Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Edita Hajovska
Before: Justice Leslie C. Pringle
Heard: April 28-30, 2014; May 1-2, 2014; November 3, 2014; February 20, 2015
Reasons for Judgment: Released to the parties on April 7, 2015, in court on May 13, 2015
Counsel:
A. Hannah-Suarez, for the Crown
S. Skolnik, for the Accused
Judgment
1. Introduction and Overview
1Edita Hajovska is charged with driving with excess alcohol in her system and impaired driving on February 20, 2013.
2This was a long trial, with evidence heard on 6 days over a period spanning almost 10 months. On behalf of the Defence, Mr. Skolnik raised a number of Charter issues, the most significant of which was whether Ms. Hajovska was provided a reasonable opportunity to consult with counsel when it is alleged that duty counsel was rude and unprofessional in his dealings with her. I have concluded that based on the rather unique facts of this case, there was a violation. Further, I have concluded that considering all the circumstances, the admission of the breath readings at trial would bring the administration of justice into disrepute. In the absence of the breath readings, the Crown cannot prove Ms. Hajovska's blood alcohol content and she is entitled to be found not guilty of count 2.
3Mr. Hannah-Suarez nonetheless submitted on behalf of the Crown that the charge of impaired driving was proven beyond a reasonable doubt. Mr. Skolnik disagreed, arguing that Ms. Hajovska's disorientation at the roadside could reasonably be attributable to the serious accident that had just occurred, and submitted that the totality of the evidence fell short of proof beyond a reasonable doubt that her ability to drive was impaired by alcohol that night. I have decided that based on the admissible evidence, there is a reasonable doubt that Ms. Hajovska's ability to drive was impaired by alcohol. While it's clear she had been drinking and did have an accident, it's reasonably possible that her poor driving was attributable to the late hour, her emotional state and a badly executed lane change. Accordingly, Ms. Hajovska will be found not guilty on count 1 as well.
4I will explain my reasons in the pages that follow. By way of introduction to the facts, let me set out the various witnesses from whom I heard during the trial, and what role they played in this matter.
5In the Crown's case, I heard from:
- Robert Sullivan, the driver of vehicle that was struck by Ms. Hajovska;
- Donald Harris, the tow truck driver who arrived very shortly after the accident;
- Peter Panagekos, one of the paramedics who treated Ms. Hajovska at the scene;
- Cst. Mac, the first police officer on scene, who also arrested Ms. Hajovska for impaired driving;
- Cst. Dunn, the second officer police officer to arrive on scene and made observations of Ms. Hajovska at the roadside as well as at the hospital;
- Cst. Kim, the qualified breath technician; and
- Dr. Mayers, a forensic toxicologist who provided expert evidence regarding the breath readings and on the issue of impairment based on those breath readings.
6In the Defence case, in relation to both Charter issues and on the trial proper, I heard from:
- Ms. Hajovska; and
- Her husband, Edouard Mracka.
7In Reply, the Crown called:
- Dr. Mayers again, to testify with regard to the last drink Ms. Hajovska said she consumed just before driving; and
- Artis Tiltins, the duty counsel with whom Ms. Hajovska spoke that night.
8At this point, I would like to say that I am very grateful to Mr. Hannah-Suarez and Mr. Skolnik for presenting the issues in a careful and helpful way, and for the candid and fair testimony provided by Cst. Mac and Cst. Kim.
2. Factual Foundation
2.1 Events Leading up to the Collision
9Ms. Hajovska testified that on the evening of February 19, 2013, she and her husband met to discuss their marital situation, since they were having problems in their marriage. At the time, she had her own place downtown, but she drove to their family residence at 11 Valleywoods Drive, apartment 503, where she had been living previously with her husband and his brother. She said she planned to stay the night.
10Ms. Hajovska said that she and her husband went out to a restaurant and talked. They arrived around 8 or 9 p.m. and left at closing time, around 1:30 a.m. They then returned to 11 Valleywoods. She explained that later, she and her brother-in-law got into a heated argument, and she was so upset and angry that she decided she couldn't remain there that night and left in her car.
(I estimate Ms. Hajovska left soon after 3:50 a.m. since she said it took her about 5 minutes to get to the DVP, and she then travelled south for about 2 km before the collision occurred. Mr. Sullivan said the collision occurred around 4:00 a.m.).
11Ms. Hajovska gave differing accounts of how much alcohol she consumed that night and at what time. In examination-in-chief, she said she had a Rickard's Red beer which was brought in a pitcher to their table at the restaurant, and she also drank one beer just prior to leaving to drive downtown. In cross-examination she stated that she and her husband ordered 2 pitchers of beer, and she remembered that she drank 2 glasses of draft beer at the restaurant and 1 beer in a bottle before she left. She told the paramedic, Peter Panagekos, that she had 2 beers that night, and that she had finished her last drink approximately 2 hours prior to the accident.
12Ms. Hajovska denied that she was drunk, rather explaining that she was angry and emotional because of the argument with her brother-in-law.
13Her husband testified that they ordered one pitcher of beer and Ms. Hajovska had only 2 glasses and he had approximately 2 glasses as well. He agreed that she and his brother had an argument, and she was very angry when she left and slammed the door.
