Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Carl Molinari
Before: Justice Sandra Bacchus
Heard: December 18, 2012
Rulings released: March 21, 2013
Counsel:
- F. Giordano, for the Crown
- L. Stortini, for the accused
Introduction
1The applicant has applied for an order pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms to exclude all evidence including breath sample results and oral utterances on the basis that his right to counsel, as guaranteed by section 10(a) and (b) of the Charter has been infringed. In addition the applicant alleges a violation of his section 8 Charter rights.
Background
2On April 14, 2012, at approximately 2:30 a.m., Police Constable Byron Braye was travelling eastbound on Rutherford Road in York region, when he observed the applicant's vehicle. There is a dispute in the evidence as to which lane the applicant was operating his vehicle as he travelled north on Peter Rupert/Confederation Parkway and whether the slowing and speeding up the officer observed twice in relation to the vehicle was as a result of the nature of the vehicle's engine or the applicant's driving.
3Shortly after 2:30 a.m., Officer Braye investigated the applicant while his vehicle was stopped on the west side of Confederation Parkway approximately 800 meters north of the intersection of Rutherford Road and Peter Rupert/Confederation Parkway. There is a dispute as to whether the officer activated his lights and pulled the applicant over or whether the applicant pulled his vehicle over without this police action.
4However, there is agreement in the evidence as follows:
- that Officer Braye tapped on the window and asked the applicant who was the sole occupant, to roll down the window and shut off the vehicle;
- that Officer Braye took the applicant's car keys and asked him to get out of vehicle;
- that Officer Braye asked the applicant a question or questions in relation to where he was going and if he had consumed alcohol.
5At no time during this initial stop did Officer Braye ask the applicant for his driver's license or insurance and at no time did Officer Braye ask the applicant or remark that he had observed him driving the wrong way on Confederation Parkway.
6At 2:34 a.m. after making some brief observations and asking the applicant whether he had been charged with an offense before, Officer Braye arrested the applicant for impaired driving.
7At 2:35 a.m., Officer Braye read the applicant his right to counsel from the back of his memo book which included the standard wording that the applicant has the right to contact counsel of his choice or to contact free legal aid duty counsel. In response to the question: "Do you understand?", Officer Braye testified that he believed the applicant responded "okay". In response to the question: "Do you wish to call a lawyer?", Officer Braye testified that he did not recall the applicant responding.
8At 2:36 a.m., Officer Braye made a demand that the applicant provide a suitable sample of his breath. When asked if he understood the demand the applicant responded "okay".
9For 16 minutes, until 2:53 a.m., Officer Braye remained at the scene with the applicant who was detained and under arrest, awaiting a tow for the applicant's vehicle. During this time the applicant and Officer Braye engaged in "friendly" conversation. At no time did the applicant or Officer Braye discuss rights to counsel.
10At 2:53 a.m., Officer Braye left the scene with the applicant in his custody. At 2:59 a.m., Officer Braye arrived at 4 District station located at 2700 Rutherford Road, the closest location with breath test facilities. The applicant was paraded before Sergeant Stirchell and booked into the holding cell area.
11At 3:20 a.m., Officer Braye placed a call to duty counsel on the applicant's behalf and at 3:32 a.m. duty counsel called back. Because of the logistics involved in the location the officer chose to place the call to duty counsel, there was a significant delay in transferring the call to the applicant and connecting him to duty counsel. Apparently this circumstance caused some friction between duty counsel and Officer Braye and the initial duty counsel contacted by Officer Braye hung up before being connected with the applicant.
12At 3:45 a.m. Officer Braye placed a second call to duty counsel and received a call back at 4:14 a.m. Officer Braye transferred this call to the booking area where another officer picked the call up and connected the applicant to duty counsel.
13At 5:03 a.m. Officer Braye was advised by another officer that the applicant had completed his call with duty counsel. At 5:03 a.m. the applicant was handed over to the breath technician Officer Peter Tsuychia by police constable Edwards.
