



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Manchulenko, 2013 ONCA 543

DATE: 20130905

DOCKET: C55535

Rouleau, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Mackenzie Manchulenko

Respondent

Deborah Krick, for the appellant

Donald Orazietti, for the respondent

Heard: June 10, 2013

On appeal from the decision of Justice Edward E. Gareau
    of the Superior Court of Justice, sitting as a summary conviction appeal court,
    on April 30, 2012 with reasons reported at 2012 ONSC 2558, dismissing an appeal
    from the acquittal entered on May 30, 2011 by Justice E. Kristine Bignell of
    the Ontario Court of Justice.

Watt J.A.:

[1]

Early one November morning, a police officer pulled over a motor vehicle
    on a street in downtown Sault Ste. Marie. Mackenzie Manchulenko (the
    respondent) was the driver and sole occupant of the vehicle.

[2]

The officer approached the respondents vehicle.  From the manner in
    which the respondent was driving, and his appearance when the officer spoke to
    him, the officer believed that the respondents ability to operate the vehicle
    was impaired by alcohol.

[3]

The officer arrested the respondent on a charge of impaired operation of
    a motor vehicle, advised him of his right to counsel, and made a formal demand
    for a breath sample.  At the police station, the respondent provided two breath
    samples to a qualified technician.

[4]

At the respondents trial, about four years later, the trial judge
    excluded both breath samples from evidence because a breach of the respondents
    right to counsel had preceded the taking of the first sample.  According to the
    trial judge, the balance of the evidence adduced by the Crown failed to prove
    the offence of impaired operation beyond a reasonable doubt.  The trial judge
    found the respondent not guilty.
[1]


[5]

On summary conviction appeal to the Superior Court of Justice, the Crown
    sought a new trial on the basis that the trial judge had erred in law in
    finding a breach of the respondents rights under s. 10(b) of the
Charter
,
    and had further erred in law in excluding evidence of the results of both
    breath tests at trial.  The appeal was dismissed.

[6]

The Crown now seeks leave to appeal to this court under s. 839(1)(a) of
    the
Criminal Code
on the same grounds as advanced on the appeal to the
    Superior Court of Justice.  These reasons explain my conclusion that leave to
    appeal should be granted, the appeal allowed, and a new trial ordered.

THE BACKGROUND FACTS

[7]

A brief overview of the circumstances that underpin the findings of the
    trial judge, together with an outline of the reasons of the trial judge and
    summary conviction appeal judge (the appeal judge), is sufficient preface to
    the issues raised in this appeal.

[8]

Several matters of background are uncontroversial.  No dispute arises
    about the lawfulness of the respondents arrest, or about the demand made of
    him to provide samples of his breath.  Further, the respondent does not
    complain that he was not properly advised about the reasons for his arrest or
    that the advice he received about the right to counsel was defective in
    substance.

[9]

The Crown does not take issue with the trial judges finding, affirmed
    by the appeal judge, that the respondents rights under s. 10(b) of the
Charter
were infringed because the qualified technician failed to repeat the right to
    counsel advice after the respondent had invoked his right to counsel, then
    advised the qualified technician well, lets get this over with.

The Arrest,
Charter
Advice and Demand

[10]

The
    respondent was arrested for impaired operation of a motor vehicle shortly
    before 4:00 a.m. on November 9, 2006.  The arresting officer advised the
    respondent of the reasons for the arrest, and of his right to retain and
    instruct counsel without delay.  The officer also made a demand that the
    respondent provide samples of his breath for analysis.

[11]

The
    respondent confirmed his understanding of what the officer had told him and
    declined to invoke his right to counsel.  He accompanied the officer to the
    police station.

The Booking Procedure

[12]

In
    the booking room at the police station, the officer in charge asked the
    respondent whether he wished to call a lawyer.  The respondent declined.

The Breath Room

[13]

When
    the qualified technician reiterated the respondents right to counsel in the
    room where the breath samples were to be taken, the respondent said he wanted
    to call a lawyer.  The officer took the respondent to the telephone room so
    that he could call a lawyer and obtain legal advice.

[14]

The
    evidence concerning exactly what happened in the telephone room is unclear. 
    The officer testified about his usual practice, but acknowledged that he had no
    specific recollection of what had occurred with the respondent.  Posted in the
    telephone room was a list of local lawyers and printed advice, including a
    1-800 number from which a person could obtain free advice from duty counsel. 
    The officer testified that he usually points out the list of local lawyers, but
    if the detainee chooses not to call a local lawyer, the officer explains the
    availability of duty counsel at the 1-800 number displayed in the room.

[15]

The
    respondent testified that he was taken to the telephone room but not given any assistance
    in contacting counsel, either a local lawyer or duty counsel.  He simply sat,
    intimidated, in the police station.  He did not know how to contact a lawyer.  He
    did not telephone a lawyer or duty counsel.  He was in the telephone room for
    only about 40 seconds.  He returned to the breath room and told the officer
    well, lets get this over with.

The First Breath Sample

[16]

The
    respondent provided his first breath sample at 4:29 a.m., about 35 minutes
    after his arrest.  He asked the officer about the breathalyzer reading and what
    he should do next.  The officer did not tell the respondent the breathalyzer
    reading, but took him back to the telephone room so that he could speak with a
    lawyer.

