Court Information
Between:
Her Majesty the Queen
— AND —
Ante Bulat
Before: Justice Perkins-McVey
Heard on: April 2, 2015
Reasons for Judgment released on: April 2, 2015
Counsel:
- Mr. Eagles for the Crown
- Mr. Edelson for the accused Mr. Ante Bulat
Perkins-McVey, J.:
Overview of Charges
1The Accused, Ante Bulat is charged with Dangerous Driving, Impaired Driving and driving in excess of 80 milligrams of alcohol, arising from events which occurred in the early morning hours of February 8, 2012. The Crown elected to proceed summarily.
Facts of the Incident
2In summary; it is alleged that at approximately 3:00 a.m., Ante Bulat was driving his 2011 Ford F150 pickup truck with passengers Lee Harber and Stephanie Marcantonio. The passengers testified that they had just left Barrymore's, located at 323 Bank Street. Mr. Bulat and his passengers were heading to Rockwell's on Merivale Road. While driving home, Mr. Bulat ended up driving southbound on Kent Street and entered the intersection at Catherine Street where an accident occurred with a Blue Line taxi containing two passengers in the back seat. It should be noted that Kent Street is a one way street that goes Northbound only. Catherine Street is also a one way street going westbound only. The taxi, which had been travelling westbound, was driven by Abdulwahab Khodayar. The taxi was struck on the passenger side, causing the vehicle to rotate almost 360 degrees. The taxi sustained damage to the front, and passenger side of the vehicle. Following the collision, Mr. Bulat's vehicle continued forward, and jumped the curb, causing the vehicle to leave the road and hit a tree, where it came to a stop. Police and Paramedics arrived at approximately 3:04 a.m.
3Mr. Khodayar suffered a minor cut to the bridge of his nose, and Mr. Bulat complained to paramedics and police of soreness to his right hand. While speaking with Mr. Bulat, Cst. Karwaski noted glossy eyes and an odour of alcoholic beverage coming from his breath, and as such at 3:13 a.m. Mr. Bulat was arrested for impaired operation, given his Right to Counsel and Caution at 3:15 a.m., and a breath demand was made at 3:16 a.m. Later at the police station breath tests were conducted by a duly qualified Breathalyser Technician, Cst. Coletelo. The reading taken at 4:29 a.m. was 154 milligrams of alcohol in 100 millilitres of blood and the second reading taken at 4:50 a.m. was 152 milligrams of alcohol in 100 millilitres of blood.
Charter Application
4Prior to the onset of the trial, counsel on behalf of the accused filed an application alleging that the accused's rights under s. 7, 8, 9 and s.10(b) & s.11(d) of the Canadian Charter of Rights and Freedoms had been violated. The remedy sought should a breach or breaches be found is the exclusion of the intoxilyzer samples. The Crown denies that there has been any violation of the accused's Charter Rights. The issues to be determined in this matter are the following:
Whether Cst. Karwaski had reasonable and probable grounds to demand that Mr. Bulat provide a sample of his breath, or whether there was a seizure of his breath in contravention of his rights under s.8 of the Charter?
Were Mr. Bulat's Charter rights under s.10(b) of the Charter violated by the actions of Cst. Karwaski who attempted to persuade him not to call his counsel of choice, and to call a lawyer from "the list"?
If there are found to be one or more violations of the accused's Charter rights, should the evidence and observations be excluded under s.24(2) of the Charter?
Whether the Crown has proven, beyond a reasonable doubt, that Mr. Bulat operated a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol.
Whether the Crown has proven, beyond a reasonable doubt, that Mr. Bulat operated a motor vehicle in a manner that was dangerous to the public.
Crown Witnesses
5At the trial, which occurred over a protracted period of time, the following witnesses were called by the Crown.
Stephanie Marcantonio
She was travelling in the front passenger seat when the accident occurred. She said the accident happened very quickly. She recalled they left Barrymore's, drove down a street and turned left on Kent Street. She said that when they left their parking spot, Ante was on his phone. "I took the phone and it happened." (Vol.1 p.29). She had no idea how fast the vehicle was going. Ms. Marcantonio admitted to consuming 5 shots of alcohol which were described as 3 Jager bombs and 2 other shots. She also had 4-5 drinks in addition to the shots. She admitted she was drunk (Vol. 1 p. 50). She and Lee Harber ran into Ante Bulat as they were leaving. They had planned to take a cab, but he offered to drive, and suggested they go get breakfast at Rockwell's. She recalled Ante was on the phone, he didn't have Bluetooth, and that she took the phone so he could focus on driving. She thought the accident happened very quickly after she took the phone. She did not know how the accident happened.
Lee Harber
Mr. Harber is a friend of the accused. He was a passenger in the rear of Mr. Bulat's vehicle when the accident occurred. He said they met up with Ante at the end of the night, and he thought they were going back to Ante's house. At the time the accident occurred, he was texting a friend (Thorold) who, ironically, was a passenger in the taxi involved in the collision. As such his head was down, and he did not see the accident. After the accident, Mr. Harber noticed the vehicle was facing the wrong way on Kent Street. (Vol. 1 p. 59). He admitted consuming alcohol that evening, he thought 8 vodka. He said he was intoxicated. He thought Ante consumed one drink prior to going to Barrymore's, and saw him with a drink at Barrymore's. He couldn't say how much Ante drank, or what he drank. He observed he seemed "normal" at the end of the night. He could not say for certain if he saw Ante using his phone just prior to the impact. But, he thought there may have been some discussion but he didn't know what it was about. (Vol. 1 pg. 80)
Thorold Palsson
He was a friend or acquaintance of Mr. Bulat. They were members of the same fraternity. He was a passenger in the taxi involved in the collision. He was texting with Mr. Haber when the accident happened. He admitted that he was drunk or felt intoxicated, the evening of the accident. He was texting and was not looking when the accident occurred.
