial judge, having found that the appellant’s rights were breached, erred in her analysis under s. 24(2) of the Charter.

Section 24(2)

[22] Section 24(2) of the Charter reads, in pertinent part, as follows:

Where … a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[23] Here, there was no question that the breath testing was “obtained in a manner that infringed or denied” the appellant’s Charter rights. The trial judge found that was the case. The issue was the second component of s. 24(2), namely whether the admission of the breath test results would “bring the administration of justice into disrepute.”

[24] In the seminal case of Grant, the Supreme Court of Canada set out the framework for the analysis that must be undertaken to determine the second component of s. 24(2). The analysis requires an assessment of three inquiries: firstly, the seriousness of the Charter-infringing state conduct; secondly, the impact of the breach on the Charter-protected interests of the accused; and, thirdly, society’s interest in the adjudication of the case on its merits: see Grant, at para. 71. The Supreme Court explained that a court faced with a s. 24(2) application for exclusion must assess and balance the effect of admitting the evidence on society’s confidence in the administration of justice having regard to these three lines of inquiry.

[25] The purpose of s. 24(2) is aptly explained by Munroe J. in R. v. Gillespie, 2021 ONSC 8106, at para. 74:

The aim of s. 24(2) is both long term and prospective. This is an objective assessment of the long-term, overall repute of the justice system. The inquiry asks “whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute”: Grant, at para. 68. Damage already has been done; there has been a breach of a Charter provision. The inquiry seeks to ensure that any admissibility of the resulting evidence will not do further damage to the justice system: Grant, at para. 69. Finally, the exclusion remedy is not intended to punish the police or reward an appellant but rather to protect the long-term repute of the justice system: Grant, at para. 70.

The Trial Judge’s Section 24(2) Analysis

[26] The trial judge approached her analysis under s. 24(2) by considering the three lines of inquiry as required by Grant.

The First Inquiry

[27] As to the first stage, the trial judge noted that she had found “multiple breaches of s. 10(b).” She found that the breaches “are serious and that they follow along a continuum that favours exclusion.” She said, at para. 50:

This is so because of the seemingly cavalier attitude of P.C. Seguin to his obligation to make reasonable efforts to contact counsel for Ms. Sefton. In fact, his initial efforts were essentially doomed to fail. He then waited effectively no time at all after the second call to return to Ms. Sefton, and suggest that she contact duty counsel. He did facilitate a call to duty counsel, but that call was fraught with problems that he failed to deal with effectively. He may have satisfied himself that Ms. Sefton had an opportunity to speak to counsel, but he didn’t in any meaningful way address Ms. Sefton’s concern in that regard. His reason for acting in the manner that he did was that Ms. Sefton had been under arrest for more than an hour without speaking to counsel. However, that delay was as a result of police action in not providing Ms. Sefton with an opportunity to call counsel until she had been under arrest for almost one hour…. In addition, P.C. Seguin had the obligation to determine that Ms. Sefton’s concerns about having duty counsel hang up on her were addressed. What he did was satisfy himself, not Ms. Sefton.

[28] The trial judge concluded, at para. 50: “While I cannot find bad faith on the part of the police, I also cannot find good faith. Therefore, this factor strongly favours exclusion of the evidence.”

The Second 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.”

The Third Inquiry

[30] When she came to the third inquiry, the trial judge noted that:

• Breath testing results are inherently reliable evidence.

• Impaired driving and driving with more than 80 mgs of alcohol in one’s blood have been a significant problem in Canada for many years.

• The public has a significant interest in police following the requirements of the law.

• Society also has a significant interest in having this case determined on its merits.

[31] The trial judge found, at para. 56, 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.”

The Issue on Appeal

[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.

Analysis

[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.

[35] In the Court of Appeal for Ontario decision of R. v. Jennings, 2018 ONCA 260, the court heard an appeal by the Crown from the dismissal of an appeal from the acquittal of the appellant of driving over 80. The issue at trial was whether the breath sample demand constituted an unreasonable search or seizure under s. 8 of the Charter. The trial judge found that it did and excluded the breath samples under s. 24(2). The summary conviction appeal judge upheld the trial judge’s ruling. The Court of Appeal found that both the trial judge and the summary conviction appeal judge had erred in finding there was a breach of the appellant’s s. 8 Charter rights.

[36] By way of obiter, the Court of Appeal went on to address the divergence in the lower courts on how to approach a s. 24(2) analysis in breath sample cases. There were two competing lines of authority.

[37] On the one side was the decision of R. v. Au-Yeung, 2010 ONSC 2292. In that case, Ducharme J. found that the police lacked reasonable and probable grounds for arrest and a breath demand resulting in a breach of the accused’s ss. 8 and 9 Charter rights. At paras. 60-62, Ducharme J. said:

As for the s. 8 violation, it is true that the taking of breath samples pursuant to either s. 254(2) or 254(3) is not “a significant compelled intrusion upon the body.” While the taking of a breath sample interferes with privacy of the person, the most assiduously protected privacy interest, the procedure is minimally intrusive in two respects. First, the procedure involved in collecting and analyzing breath samples is minimally intrusive in a physical sense. Second, the information gleaned from a breath sample is far from the “biographical core of personal information” that is protected by s. 8. These factors favour the admission of the evidence.