The Telephone Call

[17]

The
    respondent telephoned a local lawyer whose name was on the list in the
    telephone room.  After speaking to the lawyer, the respondent returned to the
    breath room.

The Second Breath Sample

[18]

The
    respondent provided a second breath sample at 4:50 a.m., about an hour after
    his arrest.

The
Charter
Ruling

[19]

The
    trial proceeded as a blended
voir dire
.  After the evidence had been
    adduced on the
voir dire
, the trial judge made her ruling on the
    respondents application to exclude the results of the analysis of both breath
    samples because of an infringement of s. 10(b) of the
Charter
.

[20]

The
    trial judge found no breach of the informational component of s. 10(b) of the
Charter
,
    but found that a breach of the section had occurred when the qualified
    technician failed to re-advise the respondent of his right to counsel and to
    hold off until the respondent had a reasonable opportunity to exercise that
    right before taking the breath sample.  The trial judge explained her
    conclusions in these terms:

The difficulty comes, however, when Mr. Manchulenko changed his
    mind.  At this point, the police had an obligation to tell Mr. Manchulenko of
    his right to a reasonable opportunity to contact a lawyer and of the obligation
    on the part of police during that time not to take any statements or require
    him to participate in any potentially incriminating process until he had had
    that reasonable opportunity.  That was not done in this case.  Indeed, the
    conversation between Mr. Manchulenko and the office was quite telling in that
    at one point Mr. Manchulenko in response to a question asked, Do I have to say
    it?

The burden of establishing an unequivocal waiver is on the
    Crown.  I find in this case that an unequivocal waiver on the part of Mr.
    Manchulenko has not been established.  In the result, it must be found that the
    defence has established on a balance of probabilities a breach of Mr.
    Manchulenkos rights under Section 10(b) of the
Charter
.

[21]

The
    trial judge described the lines of inquiry under s. 24(2) mandated by
R. v.
    Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353.

[22]

On
    the first line of inquiry, the seriousness of the violation, the trial judge
    concluded that a breach of the right to counsel is a breach of fundamental rights
    and is serious.  She could find no indication, however, that the police were
    acting in bad faith, and was satisfied that the officers did not demonstrate a
    flagrant disregard of the
Charter
.

[23]

On
    the second line of inquiry under
Grant
, the trial judge recognized
    that the taking of a breath sample was an intrusion on the respondents privacy
    and bodily integrity, but it was an intrusion of a lesser degree than would be
    the case for blood samples.

[24]

On
    the third line of inquiry, the trial judge characterized the evidence as
    reliable and recognized that its exclusion could have a significant effect on
    the case for the Crown.

[25]

The
    trial judge referred to the decision of the Supreme Court of Canada in
R.
    v. Prosper
, [1994] 3 S.C.R. 236 excluding similar evidence and reasoned:

The court concluded [in
Prosper
] that admission of the
    evidence would adversely affect the fairness of the trial and bring the
    administration of justice into disrepute.

Yet since that decision in 1994, the Supreme Court of Canada
    has revised the framework for analysis under Section 24(2) of the
Charter
. 
    In my view, when one considers all of the circumstances of this case in light
    of the framework as set out in
R. v. Grant
, the decision is very
    close.  Although there may well be cases in which a breach of an accuseds
    Section 10(b) rights will not result in exclusion of evidence, after having
    considered carefully all of the facts in this case and balancing all of the
    circumstances, I find that admission of this evidence would bring the
    administration of justice into disrepute.  In the result, the evidence of the
    breath tests will be excluded.

The Trial Decision

[26]

After
    the ruling excluding the certificate evidence, the case for the Crown consisted
    of the evidence of the observations of the arresting officer, a videotape of
    the respondent in the booking room of the station, and the observation report
    of the qualified technician.  The trial Crown had indicated that if the trial judge
    had admitted the results of the second breath test, he would also have called a
    toxicologist to establish the respondents blood-alcohol concentration at the
    time he was operating of the motor vehicle and the effect of such a
    concentration on his physical ability to operate the vehicle.

[27]

The
    trial judge decided that the Crown had failed to prove the essential elements
    of either offence charged beyond a reasonable doubt.  She dismissed both
    charges.

THE DECISION OF THE APPEAL JUDGE

[28]

The
    appeal judge described the grounds of appeal advanced by the Crown as alleged
    errors

i.

in finding a breach of s. 10(b) of the
Charter
; and

ii.

in excluding the results of both breath tests from evidence.

[29]

In
    connection with the first ground of appeal, the appeal judge was of the view
    that the police had breached the respondents s. 10(b) rights by failing to
    afford the respondent a reasonable opportunity to exercise his right to counsel
    prior to administration of the first test, and in failing to hold off until the
    right had been exercised.

