Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Paul Bolta
Before: Justice L.M. Baldwin
Heard on: September 16, 2014
Reasons for Judgment released on: November 20, 2014
Counsel:
- Arish Khoorshed, counsel for the Crown
- Ken Anders, counsel for the defendant Paul Bolta
BALDWIN J.:
[1] Charge and Proceedings
1The defendant was charged with Over 80 on January 17, 2013 in Oakville. At trial the Crown proceeded summarily.
2The defendant alleges a violation of s. 10(b) of the Charter. The onus is on the Applicant/defendant to establish a breach of s. 10(b) on a balance of probabilities. The Applicant/defendant seeks exclusion of the Intoxilyzer test results pursuant to s. 24(2).
3The voir dire and trial proceeded in a blended fashion.
4At the end of trial, it was also submitted that the breath tests had not been taken as soon as practicable.
5Three Officers and a civilian witness testified for the Crown.
Evidence on s. 10(b) Application
6The Applicant did not file an Affidavit, nor did he testify on this Charter voir dire.
7The evidence comes from the arresting Officer only.
Summary of the Evidence of Officer Ken MacDonald
8He has been a police officer for 5 years with the HRPS.
9He attended the scene on Dorval Road, south of the Service Road at 3:06 a.m.
10He was given information from Sgt. Kohler and formed the reasonable suspicion that the Applicant had alcohol in his system and had been driving a vehicle.
11Officer MacDonald approached the Applicant and asked him when he had last consumed an alcoholic beverage. The Applicant replied at least 2 hours ago.
12The Applicant was read the ASD from the back of his police notebook.
13The Applicant was asked if he understood and he replied "Yes, sir".
14At 3:09 a.m. the Applicant provided a suitable breath sample into the device which registered a fail.
15The Officer had RPG and arrested the Applicant for drive Over 80 at 3:12 a.m.
16The Applicant was searched and put into the cruiser.
17Officer MacDonald returned to the vehicle at the roadside and took the keys out of the ignition.
18Officer MacDonald returned to the cruiser at 3:16 a.m. At 3:17 a.m. the Applicant was read the standard Rights to Counsel from the back of his police-issued notebook.
19The Applicant was asked if he understood. The Applicant replied "Yup".
20The Applicant was asked if he wished to call a lawyer now. The Applicant replied "Actually yes, actually I don't need a lawyer for this."
21Due to the conflicting answers, Officer MacDonald said "You just told me you do and don't want to speak to a lawyer. I need to know which one it is. The Applicant replied "No, I don't."
22There was no other discussion about Rights to Counsel at the scene, en route to the station or at the station before breath testing.
Issues
- Was the answer at the scene a change of mind re: contacting counsel or did the Applicant misspeak when he initially said yes?
- Was a clearer waiver of the right to decline access to counsel required?
- Should the Officer have given rights to counsel again at the station?
Position of the Applicant
23It is submitted that once a detained person asserts his right to call a lawyer, the burden of establishing an unequivocal waiver is on the Crown. The standard required for an effective waiver of the right to counsel is very high. A person who waives his right to counsel must know exactly what he is giving up, especially if the waiver is to be valid.
24It is submitted that a police officer in circumstances such as arise herein has a duty to be certain that the detained person's decision is fully informed. It, therefore, becomes necessary for the officer to explain the 10(b) right in detail. The failure of the officer to fully explain the right constitutes a violation of the Applicant's s. 10(b) rights.
25The Applicant relies upon the Supreme Court of Canada's decision in R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236 at paragraphs 43 and 44, and the Ontario Court of Appeal's decision in R. v. Devries, [2009] 244 C.C.C. (3d) at paragraph 42 in support of his position.
26In Prosper, supra, then Chief Justice Lamer writing for the majority stated as follows:
In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of the detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.
Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind and the burden of establishing an unequivocal waiver will be on the Crown: Ross, at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion. This Court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high: Clarkson v. The Queen 1986 CanLII 61 (SCC), [1986] 1 S.C.R. 383, Manninen, and Evans. As I said in Bartle, at pp. 192-94 and 206, a person who waives a right must know what he or she is giving up if the waiver is to be valid. That being said, it stands to reason that the right to counsel guaranteed under s. 10(b) must not be turned into an obligation on detainees to seek the advice of a lawyer.