2.2 Collision on the DVP
14Robert Sullivan is a truck driver who was 62 years old at the time of the trial. On February 20, 2013 at about 4:00 a.m., he was driving south on the DVP to pick up his daughter downtown. He said that he was in the centre lane when he saw a car in his rear-view mirror coming up quickly behind him in the same lane, so he signalled and moved to the right towards the slow lane. Maybe 5-10 seconds later he heard a bang, and the car that had been behind him hit him on the rear left part of his vehicle in the tail light area. He estimated that he was doing 95 km/hr., and he thought the other vehicle was doing about 120.
15After the collision Mr. Sullivan said his van was positioned across the centre and express lanes, pointing south a little, on the highway. Since he could see lights approaching, he moved his van to the shoulder, about half a car length behind the other car which had ended up on the right shoulder. He was shaken up and a bit confused, and instead of dialling 911, he first called 411.
16Mr. Sullivan said that he was not physically injured from the collision, but he believed that his tinnitus was aggravated. (Mr. Sullivan's tinnitus was a pre-existing condition that caused him to have ringing in his ears. He said that it had not improved since the collision, and goes up and down. On the day he testified, he was unable to hear anything, and arrangements had to be made for a real time reporter to assist him with a typed version of the questions he was being asked.)
17Ms. Hajovska described the accident differently. She testified that she was in the centre lane, doing about 90-100 km/hr. When she got to about a car length away from Mr. Sullivan, she put on her signal and intended to move into the left passing lane, however, Mr. Sullivan also moved to the left and did not signal. As a result, she said that she quickly turned her steering wheel to the right and lost control of the car and came into contact with his car. She braked and tried to keep her car under control, but her car hit the guard rail, at which time the airbag deployed.
18Cst. Dunn testified that there was damage to the left, rear corner area of Mr. Sullivan's van, including the bumper, door, lights and rear quarter panel. She estimated the damage to be approximately $3500.
19Cst. Dunn described extensive damage to Ms. Hajovska's vehicle, with the front of the vehicle crumpled up from about half way back of the hood. The passenger side window was smashed and the passenger mirror was off. There were scrapes all down the passenger side of the car, and the front right tire was actually lodged up on the guard rail. The rail itself was dented and a wooden post supporting the rail had been moved. Cst. Dunn believed that Ms. Hajovska's car was a write off.
20Cst. Mac observed that the windshield of Ms. Hajovska's car was broken and there was glass scattered inside the front seat of the car. He confirmed that the driver's side airbag had been deployed.
2.3 Observations of Ms. Hajovska at the Scene
21Ms. Hajovska said that she was stunned by the collision, and came to with her face lying on the airbag, with her glasses gone from her face. She explained that without her glasses, everything was blurry, and she felt shaky and stunned. She said her forehead was hurting and she could feel small pieces of glass in her face and eye, and there was blood coming down from the area of her right eye.
22Mr. Sullivan confirmed that when he got out of his car to check the damage to his vehicle, he saw Ms. Hajovska lying face down over the air bag with her arm hanging out the door beside her, not moving. Later, he saw her walking outside her vehicle in a dazed manner.
23Donald Harris is a tow truck driver who arrived on scene about 4:00 a.m. He saw Ms. Hajovska get out of her car, and after speaking to Mr. Sullivan to confirm he was ok, Mr. Harris had to tell Ms. Hajovska to get back into her car a couple of times. He said she was wandering around and he was concerned she would be struck by traffic on the DVP.
24Mr. Harris said that Ms. Hajovska had glass all over her face and in her right eye, and she had blood coming from a laceration in the area of her eye. He also noted that her eyes were glossy and there was an odour of alcohol coming from her breath, so he advised the dispatcher to send a breath technician to the scene.
25Several witnesses noted that Ms. Hajovska seemed to have a blank look on her face and seemed unaware of her injuries. Cst. Dunn said she looked "hammered", and both she and Cst. Mac noted a smell of an alcoholic beverage coming from her mouth. Cst. Mac said she kept on asking the same questions a number of times and sounded confused. He believed her speech was slurred and he described her as talking with a thick tongue. At 4:25 he formed the opinion that she had been operating her motor vehicle while impaired by alcohol and he placed her under arrest.
2.4 The Demand
26Cst. Mac placed Ms. Hajovska under arrest at 4:25 a.m. and then read her the right to counsel. She responded that she did not have a lawyer, and he asked her if she would like to call duty counsel. Ms. Hajovska asked if duty counsel would cost her money, but when she learned it was a free service, she said "if it's free, I think I should speak to duty counsel".
27Cst. Mac did not handcuff Ms. Hajovska because she was receiving medical attention and she was cooperative. After reading her the right to counsel, he next cautioned her and asked her if she wished to say anything in answer to the charge. Ms. Hajovska said no.
28At 4:30, Cst. Mac testified that he read the approved instrument demand to Ms. Hajovska from the back of his memo book, and when he asked her if she understood, she said yes. He did not make a note of her response, but he could tell from her facial expressions that she understood what was going on. He told her that since she was receiving ongoing medical treatment for her injuries, an approved instrument would be transferred to the hospital, and a qualified breath technician would attend to her there.
29Ms. Hajovska said that she understood that she was going to be charged, and that she didn't need to say anything in answer to the charge. She agreed that she was read her rights to counsel, and she understood that duty counsel would be free. She also knew that she was supposed to go somewhere with the officer, but said that the first time she became aware that would have to provide a breath sample was at the hospital.