Michael Smith – Paramedic
He is a paramedic with the City of Ottawa. He attended the scene of the accident at approximately 3:14 a.m. He did not observe any of the usual indicators of either alcohol consumption or intoxication in Mr. Bulat. Mr. Smith made observations that Mr. Bulat had high level of consciousness, and was oriented, aware, and was answering questions (Vol. 1 p. 105-106). He said that Mr. Bulat was ambulatory; never unsteady, and he didn't swagger or sway (Vol. 1 p. 113-114 & 119). The paramedic agreed that had he observed these things, he would have included them in his official report. Mr. Smith indicated that he was with Mr. Bulat for approximately 29 minutes; maybe less, as he had to get equipment and check others. He did not notice or hear any slurring of Mr. Bulat's speech (Vol. 1 p. 117 & 126). Regarding observations of his eyes, Mr. Smith said he flashed a pen light in his eyes and did not notice any dilation, nor did he note any wateriness, or that they were bloodshot (Vol. p. 127). In re-examination, Mr. Smith said he couldn't give an exact time of how long he observed him. He said that swaying back and forth would not necessarily have been noted in his report because after a car accident people are quite shocked and nervous. He did say he would have noted if the eyes were bloodshot and potentially if there was a glaze, depending how bad it was.
Abdulwahab Khodayar – Taxi Driver
He was the driver of the taxi cab involved in the accident. Mr. Khodayar, as the Crown conceded, did not respond well to cross-examination. Initially Mr. Khodayar said that Mr. Bulat could not walk at all because he was drunk. He said he was so drunk that he could not answer when Mr. Khodayar's passengers tried to talk to him and that he could not walk right because he was going crooked. He said Mr. Bulat could not hold himself even. In cross examination, he said he knew the driver of the truck was drunk because when he heard the person speak, his speech was slurred. Mr. Khodayar also indicated he was positioned across the street when he apparently heard Mr. Bulat speak. There were a number of discrepancies in Mr. Khodayar's answers. On a number of occasions, when he gave different answers to those he gave previously, he would flatly deny giving the previous answer. The Crown concedes that while Mr. Khodayar testified as to indicia of impairment of Mr. Bulat difficulty walking and talking, that these initial observations of the driver brief moments after the collision could fairly be symptoms associated with a serious collision. The Crown further states (p. 8 written submissions) that Mr. Khodayar's own observations could likewise be coloured by his own trauma and injury associated with the collision. This would likely explain why those responding later to the collision do not witness any difficulties with Mr. Bulat's balance or speech. Regardless of the explanation, it is clear that Mr. Khodayar's observations of the accused is inconsistent with the evidence of the police, paramedics, and civilian witnesses who did not see difficulties with Mr. Bulat's walking or notice any slurring of is speech. There were also difficulties with Mr. Khodayar's description of the accident, and effect of the accident on the trajectory of his taxi. The parts of his evidence, I do accept, is that he was driving his taxi westbound on Catherine, and was involved in an accident at the intersection of Catherine and Kent Street. His taxi was hit be the Ford pickup driver by Mr. Bulat who was going the wrong way on Kent Street.
The evidence of the above witnesses is not part of the evidence heard on the blended voir dire. Their evidence, however, is relevant to the determination of the Dangerous and Impaired Driving charges.
Police Evidence on Charter Voir Dire
6The evidence of Cst. Karwaski and Cst. Coletelo was called by Crown and was also the substantive evidence heard on the Charter voir dire. The evidence was heard in a blended fashion. The defence called no evidence on the trial proper, and also called no evidence on the Charter voir dire.
7I do note that the defence did call Cst. Oger pursuant to an undertaking the defence made to the court. Cst. Oger was the author of the motor vehicle accident report which was made Exhibit 16. In this report, he showed the taxi cab at the southwest corner of the intersection, just past the sidewalk. The Bulat truck was shown within the intersection. When it was put to him in cross examination whether it is possible that he reversed the locations of the two vehicles, he agreed it was a possibility. Otherwise, his evidence was the vehicle 1, the Bulat truck, was travelling southbound on Kent, the wrong way, approaching the 417, and that it hit the taxi who had been travelling westbound on Catherine Street. He said he arrived at that from speaking to the taxi driver and passengers. He never spoke to the accused. Nor could Cst. Oger indicate if there was signage visible to someone travelling the wrong way.
Charter Issues & Evidence – Reasonable Probable Grounds
8Cst. Karwaski arrived on scene of the accident at approximately 3:04 a.m. He did not make notes of any observations until he arrested Mr. Bulat at 3:13 a.m. The call path shows that the officer called for a breath technician at 3:11 a.m., but the officer could not say what time he made the decision to arrest, or why he chose to arrest.
9In chief, Cst. Karwaski said that when he spoke to Mr. Bulat, who acknowledged he was the driver, he started to detect signs of alcohol consumption. He said Mr. Bulat wasn't swaying and he didn't have slurred speech. He said he did observe Mr. Bulat's eyes to be glassy and bloodshot, and that there was an odour of alcohol emanating from his breath. He recalled that he asked Mr. Bulat if he had consumed any alcohol, and he "believed" Mr. Bulat said he had a beer. (June 18/14 p. 15). When asked what grounds he had to arrest at 3:13 a.m., Cst. Karwaski said (p.16) "I was satisfied that Mr. Bulat was operating the motor vehicle…I have no reason at this point there's alcohol involved" "I have grounds to believe alcohol is involved when I approach Mr. Bulat to confirm; "Are you the driver? Are you okay? I smell alcohol on him, as I mentioned previously, the signs of alcohol consumption that he is impaired by alcohol and it would have been driving that conversation, within a few feet of him, that my grounds were formed." (p. 16). Cst. Karwaski then said he placed the accused under arrest for impaired driving.
10The smell of alcohol was a significant factor he said. He also stated in chief that "the glossy eyes, like watery eyes are in my experience an indication, not exclusive, but a possibility as well of alcohol consumption. He said the admission of consumption of one beer was also part of the grounds – it confirms, he said, alcohol consumption sometime that evening. The officer did not go into any other detail, or ask further questions about the timing of that consumption.
11Another factor was the nature of the collision; that there was an accident where someone was driving for a significant time (pg. 16 2018)
12In cross examination, Cst. Karwaski was questioned extensively about his note-taking skills, and whether his notes were in compliance with OPS note taking policy. Cst. Karwaski acknowledged that in his notes the physical signs he noted; glassy water eyes, strong odour of alcoholic beverage, are noted after the time of the arrest. He said he made the notes after the fact, bud didn't note it as a late entry. Cst. Karwaski agreed that in his notes he said he saw Mr. Bulat with glossy, watery eyes and an odour of alcoholic beverage. Later in his investigative action he states he observed glossy, bloodshot eyes and a strong odour.
