Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Lee Hazelwood
Before: Justice Lesley M. Baldwin
Heard on: April 4, 2016; September 9, 2016; and October 20, 2016
Ruling on Voluntariness Voir Dire released on: November 17, 2016
Counsel:
- E. O'Marra, counsel for the Crown
- D. Brody, counsel for the defendant Lee Hazelwood
BALDWIN J.:
Issue
1Were the statements made to the breath technician during breath testing compelled? The burden rests with the Crown to prove the voluntariness of the statements beyond a reasonable doubt.
2It is acknowledged that there was no coercion or oppression. No threats, inducements or promises.
3The Application is based on the fact that the breath technician did not provide a primary caution to the Applicant before she started asking him questions. It is also based on the submission that the breath technician used some degree of 'trickery' that induced Mr. Hazelwood to provide statements to her.
4Mr. Hazelwood did not testify on the voir dire. There is no requirement for him to do so.
Brief Facts
5Mr. Hazelwood is charged with Impaired Operation and Over 80 in Milton on December 3rd, 2013.
6Civilians called 911 to report a car being driven all over the road on the 401 eastbound that may have been involved in a collision.
7The motor vehicle had stopped at the side of the road just before the James Snow Parkway.
8Another vehicle pulled in front of it and two men began to load bags from the stopped motor vehicle into the other motor vehicle. A Grand Am was the suspect vehicle. The two men left in a white Oldsmobile vehicle.
9A tow truck driver followed the white vehicle and provided updates to dispatch.
10Officer Jonathan Canon (OPP) followed the white vehicle after it had pulled into a parking lot.
11Officer Canon first spoke to the driver of the white car (Todd Taylor) who said he had picked up his friend because his friend's car was smoking. Mr. Hazelwood was in the front passenger seat and then got out.
12Officer Canon asked him what happened on the Highway. Mr. Hazelwood did not respond.
13Officer Canon asked him where he was coming from. Mr. Hazelwood said Toronto.
14Officer Canon noted a strong odour of alcohol coming from his mouth. His eyes were red and bloodshot.
15He was blinking slowly and his focus seemed delayed. He admitted to consuming two beers.
16At 12:22 a.m. Officer Canon arrested Mr. Hazelwood for impaired operation.
17At 12:26 a.m. Officer Canon read Rights to Counsel which were understood. Mr. Hazelwood was asked if he wanted to speak to a lawyer and his response was 'No'.
18Following that, the primary caution, the secondary caution and the Breath Demand were read and understood.
19Exhibit #3 was filed which is the standard police-issued card which contains the wording of what Officer Canon read to Mr. Hazelwood at 12:27 a.m.
20The Primary Caution reads as follows:
21"You are charged with (impaired operation of a motor vehicle). You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand?"
22Mr. Hazelwood responded with "Yes".
23"Do you wish to say anything in answer to the charge?"
24Mr. Hazelwood responded with "No".
25At 12:31 a.m. Officer Canon left the scene and transported Mr. Hazelwood to the OPP detachment in Port Credit. They arrived at 12:48 a.m.
26Mr. Hazelwood again declined to speak to counsel at the station.
27At 12:59 a.m. Mr. Hazelwood was turned over to the breath technician, Officer Stapleton, which is when the video-tape of the process begins.
Breath Testing and Interview by the Breath Technician – Officer Linda Stapleton
28At the outset, Officer Stapleton confirmed that Mr. Hazelwood did not wish to speak to a free lawyer at this time.
29She then read the standard Breath Demand:
"…I demand that you provide suitable samples of your breath directly into the approved instrument to enable an analysis to be made to determine the concentration thereof, if any, (of) alcohol in your blood. Do you understand that?"
Mr. Hazelwood responded "Yes".
Officer Stapleton then read the standard secondary caution to Mr. Hazelwood:
"I'm going (to) read you a secondary caution, similar to the one the officer read to you on the road side. If you have spoken to any police officer or to anyone with authority, or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making any statements, do you understand that?"
Mr. Hazelwood responded "Yes".
30The breath testing procedure was then explained.
31Before the tests begin, Mr. Hazelwood was asked his date of birth, how tall he was, then he was told to "jump on the scale there for me, just by the edge of the desk".
32The first breath sample was obtained.
33Officer Stapleton stated: "So we have to do two tests, and the instrument times us out at 17 minutes in between each sample. Just if you're curious about why we're taking time in between. Are you ill or sick at this time right now?"
34Mr. Hazelwood replied "No".
35Mr. Hazelwood was then asked if he was taking any prescription medication, if he was diabetic, if he was taking insulin, if he had sustained any injuries tonight, if he had any physical handicaps, if he had bumped his head when he had his collision tonight, how much sleep he had in the last 24 hours and if he wore glasses.
