R. v. Coelho, [2018] O.J. No.

1972
Ontario Judgments

Ontario Court of Justice

S. Caponecchia J.
Heard: February 27 and 28, 2018.
Judgment: April 9, 2018.
Released: April 12, 2018.
Court File No.: 16-17007
[2018] O.J. No. 1972 | 2018 ONCJ 244
Between Her Majesty the Queen, and Gil Coelho

(81 paras.)

Counsel

K. Henry, counsel for the Crown.

N. Panzica, counsel for the defendant Gil Coelho.

Reason for Judgment

S. CAPONECCHIA J.

INTRODUCTION

1 Mr. Coelho is charged on October 28, 2016 with the offence commonly described as "over
80."

2 The trial took place on February 27 and 28, 2018. The Crown called one civilian witness and
a toxicologist on the trial proper. A blended voir dire was held in which the Crown called the two
arresting officers, PC Pansieri and Savino and the Qualified Breath Technician. The accused
also testified on the voir dire.

FACTS NOT IN ISSUE

3 PC Pansieri and PC Savino were equipped with body microphones and a car camera that
were played in court. Mr. Coelho's subsequent interaction with the breath technician was also
videotaped and played in court. Therefore, a good part of what took place at the scene and in
 Page 2 of 15
R. v. Coelho, [2018] O.J. No. 1972

the breath room cannot be in dispute. It includes the following facts:

* Police received a call at 8:07pm to attend the area of 138 Rosethorn Ave in
Toronto.
* They arrived at 8:43pm and were met by a small group of people on the street,
including Mr. Coelho.
* Police observed unoccupied parked cars with damage. They also found an
unoccupied pick-up truck with damage stopped on the roadway.
* After a very brief exchange of pleasantries about coffee, the first question PC
Savino asks was if anyone was hurt, he received a unanimous response of "NO."
* Next, with no prompting by police, Mr. Coelho stepped forward and said, "this is
my truck." Mr. Coelho was asked by one of the officers if he was driving and he
said yes.
* He subsequently engaged in a conversation with police about a mechanical
explanation for the accident.
* While PC Pansieri was talking to Mr. Coelho she noticed the smell of alcohol on
his breath.
* Between 8:46PM and 8:47PM the two officers turned off their microphones to
discuss next steps.
* A decision was made to make an Approved Screening Device (ASD) demand and
PC Pansieri did so at 8:51PM and Mr. Coelho registered a fail.
* He was arrested at 8:55PM and read his rights to counsel, a caution and a breath
demand.
* When Mr. Coelho was asked if he wanted to call a lawyer now, he said YES. The
officer asked him if he had a lawyer and he said YES. He did not specify the name
of his lawyer, nor did PC Pansieri ask. However, Mr. Coelho did ask for the
opportunity to access his cell phone. PC Pansieri told him she would facilitate the
request when they got to the station. Mr. Coelho testified that he asked for his
phone to be able to access his lawyer's number and PC Pansieri testified that she
understood Mr. Coelho's request for his phone was in order to get his lawyer's
details.
* PC Pansieri and PC Savino left the scene with Mr. Coelho at 9:08PM and arrived
at the police station at 9:29PM. There was a delay at the sally port and they
entered the division at 9:44PM.
* After being paraded Mr. Coelho was placed in a room. At the station PC Pansieri
came to realize that Mr. Coelho's phone had no battery left so she placed a call to
Duty Counsel at 10:02PM. Mr. Coelho spoke to duty counsel at 10:13PM before
he was turned over to the breath technician at 10:19PM.
* The breath tech confirmed with Mr. Coelho that he had spoken to duty counsel
and when asked if he was satisfied with Duty Counsel, Mr. Coelho said yes.
* Mr. Coelho provided two samples of breath, the first sample resulted in a reading
of 181mg of alcohol per 100ml of blood at 10:27PM. The second sample taken at
10:50PM and registered 178mg of alcohol per/100ml of blood.
 Page 3 of 15
R. v. Coelho, [2018] O.J. No. 1972

* The toxicologist testified that Mr. Coelho's blood alcohol would have been more
than 80 if the accident took place any time after 7:00PM.

