ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(P2731/08 (Brampton DATE: 20090724 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: HER MAJESTY THE QUEEN Cynthia Valarezo, for the Crown Respondent - and - VINH-THANH DU Steven Stauffer, for Mr. Du Appellant HEARD: May 11, 2009 REASONS FOR JUDGMENT [On appeal from the judgment of Justice J. Keaney dated June 16, 2008, Brampton, Ontario] MURRAY J. [1] The appellant Crown appeals from the acquittal of Vinh-Thanh Du on a charge of driving a motor vehicle with excess blood alcohol [ over 80 ] contrary to

- 2 - section 253(b of the Criminal Code of Canada by the Hon. Justice J. Keaney of the Ontario Court of Justice on June 16, 2008 following a trial in Brampton, Ontario. [2] The trial judge found that the police officers had violated the respondent s s. 10(b Charter rights and excluded the breath samples with the result that the respondent was acquitted. [3] The appellant argues that the judge erred in law by finding a section 10(b violation and further erred in law by excluding the breath samples pursuant to section 24(2 of the Charter. The Facts [4] On September 2, 2006 at 2:02 A.M. the police observed a red Toyota minivan traveling westbound at a high rate of speed on Highway 401 in the City of Mississauga. The police followed the vehicle for short distance and determined that it was traveling at approximately 130 km/h and further that it was weaving within its lane. The respondent driver was stopped by the police who then detected the odour of an alcoholic beverage on the respondent s breath. The respondent admitted to consuming 2 beers. The officer administered an approved screening device demand which registered fail. The police then arrested the respondent for over 80 contrary to section 253(b of the Criminal

- 3 - Code of Canada. [5] The arresting officer provided the respondent with his rights to counsel at 2:14 A.M. The respondent indicated that he understood those rights. The respondent advised the officer that he wished to speak with a lawyer and when prompted for the lawyer s name, the respondent indicated that he wished to speak with Richard Shekter. At 2:15 A.M. the officer made the Intoxilyzer breath demand and the respondent was transported to the O.P.P. Port Credit detachment arriving at 2:36 A.M. [6] Upon his arrival at the O.P.P. detachment, the respondent provided the wrong spelling of Mr. Shekter s name, spelling it with a c rather than with a k. Notwithstanding this error, Constable Muller, the arresting officer, confirmed that the respondent wanted to speak with Mr. Shekter by verifying with the respondent that Mr. Shekter s office was located at 390 Bay Street in Toronto. At 2:44 A.M., Constable Muller called the number listed in the legal directory and left a message to call the Port Credit O.P.P. detachment. In his voicemail message left for Mr. Shekter, Constable Muller gave the name of the detainee who was in custody and gave the detachment telephone number. The answering machine in Mr. Shekter s office did not give any forwarding number. [7] Constable Muller s evidence was that after having left a message on Mr.

- 4 - Shekter s answering machine, he then asked the respondent whether he wished to speak with duty counsel if Mr. Shekter did not return a call within the following 15 minutes. The respondent indicated that he wished to speak only with Mr. Shekter and did not want to speak with duty counsel. When there was no call back from Mr. Shekter, Mr. Du was turned over to the breath technician at 3:01 A.M., 17 minutes after the phone call was made to Mr. Shekter s office. [8] While in the breathalyzer room, the respondent advised Constable Webb, the qualified breath technician, of his desire to speak only with Mr. Shekter and again declined duty counsel. Constable Webb asked the respondent about the location of Mr. Shekter s Law office to which the respondent answered: 390 Bay Street, Toronto. Constable Webb further advised the respondent that if Mr. Shekter called back, he would stop what he was doing to give the respondent the opportunity to speak with Mr. Shekter. Mr. Shekter did not return the phone call while the respondent was in the breath room, nor did he call by 7:00 A.M., some 4 hours after the message was originally left on Mr. Shekter s answering machine by Constable Muller. In cross-examination, P.C. Muller admitted that in the early morning of September 2, he thought that the chances of Mr. Shekter returning the telephone call made to the law office at 390 Bay Street were next to zero. P.C. Muller took no further steps to attempt to contact Mr. Shekter or to advise Mr. Du of the limited nature of his efforts or his assessment of their chances of

- 5 - success. [9] The respondent was not offered the opportunity to personally consult a telephone book, nor was he given access to the Internet to look for Mr. Shekter s home phone number. Neither did the respondent request that these services be made available to him, nor did he ask any police officer to call Mr. Shekter at his home. Neither did the respondent provide the officers with more specific information about his counsel of choice, Mr. Shekter, in order to facilitate contact with him. [10] At trial, the respondent testified that he did not ask to consult a phone book or use the Internet to obtain Mr. Shekter s home number because he did not want to cause a scene. Mr. Du testified that had he known that the police did not have Mr. Shekter s home phone number, he would have asked to be provided with a copy of the white pages of the telephone book or have asked for access to a computer so that he could have looked up Mr. Shekter s contact information for himself. Mr. Shekter s home phone number is listed in the Toronto white pages and also could have been found by using Canada 411 on the Internet or by calling directory assistance. [11] The respondent further testified that he did not ask Constable Muller whether he had called Mr. Shekter at his home. The respondent agreed that he