13The officer agreed that his note taking was problematic, and may have left a reader confused as to when he may have made the observations noted. He had no explanation about why his notes were out of sequence. Further, in cross it was pointed out that there were large portions of exchanges with the accused that were left out of his notes, and that by leaving them out it may have left a different understanding of what occurred regarding the right to counsel process. Cst. Karwaski agreed that without the cell block video, and the audio transcription that the court would have had a different understanding of what happened regarding the right to counsel.
14I agree there were significant problems with Cst. Karwaski's evidence, not only was his lack of sequential, detailed note taking a problem, but it also affected his ability to convey his evidence to the court. The lack of detailed notes meant he had little to refresh his memory with and many of his answers started with "I believe I did x or I would have done y." He agreed that none of the notes contained any verbatim statements of the accused. He was asked – "Looking back now, do you think you did a good job making those notes?" His answer was "No. I should have done a lot better."
15Cst. Karwaski was also cross examined about whether he observed the drivers' air bag had gone off. He did observe that it had. He said he knew the powder from the airbag may cause irritation, and might cause tearing and watery eyes, but he didn't turn his mind to this as a possible cause of what he said he observed in Mr. Bulat's eyes.
16When asked whether the odour of alcohol continued at the station when he was in close proximity – he could not recall. "I can't recall in the station what my senses picked up."
Legal Framework for Reasonable and Probable Grounds
17Both Crown and Defence are in general agreement about the applicant's outline of the law with respect to reasonable and probable grounds, as set out in pages 9 to 11 of the applicant's written submissions, I concur and will use that framework in determining whether a breach of the Charter has occurred.
18Re.: Reasonable and Probable Grounds
It is trite law that for an arrest to be lawful the arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Further, these grounds must be justifiable from an objective view (R. v. Starrey (1990) 15.C.R.241). An arrest that lacks either of these requirements may be a violation of the accused's Charter Rights under s. 9 of the Charter. In such an application, the onus would be on the applicant to establish the breach or balance of probabilities. However, in a case of an unlawful seizure of the accused's breath, the Crown must establish the reasonableness of any warrantless search. In this case, the Charter claims overlap in that the lawfulness of the demand is informed by the same facts as the finding on the lawfulness of the arrest. In a case such as this, the arrest is inextricably connected to the search. As such, in a situation such as this, when the s.9 Charter issue is tied to the issue of the search, I agree that the solution is to focus foremost on the issue of the lawfulness of the search; for which the Crown bears the burden.
19Section 254(3) sets out the threshold test for when a police officer can make a demand for a sample of the accused's breath. S. 254(3) provides:
"If a peace officer has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed, and offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person
a) to provide, as soon as practicable
i) provide samples of breath that in a qualified technician's opinion will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood."
The requirement of reasonable and probable grounds is not only a statutory one, but also a constitutional requirement as a pre-condition to a lawful search and seizure (R. v. Shepherd 2009 SCC 53).
20A demand for a breath sample made without the requisite grounds is invalid, and hence, the taking of samples without such grounds constitutes an unreasonable search and seizure.
21There is a dual analysis that must be conducted. The officer must subjectively believe he or she has reasonable and probable grounds for a demand of the breath sample, and those grounds must be justifiable from an objective point of view. That is, a reasonable person placed in the position of the officer must be able to conclude that there were reasonable and probable grounds for the demand (R. v. Teafe (1995) O.J. No. 4643).
22The subjective component of s. 254(3) has been characterized as an actual or honest belief. (R. v. Bush 2010 ONCA 554 at para 38). It is not enough for an officer to suspect a s. 253 offence has occurred within the preceding three hours. If an officer has a suspicion, then the demand must be that a sample be made into a roadside screening device. For a breath demand to be made under s. 254(3), the officer must believe that impairment is a reasonable probability, and not just a possibility.
23At the objective inquiry stage, the trier of fact must make an independent assessment on the facts on which the officer's grounds were based, to determine if the grounds for the demand were objectively reasonable (R. v. Shepherd 2009 SCC 35). Pursuant to R. v. Bush, 2010 ONCA 554 at para 57 – any indicia of impairment must be considered along with all the other indicia, in light of the fact that there may be another explanation.
Application to the Facts
24In this case, Cst. Karwaski's grounds were the odour of alcohol on the accused, glossy, watery eyes, being told by the accused he had consumed one beer, and the unexplained accident. Cst. Karwaski agreed that he did not ask any questions about when the beer was consumed. His notes were not verbatim about the accused's response. His answer to the question was "I believe he said he had consumed a beer." - Cst. Karwaski said he knew that the airbag had been deployed, and that could cause eye irritation, but he did not consider that possibility. The officer agreed that the odour of alcohol indicated consumption, but not when the alcohol was consumed. Cst. Karwaski agreed that the accused was not swaying or stumbling, had no slurred speech, and that there were no other physical signs of intoxication. In total, the physical signs noted by Cst. Karwaski were the smell of alcohol and glossy, watery eyes. In cross examination, Cst. Karwaski agreed the water eyes could have occurred from an irritant from the airbag deployment. This is an innocent or neutral explanation. While an acknowledgment of consumption plus an unexplained accident can in some cases amount to reasonable and probable grounds (R. v. Bush, OCA at para 54), in this case, given the lack of any other indicia of impairment, given the officers agreement of the possible innocent explanation and given he has no information of when the beer may have been consumed, and asked not other questions – it cannot be said objectively that he could have formed reasonable and probable grounds. He would have had a suspicion, yes, but he chose not to ask for a roadside sample to determine whether there were grounds for a demand. Looking at all the objective information available, I find he would not have had reasonable and probable grounds. Cst. Karwaski's notes lacked detail and were not in sequence, and he agreed he could have done a better job. Subjectively, Cst. Karwaski in cross examination clearly did not even have an understanding of the legal standard to make such a demand, although he was an 11 year veteran of the force. In the exchange as set out in Vol. 5 pg. 16-17, it is clear that the officer was unsure exactly what the reasonable and probable grounds standard required. Cst. Karwaski said he felt Mr. Bulat's glossy eyes or watery eyes were an indication of the "possibility" of alcoholic consumption (Vol. 5, p. 17, 18 – 21). Similarly, Mr. Bulat's alleged admission of consumption, the officer saying "I believe he said he had consumed one beer" confirmed nothing other than possible consumption. The officer not making a note of the accused's statement made it difficult to rely upon his testimony and affected the reliability and credibility of Cst. Karwaski's evidence.