ISSUES

4 This case turns on the admissibility of breath readings because Mr. Coelho was not charged
with impaired driving. Counsel on behalf of Mr. Coelho alleges breaches of s. 7, 8 and 10(b) of
the Charter in this case which warrant the exclusion of the breath readings pursuant to both s.
24(2) and 24(1) of the Charter. More specifically:

1. Defence submits Mr. Coelho was detained upon the arrival of the police and his
utterances were made without the benefit of having been advised of his right to
silence.
Moreover, his initial admission to being the driver of the pickup when the police arrived at
the scene cannot be used as evidence against him substantively, or for grounds, because
they were statutorily-compelled statements made pursuant to the requirement to make an
accident report in s. 199(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 and violation
of s.7.
In the absence of the admission of driving, defence argues a s. 8 breach has been
established because the police lacked reasonable grounds to make a breath sample
demand pursuant to s. 254(3) of the Code.
The Crown's position is that Mr. Coelho's initial admission to being the driver of the pick-
up when police arrived was voluntarily made, he was not detained at the time, nor
motivated to speak on account of s. 199(1) of the HTA.
The Crown further argues that Mr. Coelho's subsequent utterances after his admission to
being the driver of the pick up and before his arrest, are admissible for grounds, pursuant
to the principles derived from a long line of authorities (Orbanski/Milne).
2. There is a second component to the defence s. 8 argument. Defence alleges there
was an absence of objective grounds for the s. 254(3) breath demand in this case
based on PC Pansieri's failure to turn her mind to when the ASD devise Mr.
Coelho blew into had last been checked and calibrated.
The Crown's position is that PC Pansieri's failure to turn her mind to these details is not
fatal given she blew into the instrument herself at the beginning of her shift to satisfy
herself the devise was working properly.
3. The defence also alleges a breach of 10(b) based on PC Pansieri's efforts, or lack
thereof, to put Mr. Coelho in contact with his counsel of choice.
The Crown's position is that there was no 10(b) breach given Mr. Coelho did not express
any opposition or dissatisfaction with being put into contact with Duty Counsel.1

5 For the reasons that follow, I would not give effect to the first argument advanced by the
defence. That said, having regard to the additional facts that I find below, I would give effect to
the second s. 8 argument, as well as the 10(b). I also find that the combination of both breaches
in this case warrants the exclusion of the breath readings pursuant to s. 24(2) of the Charter.

ISSUE 1: ADMISSIBILITY OF THE ACCUSED UTTERANCE THAT HE WAS THE DRIVER

 Page 4 of 15
R. v. Coelho, [2018] O.J. No. 1972

6 Mr. Coelho testified that he remained at the scene for 30 minutes and waited for police to
arrive because he thought he was legally required to do so. He said he thought he caused about
$7,000 worth of damage to his car. Furthermore, his evidence was that he identified himself as
the driver of the unoccupied pickup because he thought he would be in more trouble if he didn't.
He also admitted that when he initially came forward to talk to the police, he did so without
prompting or as a result of any question posed by police.

7 The police testified that Mr. Coelho was not detained until such time as they smelled alcohol
on his breath and they decided to make a demand for a sample of his breath into an ASD.

8 The video and audio in this case do not support a finding that Mr. Coelho was physically
detained when he initially stepped forward and identified himself as the owner and driver of the
pick-up truck. Therefore the resolution of the first issue raised by the defence rests on whether
Mr. Coelho was either psychologically detained or otherwise legally compelled to make the initial
utterances he did to police.

The Law:

9 R. v. Grant [2009] 2 S.C.R. 353 established that there are two conditions under which a
psychological detention can arise:

(i) where the individual has a legal obligation to comply with a restrictive request or
demand; or
(ii) where a reasonable person would conclude by reason of the state conduct that he
had no choice but to comply.

10 In Grant, the court also observed:

In the context of investigating an accident or a crime, the police, unbeknownst to them at

that point in time, may find themselves asking questions of a person who is implicated in
the occurrence and, consequently, is at risk of self-incrimination. This does not preclude
the police from continuing to question the person in the pursuit of their investigation.2

11 The facts in R. v. Suberu [2009] S.C.J. No. 33 illustrate how interactions between an
individual and the police move along a spectrum before reaching the point of detention. In
Suberu, officers had been called to an LCBO to investigate possible credit card fraud. As an
officer entered the LCBO, he was passed by Mr. Suberu leaving the store who said words to the
effect of, "[he] did this, not me, so I guess I can go." The officer followed Mr. Suberu to his van,
started some questioning, asked for Mr. Suberu's identification and the van's vehicle
documentation and, upon seeing some LCBO bags in the van, arrested Mr. Suberu.

