Breach of right to counsel was not technical or borderline

Police officers stopped accused in response to report of impaired driver and based on their observations arrested accused for impaired driving. Officers immediately read accused rights to counsel and breath demand, but concluded accused, who was Polish-speaking, did not understand what he was being told. Accused was provided with translator and spoke with Polish-speaking duty counsel. After speaking with duty counsel, accused wrote down name of lawyer he wished to speak to and call was placed to lawyer, but no call back was received. Accused told translator that duty counsel had declined to provide him with any advice, but when translator tried to advise breathalyzer technician of this, he was cut off. Trial judge found there was violation of accused’s right to counsel, excluded results of intoxilyzer tests and evidence of toxicologist, and acquitted accused of driving with excess blood alcohol. Crown appealed. Appeal dismissed. Trial judge’s findings that police officers did not act in good faith, given breathalyzer technician was aware of issues relating to accused’s right to counsel, failed to listen to translator and steamed ahead with testing, and translator had duty, as sworn police officer, to stand up and act on what he had been told by accused, were reasonable and supported by evidence. Trial judge’s finding that breach of accused’s right to counsel was relatively serious was not unreasoned or unexplained. Although trial judge did not expressly reference officers’ conduct that complied with Canadian Charter of Rights and Freedoms, when considering first factor in s. 24 Charter analysis, he was clearly aware of it. Moreover, police efforts to ensure accused understood rights and breath demand and had access to legal advice in Polish language did not mitigate breach. Breach of right to counsel was not technical or borderline as officers completely failed in their obligation to provide access to counsel in circumstances where they learned that accused had not received legal advice from duty counsel. Trial judge provided sound reasons for rejecting Crown’s submission that Charter breach had minimal impact on accused’s Charter-protected interests. When trial judge stated exclusion of breathalyzer results would not gut Crown’s case, he was speaking only of impaired driving charge, and he was correct as there was other evidence on issue of impairment. Trial judge’s conclusion that third factor favoured admission of evidence, but not strongly, was reasonable.

R. v. Skurski (2019), 2019 CarswellOnt 7419, 2019 ONSC 2943, F. Dawson J. (Ont. S.C.J.).

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