- 6 - could have spoken with duty counsel that morning but elected not to because he did not know the credentials of duty counsel or whether duty counsel would act in his best interest. In short, the respondent testified that he did not trust duty counsel. [12] The respondent provided samples of his breath to the OPP. The first breath sample provided at 3:15 A.M. registered a reading of 135 mg of alcohol in 100 ml of blood and the second breath sample provided at 3:39 A.M. registered a reading of 116 mg of alcohol in 100 ml of blood. The Judgment at Trial [13] The trial judge found that the police did comply with the informational component of section 10 (b but that they violated the implementational obligation imposed in circumstances where a detainee has a right to counsel pursuant to section 10 (b of the Charter. See R. v. Brydges (1990, 53 C.C.C. (3d 330 (S.C.C.. [14] The trial judge found that the police did not tell Mr. Du that a telephone message had been left at Mr. Shekter s office and, because there was no automatic call forwarding function on the office telephone, he found that the police knew that the possibility of a return phone call by Mr. Shekter was remote

- 7 - or non-existent. In short, the trial judge found that P.C. Muller had no expectation that his initial call made to Mr. Schekter s office would be returned and that Mr. Du was simply told that his lawyer and had been called and that if the lawyer did not call back he would be taken to the breath room. The trial judge held that there was a breach of Mr. Du s section 10(b Charter rights to counsel of his choice. The trial judge determined that the police did not make reasonable efforts to facilitate contact with Mr. Shekter. The trial judge concluded that Mr. Du s decision not to avail himself of a free duty counsel would likely not have been the same if he had been possessed with all of the information that would have permitted him to reach the conclusion, as did P.C. Muller, that Mr. Shekter would likely not be calling him. [15] Finally, the trial judge determined that the violation of Mr. Du s section 10(b Charter rights warranted the exclusion of evidence pursuant to section 24(2 of the Charter. The trial judge found that the breath samples were conscriptive evidence and after stating that he had considered all of the factors set out in R. v. Collins, [1978] S.C.R. 265 and had reviewed the criteria for assessing trial fairness as set out in R. v. Grant (2006, 209 C.C.C. 250, the trial judge concluded that the admission of the breathalyzer evidence could bring the administration of justice into disrepute. The trial judge made it clear that he was not concluding any lack of good faith on the part of the officers involved in finding

- 8 - a failure to meet the implementation of duty imposed on them. Analysis The Violation of the Right to Counsel (Charter section 10(b [16] As Justice Durno stated in R. v. Gentile, [2008] O.J. No. 3664, the test of whether an accused has been provided with his or her right to counsel is fact specific. At paragraph 24 of the Gentile decision, Durno J. stated as follows: Whether the police have provided a detainee with his or her rights to counsel requires a fact-specific determination in each case. The test is not whether the police could have done more to contact Mr. Locke. Clearly, they could have. Rather, the questions are whether the police provided the detainee with the information required to assist in exercising the rights to counsel and whether the police facilitated that contact, the implementational component, including whether they failed to hold off while the appellant was attempting to contact counsel. [17] The trial judge found that the decision of the respondent not to avail himself of duty counsel might have been different if the respondent had been given the information which would have permitted him to conclude that Mr. Shekter would likely not be calling him. Given this finding, the decision of the trial judge that there had been a violation of Mr. Du s section 10 (b Charter rights is not unreasonable. Should the breath sample evidence obtained by the police be admitted pursuant to section 24(2 of the Charter?

- 9 - [18] In R v. Grant, [2009] S.C.J. No. 32, [2009] A.C.S. no 32, 2009 SCC 32, the Supreme Court of Canada stated at paragraph 71: When faced with an application for exclusion under s. 24(2, a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1 the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct, (2 the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little, and (3 society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2 application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. The Seriousness of the Charter-infringing State Conduct [19] In R v Wilding, 88 O.R. (3d 680, (2007, 229 C.C.C. (3d 507 (2007, 233 O.A.C. 47, the arresting officer did not make reasonable efforts to contact the respondent s counsel of choice, although the efforts made by the police in Wilding included an effort to find counsel s phone number in the white pages. The Court of Appeal concluded that it was satisfied that the breach was a minor one and in so concluding held as follows: Accepting, for purposes of s. 24(2, that the officer could and should have done more, such as calling directory assistance or checking the Canada 411 service through the internet, in the face of the efforts he did make (which the trial judge found to be sufficient in the circumstances the summary conviction appeal judge overstated the nature of the breach when he found that it showed an institutionalized failure to respect the right to counsel of choice in cases like this one. The evidence in this case fell considerably short of warranting a serious finding of that nature.