12 The Supreme Court of Canada held that Mr. Suberu was not detained until the moment of
his arrest. The court viewed the encounter with the police officer prior to Mr. Suberu's arrest as
"of a preliminary or exploratory nature," where the officer was attempting "to orient himself to the
situation [that] was unfolding in front of him," was in the "process of sorting out the situation,"
and was "engaged in a general inquiry and had not yet zeroed in on the individual as someone
whose movements must be controlled."3
 Page 5 of 15
R. v. Coelho, [2018] O.J. No. 1972

13 Suberu made clear that not every interaction between the police and members of the public,
even for investigative purposes, constitutes a detention within the meaning of the Charter.4 Even
when an encounter clearly results in a detention, such as when a person ultimately is arrested
and taken into police custody, it cannot simply be assumed that there was a detention from the
beginning of the interaction.5

14 In R. v. White, [1999] 2 S.C.R. 417 the Supreme Court of Canada considered the application
of the principle against self-incrimination under s. 7 of the Charter to accident reports made
under the compulsion of a provision similar to s. 199(1) of the Highway Traffic Act. The court
held that such statements could not be used to incriminate the declarant in subsequent criminal
proceedings. The onus is on the accused to establish, on the balance of probabilities, that the
statements he seeks to exclude were compelled.6 In White the court held that if a declarant
gives an accident report freely, without believing or being influenced by the fact that he or she is
required by law to do so, then it cannot be said that the statute is the cause of the declarant's
statements.7

15 Subsequently in R. v. Soules, 2011 ONCA 429 it was held that that police were prohibited
from relying on statutorily compelled statements from the accused for any purpose, including to
establish grounds for further investigative steps.

16 The decision in Soules is at odds with the previous decisions in Milne/Orbanksi. In R. v.

Orbanski, [2005] 2 S.C.R. 3, it was held that police may rely, for the limited purpose of forming
grounds for an approved screening device demand, upon answers given at roadside by drivers
in response to questions about alcohol consumption. Such evidence entails, "compelled direct
participation" by the driver which would be inadmissible at trial to prove impairment.

17 The conflict between the Soules decision and Milne/Orbanski line of authorities was the
subject of comment by the Supreme Court recently in R.v. Paterson [2017] 1 S.C.R. 202 where
the court observed, albeit in a footnote, that "without commenting on the correctness of Soules, I
observe that Orbanskis direction that the police may rely upon roadside statements for the
purpose I have described was categorical."8

Conclusion Issue #1

a) Detention?

18 Having considered the evidence, including the audio and video from the scene, I find as a
fact that Mr. Coelho was both neither physically nor psychologically detained when police
arrived at 8:43PM and Mr. Coelho stepped forward and identified himself as the driver. In the
present case, the encounter between Mr. Coelho and the police took place during the first two
minutes of an accident investigation by officers who had just arrived on the scene and were
trying to sort things out. I find as a fact that detention did not crystalize until after police detected
the odour of alcohol coming from Mr. Coelho's breath and they commenced a criminal
investigation by initiating an ASD demand.

19 This was a fluid situation where the events transpired over a very short period. The
encounter between the two officers at the scene and Mr. Coelho resembles the sequence of
events in R. v. Guenter [2016] O.J. No. 3857 (C.A.), leave refused [2016] S.C.C.A. No. 433. In
 Page 6 of 15
R. v. Coelho, [2018] O.J. No. 1972

Guenter the appellant's discussion with an officer at an accident scene occurred when the officer
was attempting to orient himself to the accident scene when he had just arrived, was trying to
sort things out, and was engaged in a general inquiry. The initial select statements made by the
appellant in Guenter were found to have been made when he was not legally detained and were
admitted into evidence.

20 Mr. Coelho's situation also resembles the case of Mr. Suberu. The interaction between Mr.
Suberu and the police officer prior to his arrest was more in the nature of "preliminary
questioning" than a detention.9

b) Statutory Compulsion?

21 I also conclude that Mr. Coelho has not satisfied me on a balance of probabilities that when
he admitted he was the driver he did so because he felt he was under a statutory compulsion to
do so.

22 Again, having had the benefit of considering the evidence, including the audio and video
from the scene, I find that Mr. Coelho's admission to being the driver and his subsequently self-
serving explanation as to the mechanical cause of the accident was equally consistent with
someone who was speaking out of a sense of legal compulsion as it was of someone who was
speaking freely, without being compelled to do so by law.