27In R. v. Devries, supra, Justice Doherty stated:
- I would add one further comment with respect to Constable Large's failure to re-advise the respondent of her right to counsel when he and the respondent arrived at the detachment. I agree with the holding in Leedahl in this regard. Where a detainee has been properly cautioned at the roadside and has indicated that he or she does not wish to speak with a lawyer, failure to re-advise the detainee of his or her right to counsel at the police station does not necessarily constitute a breach of s. 10(b). That said, however, I think that in cases such as this, it would be a much better practice for the police, upon arrival at the detachment, to reiterate the right to counsel. A simple repetition of the right to counsel and an invitation to a detainee to speak with counsel "now", if he or she wishes to do so, would serve two purposes. First, it would reinforce the fundamental importance of the right to counsel and the need for all participants in the justice system to recognize that fundamental importance. Second, it would effectively short-circuit any claim at trial by a detainee that he or she was misled at the roadside by the use of the universal s. 10(b) caution into believing that the right to counsel could only be exercised then and there. Given the right circumstances, and absent a reiteration of the right to counsel at the police station, that argument could succeed.
28It is the Applicant's position that his responses to Officer MacDonald at the scene indicated a change of mind with respect to accessing advice from a lawyer. This change of mind therefore triggers the additional informational obligations upon the police to ensure that there is a clear, unequivocal and informed waiver of the right to access counsel.
29The Applicant's position is that based on the statements of Justice Doherty in the Devries case, the police should have given rights to counsel to the Applicant again at the police station.
Respondent's Position
30The Respondent submits that this is not a case where the detainee asserted his right to counsel and then changed his mind. The Respondent submits that the Applicant made a mistake when he originally said yes and then no in the same sentence with respect to calling a lawyer now. Officer MacDonald asked for a clarifying answer and he was given one – "No, I don't."
31The Respondent submits that this is not a circumstance where the additional informational obligations on police arise to ensure a proper waiver of the right to counsel has been made. The Respondent submits that the answer at the scene was a clear 'no' and there was no requirement on the police to give rights to counsel again at the station.
Analysis
32Unlike the circumstances discussed in the Devries case, there is no evidence before me that the Applicant did not understand his s. 10(b) rights at the scene. Justice Doherty's comments at paragraph 42 relate to circumstances where there is evidence on the Charter voir dire that the detainee did not understand what they were told about the right to counsel, or they were misled into believing that their only choice was to contact counsel from the back of the police cruiser at the roadside.
33In the circumstances of this case, I do not agree that there was an assertion by the Applicant that he wished to access counsel when he said "yes" then "no" in the very same sentence. This was clarified with a clear "No, I don't" immediately thereafter. There was nothing in the evidence from Officer MacDonald to suggest that the Applicant was confused about his rights to counsel in any way. When asked if he understood them, he replied "Yup".
34The circumstances here are also distinguishable from the facts the Supreme Court was dealing with in the Prosper case. At paragraph 52, Justice Lamer summarizes them as follows:
- The appellant was arrested, cautioned and read the breathalyser demand late on a Saturday afternoon. He told the police that he wished to talk to a lawyer before taking the breathalyser tests.
The police then took him to the Halifax police station and gave him a list of Legal Aid lawyers to call. Over a period of almost 40 minutes, the appellant tried, with the help of Constable Young, to reach the 12 lawyers on the list. The appellant failed to reach any of the lawyers, because, just a few days earlier, they had announced a work-to-rule campaign in which they were refusing to accept any further after-hours calls from persons in detention. The appellant declined to make use of the telephone book which was offered to him by Constable Young, saying that he could not afford the legal fees of a private lawyer. The appellant agreed to take the breathalyser tests, both of which he failed.
35On those facts, the Supreme Court of Canada was satisfied that the s. 10(b) Charter violation had been established. It was apparent on the evidence from the Officer that a Charter violation was made out, and it was not necessary for the appellant in that case to adduce independent, corroborating evidence of the violation.
Decision on s. 10(b) Charter Application
36The Applicant did not assert his right to counsel and was not duly diligent in exercising it, as was the case in Prosper. There was no triggering of the additional informational obligations as discussed in Prosper in this case.
37In the circumstances of this specific case, I conclude that the Applicant has not met his onus of proof and the s. 10(b) Application is dismissed.
38Although it might be best practice to review rights to counsel again when the detainee is brought to the station, absent evidence of confusion or mix-up at the scene concerning accessing counsel, there is no legal requirement that the police do so.
Evidence on the As Soon As Practicable Issue
Sergeant Matt Kohler
39Sergeant Kohler has been employed with the HRPS since 1997.
40On January 17, 2013, he was on uniform patrol in Oakville.
41At 2:56 a.m., he was driving southbound on Dorval Drive and observed a car stopped in the northbound lane on Dorval Road. The front passenger tire was in contact with the curb. Sgt. Kohler pulled a U-turn and got in behind the stopped vehicle to see if everything was okay. He activated the cruiser lights. He ran the plate and learned that the registered owner of the vehicle was Paul Bolta.
42The accused got out of the driver's seat of the car and walked toward the cruiser.
43The accused was wearing a black T-shirt, blue jeans and the buttoned fly to his pants was undone. The accused was not wearing a coat.