25Looking at all of the evidence objectively and subjectively, Cst. Karwaski had nothing more than a suspicion or possibility of impairment. I find he lacked the reasonable and probable grounds to make the demand, and as such there was a violation of the accused's rights under s.8 of the Charter to be free from unreasonable search and seizure.
26I shall address the remedy, after consideration of the application brought by the accused that his rights under s.10(b) of the Charter have been violated.
Section 10(b) Right to Counsel
27In this matter, the issue is whether Cst. Karwaski, and the other officers assisting in the accused's continuing detention, discharged their informational and implementational duties as required by s. 10 (b) for the Canadian Charter of Rights and Freedoms.
As set out in R. v. Luong, 2000 ABCA 301 at para 12, there are a number of principles which comprise the s.10(b) obligations which must be complied with when a person is detained. In summary, those duties are as follows:
a) There is an informational duty to inform a detainee of his or her right to retain and instruct counsel without delay, and the existence and availability of free legal advice through legal aid and duty counsel.
b) Once the informational duty has been executed, and the accused has indicated his desire to exercise that right, then the implementation duties are engaged. The first duty is "to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances) R. v. Bartle (1994) 35.C.R. 173 at para 18. Included in this implementational duty is an opportunity to consult with their counsel of choice (R. v. Ross (1994), 3 SCR 173 at para 18).
c) The second implementational duty is to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity to consult counsel.
It is the accused applicant that bears the burden of establishing on balance of probabilities that his or her right to counsel has been infringed or denied.
28The purpose of s.10(b) is to ensure that a detained person can make meaningful choices (R. v. Bartle, [1994] 3 S.C.R. 173 at para 21). As indicated more recently by the Supreme Court of Canada in R. v. William, 2010 SCC 37 at para 28, detained persons who are deprived of their liberty by virtue of being under control, and in a position of legal jeopardy, are vulnerable to the excise of state power. The purpose of the right to counsel is to mitigate this legal disadvantage, and ensure they obtain advice as to how to exercise those rights.
29As further stated in R. v. Willier at para 25, s .10(b) rights work in conjunction with accused's rights under 2.7 to provide suspects with a meaningful choice as to whether to co-operate with police that is both a freely made, and an informed choice.
30In R. v. Ross [1989], S.C.R.3, the Supreme Court of Canada indicated that the fundamental right to retain and instruct counsel, and receive that counsel's advice, includes the right to choose which counsel or accused wishes to receive advice from.
31In order for the police to fulfill the implementation of access to counsel of choice, there must be procedures put into place to ensure this can be done without delay. The right to counsel would be a meaningless right if police had only to provide the informational component without requiring police to assist an accused in exercising that right if they choose.
32Both Crown and Defence agree that access to counsel of choice is the central issue to this application under s.10(b).
33The Ontario Court of Appeal in R. v. McCallen, [1999] O.J. No 202 at para 34-37 stated that the right to choose counsel one trusts, and has confidence in, is important not only to the accused, but also to the objective perception of fairness in the justice system as a whole. As stated by Justice O'Connor at para 36, choice of a client with respect to counsel must be respected and protected unless there are compelling reasons involving the public interest, the government (and it's agents) or even courts themselves "need not be involved in decisions about which counsel clients may choose to act on their behalf." The rationale from the decision in R. v. McCaller has been applied to the right to counsel of choice in a Breathalyzer context in the decision of R. v. Snider, 2001, OJ 1772 at para 10 (Ontario Superior Court).
34It goes without saying, that an accused who has received a demand for a sample of breath must make important legal decisions about whether to comply, and could face further criminal charges if they chose not to comply with a valid demand.
35In explaining the fundamental importance of the right to counsel of choice, and the significance of the Charter right to counsel under s. 10(b), Justice O'Connor, on behalf of the Ontario Court of Appeal states in R. v. McCallen (at para 34-37):
"The solicitor-client relationship is anchored on the premise that the clients should be able to have complete trust and confidence in the counsels who represent their interests …In addition to constituting a valuable personal right to clients, s.10(b) provides a right that is an important component in the objective perception of fairness of the criminal justice system…The right to have the assistance of counsel is high on the list of those protections for accused persons which enable them to fully defend the charges brought against the. Including with this fundamental right to counsel, the additional right to choose one's own counsel enhances the objective perception of fairness because it avoids the spectre of state of court interference with a decision that quite properly should be the personal decision of the individual whose interests are at stake…"
36In R. v. Kumarasamy, Justice Durno, of the Ontario Superior Court, stated that police must facilitate contact with counsel whether the accused has the number or not. CC para 21 & 22 Justice Durno said that access to duty counsel or a lawyer list cannot be used as to trump a detainee's right to counsel of choice.
37The only qualification to the right of an accused to access counsel of choice is if that lawyer cannot be available in a reasonable timeframe, then an accused is expected to exercise his or her rights by calling other counsel. As stated by the SCC in R. v. Willier [2010] SCC 37 at para 41:
"Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s.10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak to other counsel and wait a reasonable amount of time for their lawyer of choice to respond."
38If there is to be a waiver of s.10(b) rights, it is well established that the standard of waiver is very high, and that there must be clear, and unequivocal waiver. In R. v. Prosper, [1994] 3 S.C.R. 236 at par 45, the Supreme Court indicated that once a detainee asserts the right to counsel, there must be a clear indication that he or she has changed his or her mind. Further, the waiver must be free and voluntary, and cannot be as a result of direct or indirect compulsion. The burden of establishing that the accused waived his or her right would fall on the Crown.
39In this case, the Crown concedes Cst. Karwaski attempted to dissuade Mr. Bulat from calling the law firm he identified and persuaded him to call criminal counsel from the list at the police station. The Crown concedes no attempt was made to reach Mr. Bulat's counsel of choice. The Crown argues that Mr. Bulat changed his mind before any lawyer was contacted, and that Mr. Bulat chose to call a lawyer off the list of criminal lawyers posted at the police station. The Crown invites the court to determine if Mr. Bulat changed his mind out of coercion, or some lack of understanding as to his legal right to speak to his counsel of choice, or did he voluntarily change his mind as to his counsel of choice, as was his right.