23 In coming to this conclusion, I take into consideration Mr. Coelho's demeanour and
comportment on the video, what he did and did not do and say at the scene and certain
common-sense inferences available on the evidence. For example:

1. There is no reference at the scene to an accident report by Mr. Coelho or the

police. In fact, PC Pansieri testified that she did not believe an accident report was
required in this case because no one was injured.
2. There was no evidence that after he collided with three parked cars Mr. Coelho
made any calls himself to report the accident. Something one would have
expected if in fact he was operating under a sense of legal obligation to file a
report.
3. If he was preoccupied with his obligation under the HTA, one would have
expected to hear evidence of attempts on his part to ascertain who the owners of
the cars were that he struck and attempt to exchange licence and insurance
information with them. There was no evidence of any such efforts on his part in
the 30 minutes that he waited for police to arrive.
4. When Mr. Coelho spoke to police upon their arrival, it would not have been lost on
him that the resident who saw him exit his truck was present and could have
easily identified him.
5. It would also not have been lost on Mr. Coelho that it was in his best interest to
appear co-operative with police and provide them with a self-serving mechanical
explanation for the accident that had nothing to do with alcohol consumption. In
other words, he not only admitted what would have been quickly ascertained by
police, but also gave a non-criminal explanation for the cause of the collisions that
was in is interest.
 Page 7 of 15
R. v. Coelho, [2018] O.J. No. 1972

24 In short, Mr. Coelho has not satisfied the burden necessary to attract the s. 7 protection he
claims pursuant to the decisions in White and Soules. I am not satisfied on balance either way
as to whether when Mr. Coelho identified himself as the driver he acted out of altruism,
generalized compliance with police authority, a sense of moral obligation or civic duty, self-
interest or as the Charter jurisprudence commands, a legal compulsion to report the accident.

25 I also agree with J. Green's observations in PITA 2013 ONCJ 716. Namely, the fact that a
defendant felt s/he had to stay at the scene and felt obliged to talk to the police is insufficient to
place the individual's statements outside the reach of the state. An abstract sense of duty, or
misapprehension of one's obligations in the face of an officer's questions, does not establish a s.
7 claim in those circumstances in the absence of nexus between a personal sense of obligation
to the police and the appropriate external legal requirement of a driver so as to come within the
White doctrine.10

26 In the result, the defendant's roadside admission that he was the driver of the unoccupied
pick-up at the time of the collision is admissible in the trial. It also affords an objective basis for
both officers belief of the same proposition. Put otherwise, there were grounds to believe that
Mr. Coelho was the driver of a motor vehicle for the purpose of demanding a breath sample into
the ASD and a s. 254(3) demand.

27 Given my findings that Mr. Coelho was not physically or psychologically detained at the time
he admitted to driving and that he has not established on a balance of probabilities that he
spoke out of a statutory compulsion to do so, I need not resolve the conflict in the decisions of
White, Soules, Orbanski/Milne and Paterson.

ISSUE 2: OBJECTIVE GRONDS FOR A S. 254(3) DEMAND

28 In this case the defence does not suggest PC Pansieri lacked subjective grounds for a 254
(3) demand after Mr. Coelho produced a FAIL result when blowing into the ASD. The issue is
whether the belief was objectively reasonable because in this case there is no evidence as to
when the last accuracy or calibration check was conducted on the ASD, or that the officer even
turned her mind to it.

The Law

29 254(3) of the Criminal Code authorizes a police officer to demand breath samples from a
suspected impaired driver where the officer has "reasonable grounds to believe" that the
suspect has, within the preceding three hours, has committed an offence under s. 253 as a
result of the consumption of alcohol.

30 The section bestows a significant power upon a peace officer to interfere with the liberty of
the citizen. It requires, however, as preconditions to the lawful exercise of the grant of power,
the officer must form a particular belief, and the belief must be based on reasonable and
probable grounds.11

31 The determination of whether there are reasonable and probable grounds to demand a
breath sample under s. 254(3) of the Criminal Code has a subjective and an objective
component:
 Page 8 of 15
R. v. Coelho, [2018] O.J. No. 1972

(i) the officer must have an honest belief that the suspect committed an offence; and
(ii) there must be reasonable grounds for that belief.12

32 A lawful demand is a statutory and constitutional prerequisite to any breath test results that
follow. BAC readings secured absent compliance with s. 254(3) are not authorized my law and
violate of a defendant's s. 8 rights to be secure against unreasonable search and seizure.