44The Officer noted that the accused's eyes were glassy, his pupils were dilated and he appeared slightly unsteady on his feet. The accused's speech was slow and deliberate, but not slurred.
45The Officer asked him what happened with the car. The accused replied that the car would not start.
46The Officer observed a gas can at the back of the accused's car on the ground. He observed that gas had spilled on the roadway. The smell of gas was in the air.
47The Officer asked the accused if he needed a tow truck. The accused replied that he had CAA, but he had used his 3 tows already and the next time he had to pay.
48The accused asked if he could get in the car and start the car again. The accused tried to start the car again and it would not start.
49The Officer asked where he was coming from. The accused replied that he was coming from the Square One area of Mississauga.
50The Officer asked again if he had been drinking and the accused again said 'no'.
51The accused was asked to produce his driving documents. Only the driver's licence was produced; no ownership or insurance.
52At approximately 3:03 a.m. the Officer "started forming the suspicion" that the accused might be under the influence of alcohol, but he could only smell gas.
53It was 4 degrees Celsius and was a cold and windy night.
54The Officer asked the accused if he had been drinking tonight and the accused again replied 'no'.
55At approximately 3:05 a.m. Sgt. Kohler called dispatch to report the traffic stop knowing that other officers with an ASD would arrive on scene. Patrol sergeants do not have ASDs in their cruisers.
56There was a female in the front passenger seat of the accused's car. The Officer spoke to her later and determined that she was under the influence of alcohol.
Officer Ken MacDonald
57After reading rights to counsel and getting the responses reviewed in the s. 10(b) ruling, at 3:19 a.m., Officer MacDonald read the standard caution. The accused replied "Good luck". Officer MacDonald asked the accused again if he understood the caution. He replied "Yes".
58At 3:19 a.m. the secondary caution was read. The accused was asked if he understood and he replied "Yes".
59At 3:21 a.m. the Breath Demand was read and the accused said "Yes" when asked if he understood.
60At 3:30 a.m. Officer MacDonald departed the scene and drove to the station.
61For the 9 minutes between 3:21 a.m. and 3:30 a.m., he was waiting for Officer Kissling to finish taking a witness statement from a civilian witness (Jason Brundle) so she could follow him in her cruiser back to the station.
62En route to the station, the accused told Officer MacDonald that he met the woman in the car on the Plenty of Fish dating site. This was their first date. They had been at the Moxie's Restaurant located at Winston Churchill Drive and the 401 for dinner. He did not know how his car got to the location it was in.
63Officer MacDonald told him that an independent witness saw him driving.
The accused said, "What, the same guy who said I was driving the wrong way on the highway? Good luck. You can't put me behind the wheel. No one saw me driving."
64They arrived at the station at 3:39 a.m. In the sally port the accused said, "Good luck. No Judge in the land would convict me of this."
65The accused was escorted to Central Lock-Up where staff took over the booking process.
66Officer MacDonald testified that the booking process can take from 5 to 20 minutes to complete depending on the prisoner's responsiveness during questioning.
67Officer MacDonald completed the Intoxilyzer Information Sheet (Exhibit #4) in the Intoxilyzer room. He cannot say how long it took to fill out this form.
68At 4:08 a.m. the Intoxilyzer Technician was ready and the accused was turned over to his custody.
69He next dealt with the accused at 7:00 a.m. when he served him the Certificate of the Qualified Technician and the Notice to Produce (Marked as Exhibit #2).
70The Certificate states that at 4:37 a.m. the first (suitable) sample was taken resulting in a reading of 160 milligrams of alcohol in 100 millilitres of blood; the second sample was commenced at 5:00 a.m. with a reading of 150.
71Exhibit #3 is the Forensic Toxicologist's Report dated February 6, 2013 which contains a read-back of these breath results to the time of 2:40 a.m.
72In cross-examination, Officer MacDonald stated that Sgt. Kohler told him at the scene that a witness had seen the accused driving. He did not ask the accused about the time of driving. He knew the driving had been recent because that witness (Brundle) was on scene giving a witness statement. (Note: Exhibit #4 states time of incident was 02:40 – Witness saw accused driving wrong way on QEW off-ramp at Dorval Drive – exiting QEW from on ramp. Witness turned around to catch up to accused and saw him pushing his vehicle and female asleep in the passenger seat. Witness asked if he'd been drinking, (accused) said "I'm not that bad".)
73The accused told Officer MacDonald that he consumed a glass of wine approximately 2 hours before the ASD demand was made. Officer MacDonald could not smell alcohol at the scene because of the smell of gasoline.
74The accused did not have slurred speech. Officer MacDonald did not observe unsteadiness.
Officer S. Nopper
75Officer Nopper was the Qualified Intoxilyzer Technician who took the breath tests in this case.