2.5 Exercising her Right to Counsel at the Hospital
30Cst. Mac placed a call to duty counsel when they arrived at the hospital. However, after he did that, Ms. Hajovska told him that she would like a duty counsel who spoke Slovak. At 5:05 a.m. the officer called the duty counsel back to make that request, and at 5:10 a.m., duty counsel Mr. Tiltins called and spoke to Cst. Mac.
31Cst. Mac said Mr. Tiltins told him he was the only duty counsel on call that night, and advised him there was no Slovak speaking duty counsel available. Mr. Tiltins said that he could arrange a translation service, but explained that Cst. Mac would need to get prior approval to fund the interpreter through a company called CanTalk.
32Cst. Mac had used CanTalk a number of times during his 15 years as a police officer, and he believed them to be a reputable agency and to provide credible interpretation services. He had never received any complaints about them. Accordingly, in order to obtain approval for funding, he called Staff Sgt. Sterling, who authorized the service.
33Cst. Mac next called Mr. Tiltins back and left a message, and Mr. Tiltins returned his call at 5:30. At 5:30, Mr. Tiltins put Cst. Mac on hold and set up the translator.
i. The first call with duty counsel
34Mr. Tiltins said he spoke with Ms. Hajovska for the first time from 5:40 to 5:43 a.m.
35There was conflicting evidence about where this call took place in the hospital.
36Cst. Mac recalled that they had the phone routed over to Ms. Hajovska's bed, and she spoke to duty counsel in her cubicle across from the nurse's station, with Cst. Mac and Cst. Kim about 10-15 feet away from her at the nurses' station. He said the curtain to the cubicle was open and it was not completely private. They could see Ms. Hajovska and hear her voice speaking in a foreign language, but they could not understand what was being said.
37Cst. Kim did not note down where Ms. Hajovska's first call with duty counsel took place, although he recalled that it was at the nursing station. He was out of earshot about 25 meters away. At that time he was preoccupied with the hospital staff, and said there was a lot of noise which was simply "the buzz" of the hospital emergency.
38Ms. Hajovska's affidavit filed with the court suggested that this call was at the nursing station. However, she testified in court that was not correct, and said that during the first call she was in a small room or cubicle with a curtain that was partly drawn, and the phone was brought in and connected to the jack. No one else was in the cubicle but she said the police were just several meters away and she could see them.
39Regardless of where this call took place, there was general agreement amongst Ms. Hajovska and the two officers that she was dissatisfied with it.
40Ms. Hajovska described that when she picked up the phone, the person on the other end of the line identified himself as Mr. Tiltins, and there was also a female interpreter on the line. She said Mr. Tiltins was yelling at her and was rude, and she was not able to get a word in or ask any questions. Accordingly she disconnected the phone and hung up. When she told Cst. Kim what had happened, he told her that he knew this duty counsel could be quite rude.
41Both Cst. Mac and Cst. Kim agreed that in her first conversation with Mr. Tiltins, Ms. Hajovska expressed her displeasure and hung up. She was very upset and told them that Mr. Tiltins was rude. Cst. Kim described Ms. Hajovska as being indignant about the way she was treated, and in disbelief. He said she was vocal, upset and angry, and told the officers that she didn't want to talk to Mr. Tiltins. Cst. Kim understood that Mr. Tiltins had told Ms. Hajovska to "shut up", and his impression was that there had been no meaningful solicitor/client exchange between them on this call.
42In contrast, Mr. Tiltins testified that his vocal demeanour was "very fine" with Ms. Hajovska during this call, and they got along fine. He said he spoke to her between 5:40 and 5:43 and was able to complete his advice, but then agreed that his notes suggested she hung up on him.
43Cst. Mac noted that as a result, he and Cst. Kim discussed their options in terms of providing Ms. Hajovska with her rights to counsel. He said they were limited because Mr. Tiltins was the only duty counsel that evening, but they decided to try and mediate between the parties and "re-initiate the conversation with cooler heads". Ms. Hajovska said she was willing to try again, but she begged them to let her speak to someone else. When they told her there was nobody else she agreed to speak to Mr. Tiltins again.
ii. The second call with duty counsel
44Again, there was disagreement as to where this call took place, but general agreement amongst Ms. Hajovska and the officers that she was very upset.
45Cst. Kim said that he spoke to Mr. Tiltins in the quiet room where the approved device was located. Ms. Hajovska was also in the same room, being attended to by the doctor. Cst. Kim asked Mr. Tiltins if he could wait for a couple of minutes, because Ms. Hajovska was just seeing the doctor, but Mr. Tiltins was uncooperative. Mr. Tiltins said he was very busy and wanted to hang up. Cst. Kim tried to ask him to be patient while Ms. Hajovska quickly saw the doctor, but Mr. Tiltins said no, he had to do it his way, and they would have to call him back.
46Cst. Kim said that he has dealt with Mr. Tiltins in the past, and their dealings had been short and curt on both sides. On this occasion, the officer said Mr. Tiltins was again curt, and also rude to him. Cst. Kim said that he was offended by the way Mr. Tiltins was speaking about Ms. Hajovska, and the way he was treating the situation by saying that he was too busy and couldn't wait while Ms. Hajovska was seen by the doctor. When Mr. Tiltins was adamant that it had to be done his way, Cst. Kim felt he had to admonish Mr. Tiltins, and he told him he would have to consider putting in a complaint to the Law Society about him.
