Advising the Detainee During a Drinking and Driving Investigation

The recent Supreme Court of Canada decision in R. v. Suter 2018 SCC 34 and the Court of Appeal for Ontario decision in R. v. Culotta [2018] O.J. No. 3946 (C.A.) caused me to reflect on the nature of the legal advice given in the impaired driving/over 80 context. What is the appropriate advice to give to a detainee faced with a demand for a breath or blood sample? And what advice can we give a client who is facing an impaired driving/over 80 investigation who is also receiving medical treatment?

R. v. Suter

Mr. Suter was investigated for impaired driving causing death in unusual circumstances. He had accidentally driven his car forward by placing his foot on the gas instead of the brake in a moment of inattention. He crashed into a patio and killed a two-year-old child. When the police arrived they made a breath demand believing he was impaired. Mr. Suter contacted free duty counsel. The substance of the legal advice provided was described by the sentencing judge.[1] It was brief. The lawyer did not ask how much, if anything, Mr. Suter had had to drink. The advice was full of legal jargon that Mr. Suter had a hard time understanding. The lawyer ultimately “basically told him not to blow.”

The Supreme Court of Canada accepted that this was “bad legal advice,” which the accused followed resulting in him not complying with the demand and being charged with refusing to comply together with other offences.  In the end he pleaded guilty to refusing to comply and all impaired driving offences were withdrawn. 

Duty counsel was unaware at the time that s.255(3.2) of the Criminal Code provided for the maximum period of imprisonment for life for refusing a breath demand in circumstances where there was a death associated with the driving incident that gave rise to the breath demand (i.e. the same penalty as over 80 cause death or impaired cause death.)  But was the substance of the advice provided by duty counsel necessarily “bad advice” in this context notwithstanding the perfunctory nature of it?

R. v. Culotta

Ms. Culotta was operating a motorized boat when it collided with a small rocky island in bad weather. Two other boaters were seriously injured in the accident. The accused was also injured and required medical assistance.  The investigating officer made observations consistent with impairment while the accused was in the ambulance. She was arrested for impaired operation although not cautioned nor provided with her right to counsel right way. Ultimately the accused was provided with her rights to counsel but did not consult counsel before getting medical treatment which included blood work being taken to determine her blood alcohol level.  The arresting officer also asked that extra blood be drawn for a potential search warrant. 

Blood analysis ultimately confirmed that the accused was over the legal limit and that evidence led to her conviction although the accused sought exclusion alleging ss.8, 9 and 10(b) Charter violations.

Although the accused did not speak to counsel before blood was drawn and before providing a statement to the police, the Court of Appeal pondered the question of what advice might have been given at the hospital, but concluded at paragraphs 52 -53 that no s. 10(b) right was invoked or breached.

If Ms. Culotta had sought legal advice from duty counsel or otherwise, what advice ought to have been given?  If the police had made a breath demand, would the best advice be to simply comply with the demand? Would it be “bad advice” to suggest she may not want to comply with the breath demand?

The simple view

When the police make a breathalyzer demand either based on a failed roadside or having formulated reasonable and probable grounds to believe that a detainee is impaired, historically the advice to be offered might appear to be relatively straight forward. Given that it is a criminal offence to refuse to provide a breath sample, the only advice that could be given seems clear and obvious: provide the sample as requested. So too where a blood demand is made. Refusing the same would amount to a criminal offence. Additionally, as noted above, if the detainee has been operating a motor vehicle and someone has died, a refusal charge carries the same consequences as an Over 80 cause death or impaired caused death charge.

In practice, this is the type of perfunctory advice that most detainees receive when they are connected with duty counsel across this country. And this is not merely supported by anecdotal interviews with clients. It is also supported by the duty counsel notes and checklists that can be ordered and reviewed along with the average time that most duty counsel spend providing advice to detainees in this context. It is further supported by the limited cases that have considered the competency of legal advice provided by duty counsel in these circumstances.[2]  In fact, in one case, the Court concluded that any advice other than to “provide a sample” would be “bad advice” that ought not to be followed.[3]  Similarly, in another, the Court noted that if duty counsel advised a detainee not to provide a sample he/she would be “counselling the commission of a crime.”[4] Consider also the Court’s characterization of “bad legal advice” in R. v Suter, supra.