[30]

On
    the second ground of appeal and, in particular, in regard to the submission that
    the second breath test should have been admitted, the appeal judge reasoned:

I do not view the two breath samples as capable of being
    parcelled off or separated from each other.  Once there is a
Charter
breach and the accused was not afforded his s. 10(b)
Charter
rights,
    all the evidence from that point onward should be excluded.  If the fundamental
    right against self-incrimination is infringed, all the evidence gathered from
    that point onward is tainted and is subject to be excluded under a s. 24(2)
Charter
analysis.  Once Bignell J. found the
Charter
breach, all the evidence
    obtained from that point onward, including Mr. Manchulenkos second breath
    sample, was excluded.

As indicated at paragraph 39 of the decision for the majority
    in
R. v. Prosper
:

Making the police hold off in situations where a detainee
    has been reasonably diligent in exercising his or her right to counsel,
    including where appropriate trying to reach a private lawyer, and where 
Brydges
duty counsel is not available would accommodate a detainees privilege against
    self-incrimination. The police investigation with respect to evidence in the
    construction of which a detainee must necessarily participate (e.g.,
    confessions, identification evidence, and breath and blood samples) would have
    to be held in abeyance until such reasonable time as a detainee is able to make
    contact with a private lawyer or whatever duty counsel service is in existence
    in the jurisdiction.

The police had an obligation to hold off at the point of the
    indication by the accused of his wish to exercise his right to counsel and all
    evidence from that point onward offends the right against self-incrimination
    and should be excluded.  In this regard, breath samples are no different than a
    confession.

[31]

The
    appeal was dismissed.

The Grounds of Appeal

[32]

The
    Crown seeks leave to appeal on the ground that the appeal judge erred in
    upholding the decision of the trial judge excluding evidence of the results of
    both breath tests under s. 24(2) of the
Charter
, in particular, in
    excluding from evidence the results of the second test.

[33]

In
    its
Notice of Application for Leave to Appeal and Notice of Appeal
,
    the Crown also alleged that the appeal judge erred in upholding the finding of
    the trial judge that the respondents s.10(b) rights had been breached before
    the first breath sample was taken. The Crown did not pursue this issue during
    oral argument, in this court.

LEAVE TO APPEAL

[34]

The
    Crown has no appeal as of right from the appeal judges decision.  Leave to
    appeal is required.  Any ground of the appeal advanced must involve a question
    of law alone.  Section 839(1)(a) of the
Criminal Code
is the governing
    authority.

The Positions of the Parties

[35]

For
    the Crown, Ms. Krick submits that the ground of appeal she proposes to advance
    raises a question of law alone, the admissibility of evidence obtained after constitutional
    infringement under s. 24(2) of the
Charter
.  More specifically, she
    contends that in the s. 24(2) analysis, the appeal judge erred in law in
    failing

i.

to distinguish between the first and second samples, in light of the
    exercise of the right to counsel that preceded the second test; and

ii.

to consider the subsequent constitutionally-compliant conduct of the
    police as a factor to be considered in assessing the seriousness of the prior
Charter
breach in the s. 24(2) analysis in connection with the admissibility of the
    results of the first test.

[36]

Ms.
    Krick says that the issues raised extend beyond the particular circumstances of
    this case.  Alcohol-driving prosecutions involving the proffer of certificate
    evidence are commonplace.  No existing jurisprudence resolves the issue of the
    effect of subsequent constitutional compliance on the admissibility of evidence
    of analysis of individual or multiple breath samples.  The argument has merit,
    thus warrants leave to appeal being granted.

[37]

For
    the respondent, Mr. Orazietti views the matter differently.  He says this case
    is thoroughly unremarkable.  The issues raised are routine: the admission or
    exclusion of evidence under s. 24(2) of the
Charter
.  The
    jurisprudence is well-established as are the principles about whether evidence
    has been obtained in a manner that infringed or denied a persons
Charter
rights.  There are no conflicting decisions to be resolved.  To the extent that
    the issue of waiver is raised on the evidence, the principles that govern its application
    are equally well-established and in no need of refreshment.

[38]

Mr.
    Orazietti contends that the proposed appeal raises no issue of law that
    transcends the particular circumstances of this case.  The standard to be
    applied to obtain leave to appeal is no different for the Crown than for an
    accused, except that the Crown cannot advance a claim based on a significant
    deprivation of liberty and an arguable ground of appeal.  There was no clear
    error here.

The Governing Principles

[39]

The
    principles that govern whether leave to appeal will be granted under s.
    839(1)(a) of the
Criminal Code
have been settled for this province by
    our decision in
R. v. R. (R.)
(2008), 90 O.R. (3d) 641.  For these
    purposes, a reminder about some of those principles is instructive.

[40]

First,
    appeals under s. 839(1)(a) are appeals from the decision of the appeal judge,
    not a second appeal from the decision of the trial judge:
R. (R.),
at
    para. 24.

[41]

Second,
    a second appeal in summary conviction proceedings is the exception, not the
    rule:
R. (R.)
, at para. 24.

[42]

Third,
    appeals under s. 839(1)(a) are restricted to questions of law alone:
R.
    (R.)
, at para. 24.  Neither questions of mixed fact and law nor of fact
    alone are cognizable on appeals under s. 839(1)(a):
R. (R.)
, at para.
    24.