47Cst. Kim said that Mr. Tiltins was raising his voice with him over the phone, and was upset and defensive with him. The officer described it as a verbal argument between himself and Mr. Tiltins, with the officer explaining to him that Ms. Hajovska had the right to duty counsel, that they finally had him on the line again, and Mr. Tiltins should just be doing his job and do her the courtesy of waiting a couple of minutes. In the midst of this argument, the doctor spoke up. (The doctor and Ms. Hajovska were both in the room, with the doctor attempting to treat Ms. Hajovska). The doctor said to Cst. Kim, "it's ok, she can speak to duty counsel now and I'll come back later". As a result, Ms. Hajovska's treatment was interrupted so she could speak to Mr. Tiltins.
48Mr. Tiltins agreed that he spoke to an officer at 6:00 a.m. and agreed that they had an argument. He said the argument related to the guidelines he had been given by his employer, Sykes Corporation, about how long he should wait to speak to an accused person. He said the guidelines permitted him to wait between 5 to 10 minutes, and if the police couldn't put the person on the phone, he was supposed to tell the officer to call back and leave a new voice message. In this case, he knew Ms. Hajovska was being tended to by a doctor, but said that he was the only duty counsel for the province at that time. Mr. Tiltins said he told the officer, "either produce the accused or I hang up".
49Mr. Tiltins had no recollection or note about whether the accused was upset with his conduct, or whether the officer requested that he be civil. He did note that at 6:11 a.m., the officer produced the accused.
50Cst. Mac thought the second call might possibly have been at the nurses' station. He said this was a public area but they were doing the best they could, and he and Cst. Kim gave Ms. Hajovska as much privacy as they could from a distance of about 10 feet.
51Ms. Hajovska also testified that the second conversation with Mr. Tiltins took place at the nurses' station. She said there was no privacy, since it was an open area with people everywhere and the police were a couple of meters away.
52For his part, Cst. Kim was certain that Ms. Hajovska's second call with Mr. Tiltins was in the room with the device where Ms. Hajovska had been seen by the doctor, and where the device was located. Cst. Kim believed this second call with duty counsel was in the "quiet room" with a sliding glass door, which he slid closed so she could have privacy. He said he could not hear what was said, although he could see her.
53Ms. Hajovska testified that from her perspective, the second call with Mr. Tiltins was even worse than the first. She said that she couldn't say anything and Mr. Tiltins started yelling at her when she wanted to ask a question. His tone of voice was angry and she understood that he was pissed off about something. She felt that he had no interest in communicating with her, didn't want to help her, was not interested in giving her advice and just wanted to get rid of her. The interpreter translated that she was supposed to be quiet and not say anything, and to shut up. As a result, Ms. Hajovska said that she had no idea what to do. She felt she needed answers but no one was giving her any. She was afraid, and felt she had no hope. Accordingly, she agreed to do the test.
54Mr. Tiltins maintained that it was Ms. Hajovska who was yelling and cutting him off, effectively frustrating the conversation so that no advice could be given. He said that he tried to speak to her for 4 to 5 minutes, but she ended the conversation by putting the phone down. The line was engaged until 6:23 but Mr. Tiltins did not speak to Ms. Hajovska again, only with the officer.
55After that call, Cst. Mac initially testified that Ms. Hajovska appeared to be satisfied. However, under cross-examination he agreed that she was "upset, angry and flustered", and acknowledged that she said something about making a complaint about Mr. Tiltins. After the second call, she may have been crying but he wasn't sure if she was upset from the call or the fact that she was under arrest.
56Cst. Kim said that Ms. Hajovska was still upset, but he believed she understood what would happen next.
2.6 Cst. Dunn's Observations at the Hospital
57After attending to her duties at the scene of the collision, Cst. Dunn went to North York General Hospital, arriving at 6:31 a.m. At that time, the officers were in room 1 conducting a breath test on Ms. Hajovska, so Cst. Dunn waited.
58At 6:42 a.m. Cst. Dunn went into room 1 and asked Ms. Hajovska for her insurance, and Ms. Hajovska told her that it was in a plastic folder in her car. When the officer told her that she had checked and it was not, Ms. Hajovska repeated that it was there. When Cst. Dunn asked her to check her wallet, Ms. Hajovska looked blank but eventually picked up her purse and found it in her wallet. When Cst. Dunn cautioned her, Ms. Hajovska told the officer that she didn't want to say anything incriminating, and Cst. Dunn left the room.
59Cst. Dunn noted that Ms. Hajovska had a strong smell of alcohol on her breath, her right eye was injured, but her left eye was glossy and bloodshot. She thought Ms. Hajovska's eyes were slow to track her head movements, and the officer found her to be repetitive.
60Later, at 7:28 a.m., Cst. Dunn went into the room again to provide Ms. Hajovska the other driver's information for insurance purposes. Ms. Hajovska asked her, "what do you mean the other driver?" and Cst. Dunn responded, "the other driver that you hit". According to Cst. Dunn, Ms. Hajovska said, "I hit another vehicle?" and when the officer said "yes", Ms. Hajovska looked stunned, as if she was unaware there was another driver.
2.7 The Breath Readings
61Cst. Kim arrived at the hospital just after 5 a.m. and set up the Intoxilyzer 8000C on a rolling cart provided to him by the hospital staff. After Ms. Hajovska finished speaking to duty counsel on the second occasion, he was prepared to receive samples of her breath, and he went over the procedure to be sure that she understood. He explained the breath demand again in his own words, and Ms. Hajovska appeared cooperative.