Analysis
14The applicant alleges an infringement of his section 10(a) and 10(b) Charter rights on the following basis:
- a breach of the applicant's section 10(a) right on the basis that the applicant was not told the reason for his initial detention at the roadside;
- a breach of the informational component of the applicant's section 10(b) right on the basis that Officer Braye should have repeated or further clarified the applicant's right to counsel to ensure he understood;
- a breach of the implementation component of the applicant's right to counsel when the applicant was connected to speak with duty counsel without anyone ascertaining that he wished to exercise his right to counsel in this fashion;
- a breach of the implementation component of the applicant's right to counsel when Officer Tsuychia failed to follow up with the concerns raised by the applicant regarding the quality of legal advice he obtained by duty counsel by advising him he could speak with counsel of choice;
- a breach of the implementational component of the applicant's section 10(b) right as his right to counsel was not afforded without delay.
15The applicant further alleges a violation of his section 8 Charter rights on the basis that Officer Braye did not have reasonable and probable grounds to demand a sample of his breath for analysis.
Has There Been a Violation of the Applicant's Section 10(a) Charter Right in Relation to Being Informed of the Reason for His Detention?
16Section 10(a) of the Charter provides that everyone has the right on arrest or detention to be informed promptly of the reasons for their arrest or detention. There is no requirement that a defendant be specifically informed of the reason for the detention. As per the decision in R. v. Evans (1991), 63 C.C.C. (3d) p. 302:
"When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern."
17In this case, although there is no evidence that the applicant was specifically informed of the reason he was being stopped by Officer Braye, the applicant testified that he clearly understood that the reasons for his detention was in relation to drinking and driving, based on the nature of the questions posed by the officer. I am satisfied that there is no infringement of the applicant's section 10(a) Charter right in this respect.
Has There Been a Breach of the Informational Component of the Applicant's Section 10(b) Charter Right in Respect of the Way the Applicant's Right to Counsel Was Communicated to Him and His Ability to Understand That Right?
18Section 10(b) of the Charter provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. The duties imposed on the state include both an information component, to inform the detainee of the existence of the right, and an implementation component, to provide the detainee with a reasonable opportunity to exercise the right, and to refrain from eliciting evidence from the detainee until he or she had had that reasonable opportunity except in exigent circumstances.
19Absent proof of circumstances indicating that the accused did not understand his right to counsel the onus is on the applicant to prove he asked for the right and was denied the opportunity to ask for counsel. Once the police have complied with section 10(b) "by advising the accused without delay of his right to counsel without delay, there are no correlative duties triggered and cast upon them until the accused, if he so chooses, has indicated his desire to exercise his right to counsel." R. v. Baig, [1987] S.C.J. No. 77.
20Special circumstances which might trigger a further inquiry by the officer to ensure that the section 10(b) right has been understood are not necessarily confined to scenarios involving language and mental disability: "Even where a court accepts the police testimony that an accused person understood his or her constitutional rights as explained in the English language, the factual findings may still raise 'special circumstances', which require the police to take additional steps to ensure that the accused understand the content of the right to counsel and makes a meaningful exercise of that right". R. v. Schmoel, [1998] O.J. No. 2233.
21The subjective belief of the officer that the accused understood his right to counsel is not determinative of the issue of special circumstances. The trial judge must engage in an analysis of the entirety of the circumstances to determine if special circumstances exist. R. v. Barros-DaSilva, [2011] O.J. No. 3794. "Questions or comments made by a detainee or other circumstances at the time the s. 10(b) caution is given may indicate a misunderstanding by the detainee of the nature of the s. 10(b) rights. In those circumstances, the arresting officer will have to provide a further explanation of the rights." R. v. Kennedy (1995), 103 C.C.C. (3d) 161 (Nfld. C.A.)
22In R. v. Devries (2009), O.N.C.A. 477, the court held that there was nothing inherently misleading in telling a detainee that he or she could speak with a lawyer "now" while at the roadside. The court found that that phraseology adequately conveyed to an accused person the immediacy of the entitlement to speak to a lawyer; the further question of how and when the right can be exercised only arises if the detainee has chosen to exercise this right. However, the facts in Devries are distinguishable from the circumstances of the case before me.
