R. v. Osinski, 2017 ONCJ 395

minicounsel

Ontario Court of Justice

Date: 2017-06-14

Court File No.: Brampton 15-014495

Between:

Her Majesty the Queen

— and —

Arthur Osinski

Before: Justice M. M. Rahman

Heard on: March 28, 29, and 31, 2017

Reasons for Judgment released on: June 14, 2017

Counsel:

Paul Renwick — counsel for the Crown

Kate Robertson — counsel for the defendant Arthur Osinski

I. Overview

1On October 24, 2015, Arthur Osinski was driving westbound on Highway 401 in Mississauga. Mr. Osinski's driving caught the attention of a police officer, who was on his way to an accident call. The officer said he became concerned when he saw Mr. Osinski almost hit two construction barriers. The officer decided to abandon his accident call and follow Mr. Osinski as he left the highway. He watched Mr. Osinski stop his car partially into an intersection, blocking lanes of cross-traffic. When the officer spoke to Mr. Osinski after pulling him over, he noticed he smelled of alcohol. He arrested Mr. Osinski for impaired driving. Mr. Osinski later took Intoxilyzer breath tests that showed his blood alcohol was over the legal limit.

2Mr. Osinski was charged with impaired driving and driving with excess blood alcohol (over 80). At his trial, he applied to exclude the results of his Intoxilyzer tests on the grounds that his rights under ss. 7, 8, 10(a) and 10(b) had been violated.

3On the trial proper, Mr. Osinski argued that the Crown had not proven the charges beyond a reasonable doubt. He argued that there was insufficient evidence to prove that he was impaired, and that the Crown could not rely on the presumption of accuracy because it had not demonstrated the suitability of the alcohol standard solution used to test the Intoxilyzer.

4The trial proceeded as a blended one, with evidence from the voir dire applying to the trial. The Crown called two police witnesses: Cst. Michael, who stopped and arrested Mr. Osinski, and Cst. Sousa, the breath technician who administered the Intoxilyzer tests. The defence called no evidence on the voir dire or the trial.

5On April 19, 2017, I dismissed Mr. Osinski's Charter application, and found him guilty of both counts,[1] with written reasons to follow. These are those reasons.

II. Summary of the Evidence

A. Cst. Michael Notices Mr. Osinski and Follows Him

6Just before 3:00 a.m. on October 24, 2015, OPP Constable Ian Michael was driving westbound on Highway 401. He was responding to a collision call when he noticed Mr. Osinski's car driving in the same direction ahead of him. Cst. Michael's attention was drawn to Mr. Osinski's car because it was driving fast. The officer's radar showed that the car was going 125 km/h.

7Cst. Michael testified that Mr. Osinski was driving in the rightmost lane. Mr. Osinski was driving on the solid line that separated the travelled portion of the road from the shoulder. Cst. Michael noticed that, as the right lane ended, Mr. Osinski continued to drive with his wheels on the solid line. Mr. Osinski did not move back into the middle lane, as the right lane ended, even as he approached a concrete barrier. The barrier ran parallel to the lane and then angled inward, much like a merge lane would. Mr. Osinski moved his car into the middle lane at the very last moment before he would have hit the barrier. He was still driving at about 125 km/h. Mr. Osinski's car remained half a car width on the shoulder.

8Cst. Michael followed Mr. Osinski as he drove with half of his car in the lane and half in the shoulder. The lane he was in ended again, with another concrete barrier directing traffic towards the left. Again, Mr. Osinski moved to the left at the last moment to avoid hitting the barrier. Mr. Osinski again continued to drive on the shoulder and lowered his speed to 115 km/h.

9Cst. Michael testified that he followed Mr. Osinski as he took the Mavis Road exit from the highway. Mr. Osinski was driving over the broken lane-marking line as he exited. The exit lane split into three lanes as the ramp progressed off the highway. Mr. Osinski was driving between lanes one and two, eventually moving into the leftmost lane. As Mr. Osinski approached the traffic light at Mavis Road, he proceeded half way into the intersection before stopping. His car blocked the northbound lanes of Mavis Road.

10After five or six seconds, the light turned green and Mr. Osinski turned left onto Mavis Road. As he turned, Mr. Osinski's car almost struck some bright yellow plastic lane-marking sticks that had been placed on the road to divide it during construction. Cst. Michael followed Mr. Osinski and pulled him over on Mavis Road south of Highway 401, by using his lights and siren, when it was safe to do so.