33 Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous

threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it
so diluted as to threaten individual freedom.13

34 The test of reasonable grounds is, ultimately, one of credibly based probability -- a well-
recognized standard for arbitrating the intersection of law enforcement and individual interests.14

35 The leading judgment on the question of reasonable and probable grounds to make a 254(3)
demand where the officer relies upon the results from an approved screening device is that of R.
v. Bernshaw [1995] 1 S.C.R. 254. This case relates primarily to a discussion regarding an
officer's subjective grounds. The court held that where the officer is aware that the results of the
approved screening device are unreliable because of the circumstances in which the test was
administered, then the officer cannot have the requisite subjective belief. The court also held
that where the particular screening device used has been approved under the statutory scheme,
the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary.

36 The determination of whether the constable's belief was objectively reasonable largely turns
on whether it was reasonable for him or her to believe that the ASD was functioning properly.15
An officer is "entitled to rely on [the accuracy of an ASD] unless there is credible evidence to the
contrary".16 However, if an officer cannot rely on the accuracy of the ASD test results, those
results cannot assist the officer in determining whether there were reasonable and probable
grounds to arrest a driver and demand a subsequent breath test.17

37 Failure to follow policy or practice manual directions does not automatically render reliance
on test results unreasonable. What matters is whether the officer had a reasonable belief that
the device was calibrated properly and in good working order, and whether the test was properly
administered.18 A failure to follow a practice manual direction can serve as some evidence
undermining the reasonableness of an officer's belief. But the fact that an officer failed to follow
a practice manual direction is not itself dispositive. Not every failure to follow a direction is
necessarily fatal to reasonableness of belief. Not all practice manual directions will bear equally,
or perhaps at all, on the reasonableness of an officer's belief that the ASD is properly
functioning. It is necessary to take the further step and determine how or whether each of the
specific failures identified undermine the reasonableness of the officer's belief that the ASD was
functioning properly.19

38 The police officer who administered the approved screening device in the case of Topaltsis
[2006] O.J. No. 3181 (C.A.) testified that before doing so, he noticed that the device had last
been calibrated 26 days earlier, outside his police department's current practice of calibrating
approved screening devices every two weeks. However, the police officer also stated that his
department's practice concerning frequency of calibration was far in excess of the
manufacturer's standard which was once every six months. The Court of Appeal found that it
was an error for the trial judge to have embarked on a consideration of whether the evidence
 Page 9 of 15
R. v. Coelho, [2018] O.J. No. 1972

established that the device was in good working order, rather than simply assessing whether, on
an objective basis, the officer had reasonable grounds for believing that the approved screening
device was in good working order.

39 In the most recent decision in R. v. Jennings [2018] O.J. No. 1460 the Court of Appeal found
an officer's grounds were both subjectively and objectively reasonable when the officer relied on
a ASD FAIL result and he had not followed all the steps set out in the police policy manual
before using the ASD.

Conclusion Issue #2

40 In this case there is no dispute that PC Pansieri had a subjective belief that the respondent
had been driving with a blood/alcohol level of over .80. The issue here is whether her belief was
objectively reasonable.

41 In this case a Toxicologist was called to testify on the trial proper, not the voir dire. She read
back the accused's BAC level starting from 7PM. She was also cross-examined on the reliability
of the ASD. I accept that the Centre of Forensic Science recommends accuracy checks be
conducted on the ASD used in this case every 15 days. She could not say when she would start
to question the reliability of ASD results taken from devices that had not had the recommended
accuracy and calibration tests conducted on them.

42 The Qualified Breath Technician testified on the blended voir dire. He was not specifically
asked about the maintenance practices for ASDs by Toronto Police Service. He did however
testify that there is a sticker on each ASD that sets out when the last calibration and accuracy
check was conducted. He also testified that it was his understanding that if the tests had not
been performed within the last 30 days one will not be able to operate the machine.

43 In this case the Crown relies on the evidence of the self-test conducted by PC Pansieri at
the beginning of her shift to support both the subjective and objective reasonableness of the
officer's belief for making a 254(3) demand following the FAIL result obtained from Mr. Coelho. I
accept PC Pansieri conducted a self-test on the same ASD Mr. Coelho used and when she
tested it, she obtained a ZERO reading, consistent with her having no alcohol in her system.
However PC Pansieri did not turn her mind to when the device last had accuracy and calibration
checks conducted on it. She testified she did know and presented as disinterested in these
details. She had no notes to support the suggestion that she had checked for this information
but just forgot to note the details down. Nor was it her evidence that it is her practice to check
the sticker on the side of the ASD before she uses it. Her evidence was that she was content to
proceed on the basis of the self-test only. What is more, she had no explanation as to why that
was sufficient in her mind. She did not take the position that she relied on her understanding as
to how frequently TPS maintains their ASD machines. Nor did she testify that she relied on her
belief that the machine would not work if the checks had not been done in the last 30 days. She
was trained on how to the use an ASD in January 2016.