[43]

Fourth,
    the ultimate question of the admissibility of evidence under s. 24(2) of the
Charter
is a question of law.  Where a trial judge excludes evidence under s. 24(2) on
    the basis of

i.

an error in principle;

ii.

a misapprehension of material evidence; or

iii.

an
    unreasonable assessment of the evidence

the exclusion constitutes an error of law:
R. v.
    Harris
, 2007 ONCA 574, 87 O.R. (3d) 214, at para. 51;
R. v. Buhay
,
    2003 SCC 30, [2003] 1 S.C.R. 631, at para. 42; and
R. v. H. (J.M.)
,
    2011 SCC 45, [2011] 3 S.C.R. 197, at para. 29.

[44]

Fifth,
    the principal factors that influence the decision under s. 839(1)(a) about
    whether leave to appeal should be granted are

i.

the significance of the proposed question of law beyond the
    circumstances of the case to the administration of justice in the province; and

ii.

the strength of the appeal.

R. (R.)
, at para. 30.

[45]

Leave
    to appeal may be granted where the merits of the proposed ground of appeal are
    arguable, even if not strong, provided the proposed question of law has
    significance to the administration of justice beyond the idiosyncratic facts of
    the case under appeal.  Leave to appeal may also be granted where the decision
    of the appeal judge reflects a clear error, even if the error lacks general
    significance to the administration of justice:
R. (R.)
, at paras. 32
    and 37.

[46]

Finally,
    no principled reason can justify the imposition of a different threshold for
    granting leave to appeal where the applicant, unsuccessful at trial and on
    summary conviction appeal, is the Crown rather than the defendant in the
    summary conviction proceedings.
[2]
That said, different considerations may influence the leave decision where the
    basis on which leave to appeal is sought is a clear error: a defendants
    claim of strong social stigma and a significant period of incarceration if the
    conviction is upheld would seem to be of no avail to the Crown.

The Principles Applied

[47]

I
    would grant leave to appeal.  The issues raised are of importance to the
    administration of justice beyond the circumstances of this case.  Further,
    there appears to be a clear error in the failure of the appeal judge to
    consider the effect of the
Charter
compliance that preceded the second
    breath test on the admissibility of the results of that test and on the
    seriousness of the prior breach.

[48]

The
    proposed ground of appeal involves the admissibility of evidence, the results
    of two breath tests, under s. 24(2) of the
Charter
.  To be more
    specific, the ground of appeal advanced says that the appeal judge erred in
    principle in failing to distinguish between the admissibility of the results of
    the analysis of the first and second samples in light of the respondents
    exercise of his right to counsel prior to the second test.  The proposed ground
    of appeal raises a question of law alone:
Harris
, at para. 51;
Buhay
,
    at para. 42;
H. (J.M.)
, at para. 29.

[49]

Alcohol-driving
    offences occupy a place of prominence on trial lists in the Ontario Court of
    Justice.  It is routine that the Crown will attempt to prove the blood-alcohol
    concentration of the defendant at the time of driving by introducing
    certificates of analysis of breath samples supplied, as here, pursuant to a
    lawful demand.  Two samples are provided and analyzed.  With the assistance of
    various statutory presumptions, the Crown attempts to establish the essential
    elements of the offences charged.

[50]

The
    admissibility issues raised in this case require an assessment, in the context
    of breath tests administered pursuant to a lawful demand, of what is sometimes
    described as the fresh start principle in cases involving successive
    statements made by detainees to persons in authority.  Successful invocation of
    the principle would then require consideration of whether liability for
    alcohol-driving offences could be established, as proposed by the Crown, on the
    basis of an analysis of a single breath sample coupled with toxicological and
    other evidence.

[51]

The
    failure of the appeal judge to consider the fresh start principle in
    connection with the second sample and, more generally, the application of the
    principle to evidence of the results of analysis of breath samples, satisfies
    me that leave to appeal should be granted.

THE APPEAL

Ground #1: The Second Breath Sample

[52]

The
    first ground of appeal challenges the decision of the appeal judge, affirming
    the decision of the trial judge, that the second sample could not be separated
    from the first despite the
Charter
-compliant conduct that immediately
    preceded the administration of the second breath test.

[53]

Some
    further background will provide the context essential to a determination of this
    ground of appeal.

The Acknowledged Breach

[54]

The
    appeal judge affirmed the trial judges finding that the qualified technician
    breached the respondents s. 10(b)
Charter
rights before the first
    breath test was administered.  The breach occurred when the respondent
    indicated that he wanted to call a lawyer.  The qualified technician did not
    facilitate contact with counsel, but simply took the respondent to the
    telephone room and left him there for less than a minute.  When the respondent
    returned, without having contacted a lawyer, and expressed a desire to get it
    over with, the officer failed to advise the respondent of his s. 10(b) rights
    and of the officers obligations to hold off pending their exercise.

[55]

The
    Crown does not challenge the correctness of the ruling nor the nexus between
    the infringing conduct and the first sample.

The Second Sample

[56]

Prior
    to the administration of the second test, conversely, the respondent spoke to
    counsel by telephone.  He provided a second breath sample 21 minutes after he
    had provided the first.  The same technician administered the test, on the same
    machine, and in the same room of the police station.