23In Devries supra, the accused person had clearly and unequivocally answered "yeah" when asked if she understood the recitation of her rights to counsel and "no" when asked if she wanted to call a lawyer "now". I find, however, in this case, that the applicant's response to Officer Braye's recitation of his rights to counsel was equivocal and not an affirmation that the applicant understood his rights. The evidence of Officer Peter Tsuchiya is noteworthy on this point. Officer Tsuchiya testified that after he read the breath demand to the applicant he proceeded as follows: "I asked [the applicant] two times because the first time he said 'okay'…that is not really a response so I asked again for clarity".
24The nature of the applicant's response to the recitation of his rights to counsel coupled with the fact that the applicant failed to respond to the critical question: "Do you want to speak to a lawyer now?", should have led to further inquiry by Officer Braye.
25Officer Braye testified that there is a large sign explaining the rights to counsel which was posted in the booking area of the station as the applicant comes in. Officer Braye testified that it is the practise for booking officers to point out the sign and read it to detainees.
26Although I heard anecdotal evidence from Officer Braye that the booking sergeant would usually reiterate an accused person's right to counsel, Officer Braye had no note or specific recall as to whether that was done in this case. Officer Braye testified that he thought someone at the station had reiterated the applicant's right to counsel. Again however the Officer had no note and no specific recall that this happened. The applicant testified that to the best of his recall he was not asked whether he wanted to contact counsel of his choice when he was brought to the police division.
27Although I am somewhat sceptical about the applicant's lack of recall on this point, the absence of affirmative evidence on this point leads me to conclude that the opportunity to contact counsel of choice was in all probability not afforded to the applicant when he was booked in to the station. In addition, the existence of the posted sign is not enough to satisfy the requirement that the right to counsel was adequately and effectively communicated to the applicant. R. v. Greffe, [1990] S.C.J. No. 32. The right pursuant to section 10(b) of the Charter must be affirmatively communicated to the accused.
28When the applicant was finally connected with duty counsel, it was someone other than Officer Braye who transferred the call to the applicant. Speaking to duty counsel was not the decision of the applicant; it was solely the decision of Officer Braye. Officer Braye did not communicate to the applicant what he was doing in respect of rights to counsel on his behalf or why; nor did Officer Braye reiterate to the applicant before connecting him with duty counsel that he had the right to contact counsel of his choice. The applicant testified that he was simply told by another officer that duty counsel was on the phone. The applicant testified that he assumed in the circumstances that this was his one opportunity to speak with counsel. I find, considering the totality of the circumstances that the applicant's assumption, that the police had dictated his choice of counsel was reasonable and I accept the applicant's evidence in this regard.
29Although the applicant has an obligation when alleging an infringement of his section 10(b) right to be reasonably diligent in pursuing the right he must in my view not only be afforded an opportunity to exercise that right but also have been meaningfully informed about the parameters of the right. R. v. Willier, 2010 SCC 37 , [2010] S.C.J. No. 37 at para 42; R. v. Vaive, [2012] O.J. No. 1590.
30In this case, the applicant never asked to speak to duty counsel. In my view before the police chose to embark upon exercising right to counsel on the applicant's behalf by connecting him to duty counsel, it was incumbent on the police to ensure that the applicant did not have a particular lawyer he wished to speak with. It was a simple inquiry to make which was not done.
31The applicant's response to Officer Braye at the roadside standing alone may not have been sufficient evidence of a violation of the applicant's section 10(b) rights had I been satisfied that the applicant's right to counsel including the question of whether he wanted to call a lawyer was reiterated at the station. However, what ensued with the applicant at the police station only served to exacerbate the initial confusion created by the way the right to counsel was communicated by Officer Braye: "The fall back position of calling duty counsel cannot overcome the Charter breach". R. v. Belanger, 2012 ONSC 6419 at para. 30.
