R. v. Antwi
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— And —
Boasiako Antwi
Before the Court
Justice: J.W. Bovard
Heard on: November 29, 2012; January 7; September 11, 16; October 10, 2013
Reasons for Judgment released: October 31, 2013
Counsel
For the Crown: W. Dorsey
For the Accused: Boasiako Antwi (on his own behalf)
BOVARD J.:
[1] Introduction
1These are reasons for judgment after the trial of Boasiako Antwi on charges of driving 'Over 80' and impaired driving. The date of the alleged offenses is October 16, 2011.
Background
2On October 16, 2011 at approximately 4:16 AM, Constable Osborne received a call from his dispatcher to investigate a possible impaired driver. He located the driver, who turned out to be Mr. Antwi. After speaking with him he made a demand that he provide a sample of breath into an Approved Screening Device (ASD). Constable Amaro arrived shortly after with the ASD.
3Mr. Antwi failed the breath test and Constable Amaro arrested him for 'Over 80'. He read him his rights to counsel under s.10 (b) of the Charter. Mr. Antwi, who was under the influence of alcohol and said things that indicated that he perhaps did not fully understand his rights to counsel, told Constable Amaro that he did not want to speak to a lawyer.
4Constable Amaro took Mr. Antwi to the police station where Mr. Antwi continued to say that he did not want to speak to a lawyer. He asked what would happen if he refused to take the breath tests. Then Constable Amaro decided to call duty counsel for him and Mr. Antwi spoke to duty counsel. This took approximately 26 minutes.
5After speaking to duty counsel, Mr. Antwi gave two samples of his breath into an Intoxilyzer and produced readings of 210 mg of alcohol in 100 mL of blood for both samples.
Issues
6The Crown has the onus to prove the charges beyond a reasonable doubt. That is the general issue. In addition, there is an issue with regard to whether Mr. Antwi waived his right to counsel and, if so, whether the Constable Amaro's actions in calling duty counsel resulted in an unreasonable delay that caused the breath tests not be administered as soon as practicable.
The Evidence
7On the day in question, Constable Osborne was patrolling in Brampton in a marked police cruiser. At 4:16 a.m. the police dispatcher called him about a possible impaired driver and gave him the licence plate number of the suspect vehicle.
8Within minutes he located the vehicle, which was being driven by Mr. Antwi. Constable Osborne put on his emergency lights and Mr. Antwi pulled into a gas station. He approached Mr. Antwi and spoke to him. He smelled alcohol from the driver or from the car and saw that his eyes were red rimmed.
9Constable Osborne asked Mr. Antwi for his licence, ownership and insurance documents. He said that Mr. Antwi's responses to his questions were "very delayed". As Mr. Antwi was looking for what he requested of him he seemed to forget and had to ask him what he wanted. Three times Mr. Antwi paused and asked him what he was asking for. Eventually, Mr. Antwi gave him his licence. The picture on it was of Mr. Antwi.
10After telling Constable Osborne that he did not drink, he admitted that he had one drink that night. Based on this, he formed the suspicion that Mr. Antwi was driving with alcohol in his body. At 4:21 a.m., he called for an Approved Screening Device. He told Mr. Antwi that an officer was coming to administer the test to him. He did not respond. Mr. Antwi waited in his car for the officer to arrive and Constable Osborne waited in his police cruiser.
11At 4:27 a.m., Constable Amaro arrived with the ASD. Constable Osborne briefed him on the situation and told him that he thought that Mr. Antwi was "impaired". Constable Amaro testified that he smelled the odour of an alcoholic beverage on Mr. Antwi's breath and he had red, watery eyes. He formed the suspicion "that Mr. Antwi was impaired by alcohol and had alcohol in his system."
12At 4:31 a.m., he performed field sobriety tests on Mr. Antwi and as a result of his performance he arrested him for impaired driving. He put handcuffs on him, searched him and then put him in his cruiser.
13At 4:52 a.m., he read him his rights to counsel from the pre-printed form in his memo book. Mr. Antwi said "I don't have no lawyer. Mark there no." Constable Amaro told him that he had the right to call any lawyer and asked him if he understood. Mr. Antwi said "For what? This is bullshit. I remain my position. No."
14At 4:53 a.m., Constable Amaro told him that he had the right to "free legal advice from a legal aid lawyer". He asked Mr. Antwi if he understood, but he did not answer.
15At 4:54 a.m., Constable Amaro told Mr. Antwi that he could apply for legal aid and Mr. Antwi said "Who cares. You're a police officer. Garbage."
16At 4:55 a.m., Constable Amaro gave him the toll-free number to call duty counsel "right now" for free legal advice. He asked him if he understood and Mr. Antwi replied, "I'm not gonna answer any of those questions. Do you understand?"
17At 4:56 a.m., Constable Amaro asked him if he wanted to "call a lawyer now" and he said "I'm not gonna say anything."