[57]

The
    respondent did not challenge the adequacy of the advice he received by
    telephone from the lawyer he called from the police station.

The Decision of the Appeal Judge

[58]

The
    appeal judge did not view the two breath samples as severable for the purposes
    of the s. 24(2) analysis.  He concluded as had the trial judge, that once a
    breach of s. 10(b) had occurred, all the evidence from that point forward
    should be excluded.

[59]

The
    appeal judge continued:

The police had an obligation to hold off at the point of the
    indication by the accused of his wish to exercise his right to counsel and all
    evidence from that point onward offends the right against self-incrimination
    and should be excluded.  In this regard, breath samples are not different than
    a confession.

The Arguments on Appeal

[60]

For
    the appellant, Ms. Krick submits that the appeal judge (as well as the trial
    judge) erred in failing to consider the second breath sample as separate or
    independent from the first.  What occurred here, prior to the second test, she
    submits, was a permissible fresh start by the qualified technician.  The
    respondent exercised his s. 10(b) rights.  He received legal advice.  This
    severed the second sample from the first, such that the second was not obtained
    in a manner that infringed or denied the respondents
Charter
rights.  The judges below should have conducted a separate analysis in
    connection with the second sample and determined its admissibility without
    regard to the earlier infringement.

[61]

For
    the respondent, Mr. Orazietti acknowledges that the trial judge erred in
    failing to rule separately on the admissibility of the second breath sample. 
    But, he says, the appeal judge did the necessary analysis and reached the
    correct conclusion.  His finding that there was a temporal and contextual
    connection between the samples, which made them part of the same transaction or
    course of conduct, meant that the same conclusion, exclusion, was proper for
    both samples.  In any event, Mr. Orazietti adds, the admissibility of the
    second sample is academic since the respondent cannot be found guilty of either
    offence charged on the basis of one breath sample only
[3]
.

The Governing Principles

[62]

The
    principles that require consideration in connection with this first ground of
    appeal are those that address the scope of the right to counsel, especially
    those that consider the rehabilitative effect of a
Charter
-compliant fresh
    start after an earlier constitutional misstep.  A second stream of precedent
    explains the scope of what might be termed the nexus requirement in s. 24(2) that
    borders the evidence that may be excluded by the terms obtained in a manner.

[63]

The
    purpose of the right to counsel is to allow a detainee not only to be informed
    of his rights and obligations under the law but, equally, if not more
    importantly, to obtain advice about how to exercise those rights:
R. v. Manninen
,
    [1987] 1 S.C.R. 1233 at pp. 1242-1243;
R. v. Sinclair
, 2010 SCC 35, [2010]
    2 S.C.R. 310, at para. 26.

[64]

Section
    10(b) of the
Charter
has two components.  The first, the informational
    component, requires and ensures that the detainee is advised of his or her
    rights to counsel.  The second, the implementational component, requires that
    the detainee be given a reasonable opportunity to exercise his or her right to
    counsel, should she or he decide to do so.  Implicit in the implementational
    component is a duty on the police to hold off questioning or requiring the
    detainee to participate in investigative procedures, or eliciting evidence
    until the detainee has a reasonable opportunity to consult counsel:
Sinclair
,
    at para. 27.

[65]

The
    duties of the police under the implementational component of s. 10(b), however,
    are not absolute.  Unless the detainee invokes the right to counsel and is
    reasonably diligent in exercising it, the correlative duties of the police to
    provide a reasonable opportunity for the detainee to exercise the right, and to
    refrain from eliciting evidence, will either not arise in the first place or
    will be suspended:
Sinclair
, at para. 27;
R. v. Willier
, 2010
    SCC 37, [2010] 2 S.C.R. 429, at para. 33;
R. v. Tremblay
, [1987] 2
    S.C.R. 435, at p. 439; and
R. v. Black
, [1989] 2 S.C.R. 138, at pp.
    154155.

[66]

When
    a detainee, diligent but unsuccessful in contacting counsel, changes his or her
    mind and decides not to pursue contact with a lawyer, s. 10(b) requires the
    police to explicitly inform the detainee of his or her right to a reasonable
    opportunity to contact counsel and of the police obligation to hold off in
    their questioning or otherwise eliciting evidence until then:
Willier
,
    at para. 32;
Prosper
, at p. 274.  What amounts to reasonable diligence
    in the exercise of the right to contact counsel depends on the context, and
    requires a fact-specific inquiry into all the circumstances:
Willier
,
    at para. 33.

[67]

Sometimes,
    something of evidentiary value, considered alone, does not appear to fall foul
    of any admissibility rule.  Nevertheless, the evidence, for example a
    confession of crime, may be sufficiently connected to an earlier involuntary (hence
    inadmissible) confession that it is considered involuntary by this association:
R. v. T. (S.G.)
, 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 28.  The derived
    confessions rule excludes statements which, despite not being involuntary when
    considered alone, are sufficiently connected to an earlier involuntary
    confession to be rendered involuntary and hence inadmissible:
T. (S.G.)
,
    at para. 28.  Each subsequent confession may be involuntary if the tainting
    features that disqualified the first continued to be present, or if the fact
    the first statement was made, was a substantial factor contributing to the
    making of the second or subsequent statement:
T. (S.G.)
, at para. 29;
R.
    v. I. (L.R.) and T. (E.)
, [1993] 4 S.C.R. 504, at p. 526.  Where the
    earlier contaminant is a
Charter
breach, s. 24(2) provides its own
    formula for exclusion:
I. (L.R.) and T. (E.)
, at p. 532.