But the problem is that the default or perfunctory advice is not always correct. And, the truth is that it is always the case that advising the client to refuse to comply with a demand would be improper or amount to counselling a criminal offence.[5] 

And, as a result of the current state of the law, simply telling a detainee to provide a breath sample in response to a request from the police will, in many cases, actually prejudice the detainees’ interests later. While this is true in the most serious of cases, it is also true in the more mundane of cases as well.

The correct view

Detainees are only required to comply with “lawful” demands for a breath or blood sample[6]. They can refuse to provide such a sample where there are no reasonable and probable grounds to make the demand (i.e. subjective grounds to make the demand that are objectively reasonable). Refusing an unlawful demand is not a criminal offence. The difficulty is that during the detention period prior to the breath or blood being taken, counsel cannot normally meaningfully assess the lawfulness of the demand. Counsel should always ask the demanding officer information about the stop, the grounds for the detention and the grounds for the demand but in many cases officers will not provide that information. It is not sufficient compliance with Bartle for duty counsel to give perfunctory advice, bringing no energy to the situation. Every case is dynamic. As Justice Binnie noted, detainees in trouble are entitled to meaningful assistance.[7] The role of counsel is to help the detainee to navigate his or her legal problem with informed capacity.[8] In some cases, the perfunctory nature of the discussion with the officer will not allow the lawyer to gather enough information to come to an informed view.  In other instances, it will be impossible for a lawyer possessed with all of the information that is available at the time to accurately assess whether the officer had the requisite grounds.

At trial, with the benefit of disclosure and a voir dire, there may be many arguments that would satisfy a judge that the initial demand which led to the breath or blood sample was not in fact made with the requisite grounds to do so. In the ordinary course, this is done through an application under s.8 and 24(2) of the Charter to exclude the evidence. But of course, this is of little comfort to the detainee at the time of the original request.  Counsel cannot competently recommend not complying with a breath or blood demand on the basis of the future prospects of success on a Charter application. You also run the risk that in giving advice not to comply with the demand (that turns out to be lawful) that you are in fact counselling the detainee to commit a criminal offence (albeit you may not have the necessary mens rea) in addition to opening yourself up to civil liability if it turns out your advice is wrong.

But simply advising the detainee to comply with the demand is not competent either. If, as a result of your advice, the detainee complies and the demand turns out to be unlawful, the client will likely be prejudiced. 

First, the police will nonetheless have seized the bodily substance from the client in circumstances where they were not lawfully entitled to do so. Second, at the ensuing trial, it will be the obligation of the accused to satisfy the court, albeit on a balance of probabilities that the sample(s) were unconstitutionally obtained. Third, on that ensuing s.8 Charter application, it is probable (based on the current state of the law) that in the absence of other significant Charter offending conduct, the results of the breath or blood analysis will be admitted into evidence against the client. Unconstitutionally obtained breath samples are routinely admitted when balancing the relevant s.24(2) factors notwithstanding a showing that they were unlawfully obtained. [9]   

On the other hand, had the detainee refused the breath or blood sample, the onus would be on the Crown to prove beyond a reasonable doubt that there were reasonable and probable grounds to make the demand (i.e. to establish the lawfulness of the police conduct). If the Crown is unable to do so, the accused will be acquitted outright. There is no balancing exercise. The accused who complies with an unlawful demand will likely be convicted because of the inclusion of the analyses and the accused who refuses the unlawful demand, will be acquitted because they were not required to comply with the demand in the first place. The cooperative compliant accused is prejudiced by acquiescing. The obstructionist accused who refuses is acquitted. The constitutional irony of this reality has not been addressed by the Courts, but it is the reality that faces counsel called upon to give a detainee advice.

The competent counsel’s advice

The lawyer (duty counsel or otherwise) is faced with a difficult task. There is nothing perfunctory or simple about how to approach giving advice in the drinking and driving context. In his manual, “Defending Drinking and Driving Cases 2018[10]”, Alan Gold has provided a comprehensive and complete review of the importance of how to provide advice to the detainee during the “initial telephone call”. Much of the below is merely repetitive of his observations, and I commend the book to duty counsel and private counsel alike, but the advice bears repeating. Thorough and competent advice, at a minimum, necessitates the following:

1. Finding out as much as you can about the circumstances of the detention and subsequent breath demand. This should include advising the officer who initiates the call that you need to know the time of the stop, the details of the stop, and what the officer relied upon to make the breath and/or blood demand.  It is imperative that counsel alert the officer that without details of this nature it will be impossible to provide meaningful legal advice to the detainee;