- 10 - [20] The trial judge in this case determined that the police had acted in good faith. "Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct (See R v. Grant (SCC at para. 75. [21] In this case, I conclude that the conduct of the police did not amount to a serious breach of the respondent s section 10 (b Charter rights. The Impact of the Breach on the Charter-protected Interests of the Accused. [22] According to the Supreme Court of Canada in Grant, to determine the seriousness of the infringement from this perspective i.e., the impact of the breach on the Charter-protected interests of the accused, a court is required to look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests. [23] According to the Supreme Court of Canada, this inquiry requires the court to consider the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. In calling for courts to make an evaluation of the extent to which the breach actually undermined the interests protected, the court noted that the impact of a Charter breach may range from fleeting and technical to profoundly intrusive. In Wilding, the Ontario Court of Appeal stated that the taking of breath samples is minimally intrusive. Accepting

- 11 - that characterization by the Court of Appeal, there is not significant risk that the addition of the evidence would bring the admission of justice into disrepute. The Effect of Admitting the Evidence on the Public Interest in Having a Case Adjudicated on its Merits. [24] The public has a strong interest in having cases such as this adjudicated on their merits. Numerous cases have commented on the death and destruction caused by drinking and driving and in the public s interest in curbing such criminal conduct. (See R. v. Richfield (2003, 178 C.C.C. (3d 23 (O.C.A. [25] According to Grant, the third line of inquiry will usually favour admission in cases involving bodily samples. In Grant, the Supreme Court noted that - unlike compelled statements - evidence obtained from an accused's body is generally reliable and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission. To the same effect, in Grant, the Supreme Court of Canada stated at paragraph 81: public interest in truth-finding remains a relevant consideration under the s. 24(2 analysis. The reliability of the evidence is an important factor in this line of inquiry. If a breach (such as one that effectively compels the suspect to talk undermines the reliability of the evidence, this points in the direction of exclusion of the evidence. The admission of unreliable evidence serves neither the accused's interest in a fair trial nor the public interest in uncovering the truth. Conversely, exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute.

- 12 - [26] In Grant, the Supreme Court of Canada rejected the rigidity resulting from R. v. Stillman, [1997] 1 S.C.R. 607 and agreed that Stillman has been properly criticized for casting the flexible "in all the circumstances" test prescribed by s. 24(2 into a straight-jacket that determines admissibility solely on the basis of the evidence's conscriptive character rather than all the circumstances. This rigidity has led to the exclusion of evidence described by the Supreme Court of Canada as evidence that should in principle and policy, be admitted. Specifically mentioned by the Supreme Court of Canada as evidence which in principle and policy should be admitted is breath sample evidence tendered on impaired driving charges where the Charter breach in question is minor and where admission of the breath sample evidence would not realistically bring the administration of justice into disrepute. [27] In Grant, the SCC also stated that the importance of the evidence to the prosecution's case is a factor to be considered. According to the court, the importance of the evidence is a factor corollary to the inquiry into reliability, for the following reasons (see para 81: The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.

- 13 - [28] The comments of the Supreme Court of Canada in Grant are consistent with those of the Ontario Court of Appeal in Wilding which, acting on the assumption that the breath samples constituted conscriptive evidence, underscored that the breath samples were minimally intrusive and essential to control the societal problem of drinking and driving. In addition, the Ontario Court of Appeal took into account that breath samples were entirely reliable. The Court of Appeal in Wilding concluded that those features militated in favor of inclusion of the evidence. In this case, there was no challenge to the reliability of the breath samples. Those features are therefore present in this appeal. Conclusion [29] I am satisfied that, in all the circumstances of this case, the exclusion of reliable breath sample evidence needed to establish the serious offence with which the respondent was charged will do more harm than good to the administration of justice and that the reputation of the justice system would suffer if the breath sample evidence were excluded. [30] I conclude in this case that the breathalyzer evidence should have been admitted under s. 24(2.

- 14 - [31] In the result, the appeal is allowed, the acquittal is set aside and a conviction shall be registered against the respondent, Vinh-Thanh Du, on the charge of driving a motor vehicle with excess blood alcohol [ over 80 ] contrary to section 253(b of the Criminal Code of Canada. [32] This matter is further remitted to the trial judge for sentencing. Released: July 24, 2009 MURRAY J.

COURT FILE NO.: SCA(P2731/08 (Brampton DATE: 20090724 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: HER MAJESTY THE QUEEN Respondent - and VINH-THANH DU Appellant REASONS FOR JUDGMENT [On appeal from the judgment of Keaney J. dated June 16, 2008, Brampton, Ontario] MURRAY J. Released: July 24, 2009