[68]

In
    some circumstances, conduct by investigators prior to a second statement may
    sever the link between the original taint and the subsequent statement.  In
    other words, investigators may attempt a fresh start in order to insulate the
    second statement from the taint that rendered the earlier statement
    inadmissible:
R. v. Wittwer
, 2008 SCC 33, [2008] 2 S.C.R. 235, at
    paras. 2-3.  Where the antecedent taint is a
Charter
infringement, a
    fresh start may clearly sever the subsequent statement from the earlier
Charter
breach:
R. v. Simon
, 2008 ONCA 578, 269 O.A.C 259, at para. 69;
Wittwer
,
    at para. 3.  Ultimately, the sufficiency of the connection between the
Charter
breach and the subsequent collection of the evidence requires a case-specific
    factual inquiry to determine whether the post-breach acquired evidence was
    obtained in a manner that infringed or denied any enumerated
Charter
right of the person charged:
Simon
, at para. 69.

[69]

Where
    the evidence tendered for admission is a subsequent statement to persons in
    authority, a consultation with counsel may have the effect of severing the subsequent
    statement from an earlier breach of the right to counsel.  But no bright line
    rule automatically immunizes the subsequent statement from the prior
Charter
breach.  The effect of the later consultation on a determination of  whether
    the subsequent statement was obtained in a manner that infringed an accuseds
    right to counsel requires and falls to be decided on the basis of a
    fact-specific inquiry:
R. v. Plaha
(2004), 188 C.C.C. (3d) 289 (Ont.
    C.A.), at paragraph 47; I.
(L.R.) and T. (E.)
, at p. 532.

[70]

No
    principled reason exists to confine the fresh start jurisprudence to cases
    involving successive statements made to persons in authority.  The rationale
    that underpins the fresh start principle is the same irrespective of the
    specific form the evidence proposed for admission takes.

[71]

Section
    24(2) of the
Charter
only excludes evidence where an accused has
    demonstrated, on a balance of probabilities, an infringement or denial of his
    or her enumerated
Charter
rights or freedoms, and that the evidence
    proposed for admission was obtained in a manner that infringed or denied the
    accuseds
Charter
right or freedom.  This latter requirement insists
    that there be a nexus, expressed in the language obtained in a manner in s.
    24(2), between the infringement and the evidence proposed for admission.  In
    the absence of a nexus, or of an infringement, s. 24(2) has no application and
    the admissibility issue must be resolved otherwise.

[72]

To
    determine whether the nexus requirement has been met, the trial judge must
    undertake a contextual and case-specific analysis:
Simon
, at para.
    69.  Courts have adopted a purposive and generous approach to the nexus
    requirement:
Wittwer
, at para. 21.  An accused need not establish a
    strict causal relationship between the breach and the subsequent evidence.  The
    subsequent evidence will be tainted if the breach and the evidence can be said
    to be part of the same transaction or course of conduct:
Wittwer
, at
    para. 21;
R. v. Strachan
, [1988] 2 S.C.R. 980, at p. 1005.  The
    essential nexus between the breach and the evidence acquired later may be temporal,
    contextual, causal, or the three in combination:
Plaha
, at para. 45;
Wittwer
,
    at para. 21; and
R. v. Goldhart
, [1996] 2 S.C.R. 463, at para. 40. 
    Remote or tenuous connections fall short of establishing the necessary nexus:
Goldhart
,
    at para. 40;
Plaha
, at para. 45; and
Wittwer
, at para. 21.

[73]

As
    a general rule, a temporal connection between the
Charter
breach and
    the acquisition of the evidence will suffice to make out the nexus requirement
    under s. 24(2). But the temporal connection involves more than simply counting
    up the time that has elapsed between the two events.  What happened between the
    breach and the evidence collection can colour the significance of the passage
    of time:
Plaha
, at para. 49.

The Principles Applied

[74]

I
    would give effect to this ground of appeal.  In my view, the appeal judge erred
    in law in failing to undertake any case-specific analysis of whether the second
    sample was obtained in a manner that infringed or denied the respondents
Charter
rights when it was immediately preceded by consultation with counsel in compliance
    with s. 10(b) of the
Charter
.

[75]

The
    appeal judge adopted a bright line rule that
all
evidence obtained
    after the s. 10(b) infringement preceding the sample should be excluded.  He
    equated breath samples with confessions for these purposes.  This reasoning, in
    my respectful view, is flawed for three reasons.

[76]

First,
    there is no
per se
or bright line rule that mandates exclusion of
all
evidence that follows a
Charter
infringement.  Each case requires a
    case-specific analysis of all the circumstances to determine whether the
    exclusionary mechanism put in place by s. 24(2) of the
Charter
should
    be engaged:
Grant,
at paras. 71 and 86.