44 Her lack of knowledge and appreciation for these details is of concern to this court given her
evidence was also lacking when it came to her overall understanding as to the possible results
that an ASD could yield. When asked what the significance of a PASS result was, she indicated
she was unfamiliar with the range of BAC that would yield a PASS. When asked what a WARN
result meant, she testified that she was not entirely sure. When questioned as to the significance
 Page 10 of 15
R. v. Coelho, [2018] O.J. No. 1972

of a FAIL result, she responded that she could not recall the exact BAC number that would
produce a FAIL result.

45 The sum total of the officer's evidence was that a FAIL gave her grounds to believe the
accused had over the legal limit of alcohol in his body and that she was satisfied the ASD was
working properly for one reason only, because she conducted a self-test on herself at the
beginning of her shift.

46 On the facts of this case, I am not satisfied PC Pansieri's subjective belief was objectively
reasonable and provided grounds for a 254(3) demand. Accordingly, I find a s. 8 breach has
been made out in this case.

47 In so doing I would distinguish the recent Jennings case from Mr. Coelho's case for two
reasons:

1. The officer in Jennings did not record the calibration particulars for the ASD,
however he did testify that he checked them.
In Mr. Coelho's case I have no confidence that PC Pansieri checked the accuracy and
calibration of the device she was using or appreciated the significance of doing so.
2. There was evidence before the court in Jennings that the officer using the ASD
was aware that it had a fail-safe feature that would cause the device would shut
down and not operate if it was not properly calibrated.
In Mr. Coelho's case there was no evidence from PC Pansieri that she was aware of this
feature and considered it when she decided to use it.

ISSUE 3: 10(B) -- Counsel of Choice

48 The defence also asserts that the implementation component of s. 10(b) of the Charter fell
short of constitutional standards. I agree.

The Law:

49 The Supreme Court of Canada has interpreted the right to retain and instruct counsel,
guaranteed by section 10(b) of the Charter, as including a right to consult a lawyer of one's
choosing.20

50 Individuals are only expected to call another lawyer if their chosen lawyer "cannot be
available within a reasonable time."21 The duration of this period might be shortened by
circumstances of "urgency" or some other "compelling reason."22

51 In R.v. Willier [2010] S.C.R. 429 the court made clear that section 10(b) requires not only
that the police afford those detained a reasonable opportunity to contact a lawyer of their
choosing but also imposes a positive duty on the police "to facilitate that contact."23 In Wilier, the
Court also elaborated on what will qualify as a reasonable period of time to wait for counsel of
choice, explaining that this will depend "on the circumstances as a whole, and may include
factors such as the seriousness of the charge and the urgency of the investigation".24

52 The Supreme Court has also explained that urgency capable of displacing the right to
 Page 11 of 15
R. v. Coelho, [2018] O.J. No. 1972

consult counsel does not arise in drinking and driving cases simply because the passage of time
may jeopardize the Crown's reliance on the two-hour statutory presumption found in subsection
258(1)(c)(ii) of the Code. This is because even where delay in contacting counsel forecloses
reliance on the presumption, the Crown will still be able to adduce expert evidence to relate
lower test results back to the blood-alcohol level at the time of the offence.25

53 In assessing how long the police can be expected to wait for a detainee to contact counsel
of their choosing, the Supreme Court has suggested that the availability of free and immediate
advice from duty counsel is a relevant consideration. At a certain point, after efforts to contact
counsel of choice have proven unsuccessful, the detainee will be expected to contact duty
counsel or risk a finding that they were not reasonably diligent in the circumstances.26

Conclusion issue #3

54 Applying the governing legal principles to the facts I find in this case, I find that PC Pansieri
failed to implement Mr. Coelho's right to his counsel of choice.

55 It is clear from the record before me that when PC Pansieri first informed Mr. Coelho of his
right to a lawyer Mr. Coelho asserted his wish to speak to a lawyer of his choosing, not Duty
Counsel. PC Pansieri acknowledged in evidence that she understood Mr. Coelho wished to
access his phone to speak to a specific lawyer. Both PC Pansieri and Mr. Coelho agreed that it
was PC Pansieri's intention to help facilitate his access to a lawyer of his choice once at the
station when she would access his phone.