2. Keep an accurate and detailed record of what you are advised by the police together with the advice you give the detainee should it become an issue at the subsequent trial. This is particularly important where the arresting officer refuses to provide you with the information necessary for you to provide complete advice to the detainee. In his guide, Alan suggests that you may even wish to record the communication with your client provided the client consents;

3. You should explain to the detainee that the requirement is to comply with a lawful police demand, which means that there must be reasonable and probable grounds to make the demand together and that the demand must be made otherwise in accordance with the statutory provisions;

4. You should explain to the detainee that they are only required to comply with lawful demands.  And, further, that if they refuse to comply with a demand they will be charged with a criminal offence but that at the trial the Crown will be required to prove beyond a reasonable doubt that the demand was lawful (i.e. that the police had the requisite grounds and acted in accordance with the statute);

5. You should outline for the detainee about your assessment of the grounds as articulated by the officer being careful to caution that your assessment is not determinative and that you can be wrong. You should also outline whether or not you feel compromised in your ability to provide an assessment because of the lack of information provided by the officer about the stop and/or the subsequent demand;

6. You should attempt to find out from the detainee what he or she consumed in terms of alcohol and over what period of time they consumed it. It is imperative that you impress upon the detainee that you need to know the truth and have the detainee err on the side of inclusion regarding alcohol consumption. You should run the information on an online BAC calculator to get a sense of what the anticipated BAC level will be if they comply with the demand and you should alert the client whether it is probable or not that they will blow over the legal limit;

7. You should advise the client that if they blow over the legal limit they will be charged with a criminal offence and that the breath readings will be presumptively admissible in evidence against them. You should also advise the client that even if the demand was not lawful and the police ought not to have made it, the unlawfully obtained breath readings will likely be admitted into evidence against them;

8. You should advise the client that the decision to comply with the demand is for them to make knowing that refusing will lead to a criminal offence, knowing that being over the legal limit if they comply will lead to a criminal offence, knowing that being under the legal limit will not lead to a criminal offence, and knowing that if they blow over and it turns out the demand for the breath sample was not lawful they will nonetheless likely be convicted as the breath readings will probably be admitted into evidence anyway;

9. If the client is receiving concurrent medical treatment for injuries or otherwise, it is absolutely imperative that you warn the client about the possibility that blood drawn for medical purposes and/or any subsequent analyses may be obtained by the police and used as evidence to prove a criminal charge. As the client/patient has the right to refuse the drawing of blood for medical purposes, they may want to do so where there is a risk that such analyses will be incriminating.  At a minimum you need to alert the detainee to their right to refuse to have blood taken. Of course where there are health risks or medical consequences that flow from refusing a blood analysis, the situation becomes more complicated. But the client can only make an effective choice if they understand the various ways in which the evidence can be used; and

10. Wish them luck with these very difficult decisions.

This is not perfunctory advice. It cannot be given in two or three minutes after receiving only basic information from the officer. You must be informed and the advice must be explained fully. All of which raises the question of whether lawyers who are giving advice in the Brydges duty counsel context are doing this? And, if not, how can it be said that the detainee has received meaningful and effective legal advice? This can be a particular problem where police officers try to steer detainees away from awaiting private counsel of choice because of availability and timing issues relative to the administering of tests and toward free duty counsel[11].

Although the Supreme Court of Canada suggested that the police are not required to determine the quality of legal advice provided,[12] incompetent or inadequate state-funded counsel available upon detention would not meet s.10(b) constitutional scrutiny. At a minimum, these recent decisions and the complexities involved in providing legal advice to detainees in this context, must be examined by the various Brydges duty counsel programs across Canada to ensure that lawyers who are providing this advice understand the nuances and complexities of this area of law. And counsel should not hesitate to challenge advice that is clearly incompetent to vindicate a client’s rights at trial. 

To be clear, the cautionary approach to providing advice in this context is not limited to duty counsel. It applies equally to private counsel who connect with detainees and are called upon to provide prompt and meaningful advice. There is no room for “auto pilot” advice in this context. The best way to assist the detainee is to gather as much information as possible and alert them to the various scenarios so that they can make a meaningful decision as to whether to participate in the self-incriminating process or make other decisions knowing the consequences of the same.  Section 10(b) of the Charter requires nothing less.     

 

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