[77]

Second,
    the appeal judges analysis failed to take into account the effect of the
Charter
-compliant
    consultation that immediately preceded provision of the second sample.  This
    intervention had implications for the nexus requirement and required the appeal
    judge (and the trial judge before him) to consider whether the consultation had
    the effect of severing the second breath test (and the results of an analysis
    of it) from the earlier s. 10(b) breach:
Plaha
, at para. 47.  A
    finding that the fresh start negated the nexus requirement would have the
    effect of removing s. 24(2) as a potential source of exclusion of the results
    of analysis of the second sample.

[78]

Third,
    even if a case-specific analysis yielded a conclusion that the nexus
    requirement had been met in connection with the second sample, it was incumbent
    on the appeal judge, and the trial judge before him, to conduct a discrete,
    case-specific s. 24(2) analysis in relation to the results of the analysis of
    the second sample.  A prominent component in that analysis would have been the
    impact of the pre-sample consultation with counsel.

Ground #2: The Exclusion of the
    Analysis of Both Breath Samples

[79]

The second ground of appeal, related to but discrete from the first,
    alleges error in the decision under s. 24(2) of the
Charter
to exclude
    the analysis of both samples of breath as evidence at trial.  Consideration of
    this ground of appeal requires no further reference to the evidence adduced at
    trial, and only a brief recapture of the reasons of the trial and appeal judges.

The Decision of the Trial Judge

[80]

The trial judge considered the admissibility of the results of the
    analysis of both breath samples in accordance with the three lines of inquiry
    mandated by
Grant
.

[81]

The trial judge concluded that breach of the right to counsel was a
    breach of fundamental rights and is serious.  She found no indication that any
    of the police were acting in bad faith, or in flagrant disregard of the
Charter
. 
    The trial judge considered that the taking of breath samples involved an
    intrusion on the respondents privacy and bodily integrity, but that the
    intrusion was to a lesser degree than in the case of blood samples.  The trial
    judge acknowledged that evidence of the results of analysis of breath samples
    was reliable and important to the Crowns case on the alcohol-driving offences
    with which the respondent was charged.

[82]

After noting that the evidence of the analysis of breath samples had
    been excluded under similar circumstances in
Prosper
, the trial judge
    concluded:

In my view, when one considers all of the circumstances of this
    case in light of the framework as set out in
R. v. Grant
, the decision
    is very close.  Although there may well be cases in which a breach of an
    accuseds Section 10(b) rights will not result in exclusion of evidence, after
    having considered carefully all of the facts in this case and balancing all of
    the circumstances, I find that admission of this evidence would bring the
    administration of justice into disrepute.  In the result, the evidence of the
    breath tests will be excluded.

The Decision of the Appeal Judge

[83]

The nucleus of the reasons of the appeal judge affirming the trial
    judges decision to exclude the results of the breath analysis is this passage
    at para. 19 of his reasons:

I do not view the two breath samples as capable of being
    parcelled off or separated from each other.  Once there is a
Charter
breach and the accused was not afforded his s. 10(b)
Charter
rights,
    all the evidence from that point onward should be excluded.

The Arguments on Appeal

[84]

For the appellant, Ms. Krick acknowledges that an appellate court is
    required to take a deferential approach to rulings made under s. 24(2) of the
Charter
,
    whether excluding or admitting evidence obtained by
Charter
infringement. 
    She says that, absent error in principle, a material misapprehension of
    evidence, or an unreasonable conclusion, appellate courts should defer to trial
    or intermediate appellate decisions.

[85]

In this case, Ms. Krick contends, the s. 24(2) analysis is cumbered by
    legal error.  The appeal judge failed to subject the results of the analysis of
    the second sample to a discrete s. 24(2) analysis, and failed to consider the
    impact of the later
Charter
compliance in the s. 24(2) analysis of the
    results of the first sample.  These errors disentitle the findings below to
    deference and require a fresh s. 24(2) examination.  A proper s. 24(2) analysis
    would result in the admission of at least the results of the analysis of the
    second sample, if not of both samples.  These errors might reasonably have
    affected the result at trial and warrant a new trial.

[86]

For the respondent, Mr. Orazietti takes a contrary position.  Both
    judges below followed the mandate of
Grant
and properly applied it. 
    Even if the judges below erred in failing to conduct a discrete s. 24(2)
    analysis in connection with the second sample, the result would have been no
    different because the respondents liability could not be proven on the basis
    of the analysis of a single breath sample, even with the expert opinion
    evidence of the toxicologist.

The Governing Principles

[87]

The principles governing our decision on this ground of appeal are
    uncontroversial and of recent authoritative statement.  A few brief references
    are sufficient for our purposes.

[88]

First, when faced with an application for exclusion under s. 24(2), a
    court must assess and balance the effect of admitting the evidence on societys
    confidence in the justice system having regard to

i.

the seriousness of the
Charter
-infringing state conduct;

ii.

the impact of the breach on the
Charter
-protected interests of
    the person charged; and

iii.

societys
    interest in the adjudication of the case on its merits.

Grant
, at para. 71.  The courts role 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:
Grant
, at para.
    71.  Section 24(2) eschews bright line or
per se
rules in favour of a
    contextual, fact-specific assessment.