56 However back at the station, PC Pansieri did nothing to facilitate access to Mr. Coelho's
counsel of choice after learning Mr. Coelho's phone had no power. Instead, she made a decision
to call Duty Counsel.

57 I accept Mr. Coelho's evidence that PC Pansieri never informed him that his phone was
without power or ask him for the name of the lawyer. Nor did she offer to look up anyone's
phone number for him. Nor did she give him a legal directory or phone book to look up his
lawyer's number.

58 PC Pansieri's evidence did not contradict Mr. Coelho's evidence in any material way. She
testified that she did not recall ever asking Mr. Coelho for his lawyer's name. She said if she
had, she would have put it in her notes. She had no such note. She acknowledged never
offering him access to the internet or a phone book to look up his lawyer's number. Nor did she
use a directory or the internet herself. She never offered to contact someone on Mr. Coelho's
behalf to get his lawyer's contact details. The only thing she did was present him the phone
when Duty Counsel called back.

59 The right to counsel of choice belongs to the accused, it is not the state's choice to choose
for an individual, as occurred in this case. PC Pansieri effectively funnelled the defendant to duty
counsel without any input or further discussion with Mr. Coelho after she learned his phone to be
without power.

60 Accordingly, I find a breach of 10(b) in this case.

ISSUE 4: REMEDY S. 24(2) OF THE CHARTER

 Page 12 of 15
R. v. Coelho, [2018] O.J. No. 1972

61 Counsel for the accused seeks exclusion of the breath tests as a result of the s. 8 and 10(b)
violations. In my view, the first two factors outlined in R. v. Grant [2009] 2 S.C.R. 353 favour the
exclusion of the breath results in this case.

1. The Seriousness of the Breach

62 The first Grant factor concerns the seriousness of the breach.

63 The question is whether the admission of the evidence would bring the administration of
justice into disrepute by suggesting that the courts will condone breaches of the Charter and the
need for the courts to dissociate themselves from unlawful conduct. The more severe or
deliberate the state conduct that led to the Charter violation, the greater the need for the courts
to dissociate themselves from the conduct so as to preserve public confidence in the rule of
law.27

64 Conduct ranges from conduct which is inadvertent and minor, to conduct which is wilful or
reckless. Good faith may mitigate the seriousness of a breach; however, negligence or wilful
blindness cannot constitute good faith.28

65 In this case the combination of the both the s. 8 and 10(b) violations make the breaches in
this case serious.

66 In this case PC Pansieri acknowledged that she was aware of her duty to make reasonable
efforts to facilitate access to Mr. Coelho's lawyer of choice, yet she could point to no good
reason as to why she did not take the most basic of steps. PC Pansieri deliberately made zero
efforts to implement Mr. Coelho's right to counsel of choice. She did not make even token efforts
to do so. She failed to take basic and reasonable steps such asking him the name of his lawyer
and looking it up. Nor did she provide him access to a phone book or offer to contact someone
who would have his lawyer's contact details. PC Pansieri's casual attitude toward the exercise of
an important constitutional right was egregious and not merely technical.

67 Contacting Duty Counsel was not the officer's decision to unilaterally make, it was Mr.
Coelho's, Her failure to provide any reasonable explanation for why she did so for Mr. Coelho is
troubling and does not mitigate the breach.

68 Good faith does not apply in this case. Given there was flagrant disregard for implementing
contact with Mr. Coelho's counsel of choice, I don't find the fact that Mr. Coelho told the breath
technician that he was satisfied with duty counsel as lessening the seriousness of the 10(b)
breach.

69 PC Pansieri's lack of due care and attention for Mr. Coelho's right to counsel is consistent
with her casual approach towards the use of the ASD where she presented having only a
superficial understanding of how the ASD worked.

2. Impact on the Applicant's Charter-Protected Interests

70 The second Grant factor concerns the impact of the breach on the applicant's Charter-
protected interests. Under this line of inquiry, a court must look at the interests engaged by the
right infringed and evaluate the extent to which the violation impacted those interests. The
 Page 13 of 15
R. v. Coelho, [2018] O.J. No. 1972

impact must be considered on a spectrum that ranges from "fleeting and technical, to profoundly
intrusive."29

71 In order to consider the impact on the Charter-protected rights of the defendant, it is

necessary to consider, among other things, the discoverability question.

72 In this case the impact of the s. 10(b) breach had little impact on the obtaining of the breath
samples by the Qualified Breath Technician.