62At 6:34 a.m. he received the first suitable sample which the instrument analysed as 122 mg of alcohol in 100 ml of blood. At 6:58 a.m. the second suitable sample was measured as 121 mg of alcohol in 100 ml of blood.
63At the time, Cst. Kim noted that Ms. Hajovska seemed very tired and was staring off into space vacantly. She had dried blood from a cut to her right eyelid and bruises and abrasions on her forehead. Her speech was plodding and rhythmic, and she was flushed around the brow. Her eyes were bloodshot and he noted the smell of an alcoholic beverage. He described her as talkative, easily distracted and rambling.
64Based on her demeanour and the breath readings, Cst. Kim believed that Ms. Hajovska's ability to operate a motor vehicle was impaired by alcohol.
65Dr. Mayers was qualified to give opinion evidence in the area of forensic toxicology. He testified that based on Ms. Hajovska's truncated breath readings of 120 mg of alcohol in 100 ml of blood provided at 6:34 a.m. and again at 6:58 a.m., it was his opinion that her blood alcohol content would have been in the range of 125 to 170 mg of alcohol in 100 ml of blood at the time of driving, that is between 3:55 to 4:08 a.m.
66In reply, he also considered a hypothetical where Ms. Hajovska had consumed one beer about 8 to 15 minutes prior to driving, as she testified. In that scenario he testified that the additional beer would not have been absorbed into her system by the time of driving, but would have been absorbed by the time the breath tests were taken. Accordingly, he revised his opinion to project that her blood alcohol content would have been 110 to 135 mg of alcohol in 100 ml of her blood at the time of driving.
67Dr. Mayers indicated that a person's ability to operate a motor vehicle would be impaired with a blood alcohol content of 125 mg of alcohol in 100 ml of blood. He explained that alcohol is a central nervous system depressant which slows down the activity of your brain and diminishes your ability to perform many of the tasks required for driving. In particular, he noted that a blood alcohol content in this concentration would affect the driver's vision (loss of peripheral vision due to limited ability to focus); the driver's judgement (reduced ability to judge speed and distance); as well as the driver's reaction time (inability to react quickly to changing driving circumstances, and to divide attention amongst visual, auditory and psychomotor activities).
68He agreed that, with his background in pharmacology and toxicology, he would not be surprised if some of the effects of trauma from a collision could mirror the indicia of alcohol impairment, such as unsteadiness on the feet, slurred speech and slow response.
3. Was the demand "as soon as practicable"?
69Section 254(3) of the Criminal Code requires that if a peace officer has reasonable grounds to believe that a person has committed the offence of impaired driving he may make a demand for breath samples "as soon as practicable".
70Cst. Mac testified that he complied with this requirement. He said that he read the demand for Ms. Hajovska to accompany him to provide breath samples just after he arrested her and explained her rights to counsel. While he didn't actually note down her response to the demand when he asked her if she understood, he said that he recalled she did understand from her facial expressions.
71For her part, Ms. Hajovska testified that she didn't understand that she would have to provide a breath samples until she got to the hospital. She testified that she was not read a demand at the roadside.
72This issue boils down to the credibility or reliability of what was said to Ms. Hajovska at the time. I find that in light of the collision and circumstances of the accident, it is quite possible that Ms. Hajovska did not recall or fully comprehend all of what occurred at the roadside. On the other hand, Cst. Mac was an experienced traffic officer who was simply carrying out his regular duties that night. I found him to give candid and fair testimony in this case. He testified that he did read the demand to Ms. Hajovska, which he noted was at 4:30 a.m.. While he didn't note down Ms. Hajovska's response, I accept his evidence that he believed she understood. Moreover, he recalled telling her that since she needed medical treatment, a qualified breath technician would attend to take the samples from her at the hospital. This all made sense to me.
73Accordingly, I find that the demand was made "as soon as practicable".
4. Right to Counsel in Privacy
74An opportunity to consult with counsel in privacy is an integral part of an accused person's right to counsel. Even where there is no actual breach of privacy because the officers didn't overhear, if an accused person reasonably believes her conversation will be overheard, she may be substantially prejudiced in making use of her right to retain and instruct counsel: see R. v. Playford, 1987 CanLII 125 (ON CA), 40 C.C.C. (3d) 142 and R. v. Cairns, 2004 CanLII 17588 (ON CA), [2004] O.J. No. 210. A court must look at the totality of circumstances in assessing whether there has been a breach of s.10(b) of the Charter based on an absence of privacy: see R. v. Burley, 2004 CanLII 9437 (ON CA), [2004] O.J. No. 319.
75In a hospital setting, the need to provide access to counsel in private may be more challenging for police than it would be at a police station. However, a hospital is not a Charter free zone, and the police have an obligation under s.10(b) to take reasonable steps to facilitate access to counsel in private at the first reasonable opportunity: R. v. Taylor, 2014 SCC 50 at para. 34.
76In this case the evidence was conflicting on the location of both the first and second communications between Ms. Hajovska and Mr. Tiltins.
77With respect to the first call, both Cst. Mac and Ms. Hajovska testified that Ms. Hajovska was in a small cubicle with the curtain partially drawn. While this was not free from doubt based on Ms. Hajovska's own prior affidavit and Cst. Kim's recollection, for the purpose of assessing the argument I will accept Ms. Hajovska's testimony in court.