40The Crown further argues that, having been advised on his right to counsel, again by being read those rights by Cst. Coletelo, and having been asked if he was satisfied with that call, and answered yes, that there was a clear waiver by Mr. Bulat of his earlier request to call his counsel of choice at Hamilton Appotive.
41In determination of what occurred at the cell block, we are fortunate to have had the cell block video to rely on. If that video had not been disclosed and made an exhibit for consideration by this court, there would have been a possible miscarriage of justice. Cst. Karwaski made no notes of any exchange between he and Mr. Bulat regarding this request to contact his counsel of choice at Hamilton Appotive. The only not is Cst. Karwaski's investigative action where it says 04:36 "There is further discussion about contacting a lawyer". Otherwise, Cst. Karwaski's notes contain no details, and make boiler plate notations such as "put in contact with lawyer of choice". Having had the cellblock video played to him, Cst. Karwaski agreed that without the cellblock video we would have had a different understanding of what happened regarding the right to counsel. Cst. Karwaski had been with the Ottawa Police 11 years when he testified. When asked about the elements of the accused's rights under s.10(b), he agreed it was something he struggled to answer, but said the understood the importance of the right. He said he hadn't taken any courses updating him regarding the Charter, nor could he recall any bulletins being circulated updating him about Charter decisions. He agreed that if he didn't know what the right was, it was hard to comply with it.
42Cst. Karwaski was also asked about his notes, and the fact that there was nothing of these long exchanges in his notes. He said he was aware there were official policies on note-taking, but that he would have looked at it closer to when he became a police officer. Nor could he recall Ottawa Police Policy Prisoner Care and Control (Ex. 15) which sets out the obligations and legal issues surrounding the right to counsel.
43Cst. Karwaski explained in his evidence that if an accused wants to call a lawyer, that only the police can make the call. He agreed that police have phone books, can use 411, or the internet to look up numbers. He agreed when it was put to him that there was no obligation of an accused to call a criminal lawyer; that it was not up to him to dictate what type of lawyer the accused should call; or the quality of legal advice.
44In Cross-Examination, Cst. Karwaski was taken through the cell block video. Portions of the video also had audio so the court was able to hear at least some of the exchanges between the accused, Cst. Karwaski and the cell block Sergeant and special constable.
45While I agree that Cst. Karwaski read Mr. Bulat's right to counsel at the roadside from the card in his notebook, and indicated that Mr. Bulat would have an opportunity to call any lawyer he chose, this opportunity didn't occur. From the outset, it seemed Cst. Karwaski was attempting to channel Mr. Bulat towards calling a lawyer on the "list" rather than the counsel the accused wanted.
46In clip 6 Cst. Karwaski says:
Q.: "So Ante I know you said didn't want to call a lawyer out there. But I'm going to suggest to you, because it's an impaired charge, we highly recommend you call (a) lawyer. Can't force you to. There's a list of every criminal lawyer in Ottawa or very close to it, that we have. Would strongly advise you call one once you're done being secured."
A.: "Ya sure"
Q.: "Is there anyone in particular that you know of or like?"
A.: "Ya, I do know a lawyer."
Q.: "What's his firm?"
A.: "Firm is called Hamilton Appotive."
It is important that the complete transcript of the cell block analysis be attached as an attachment to this decision, as it has been carefully considered in determination of the s.10(b) Charter.
47What is particularly concerning is that Mr. Bulat reiterates on 8 occasions that he wants his lawyer at Hamilton Appotive. After each request, the response of Cst. Karwaski is to re-direct him to a criminal lawyer. The responses of Cst. Karwaski also show flippant disregard to Mr. Bulat's requests. Examples of this are:
"You can call if you want. But it's a criminal defence lawyer that you're going to want in this matter."
"If you want to call your own lawyer you can…hopefully he's a criminal defence lawyer…but that being said I'll call your lawyer."
48Despite saying he will call the lawyer Mr. Bulat wants, Cst. Karwaski does nothing to make this happen. It is also troubling that the special constable who was standing by says: "Go with the officer and call your lawyer now" and still Cst. Karwaski does nothing. Cst. Karwaski also engaged in impermissible conduct when he denigrated the lawyer Mr. Bulat wanted to call. When Mr. Bulat says again the firm is Hamilton Appotive, Cst. Karwaski says "What kind of lawyers are they?" A.: "More commercial." To this, the officer replies: "Like I said; I'm actually looking out for you. I want to make sure your rights are held to the most and in your best interests. Like I said, if they're commercial lawyers for your business" – The suggestion from this is that the choice Mr. Bulat has made is not in his best interest. Only the officer's suggestion is in his interests. Cst. Karwaski goes on to say They're not, they don't practice in criminal law. They'll probably refer you to a criminal lawyer. Mr. Bulat still says "Ya, I'd rather them first." Then the Sergeant chimes in saying what do you want to do. Mr. Bulat re-states call a lawyer and Cst. Karwaski again tries to re-direct him to a criminal defence lawyer, again saying a commercial lawyer is not going to give you legal advice in your best interests. So again, this officer maligns the advice to be given from the lawyer the accused has chosen. The Sergeant increases the pressure, ignoring that Mr. Bulat has repeatedly said he wants to call his lawyer, saying "if you don't want to call a lawyer fine, we'll just put you in a cell." Mr. Bulat again says "Ya, I just need to call someone. They'll take care of it all." Cst. Karwaski, now quite forceful on the video says: "No listen it doesn't work that way. You're an adult. You've been arrested for a criminal offence, ok, that's impaired driving. There might be other charges that stem from this as well. What we're trying to explain to you, is we're giving you the opportunity to call a criminal lawyer to get free immediate advice. I've been arrested for impaired driving. What do I do. However you want to word it. That's what this is right now. Tomorrow, the next day, your trial whatever, if it goes that far, you can get whoever you want. Change it, whoever you want. But this is right now. I need to speak to a criminal defence lawyer. There's nobody here that's going to handle it for you. It's you handling it. Speaking to the lawyer. He's on that list. So if you want to call him, I highly recommend you do."