76The accused provided 3 breath samples. At 4:15 a.m. the reading was 194; at 4:37 a.m. the reading was 164; at 5:00 a.m. the reading was 158. Two readings must be within 20 of each other after truncation to be considered accurate. Accordingly, the readings at 4:37 and 5:00 a.m. were used.
77Page number one of the Alcohol Influence Report was filed as Exhibit #5.
78During the interview the accused denied that he was operating a motor vehicle. When asked where he was going he said, "Mississauga back to Oakville". He said he started from "Burlington" at 7:30.
79He denied drinking alcohol. When asked what he was drinking he said "Wine – one glass red." When asked where, he said "Moxie's" (Mississauga). He said he started drinking 9:30 p.m. and stopped drinking at 9:40 p.m.
80Physical observations made by the Intoxilyzer Technician are set out in the Exhibit. They are not relevant to this issue.
Position of the Parties
Defence
81It is submitted that the breath samples were not taken as soon as practicable after the time that the offence was alleged to have been committed as required by s. 258(1)(c)(ii) of the Criminal Code and, accordingly, that the presumption as to the accuracy of the BAC under subsection (iv) of the Code cannot be relied upon by the Crown.
82It is conceded that at 2:56 a.m. Sgt. Kohler observed the accused try to start his car and that this puts him in care or control of the vehicle at that time.
83The defence takes issue with the 9 minutes of delay before leaving the scene. It is submitted that Officer MacDonald did not explain why he waited this time for Officer Kissling to finish taking a witness statement and then follow him back to the station in her cruiser.
84The defence takes issue with the 29 minutes from arrival at the station until the accused is turned over to the Intoxilyzer Technician. The defence submits that there was no specific evidence as to how long it took to complete the booking process in this case. It would have taken approximately 5 minutes for Officer MacDonald to complete the Intoxilyzer Information Form.
85The defence submits that there are gaps of unexplained delay before the breath testing in this case.
Crown
86The Crown submits that the police have reasonably explained the actions they took prior to breath testing in this case and they submit that the presumption applies.
Analysis
87Sgt. Kohler explained what his dealings were with the accused between 2:56 a.m. (when the accused is trying to start his car) and 3:05 a.m. when he called for back-up on the traffic stop.
88At 3:21 a.m., Officer MacDonald read the breath demand.
89Officer MacDonald testified that he waited 9 minutes before leaving the scene so Officer Kissling could finish taking the statement from Mr. Brundle and then follow him back to the station in her own cruiser.
90It is customary for one cruiser to follow another back to the station where an officer is alone in their cruiser with a detainee. Although the policy reasons for this procedure were not explored in this case, this 9 minutes spent at the scene was not without any explanation at all and it was not excessive.
91Officer MacDonald testified that the booking procedure can take 5 to 20 minutes depending on the responses of the detainee. Although there was no specific time given as to when the accused had finished the booking process, it is reasonable to infer that it took a few minutes to get him out of the cruiser in the sally port at 3:39 a.m. and into the booking room process inside the station. Once that process was completed, it would be close to 4:00 a.m.
92The accused was turned over to the Intoxilyzer Technician at 4:08 a.m. Officer MacDonald testified that was when the Intoxilyzer Technician was ready.
93The first test the Crown relies on was taken at 4:37 a.m. which is within two hours of his being in care or control of his vehicle.
94The test for determining whether or not breath samples were taken as soon as practicable is whether they were taken within a reasonably prompt time under the circumstances. The Court must take into account both subjective and objective factors, including whether the police officer involved acted reasonably.
95The phrase "as soon as practicable" does not require that the tests be taken at the very earliest moment or as soon as possible. The phrase must be applied with reason having regard to the whole chain of events and bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. There is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. Reference R. v. Vanderbruggen (2006), C.C.C. (3d) 489, 2006 CanLII 9039 (ON CA), 208 O.A.C. 379 (C.A.).
Decision
96I conclude that the police acted reasonably and that the breath samples were taken as soon as practicable in all the circumstances, and the Crown has the benefit of the presumption in this case.
Final Decision
97There is no issue that the accused was in care or control of his motor vehicle when he dealt with Sergeant Kohler between 2:56 a.m. and 3:05 a.m.
98The accused's BAC was 160 at 4:37 a.m. and 150 at 5:00 a.m. after truncation per Exhibit #2 and the viva voce evidence of the Intoxilyzer Technician.
99The Crown has proven beyond a reasonable doubt that the accused was in care or control of a motor vehicle with a BAC Over 80 and a finding of guilt is registered.
Note: Some submissions were made at the end of trial on what use if any the Court should make of the Forensic Toxicologist's Report, Exhibit #3. Given the reasons above, I find it is not necessary to review that Report or the evidence of the civilian witness Mr. Jason Brundle in determining the final issues raised at the end of this trial.
Released: November 20, 2014
Signed: "Justice L.M. BALDWIN"