78In her evidence in court, Ms. Hajovska said that she could see the police from her room, and Cst. Mac agreed that the cubicle was not completely private. He said that he could hear Ms. Hajovska's voice, but she was speaking in a foreign language that he could not understand. For his part, Cst. Kim said he was out of earshot, and Cst. Mac confirmed that neither he nor Cst. Kim understood the Slovak language.
79With respect to the second call, both Cst. Mac and Ms. Hajovska thought it was at the nurses' station, while Cst. Kim was certain it was in a quiet room with a sliding glass door. While I am inclined to accept Cst. Kim's clearer recollection, I will examine this issue based on Ms. Hajovska's evidence for the purpose of argument.
80In my view, Ms. Hajovska's evidence fell short of any realistic concern that her conversation was being overheard in a meaningful way by the police in either phone call. Under cross-examination she acknowledged that neither of the Asian looking officers spoke Slovakian to her, and she agreed that she had to ask them to provide a Slovak interpreter for her. Yet, when pressed under cross-examination if she really had any concern that either of the officers spoke Slovakian, she repeatedly hedged and maintained, "you just never know", and "you have no idea what you can expect, it's a multi-cultural city" and "it's a possibility". This seemed less than forthright to me. In the circumstances, I found it difficult to accept Ms. Hajovska's evidence that she was concerned that her communications were not private.
81Moreover, with one notable exception which I will address below, I found these officers were very attentive to Ms. Hajovska's rights to counsel. I accept their evidence that were attempting to provide her as much privacy as they could in a hospital setting, and that they did not understand her conversation with counsel.
82In the circumstances, I do not find there was a breach of Ms. Hajovska's right to consult with counsel in privacy.
5. Reasonable Opportunity to Exercise Right to Counsel
5.1 Factual Findings
83In order to assess the submissions made regarding this issue, it is necessary to make some findings about credibility and reliability at the outset.
84With respect to Ms. Hajovska, Mr. Hannah-Suarez submitted that her credibility was highly suspect, and emphasized that the police officers' impressions of her interaction with duty counsel were based on her own dubious reliability.
85I agree that in a number of respects, Ms. Hajovska's evidence was unbelievable. For example, as I indicated above, her evidence regarding privacy at the hospital did not appear to be forthright. And, as I will discuss below, her evidence regarding the amount of alcohol she had consumed was inconsistent and unreliable.
86However, in relation to her dealings with duty counsel Mr. Tiltins, I am prepared to accept her testimony because in the unusual circumstances of this case, it was corroborated and supported by the evidence of both the police officers. In particular, Cst. Kim had dealt with Mr. Tiltins in the past and found him to be curt and rude, and on the night in question, the officer testified directly about his dealings with Mr. Tiltins.
87I found Cst. Kim to be a reasonable and measured witness. I accept his evidence that Mr. Tiltins was curt and rude to him again that night, and that Mr. Tiltins raised his voice to him over the telephone. Cst. Kim clearly explained that Mr. Tiltins was uncooperative and rude notwithstanding that he knew Ms. Hajovska was in a hospital receiving treatment at the time. The officer was actually offended by Mr. Tiltins' lack of professionalism to the point where he had to admonish him and tell him he was considering a complaint to the Law Society. Cst. Kim further testified that as a result of duty counsel's behaviour, even the doctor in the room felt that he had to interrupt Ms. Hajovska's medical treatment in order to give Mr. Tiltins priority.
88Mr. Tiltins took the position that his demeanour was "very fine" with Ms. Hajovska during the first call, and testified that he completed all of his advice to her in three minutes. However, although he was out of earshot while Ms. Hajovska actually spoke to Mr. Tiltins, Cst. Kim's impression from Ms. Hajovska after she hung up was completely the opposite: he said she was extremely upset and indignant about the way she felt she had been treated, and it was his impression that she had not had any meaningful solicitor/client exchange with duty counsel.
89During the second call, Mr. Tiltins suggested that it was Ms. Hajovska who was being difficult with him. However, he agreed that just prior to that, he had an argument with the officer regarding the time he had to wait for her to get on the line, and he acknowledged that he said to the officer, "either produce the accused or I hang up".
90Mr. Hannah-Suarez attempted to downplay the harshness of this approach by pointing out that Mr. Tiltins was very busy that night, and had already been waiting on hold to speak to Ms. Hajovska for several minutes. According to Mr. Tiltins, the guidelines given to him by his employer permitted him to only wait for 5 to 10 minutes before indicating that the police should call back.
91I appreciate that it was busy that night, and that Mr. Tiltins was the only duty counsel on duty for the entire province. However, this was not some drive-through business, and Mr. Tiltins was not a minimum wage employee who had little ability to use his discretion or exercise his own judgement about the service he was providing. In fact, Mr. Tiltins was providing an important legal service to a person whose liberty and security of the person were in jeopardy; he was a fully qualified lawyer and a professional providing legal advice to a person arrested for a criminal offence. As such, he could easily have exercised his discretion to wait an additional few minutes for Ms. Hajovska to receive medical treatment, and he could certainly have used better judgement than to raise his voice to the police officer and his client over the telephone.
92In light of the officers' testimony, I find I that I believe Ms. Hajovska's evidence that Mr. Tiltins was yelling, angry and rude with her. I further accept that she reasonably perceived that he had no interest in wanting to communicate with her, or help her, or give her advice.