18At 4:57 a.m., Constable Amaro read him "his legal caution". Mr. Antwi said "Look at the police officers, I don't want to talk." He read the breath demand to Mr. Antwi and asked him if he understood. Mr. Antwi said "Forget it. Forget it. Forget it. It's a bullshit."
19At 5:02 a.m., he took Mr. Antwi to the police station for the breath tests. They arrived at the station at 5:08 a.m. Mr. Antwi was booked in and Constable Amaro briefed Constable Dwyer, the qualified breath technician, on the situation.
20At 5:17 a.m., Constable Amaro called duty counsel. Duty counsel, Ms. Julie Peaker, called back at 5:30 a.m. Mr. Antwi spoke to her, broke momentarily for a washroom break, and finished speaking with her at 5:43 a.m.
21At 5:47 a.m., Constable Osborne turned Mr. Antwi over to Constable Dwyer.
22At 6:24 a.m., Constable Dwyer returned Mr. Antwi to Constable Osborne and he put him in a cell while he prepared his release documents.
23At 7:50 a.m., Constable Osborne served on Mr. Antwi Exhibit (1), the Notice of Intent to adduce the Certificate of Analysis, a copy of (Exhibit 2), which is the Certificate, and a Notice of Increased Penalty. In addition, he served on him a 90-day driving suspension. He also advised Mr. Antwi that his vehicle would be impounded for seven days.
24The Certificate of Analysis states that Constable Dwyer completed the first breath test at 5:59 a.m. and that she commenced the second test at 6:21 a.m. Both tests resulted in readings of 210 milligrams of alcohol in 100 hundred millilitres of blood.
25Constable Dwyer testified that she is a qualified Intoxilyzer technician. She stated that the Intoxilyzer that she used to take Mr. Antwi's breath samples was in proper working order.
26The Court conducted a voir dire with regard to a statement that Mr. Antwi gave to Constable Dwyer in the breath room. At the end of the voir dire Mr. Antwi conceded that he gave the statement voluntarily. Base on this admission and the evidence on the voir dire the Court was satisfied beyond a reasonable doubt that he gave the statement voluntarily and admitted it as evidence. Consequently, there is no need to discuss the voir dire any further.
27In the statement Mr. Antwi said that he drank beer, red wine and a shot of vodka at a banquet hall where he was attending a celebration of the birth of his friend's baby.
28That was the case for the Crown.
29Mr. Antwi testified that on the night in question he worked until midnight and then went to a banquet hall to celebrate the birth of a co-worker's child. That night he took Tylenol 3 for pain. It is not very clear, but it seems that Mr. Antwi pleaded not guilty to the charges because he took a Tylenol 3 on the night in question.
30He testified that he also had two shots of liquor: a very small drink from a bottle at around 3:00 a.m., and a shot of Vodka that his sister gave him. In addition, he had a beer and a "small" wine in the parking lot five minutes before leaving the banquet hall.
31About half of an hour after he left the banquet hall Constable Osborne stopped him at the gas station. Constable Amaro came on scene and spoke to Mr. Antwi. He told him that he needed to speak to a lawyer, but Mr. Antwi told him that he did not because he understood what the officer was telling him and he believed that the officer understood him.
32He said that he did not have a difficult time understanding Constable Osborne. He denied that the Constable had to ask him three times for his driving documents. He said that he believed that the widow was up "or something."
33As far as having watery eyes, Mr. Antwi testified that the cold could have made his eye water. He also stated that his driving was not affected by alcohol. He said that he was driving like a normal person.
34Constable Amaro took him to the police station. When he went into the breath room, he asked Constable Dwyer what would happen if he refused to take the breath sample. Constable Amaro came in and told him that he would not be able to go home. Mr. Antwi said okay. Then Constable Amaro called duty counsel for him. Mr. Antwi said "…I still refuse to have a counselor between me and an officer." He said that he spoke to duty counsel, but he "refused the counselling and then everything was fine."
35He took the breath tests and afterwards they kept him in the cells until they released him. He said that they kept him there the whole night. However, it was 6:21 a.m. when he finished the second test and Constable Osborne released him one and a half hours later, so the police did not keep him there the whole night after he gave his breath samples. This is another example of Mr. Antwi's faulty recollection or exaggeration of the events of that evening.
Analysis
(1) Did Mr. Antwi waive his right to counsel?
36Accused persons may waive their right to counsel as long as they understand what they are doing.
37Lamer C.J.(as he then was), stated in R. v. Bartle 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 at paragraph 38 that:
Although detainees can waive their s. 10(b) rights, valid waivers of the informational component of s. 10(b) will, in my view, be rare. … the validity of a waiver of a procedural right "... is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect..." This standard applies equally to waivers of Charter rights, including the rights guaranteed by s. 10(b): … In the case of s. 10(b)'s informational component, requiring that a person waiving the right have "full knowledge" of it means that he or she must already be fully apprised of the information that he or she has the right to receive. A person who waives the right to be informed of something without knowing what it was that he or she had the right to be informed of can hardly be said to be possessed of "full knowledge" of his or her rights. For this reason, the fact that a detainee indicates that he or she does not wish to hear the information conveyed by the standard police "caution" mandated by s. 10(b) will not, by itself, be enough to constitute a valid waiver of s. 10(b)'s informational component. (Emphasis added)
38In paragraph 41, the Chief Justice added to these comments stating that:
In light of the component's importance in ensuring that the purposes of s. 10(b) are fully realized, the validity of waivers of the informational component should only be recognized in cases where it is clear that the detainee already fully understands his or her s. 10(b) rights, fully understands the means by which they can be exercised, and adverts to those rights.