But that should not end the matter, because the demands placed on a driver to facilitate these tests are often not minimally intrusive. In this case, the appellant was arrested, handcuffed, placed in the rear of a police car and taken to a police station, a sixteen minute trip, and, once at the station, he was kept in police custody for another hour and fifty minutes. Thus, while the trial judge was correct in saying that the treatment of the accused was not “oppressive” that is not the test. Certainly, such an interference with the appellant’s personal liberty cannot be dismissed as minor. Thus, where the police lack the requisite grounds for the s. 254(3) demand, these aspects of the appellant’s treatment constitute a significant violation of s. 9.

While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed to extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds. To condone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under sections 8 and 9 of the Charter, the police can ignore these and detain and arrest any driver. Thus, despite the minimal intrusiveness of the breath-testing procedures themselves, the second branch of Grant also weighs in favour of exclusion of the evidence.

[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.

[39] At paras. 29-32 of Jennings, Miller J. said:

Much of the debate between these two lines of cases focuses on the significance of statements in Grant, in which the Supreme Court identifies breath samples as a central or paradigmatic example of a minimally intrusive search: see paras. 106-111. Although, as the respondent argued, the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.

This reading of Grant is consistent with other judgments of this court, such as R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, where Watt J.A. refers to “the general rule with respect to the admissibility of breath samples due to their non-obtrusiveness” (at para. 100) and, citing Grant at para. 111, says that “as a general rule, reliable evidence obtained by less egregious and invasive intrusions into privacy, bodily integrity and dignity, such as the taking of breath samples, may be admitted.”

Similarly, in R. v. Guenter, 2016 ONCA 572, 350 O.A.C. 318, Brown J.A. notes, at para. 98, that “[t]he collection of the breath samples amounted to no more than a minimal intrusion upon the appellant’s privacy, bodily integrity and human dignity: Grant, at para. 111.”

To find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission.

[40] In this case, in her analysis of the second inquiry, the trial judge followed the second line of authority. She limited her analysis to the intrusiveness of the breath sample procedure itself. She did not consider the entirety of the procedure faced by the appellant after arrest. In my view, she erred in failing to do so.

[41] In R. v. Merko, 2018 ONSC 7336, Woollcombe J. dealt with the appeal of a decision of the trial judge acquitting the accused of driving over 80. Before her, the parties took different positions on the impact of Jennings.

[42] After reviewing the Jennings decision, along with subsequent decisions, Woollcombe J. said the following, at paras. 40 and 42:

It seems to me that the Supreme Court of Canada made clear at para. 134 of Grant that a s. 24(2) analysis must focus on the impact of the breach on the accused’s protected interests. Because different Charter rights protect different interests, if there are different rights violated, each must be considered separately at this stage. It must be assumed that the Court of Appeal in Jennings was well aware of the Supreme Court of Canada’s direction in that regard.

To be clear, I do not see Jennings as creating an automatic rule of inclusion of breath samples irrespective of whether or not s. 9 was also breached. Rather, as Grant directs, a case by case analysis is always necessary to assess the impact of the particular breaches on the particular accused. But, Jennings contemplates and clarifies that there will be a minimal intrusion on an accused’s Charter protected interests in many cases in which there is a breach respecting the arrest and breath demand, which necessarily leads to a detention and transportation to the police station for the taking of a breath sample (and thus a s. 9 violation). Of course, in cases in which the deprivation of an appellant’s liberty is more significant, it might well be that the impact of this breach would be greater. This is a fact specific determination for the trial judge based on all of the circumstances of the particular case: Barr at paras. 56-59.

[43] I agree with the reasoning of Woollcombe J. Just as there is no automatic exclusion of evidence in breath sample cases, there is no automatic inclusion. 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] The trial judge excluded the results of the intoxilyzer tests as a result of the breach. The Crown appealed. On appeal, the argument focused on the trial judge’s s. 24(2) analysis. The argument was that the trial judge had made four errors in the course of the analysis. 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. When they are read together with everything he said earlier about the second Grant factor, I conclude he conducted a thorough and reasonable analysis while taking Jennings into account. There was a sound basis for concluding that Jennings did not dictate a particular result in this case. I agree with my colleague, Woollcombe J. in R. v. Merko, 2018 ONSC 7336, at para. 42, that Jennings does not create an automatic rule of inclusion irrespective of which section of the Charter is breached. As Woollcombe J. said, at para. 40 of Merko, the Court of Appeal would have been aware that in Grant, at para. 134, the Supreme Court of Canada specified that s. 24(2) analysis must focus on the particular protected interests which are at stake. Different Charter rights protect different interests.

[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.

[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 of the Grant Factors

[54] The trial judge’s failure to consider the effect of the violation of the right to retain and instruct counsel without delay in the second enquiry led to a flawed balancing of the Grant factors and, accordingly, the trial judge’s decision in that respect is not entitled to deference.

[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.