5.2 Legal Findings
93This case is not about the quality of legal advice provided by duty counsel. The Supreme Court of Canada has been clear that police are not responsible for the quality of advice provided by counsel, and are under no obligation to inquire into it: see R. v. Willier, 2010 SCC 37 at para. 41.
94Moreover, even though there was only one duty counsel available that night, s.10(b) of the Charter does not impose a constitutional obligation on the state to ensure that duty counsel is available to all detainees for summary legal advice: see R. v. Prosper, 1994 CanLII 65 (SCC), [1994] S.C.J. No. 72 at paras. 28-33.
95However, as the Court made clear in Prosper at paras. 34-42, the police must nonetheless hold off on questioning or breath testing until a reasonable opportunity to contact counsel has been provided. What constitutes a "reasonable opportunity" will depend on all the surrounding circumstances.
96If the detainee changes her mind and no longer wants to consult with counsel, the police must also provide her with what has come to be called a "Prosper" warning, reminding her that she does have a reasonable opportunity to contact counsel and that the police are obliged to hold off on testing during this period. Any indication of a change of mind must be clear, and the Crown must show that any waiver of the right to counsel was free and voluntary: see paras. 43-44.
97Finally, a detainee must act with due diligence when exercising her right to choose the lawyer with whom she wants to speak: see R. v. Willier at para. 35.
98In this case, I acknowledge that the officers were faced with a difficult situation, which was certainly not of their making. However, after Ms. Hajovska's second call with Mr. Tiltins, I believe that both officers understood that she had not had a reasonable opportunity to consult with counsel. In particular, Cst. Kim believed that Mr. Tiltins was rude to both him and Ms. Hajovska, and felt Mr. Tiltins was offensive in the way he was treating the situation for a client in hospital receiving medical attention.
99The officers testified that Ms. Hajovska had been cooperative throughout the process with them. After the first call, she agreed to try again. Although she begged not to have to speak to Mr. Tiltins, she acquiesced when advised that he was the only choice available that night. In the circumstances, I find that she was duly diligent in her efforts.
100When Ms. Hajovska agreed to do the tests, I find that she did so out of hopelessness; if she had been provided with a reasonable opportunity to consult with counsel, I find that she would have taken that opportunity. However, the police did not provide her with a Prosper warning, and they did not turn their minds to other alternatives that would allow her to consult with counsel. Keeping in mind that it was about 6:15 a.m., other alternatives might have included waiting for a shift change for a new duty counsel at 8 a.m., a Legal Aid office opening soon, or allowing Ms. Hajovska to pursue other options for private counsel through use of the phone book or internet or calling her husband.
101I appreciate that this was a time sensitive situation where too long a delay could result in the disappearance of blood/alcohol evidence in Ms. Hajovska's body, however, in this case the collision itself had occurred just over 2 hours earlier. Cst. Mac knew that even faced with some delay, a forensic toxicologist could provide an opinion to the court about any blood alcohol content in her system and relate it back to the time of driving. In any event, as Justice Lamer noted in Prosper at para 48, whether or not breathalyzer data is available, it is always open to the Crown to proceed with a straight impaired driving charge.
102Taking into account that Ms. Hajovska was unable to consult with Mr. Tiltins because he was yelling, rude and angry with her; that she was not provided with a Prosper warning by the police; and considering that the officers failed to turn their minds to possible alternatives to permit her to exercise her right to counsel before administering the breath tests, I find that there was a violation of s.10(b) in this case.
5.3 Remedy re: Charter breach
103In Prosper the violation of the detainee's rights to counsel in somewhat analogous circumstances to those here resulted in an exclusion of the breath readings. However, since Prosper was decided, the Supreme Court of Canada has clarified the criteria relevant to determining when the admission of evidence obtained in a manner that violates the Charter would bring the administration of justice into disrepute: R. v. Grant, 2009 SCC 32.
104Since Grant, the trial judge must consider three lines of inquiry and balance the assessment under each to determine whether admission of the evidence would bring the administration of justice into disrepute. I will consider each in turn.
105First, the court must consider the seriousness of the Charter-infringing state conduct. Here, the police understood their obligations and were appropriately concerned to ensure Ms. Hajovska had a reasonable opportunity to contact counsel at the outset. Duty counsel's behaviour was beyond their control and they made a reasonable attempt to try and remedy the situation after the first call by encouraging everyone to try again with cooler heads. In that regard, they acted in good faith. However, they could and should have done more by providing her with a Prosper warning and holding off testing while they considered further alternatives after the second call. Bearing in mind that this was a unique situation, I do not find that this factor weighs strongly for either exclusion or inclusion of the evidence.
106Second, the court must consider the impact of the breach on the Charter-protected interests of the accused. In this case, while the state was not directly responsible for duty counsel, the combined circumstances of his behaviour and the failure of the police to consider other alternatives meant that the entire purpose of s.10(b) in allowing Ms. Hajovska to make an informed choice about the breath testing process was thwarted. She never got that opportunity.