49Following this lengthy speech, where we hear the officer's voice raised, he's suggesting all the other officers agree when he uses "we think""we're trying to explain…" that when the accused says "whatever you want" I note it is what the officer wants, not what he wants. Cst. Karwaski then again pressures Mr. Bulat by saying "It's what you want. You have to pick the lawyer. I can't. So you say that you looked at the list."
50At this point, the female special constable says – "He had the name of a lawyer, ya." The Sergeant says what's his name. He again says Hamilton Appotive. And Cst. Karwaski again highlights that Mr. Bulat's choice is a commercial lawyer by saying "What was the name of your commercial lawyer? He then says it's incorporated and civil.
51After this exchange, and after what I find to be coercion from Cst. Karwaski, Mur Bulat points to a name on the criminal list. The Sergeant and special constable further confuse matters by then saying you can whatever lawyer you want, and the Sergeant says you can leave a message. However, at no time does the sergeant override Cst. Karwaski or clarify Mr. Bulat's rights.
52I find that Cst. Karwaski's words, and his constant negative response to Mr. Bulat's request to call Hamilton Appotive would have affected the trust and integrity of his confidence with his lawyer of choice. Mr. Bulat was bullied into choosing a lawyer from the list the officer wanted. Mr. Bulat's response to the speech of the officer given with a raised voice says it all "Whatever you want."
53Cst. Karwaski's action amounted to coercion, and Mr. Bulat would have felt he had no other choice than to choose a criminal lawyer from the list. Cst. Karwaski did not assist Mr. Bulat in exercising his rights but frustrated his ability to do so. Cst. Karwaski misrepresented what Mr. Bulat's rights were, which means he failed his informational obligation to the accused despite reading him his rights at the roadside. There is also a breach of the implementational component as a result of Cst. Karwaski's misdirection and inaction in providing Mr. Bulat a call to his counsel of choice.
54This action is in direct contravention to the accused's right to counsel of choice and is a fundamental breach of the accused's rights under s.10(b) of the Charter. This is a significant breach of the accused's rights.
55It is a greater concern that there appears to be a systemic misunderstanding of an accused's rights under s.10(b) of the Charter. Cst. Coletelo also gave evidence as part of the Charter voir dire. She was asked about what training she had regarding the Charter. She indicated that she had training at Police College, but could not say how much time was spent on it. She gave evidence that there is formal training or courses or bulletins through the Ottawa Police regarding the Charter. She said she'd never seen updates regarding decisions from the court. She agreed when it was put to her about the importance of the Right to Counsel, and that the right to access legal advice is there to protect against compelled evidence. When asked about the accused's right to call any lawyer they wish, she replied "that's how it reads." When asked what she would do if someone wanted to call a family lawyer, she said she'd refer it to a Sergeant, but also said "I would feel I would have to do that, we have a list of criminal lawyers and they are charged with a criminal offence." She also reiterated "I think it would be in their best interest to call a criminal lawyer but that's what it says, ya."
56It is a significant concern that in the Deslaurier case, it was the cell block Sergeant who was loudly and inflexibly ordering that accused to call a criminal lawyer. When leaders on the Ottawa Police force harbour fundamental lack of understanding about the right to counsel obligations of police under s. 10(b), it is not surprising that those officers who learn and report to him or her do not understand what the obligations entail.
Section 24(2) Analysis
57Having found that Mr. Bulat's rights under s. 8 and 10(b) of the Charter have been violated, I now must consider whether there should be an exclusion of evidence under s. 24(2) of the Charter. The test for this determination is set out by the Supreme Court of Canada in R. v. Grant (2009 SCC 23 , 2009, SCJ No. 23 (SCC). The court must consider the effect of admitting the evidence on society's confidence in the justice system having regard to the following factors:
The seriousness of the Charter infringing state conduct.
The Impact of the Breach on the Charter protected interests of the accused.
Society's Interest in the adjudication of the case on its merits.
1. The Seriousness of the Charter Infringing State Conduct
58In consideration of the seriousness of the Charter infringing conduct, the court must determine whether admission of the evidence would bring the administration into disrepute by sending a message to the public that the courts condone the state infringing conduct by failing to dissociate itself from that unlawful conduct.
59Cst. Coletelo also stated (Vol. 4 p. 27 Line 16-19) "it is important that they speak to a criminal lawyer when facing the potential of criminal charges to have a – someone impartial give them direction for the situation they find themselves in."
60Cst. Coletelo further confirmed that she also lacked understanding about her duties to an accused under s. 10(b) when she said "we have a list and whenever I've had an accused person selecting a lawyer I tell them unfortunately I can't sort of push you in one direction…you have to choose someone from the list. It's their choice." Once again, the officer is focussed on the accused choosing from the list rather than a lawyer of their choice.
61Similarly, in the decision of R. v. Deslaurier, released Oct. 30, 2014, Justice Lahaie found that there had been a gross violation of the accused's rights, due to the fact that Mr. Deslaurier was directed to a criminal lawyer rather than to his lawyer of choice. Similarly, in that case as in this case, but for the cell block recording, would a true picture of what occurs in the cellblock regarding access to counsel have occurred. As stated by Justice Lahaie at pg. 13 "Neither of the officers who testified spoke of the degree to which the cell block Sergeant insisted that Mr. Deslaurier consult a criminal lawyer, nor could they have adequately communicated his impatience, and lack of respect for the accused's' rights to speak to his lawyer."
62It is agreed that state conduct resulting in Charter violations varies in seriousness. At one end are those minor violations, which arise through inadvertence or technical violations. At the other end of the spectrum, there are violations which are serious, where the violations have occurred through a wilful or reckless disregard of Charter rights. As stated by the S.C.C. in the companion case of R. v. Harrison 2009 SCC 34 at para 22, where there is a serious violation of the Charter, or where police know (or should have known) that their conduct was not in compliance, courts are more likely to dissociate themselves from that conduct. It has further been established that good faith cannot be claimed if a Charter violation is committed on the basis of a police officers' unreasonable error or ignorance regarding those rights (R. v. Mann 2004 SCC 52) (R. v. Grant 2009 SCC 32 at para 74&75).
63It is also noted that breaches of the right to counsel are regarded as serious and significant, given the recognition that s. 10 (b) and s.8 in this case fall on the serious end of the spectrum.