[89]

Second,
    among the lines of inquiry, there are no axioms or fixed relations.

[90]

State
    conduct resulting in
Charter
violations varies in seriousness from the
    inadvertent and minor to the wilful and reckless, and to all points in
    between.  Extenuating circumstances, such as the need to preserve evidence and
    good faith, may attenuate the seriousness of the underlying conduct that
    results in the breach:
Grant
, at paras. 74-75.

[91]

Likewise,
    the seriousness of the impact of the
Charter
breach on an accuseds
Charter
-protected
    interest may vary from the fleeting and technical to the profoundly intrusive,
    passing several other stops along the way.  Courts look to the interests
    engaged by the infringed right and examine the degree to which the violation
    impacted on those interests:
Grant
, at paras. 76-77.

[92]

The
    third line of inquiry reflects societys expectation that criminal allegations
    will be adjudicated according to their merits.  The public interest in truth-seeking
    is relevant under s. 24(2).  The reliability of the evidence obtained by
Charter
infringement is an important factor.  So too, is the significance of the
    evidence to the case for the Crown:
Grant
, at paras. 79-81 and 83.

[93]

Section
    24(2) eschews presumptive rules.  No overarching rule governs how the balance
    is to be struck.  Each case requires a fact-specific evaluation of all the
    circumstances to determine whether the balance settles in favour of exclusion
    or of admission.  Despite the requirement that each case requires consideration
    according to its own factual matrix, 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:
Grant
,
    at para. 111.

[94]

Finally,
    appellate courts owe deference to s. 24(2) determinations absent an error in
    principle, a material misapprehension of evidence, or an unreasonable finding:
Harris
,
    at paras. 50-51;
Buhay
, at para. 44.  No deference is due, however,
    where an appellate court reaches a different conclusion on the breach itself:
Grant
,
    para. 129.

The Principles Applied

[95]

I
    would accede to this ground of appeal.  Despite the deference the appeal judge
    was required to afford to the trial judges decision under s. 24(2) as a matter
    of general principle, I am satisfied that the trial judges determination and
    the appeal judges affirmation of it are infected by several errors that
    require a new trial.

[96]

First,
    both the appeal and trial judge failed to consider the effect of the fresh
    start compliance with the requirements of s. 10(b) of the
Charter
that
    preceded the taking of the second breath sample.  This conduct was relevant in
    determining whether the results of analysis were obtained in a manner that
    infringed or denied the respondents s. 10(b) rights, and thus whether s. 24(2)
    could be summoned as a basis to exclude the evidence.

[97]

Second,
    both the appeal and trial judge failed to conduct a discrete s. 24(2)
    assessment upon the admissibility of the results of the analysis of the second
    breath sample, thus failing to consider the impact of the intervening
Charter
-compliant
    conduct on the admissibility issue.

[98]

Third,
    the appeal judge failed to consider the impact of the later
Charter
-compliant
    conduct in the assessment of the seriousness of the earlier violation, in
    particular, whether the later
Charter
-compliant conduct reflected good
    faith on the part of the police, thus attenuating the seriousness of the
    earlier breach.

[99]

Fourth,
    the appeal judge erred in adopting a
per se
or bright line rule to the
    effect that, once an infringement had been demonstrated,
all
the
    evidence obtained thereafter should be excluded.  Not only do governing
    authorities provide no warrant for such a rule, but such a rule would be at
    odds with the very terms of s. 24(2) that require a nuanced, case-specific
    examination of all the circumstances under the lines of inquiry mandated by
Grant
to determine admissibility.

[100]

Finally, the
    appeal judge appears to have treated the decision in
Prosper
as nearly
    dispositive of the admissibility issue.  It may be open to question whether,
    under the
Grant
lines of inquiry, and given the general rule with respect
    to the admissibility of breath samples due to their relative non-intrusiveness,
    a case decided when trial fairness considerations were predominant retains such
    controlling influence.

[101]

In the result, I
    am satisfied that the errors made at trial and affirmed on appeal might
    reasonably be thought to have had a material bearing on the respondents
    acquittal.  A new trial is required:
R. v. Graveline
, 2006 SCC 16,
    [2006] 1 S.C.R. 609, at para. 14; and
R. v. Youvarajah
, 2013 SCC 41,
    at para. 32.

CONCLUSION

[102]

For these
    reasons, I would grant leave to appeal, allow the appeal, set aside the
    acquittals, and order a new trial.

Released: September 5, 2013 PR

David
    Watt J.A.

I
    agree Paul Rouleau J.A.

I
    agree Gloria Epstein J.A.





[1]
The respondent was also found not guilty of operating a motor vehicle with a
    prohibited blood alcohol concentration.



[2]
Section 839(1)(a) applies to appeals taken under s. 813 and determined in
    accordance with s. 822.  The right of appeal is given to the defendant and to
    the informant, the Attorney General (including the Attorney General of Canada)
    and his agent.  (Here, the Crown.)



[3]
Since the admissibility of evidence of the results of analysis of both breath
    samples will be at issue at the new trial, we need not decide this issue.