73 However the s. 8 breach was causally and temporally connected to the collection of the
breath samples that would not have otherwise been discovered but for the breach. The s. 8
breach was neither fleeting nor technical. I find that the impact on the applicant's s. 8 Charter-
protected interests in this case was serious.

74 In so finding I recognize that appellate courts have repeatedly held that "[t]he collection of
the breath samples amounts to no more than a minimal intrusion upon the appellant's privacy,
bodily integrity and human dignity."30

75 I find that the facts in this case warrant an exception to the general rule that has developed
with respect to the admissibly of breath samples due to their non-obtrusiveness and second
branch of the 24(2) test favours exclusion.

3. Society's Interest in an Adjudication on the Merits

76 The third step of the Grant analysis concerns society's interest in adjudication on the merits.
This third inquiry asks whether the truth-seeking function of the criminal trial process would be
better served by admission of the evidence, or by its exclusion. Under this step, a court
examines the reliability of the evidence and its importance to the Crown's case. This inquiry pulls
towards inclusion of the evidence when the evidence is reliable and crucial to the case for the
Crown.31

77 In this case the breath samples are highly reliable evi dence. Without this evidence, the
Crown has no case on the "over 80" charge. As the Supreme Court observed in Grant, the third
branch of the 24(2) inquiry will rarely favour exclusion of breath samples.

78 In this case the third branch in Grant favours inclusion.

Conclusion on s. 24(2)

79 Under s. 24(2) I am to balance the interests of truth s eeking with the need to maintain the
long-term integrity of the administration of justice.

80 I have considered the three lines of inquiry contemplated by the Supreme Court in Grant and
have found that the first and second factors favour exclusion of the breath samples. In R. v.
McGuffie, 2016 ONCA 365, the court held that where the first two Grant factors favour
exclusion, the third step "will seldom, if ever tip the balance in favour of admissibility."32

81 If I am found to have erred with respect to my conclusion regarding the s. 8 breach, or the
second factor of the Grant test, I find that the first factor, the seriousness of the s. 10(b) breach,
weighs so heavily in favour of exclusion so as not to be outweighed by the other two factors.
 Page 14 of 15
R. v. Coelho, [2018] O.J. No. 1972

That is, in this case I find it in the best interests of justice to exclude the evidence in order to
protect the rule of law and the integrity of the justice system in the long run by not
countenancing the actions, or inaction, of officers that fall below a basic standards for
implementing rights to counsel.

S. CAPONECCHIA J.

1 In oral submission defence (appropriately) abandoned an as soon as practicable argument" advanced in their FORM 1.

2 Grant, para. 38.

3 Suberu, paras.31-32.

4 Suberu, para. 3.

5 Suberu, para. 5.

6 White, para. 81.

7 White, para. 76.

8 Paterson, footnote 2.

9 Suberu, paras. 33,

10 Pita, para. 54,

11 R. v. Cooper (1993), 46 M.V.R. (2d) 231, paras. 12-14.

12 R. v. Wang, 2010 ONCA 435, 263 O.A.C. 194, para. 14.

13 R. v. Censoni, [2001] O.J. 5189 (S.C.), para. 43.

14 Censori para. 30.

15 R. v. Jennings [2018] O.J. No. 1460, para. 12.

16 Bemshaw, para. 80.

17 R. v. Einarson, [2004] O.J. No. 852 (C.A.), para. 14.

18 Bemshaw, paras. 59-60, 83; R. v. Topaltsis (2006), 34 M.V.R. (5th) 27 (Ont. C.A.), paras. 7,9.

19 Jennings, para. 17.

20 R. v. Ross, [1989] 1 S.C.R. 3, para. 13.

21 Ross, para. 13.

22 Ross, para. 13.

23 Wilier, para. 33

24 Wilier para. 25.

25 R. v. Prosper, [1994] 3 S.C.R. 236 at 275-77.

26 R. v. Brydges, [1990] 1 S.C.R. 190, at 216; R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.).

27 Don Stuart, Charter Justice in Canadian Criminal Law (sixth edition 2014) at page 651.

28 Grant, para. 75.

29 R. v. Manchulenko, [2013] O.J. No. 3977, para. 90.

 Page 15 of 15
R. v. Coelho, [2018] O.J. No. 1972

30 Grant, at para. 111.

31 R. v. Manchulenko, 116 O.R. (3d) 721, para. 100.

32 R. v. McGuffie, 2016 ONCA 365 at para. 63.

End of Document