39The evidence in the case at bar, shows that Mr. Antwi exhibited symptoms that demonstrated that he was under the considerable influence of alcohol. Constables Osborne and Amaro testified that:
Mr. Antwi's responses to Constable Osborne's questions were "very delayed". When he asked him for his driving documents, Mr. Antwi appeared to forget what he asked him for. He paused three times and asked him to repeat himself.
Constable Amaro said that Mr. Antwi had the odour of an alcoholic beverage on his breath and his eyes were red-rimmed and watery.
When Constable Amaro read him his rights under s. 10(b), Mr. Antwi's replies were aggressive and not completely responsive to his questions. Mr. Antwi told him that he did not have a lawyer and told him to "Mark there no."
When Constable Amaro asked him if he understood that he had the right to call a lawyer he replied "For what? This is bullshit. I remain my position. No."
When Constable Amaro asked him if he understood that he had the right to "free legal advice from a legal aid lawyer", he did not answer.
When Constable Amaro told him that he could apply for legal aid, Mr. Antwi said "Who cares. You're a police officer. Garbage."
When Constable Amaro gave him the toll-free number to call for free legal advice "right now", Mr. Antwi said "I'm not gonna answer any of those questions. Do you understand?"
Constable Amaro asked Mr. Antwi if he wanted to "call a lawyer now" and he replied "I'm not gonna say anything."
When Constable Amaro read him the caution, he said "Look at the police officers. I don't want to talk."
Constable Amaro read him the breath demand and he stated "Forget it. Forget it. Forget it. It's a bullshit."
40Mr. Antwi's evidence was that when Constable Amaro told him that he needed to speak to a lawyer, he told him that he did not because he believed that he and the officer understood what they were saying to each other.
41Mr. Antwi denied that he had to ask Constable Osborne three times what he was asking for. However, I accept the officer's evidence in this regard because he took notes of the event and he had not drank any alcohol. I find that this makes him a more reliable witness. Mr. Antwi did not make notes and he had been drinking. His explanation that the window was up "or something" was not reliable. It sounds like he did not remember what the situation was and secondly, it does not make sense that Constable Osborne would ask him for his driving documents while the window was rolled up.
42Mr. Antwi stated that the cold could have made his eyes watery. But his use of the conditional tense indicates that he was not certain about this.
43At the police station, Mr. Antwi said that he asked what would happen if he refused to give breath samples. It was after this that Constable Amaro called duty counsel. Mr. Antwi said that "I still refuse to have a counsellor between me and an officer." He added that although he spoke to duty counsel, he "refused the counselling and then everything was fine."
44I find that this evidence demonstrates that Mr. Antwi was under the influence of alcohol and did not fully understand his rights under s. 10 (b) of the Charter or what the officers were trying to communicate to him in this regard. In these circumstances it is not "clear and unequivocal that [Mr. Antwi waved] the procedural safeguard and [did] so with full knowledge of the rights the procedure was enacted to protect." I find that this lack of appreciation of his s. 10(b) rights resulted from a combination of alcohol, having taken Tylenol 3, tiredness and ignorance of the law.
45Therefore, I find that Mr. Antwi did not waive his right to counsel under s. 10 (b) of the Charter and that in the circumstances of the case at bar the police acted lawfully when they delayed the Intoxilyzer breath tests to afford him the opportunity to speak with duty counsel. Neither that delay nor any other delay in the case was unreasonable. Consequently, I find that the tests were taking as soon as practicable.
(2) Were the breath tests administered as soon as practical?
46There being no other defence, and based on all of the circumstances, the law and the submissions made by the Crown and by Mr. Antwi, I find that the Crown proved the 'Over 80' charge beyond a reasonable doubt. Mr. Antwi is found guilty and a conviction is registered.
Was Mr. Antwi's ability to drive a motor vehicle impaired by a drug or alcohol?
47With regard to the impaired driving charge, the test is set out in R. v. Stellato 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 at 49, 95 (O.C.A.) where the Court held that "If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out."
48There is no evidence of driving or non-driving evidence that would constitute proof beyond a reasonable doubt that Mr. Antwi's ability to drive a motor vehicle was impaired by alcohol or a drug. A suspicion exists that this is so, but that is not enough to constitute proof beyond a reasonable doubt. Therefore, he is acquitted of this charge.
Released: October 31, 2013
Justice J.W. Bovard