36Mr. Hazelwood answered all questions with a no except for the amount of sleep question to which he answered "about five hours".
37The very next question was, "Was that – is that your vehicle that you were driving tonight?"
38Followed by, "What kind of car is that?"
39Followed by, "So what happened in the collision tonight? Did you, was there anybody else involved, or?"
40Followed by, "So you were in – just 'cause we need to know for the collision report, were you in the fast lane, the slow lane or the middle lane?"
41Mr. Hazelwood made no response. Officer Stapleton then stated:
42"We need to provide a report for the traffic report for your insurance company. So you're driving along, you're in what lane, and what happens?"
43This is followed by specific questions about the events that led up to the impaired operation charge.
44A second breath sample was taken.
Officer Linda Stapleton Testimony
45She has been an OPP Officer for 11 years and a qualified breath technician for 10 years.
46Officer Stapleton testified that she asked questions of Mr. Hazelwood for Officer Canon, the officer in charge, because he would be filling out a collision report.
47She agreed that the police fill out a collision report but they never forward it to the Insurance Company. Most people need an occurrence report and a number if their motor vehicle is involved in a collision so they can put in a claim.
48In cross-examination, Officer Stapleton agreed that the questions she asked Mr. Hazelwood could be seen as part of the breath testing procedure.
49She agreed that she did not read a primary caution before asking questions. She was satisfied that was read at the time of the arrest and saw no need to repeat it.
Case Law
50Counsel referred to the following cases which were most helpful in preparing this ruling:
R. v. Rose, [2009] O.J. No. 6445, Kastner J.; R. v. Marn, [2008] O.J. No. 3255, Campbell J.; R. v. Shwydiuk, [2007] O.J. No. 5315, LeDressay J.; R. v. Brideau, [2007] O.J. No. 5378, D.A. Harris J.; R. v. Hoffner, [2006] O.J. No. 5686, LeDressay J.; R. v. Kruszewski, [2004] O.J. No. 3857, Timms J. (SCJ); R. v. Pomeroy, [2004] O.J. No. 5040, Hill J. (SCJ); R. v. Desarmia, [2002] O.J. No. 3602, Beaman J.
51All of these cases deal with whether the answers received by the breath technicians during breath testing were proven voluntary beyond a reasonable doubt.
52In each case, save for the Pomeroy case (supra) and Rose (supra) the statements were not proven to be voluntary and they were excluded from the evidence.
53In Pomeroy, Justice Hill noted at paragraph 34, that the defence's concerns with respect to voluntariness is a legitimate one:
He brought it to the attention of an experienced trial Judge. Voluntariness is essentially a question of fact. While I may not have reached the same conclusion as the trial court, I am unable to say that the trial judge's factual findings are unreasonable, that he was unaware of the relevant law, or that he engaged in an incorrect application of legal principles in ruling the appellant's statement voluntary.
54In Rose, the facts are distinguishable as Justice Kastner notes in paragraph 12 of her judgment that Ms. Rose told the breath technician that she had received advice from counsel and she was not supposed to say anything. It was clear from the breath testing interview that Ms. Rose understood that she was not to say anything and she did, because in her words "she's the biggest talker in Brampton." It would also appear that Ms. Rose was given a primary caution before the breath testing commenced. (pp. 4, 5)
Decision
55I have concluded that the statements to Officer Stapleton have not been proven to be voluntary beyond a reasonable doubt and they are excluded from the evidence at this trial.
56It is crystal clear from the transcript of the breath testing process and from Officer Stapleton's testimony that she believed that she could ask questions related to the offence and gather evidence related to offence that had nothing to do with her function as the qualified breath technician.
57The first startling example is her demand that Mr. Hazelwood jump on a weight scale before the testing begins. This is not part of the breath testing process. I have never before heard a breath technician give such a command.
58The second serious voluntariness violation is when Officer Stapleton demands that Mr. Hazelwood provide her with information about the offence because the police need to prepare a traffic report for his insurance company.
59This is clearly not part of the breath technician's function and is deliberate inducing conduct on the part of the Officer to have Mr. Hazelwood answer questions about the events that led up to him being in the breath testing room.
60Of further concern is the fact that medical questions that are routinely asked before the tests to ensure that the subject is capable of providing a suitable sample were asked after the first breath test and then immediately flowed into specific questions about the charged offence.
61None of Mr. Hazelwood's statement can be seen to be voluntary beyond a reasonable doubt.
62I agree with the Applicant that the breath technician engaged in trickery and induced his statements without the benefit of a primary caution.
63For these reasons, the statements are out.
Released: November 17, 2016
Signed: "Justice Lesley M. Baldwin"