32I am persuaded on a balance of probabilities that there was an obligation on the police to further inquire whether the applicant understood his section 10(b) rights. I am satisfied that the recitation of the rights to counsel at the roadside was deficient in the circumstances. I am further satisfied that a second violation occurred when the police did not reiterate the applicant's right to counsel before connecting him with duty counsel.
33I am satisfied that given Officer Braye's subsequent conduct in connecting the applicant to duty counsel, the applicant did not know that he had other options than duty counsel. R. v. Carter, [2008] O.J. No. 1373
Has There Been a Breach in the Implementational Component of the Applicant's Charter Rights in Respect of His Ability to Contact Counsel of Choice?
34The applicant argues that there was an obligation on Officer Tsyuchia to reiterate the applicant's right to counsel of choice and provide him with that opportunity given that the applicant had expressed dissatisfaction about the quality of the advice he received. I am not satisfied that the applicant clearly and diligently communicated to Officer Tsuychia that he was dissatisfied with speaking to duty counsel. The applicant concedes that the officer may not have heard him express confusion or dissatisfaction about the advice he received. In addition, Officer Tsuychia testified and I accept his evidence that he would have acted differently if he had heard the applicant indicate a problem with understanding the advice received.
35The difficulty is that by the time the applicant was turned over to Officer Tsuychia he was operating under the notion that duty counsel was his only option as a result of the preceding events. Although Officer Tsuychia was made aware of the grounds for the arrest by Officer Braye at 3:43 a.m., there is no indication that he was apprised of the applicant's response regarding rights to counsel and the unilateral action taken by Officer Braye regarding duty counsel. Consequently, nothing was done by Officer Tysuchia which could have disabused the applicant of the notion that he could only speak with duty counsel. Unwittingly, Officer Tsuyhica's initial comment to the applicant confirming he spoke with duty counsel with no further reference to the applicant's right to counsel of choice, only served to reinforce the notion that duty counsel was the applicant's only option.
36In my view, in these circumstances, the police were not entitled to assume that the applicant had satisfactorily exercised his right to counsel; the investigation and demand for breath sample should not have continued without a reiteration of the right to counsel. In this respect I find that the breach of the applicant's section 10(b) rights was continuing.
Has There Been a Breach in the Implementational Component of the Applicant's Charter Rights in Respect of His Ability to Contact Counsel of Choice Without Delay?
37The applicant contends that there was an obligation on the police to contact counsel without delay and argues that in this circumstances of this case rights to counsel should have been afforded to the applicant at the roadside.
38In respect of this first submission, I accept Officer Braye's testimony that it would have been unsafe and unreasonable to contact counsel at the roadside if the applicant had requested; the guarantee of privacy necessary in the exercise of right to counsel could not have been afforded had he contacted counsel for the applicant at the roadside. The opportunity to contact counsel must include an opportunity to consult with counsel in a meaningful way. I am satisfied that in this situation that opportunity was best exercised at the station. I disagree that the analysis of the right in respect of the notion of "without delay" is the same for an arrested person as someone who is detained in police custody for investigative purposes like the situation in R. v. George, [2004] O.J. No. 3287 (C.A.).
39Alternatively the applicant contends that in choosing to contact duty counsel on the applicant's behalf Officer Braye manufactured an unnecessary and unreasonable delay in the exercise of the applicant's right to counsel which would not have manifested if the applicant was permitted to call his own lawyer. The applicant contends that if he had been afforded an opportunity he would have contacted his stepfather at home, who is a lawyer and received advice sooner.
40There is no evidence that the applicant ever communicated to Officer Braye or any other officer that he wished to contact counsel of choice. The applicant's submission that contacting his own counsel would have allowed him to exercise his right sooner is speculative. There is no evidence that anyone was home to receive his call. I am not satisfied that the implementational component of the applicant's right to counsel has been breached in this respect.
Was the Applicant Arbitrarily Detained?