107Moreover, the circumstances caused the doctor to delay his examination of Ms. Hajovska in favour of duty counsel's sense of expediency. In that regard, the circumstances put her medical care in direct tension with her constitutional rights in a completely unacceptable manner. In Taylor, cited above, Justice Abella spoke for the court and said at para. 40:
Arrested individuals in need of medical care who have requested access to counsel should not be confronted with a Hobson's choice between a frank and open discussion with medical professionals about their medical circumstances and treatment, and exercising their constitutional right to silence. The police placed Mr. Taylor's medical interests in direct tension with his constitutional rights. His legal vulnerability was significant, and correspondingly, so was his need for requested assistance from counsel.
108This line of inquiry strongly favours exclusion of the evidence.
109Lastly, considering society's interest in the adjudication of the case on its merits, it is clear that the breath tests were reliable evidence. This was a serious allegation of drinking and driving by Ms. Hajovska, involving an accident with an innocent third party. Should this evidence be excluded, the Crown's case in relation to the charge of over 80 will fail, and the exclusion of the breath samples will also weaken the case on impaired driving. This line of inquiry favours admission of the evidence.
110In balancing the factors, it is important to remember that the purpose of s. 24(2) is to maintain the good repute of the administration of justice. The term "administration of justice" embraces maintaining the rule of law and upholding Charter rights in the justice system as a whole. Looking at the situation in this case from a broad perspective, I find it is significant that even the police were shocked by the disregard with which Ms. Hajovska was treated by duty counsel. Considering that the end result was that her right to counsel was entirely thwarted, I am satisfied that the administration of justice would be brought into disrepute by admitting the breath samples. In other words, I find the repute of the system as a whole would suffer by admitting the evidence.
6. Proof of Impaired Driving
111As stated in R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380, aff'd 1994 CanLII 94 (SCC), 90 C.C.C. (3d) 160n, there is no special test for determining impairment by alcohol such as a "marked departure" from normal behaviour. The offence of impaired driving is made out by proof of any degree of impairment by alcohol ranging from slight to great.
112Ms. Hajovska's evidence about the amount of alcohol she had consumed was internally inconsistent and also conflicted with her husband's testimony. I found that her account of what she had to drink was unreliable and I did not believe her evidence on this issue.
113At the end of the day, based on the admissible evidence, it is unclear how much Ms. Hajovska had to drink. Several witnesses testified that they smelled alcohol on her breath at the scene of the collision, including Mr. Harris the tow truck driver, Peter Panagekos the paramedic, and Constables Mac and Dunn. Cst. Kim noted the smell of an alcoholic beverage on her breath at the time of the breath tests around 6:30 a.m., and Cst. Dunn still detected a strong smell of alcohol on Ms. Hajovska's breath at about 6:45 a.m., almost three hours after the collision. However, while a smell of an alcoholic beverage from one's mouth is a very likely indication of consumption, it is not synonymous with impairment.
114I recognize that Cst. Kim testified that in his opinion, Ms. Hajovska's ability to drive was impaired by alcohol that night. However, he was clear that part of the foundation for his opinion rested on the readings, which have now been excluded from evidence. In the absence of the breath readings, it is unclear if he would have come to the same conclusion.
115Moreover, in the aftermath of the collision, I am unable to say that the indicia observed by the witnesses at the scene or at the hospital were attributable to alcohol impairment. As Dr. Mayers indicated, some of the effects of trauma from a collision could mirror the effects of alcohol impairment, including unsteadiness, slurred speech and slow response. While the Crown submitted that this opinion was outside Dr. Mayers' area of expertise, to some extent, it is simply common sense.
116For example, not surprisingly, Mr. Sullivan testified that he himself was shaken up and confused by the collision, to the extent that he first dialled 411 instead of 911 for help. He saw that Ms. Hajovska was also dazed by the accident. When he first observed her, she was lying face down on the air bag with her arm hanging out the door, and she was not moving. After she got out, Mr. Harris the tow truck driver, saw that she had glass on her face and in her right eye, with blood coming out of a laceration. While Mr. Panagekos concluded that she didn't sustain any obvious major injuries, she was taken to hospital where she received stitches to the area above her eye.
117Mr. Hannah-Suarez put some emphasis on Cst. Dunn's evidence that even at the hospital some 2 ½ hours after the collision, Ms. Hajovska was asking repetitive questions and didn't appear to recall that she had hit another vehicle. However, I can't say with confidence that Ms. Hajovska's confusion was due to alcohol. Both common sense and Dr. Mayers opinion support the conclusion that after a serious collision at 4 a.m. on the Don Valley Parkway, anyone could be confused and disoriented as a result.
118In the absence of clear evidence that these indicia were related to alcohol, I am left with a reasonable doubt that could have been attributable to the accident.
119I agree with the Crown that the collision has to be taken into account when assessing the issue of impairment by alcohol. Mr. Sullivan's evidence suggested that Ms. Hajovska was driving at about 120 km/hr in a 90 km/hr zone when she hit him from behind. I accept his evidence that she hit him in the rear left part of his vehicle in the tail light area as she attempted to pass him. However, at the same time, I accept the evidence of Ms. Hajovska's husband that his wife was angry and upset when she left the apartment, and had just had an argument with his brother. It was four in the morning.
120In the circumstances, I find I can't rule out that unsafe driving and poor judgment were the catalyst for the accident.
121Looking at all the admissible evidence, I do not find that the Crown has proven impairment by alcohol beyond a reasonable doubt.
122Ms. Hajovska will be found not guilty of both charges.
Justice Leslie C. Pringle
Released: to the parties on April 7, 2015; in court on May 13, 2015