64Cst. Karwaski's careless, or perhaps intentionally poor note taking was such that the court would have been misled and misinformed about what occurred at the police station regarding the right to counsel issue. But for the cell block video, the court would not have had an accurate picture of the degree of disregard occasioned by the officer of Mr. Bulat's 10(b) rights. Cst. Karwaski's total disregard of Mr. Bulat's wishes to call his counsel of choice; his coercion of the accused, his negative denigrating comments toward the information his commercial lawyer would give not being in his best interest; his attitude to the accused when he says "That's no how it works." In essence, putting down the accused personally, all examples of the serious misconduct.
65In addition to Cst. Karwaski's behaviours and ignorance of the accused's 10(b) rights, he also took steps to seize samples of the accused breath when he lacked reasonable and probable grounds to make that demand and arrest the accused. The officers' notes were done negligently and carelessly by his own admission, and as such could not assist him to refresh his memory. Cst. Karwaski had difficulty in articulating what grounds were needed generally, and particularly his grounds in this case.
66However, in this case the most troubling breaches are those associated with the violation of Mr. Bulat's rights under s.10(b). Not only would Cst. Karwaski's flagrant disregard of Mur. Bulat's requests to speak to his counsel of choice militate towards exclusion, but also the fact that this appears to be a systemic problem. Both Cst. Karwaski and Cst. Costello believe that putting the accused in touch with a criminal lawyer is what s.10(b) requires. Further, the evidence of the systemic nature of this activity is seen in the Deslaurier decision, where it is the cellblock Sergeant who directed the accused to a criminal lawyer rather than his counsel of choice. Cst. Karwaski and Cst. Coletelo's lack of understanding with this fundamental right is so negligent or careless, that it cannot be equated with good faith. The degree of disregard of the right to counsel of choice is something the court would seek to dissociate itself from.
2. The Impact of the Breach on the Charter Protected Interests of the Accused
67In this case, there are multiple violations of the accused's rights. Mr. Bulat was polite and co-operative in asserting his rights, and only the police could facilitate that request. By the actions of Cst. Karwaski, Mr. Bulat was denied access to his counsel of choice, and his confidence in his lawyer was undermined by the officers disparaging comments and bullying behaviour.
68As result of Cst. Karwaski's state infringing conduct, he was arrested, his liberty taken away; he was searched, and a sample of his breath was illegally obtained. Although the breath tests themselves may be minimally intrusive, when one looks at the full range of effects on the accused as a result of these breaches, it would favour exclusion of the impaired evidence.
3. Society's Interest in the Adjudication of the Case on its Merits
69While generally it may always be argued that there is a value in having a case adjudicated on its merits, that is not the purpose of this factor of analysis. The court must consider whether the truth seeking function of the criminal trial process is better served by the admission or the exclusion of the evidence. The court must consider the reliability of the evidence - in this case breath samples – as a factor in whether to exclude. However, the view that reliable evidence should be admitted regardless of how it is obtained, would be inconsistent with the Charters affirmation of rights, and the need to maintain the integrity of the justice system.
70In this case, society has a great interest in adjudication of cases involving driving in excess of .08 and hence analysis would militate in favour of admission of the evidence on this branch of s.24(2).
71However, when one looks at all the nature and seriousness of the breaches, particularly the breaches of Mr. Bulat's rights under s.10(b) and s.8 of the Charter, and the significance of the violation of the right to choice of counsel and the pervasive systemic nature of that breach – the court must exclude the readings, observations and statements obtained in order to distance itself from the state impugned conduct and maintain the integrity of the justice system.
72The S. 10(b) Right to Counsel and the right to counsel of choice is a fundamental right whose purpose is to protect an accused against the state. Not to exclude the evidence given the gross violation of the accused's rights would condone the actions and would undermine the importance of the s.10(b) right to the justice system. As such, the evidence obtained in violation of the accused's rights will be excluded.
Impaired Driving – Section 253(1)(a)
73It is agreed between the Crown and Defence that the standard for conviction is that the Crown must establish, beyond a reasonable doubt, that the accused's ability to drive was even slightly impaired by alcohol. In R. v. Stellato, the OCA determined that impairment is an issue of fact that must be decided on the evidence. The standard of proof is the same as in any criminal trial. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, then the accused must be acquitted.
74In R. v. Grant, 2014 ONSC 1479, the court reiterated that the Crown must establish, in consideration of all the evidence, that there can be no other reasonable conclusion than that the accused's ability to drive was impaired by alcohol. It is established law that where the signed of impairment may have another reasonable explanation, or are equivocal in nature, that this must be considered by the court.
75In R. v. Brinton, [2004] OJ No 348, Justice Ratushny set aside a conviction ordering a new trial because 4 of the 5 grounds on which the officer based his opinion of impairment, and on which the conviction was based – an accident, odour of alcohol, bloodshot eyes and the inability to communicate, were equivocal in nature.
76In this case, in addition to the evidence of the police and civilian witnesses, we have a video tape taken from the cellblock and the breath tech room to provide a neutral and independent record of the accused's actions. In this case, where Cst. Karwaski's note taking was admittedly deficient, the video tape requires careful review.
77In R. v. Reed, 2004 ONCJ/89OJ par 13, the trial judge rejected the officers' testimony where his testimony was at odds with the video record due to concerns about the reliability of the officers' evidence.
78In this case, none of the civilian witnesses are able to establish, with any certainty, the amount of alcohol the accused may have consumed. He was seen by Mr. Harber with a drink, but he could not say how many Mr. Bulat consumed, or if he was drinking water. Similarly, Ms. Marcantonio could not say what the accused consumed. I t should be noted that all of the civilians, save the taxi driver, themselves consumed alcohol to the point they said they were intoxicated. This may also have affected their ability to recall Mr. Bulat's actions with certainty.
79Mr. Khodayar told the court that Mr. Bulat was so drunk he couldn't keep himself upright. He also reported that Mr. Bulat had difficulty speaking. The Crown has conceded that Mr. Khodayar did not respond well under cross examination, and that his memory may be suspect regarding how his taxi turned, and what happened on impact. The Crown further concedes that Mr. Khodayar's observations of purported impairment of Mr. Bulat could be coloured by Mr. Khodayar's' own trauma and injury associated with the collision, or could be symptoms of the collision itself, hence equivocal. The Crown provides this explanation given that none of the other witnesses, including police, experienced to 100 L for indicia of impairment noticed anything wrong with Mr. Bulat's speech or balance.