41There was a 46 minute delay before the applicant spoke with duty counsel. This delay was through no fault of the applicant and solely arose because of the decisions made by Officer Braye on behalf of the applicant to connect him with duty counsel. In my view, the extended detention of the applicant in these circumstances violated the applicant's right under section 9 of the Charter. R. v. Bennet (2009), O.J. No. 991 C.J.
42However, I find the violation to have been marginal in the circumstances. There is no evidence of any hardship endured by the applicant as a result of this delay and any possible prejudice to the applicant arising from his extended detention is offset by the fact that he spoke with duty counsel for approximately 45 minutes thereafter.
Has There Been a Violation of the Applicant's Section 8 Rights on the Basis That Officer Braye Had No Reasonable and Probable Grounds to Make the Breath Demand Pursuant to Section 254(3)(a) of the Criminal Code?
43The onus is on the crown to prove that the Officer had reasonable and probable grounds to make the breath demand pursuant to section 254(3)(a), as the Crown seeks to rely on breath samples as a result of a warrantless search. The Court must be satisfied that the facts as found by the court objectively support the officer's subjective belief that the motorist was driving while his or her ability to do so was impaired. The question is whether on the totality of the evidence offered reasonable grounds on a subjective and objective basis exists. R. v. Wang, 2010 ONCA 435 , [2010] O.J. No. 2490 (C.A.)
44In this case, the following is alleged to have formed the reasonable and probable grounds for the breath demand made by Officer Braye pursuant to section 254(3) of the Code:
- that Officer Braye observed the applicant's vehicle travel northbound in the southbound lane of Peter Rupert/Confederation Parkway for approximately 100 to 150 meters along the concrete median dividing the lanes before the applicant's vehicle pulled into the correct lane;
- that he observed the applicant's vehicle speed up and slow down on two occasions after driving on the wrong side of the road; not maintaining a steady speed at approximately 40 or 50 km per hour which was a speed appropriate for the roadway under the speed limit;
- that the driver momentarily appeared confused and seemed to 'forget' that his vehicle was turned off preventing him from putting down his power window;
- that the driver was slow to respond and slow in getting out of the vehicle;
- that the driver advised him that he had had 4 beers;
- that the driver slurred and spoke slowly when he got out of the vehicle.
45Officer Braye's evidence that he saw the applicant travelling the wrong way on Confederation Parkway is problematic. Despite testifying that he made this observation Officer Braye did not at anytime activate his emergency lights nor did he pull over the applicant's vehicle; according to Officer Braye, the applicant's vehicle pulled over on its own. Nor did Officer Braye say anything to the applicant about the driving he observed.
46One would expect if Officer Braye had observed what amounted to dangerous driving on the applicant's part that Officer Braye would have done something to stop the vehicle and the driver irrespective of the time of night or the fact there was no traffic. Even allowing for the possibility that the officer did not act because he felt somehow that he was in control of the situation and that no one was in danger, the officer's actions do not accord with common sense and I do not find that his evidence in this regard is objectively reasonable.
47In addition, I am not satisfied that the evidence that the applicant's speech was slurred prior to the arrest is objectively reasonable in the circumstances. Officer Braye testified that he could not recall when he made the observation of slurred speech and what aspect of the applicant's speech was slurred. Officer Braye only noted one response by the applicant, the word "no" which the officer conceded was not slurred by the applicant.
48Despite these findings, I am satisfied based on the totality of the other evidence that I accept that objectively reasonable grounds existed for Officer Braye to make the breath demand. Those indicia include: that the applicant's vehicle accelerated and decelerated on two occasions, that the applicant was slow in responding to Officer Braye and slow in his movements, and that the applicant admitted that he consumed 4 beers. As such, I find no violation of the applicant's section 8 Charter rights.
Conclusion
49I find that there has been a breach of the informational component of the applicant's section 10(b) Charter rights and a marginal breach of the applicant's section 9 right.
Reasons released: March 21, 2013
Signed: Justice Sandra Bacchus