80Given the many inconsistencies in Mr. Khodayar's evidence, and given that his observations of impairment were inconsistent with every other witness, there is serious concern about the reliability of his evidence, and his evidence must be rejected.
81Cst. Karwaski noted and odour of alcohol on Mr. Bulat's breath, but apart from confirming consumption, did not establish when any alcohol had been consumed. This confirms consumption, but does not assist in determining impairment. Cst. Karwaski also noted that the accused eyes were watery and glossy. In cross, he agreed that Mr. Bulat's eyes may have been irritated when the airbag deployed, hence there may be another reasonable explanation. The paramedic, Michael Smith, who assessed Mr. Bulat did not observe any dilation or difficulties with his eyes. Mr. Smith said that Mr. Bulat had a high level of consciousness and was oriented, aware, and answering questions. He noted nothing wrong with his speech. Mr. Smith observed Mr. Bulat to be steady, not staggering or swaying. Cst. Karwaski also indicated he observed no difficulties with the accused walking, balance, or any slurring of his speech. Cst. Coletelo, the breath tech, also noted no slurring, no signs of confusion, and did not see any difficulty with Mr. Bulat's fine motor skills or dexterity. She had the opportunity to make these observations when she handed him the unopened mouth piece, which he opened on 2 occasions. Nor did he have any problems putting the mouthpiece onto the intoxilyser tube. Following use of the mouthpiece after each sample, he "dunked" it into the garbage can without difficulty. Cst. Coletelo said she observed no difficulties with his fine motor skills, visual acuity or his depth perception.
82After considering these pieces of evidence, that are contrary to signs of impairment, or are equivocal, we are left with the accident itself. Apart from the accident, we have no observations of erratic driving. The evidence appears to be Mr. Bulat made a wrong turn onto a one way street, and the collision occurred almost immediately. Without other observations of the driving, there may also be a reasonable explanation for this accident unrelated to impairment.
83Lastly, the cellblock video does not reveal that Mr. Bulat had difficulty walking or talking. In fact, he removed his chain and boots without issue, and showed no slurring or confusion when speaking to police.
84Given all of the evidence, and lack of signs of impairment, and given no difficulties with his depth perception and fine motor skills, I find the Crown has failed to establish beyond a reasonable doubt, that the accused's ability to drive was impaired (even slightly) by alcohol.
Dangerous Operation – Section 249
85The Law of dangerous driving is as set out by the Supreme Court of Canada in R. v. Roy 2012 SCC 26 , [2012] SCJ No.26 at para 34 to 36.
In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner of driving, not the consequences, such as an accident in which he or she was involved…A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner of driving that is relevant, not the consequences of a subsequent accident. In conduction this inquiry into the manner of driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.
The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all of the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.
86We know from the evidence that although neither Ms. Marcantonio, nor Mr. Harber knew exactly where they parked, they both said they parked on a side street near Barrymore's. Ms. Marcantonio testified that they drove straight on the street they were parked on, and then turned left onto Kent instead of right. The accident occurred, she thought, 30 seconds from when she took Mr. Bulat's cell phone from him. If they had continued down Kent, going in the wrong direction, they would have entered onto the 417 Highway travelling the wrong way.
87The Crown argues that this driving was not the result of a momentary lapse of attention, and that Mr. Bulat's driving posed a significant danger to the public. The Crown further argues that risk of damage posed by this driving makes out the actus reus and that the mens rea is also made out, as the accused failed to foresee the risk and take steps to avoid, and that the accused's actions amounted to a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.
88In R. v Roy, at para 43, the Supreme Court of Canada explained that deciding if an accused has the objective fourth element is generally a matter of drawing inferences from all of the circumstances, including evidence of the accused's state of mind.
89In R. v. Beatty, 2008 SCC 5 at para 37, the SCC had explained that the premise for finding fault based on objectively dangerous conduct is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving, and would not have undertaken the activity.
90In this case, the act of driving the wrong way, down a one way street, approaching the 417 on-ramp going the wrong way endangered the public. In my view, what establishes that this conduct amounted to a marked departure from the standard of care is the fact that the accused was texting, or receiving a call, on his cell phone while driving, and just before the collision which occurred as result of his driving the wrong way on Kent Street. The Defence says that Mr. Bulat may have looked down at his phone, but that though foolish, this act does not rise to the level of moral blameworthiness as set in R. v. Roy. The Defence argues that Mr. Bulat may have been momentarily distracted, and that his conduct was careless. A review of Ms. Marcantonio's evidence, however, is that Mr. Bulat did more than simply glance down at his phone. Ms. Marcantonio testified that when they left the parking spot to go home, that Ante was on his phone. She recalled the discussion in the car was to get off the phone. She testified that "…I took the phone and it happened." (Vol. 1, p.29). Later she explained (Vol. p. 42) "He was texting or someone was calling. I don't recall. He was on his phone. He was driving. I took it so he could focus on the road. He did not have a blue tooth. She said the accident happened very quickly after that. She recalled that she took the phone and it happened bang right away. She said the accident happened quickly after turning on Kent. Ms. Marcantonio said (Vol. 1, p. 45) "Yeah I remember the vehicle turning left, the phone, the collision"
91Mr. Harber gave evidence (Vol. 1, pg. 80) that he couldn't recall for certain seeing the phone (he was in the backseat) though he thought there might have been some discussion about it. Although he was not certain about this aspect of his testimony, Ms. Marcantonio was sure about what she saw and observed regarding the cell phone, and was not shaken in cross on this point.
92Given the act of driving the wrong way down Kent Street and the evidence, I do accept from Ms. Marcantonio that Mr. Bulat was "on" his cell phone while driving and just before the time of the collision. That she took the phone away so he could focus on the road, I find that the dangerous driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. He chose to be "on" his cell phone while driving. This was not something that came unexpectedly and distracted him. The phone had to be taken away to allow him to focus and the phone was taken from him must before the accident. This act and the drive taken together raises the level of moral blameworthiness to the criminal standard as set out in R. v. Roy, as such, I find the Crown has proven the charge of dangerous driving contrary to s. 249 of the Criminal Code beyond a reasonable doubt.
Released: April 2, 2015
Signed: "Justice Perkins-McVey"