B. The Roadside Stop and Arrest

11Cst. Michael approached the driver's side of Mr. Osinski's car. The officer spoke with Mr. Osinski through the open driver's side window. He could smell alcohol from Mr. Osinski's breath and noticed that he had watery eyes. Cst. Michael also testified that Mr. Osinski had a "red flushed face" and that his body and hands were shaking.

12Cst. Michael testified that he stopped Mr. Osinski's car because he believed the driver had been drinking. Cst. Michael asked Mr. Osinski how much he had to drink, and when his last drink had been. He did not specifically tell Mr. Osinski why he had pulled him over. Mr. Osinski said he had just two beers and that his last drink had been two hours ago.

13Cst. Michael believed that Mr. Osinski was impaired, based on his driving and the observations he made after pulling him over. The officer asked Mr. Osinski to step out of his car. Cst. Michael said he confirmed the odour of alcohol and the watery eyes he had seen moments before. He arrested Mr. Osinski for impaired driving. He escorted Mr. Osinski back to his police cruiser and placed him in the right rear seat.

14Cst. Michael informed Mr. Osinski of his right to retain and instruct counsel at 2:55 a.m. He asked Mr. Osinski if he understood his rights, and whether he wanted to call a lawyer. Mr. Osinski answered yes to both questions. Cst. Michael also read Mr. Osinski the standard police caution, advising him he did not have to make a statement.

15Cst. Michael then asked Mr. Osinski if he had his own lawyer. Mr. Osinski said that he did. Cst. Michael then asked Mr. Osinski if he had his lawyer's number in his phone. Mr. Osinski then said that he did not have a lawyer. Cst. Michael asked if Mr. Osinski wished to call duty counsel and Mr. Osinski said he did.

16At 2:56 a.m., Cst. Michael read Mr. Osinski the breath demand. Mr. Osinski responded "yes I would like to do a breathalyzer." Cst. Michael explained the process to Mr. Osinski and again asked him if he understood the caution. Mr. Osinski said that he did. After retrieving Mr. Osinski's cell phone and house keys from his car, they set off for the detachment at 3:00 a.m.

C. Mr. Osinski's Arrival at the OPP Detachment

17Cst. Michael and Mr. Osinski arrived at the Port Credit OPP detachment at 3:14 a.m. He took Mr. Osinski into the booking area. Cst. Michael had Mr. Osinski read out his right to counsel from a sign posted in the booking area.

18Cst. Michael testified that he and Cst. Souza were the only officers in the detachment at that time, as far as he could recall. Their detachment does not have a booking sergeant. Cst. Michael was responsible for doing the booking procedures for anybody he brought into the detachment.

19Cst. Souza was present during the booking process as well. She noticed that Mr. Osinski's eyes were red-rimmed and watery. Cst. Souza noticed that Mr. Osinski was chewing gum and asked him to spit it out. She said that she did not want anything in his mouth that could interfere with the testing. Cst. Souza testified that Mr. Osinski did not seem to understand why he had been arrested before he had been given a breath test. Cst. Souza then explained the difference between the charges of impaired driving and over 80 to him. That conversation took place at some point between 3:16 and 3:24 a.m. Cst. Michael testified that the booking process finished at 3:26 a.m.

20At 3:32 a.m., Cst. Michael placed a call to duty counsel. After placing that call, Cst. Michael met with Cst. Souza at 3:32 a.m. in the Intoxilyzer room area and provided her with his grounds for believing Mr. Osinski was impaired.

21A duty counsel lawyer called back at 3:37 a.m. Mr. Osinski spoke to duty counsel privately from 3:48 a.m. until 3:53 a.m. At 3:54 a.m., Cst. Michael turned over custody of Mr. Osinski to Cst. Souza.

D. The Breath Tests

22Cst. Souza entered the breath room area with Mr. Osinski at 3:54 a.m. Cst. Souza confirmed that Mr. Osinski had spoken to duty counsel. She then read Mr. Osinski the breath demand again, along with the police caution and secondary caution. Cst. Souza also demonstrated how to provide a suitable sample into the machine.

23Mr. Osinski provided his first sample into the Intoxilyzer at 4:10 a.m. and his second sample at 4:32 a.m. Those tests yielded results of 104 and 99 mg of alcohol in 100 ml of blood, respectively.

24Cst. Souza testified that, during the testing, she could smell alcohol from Mr. Osinski's breath and that she noticed his eyes were red-rimmed and watery.

E. The Alcohol Standard Solution

25Cst. Souza was cross-examined extensively on the procedure that her detachment used to keep track of the alcohol standard solution that is an essential part of the calibration of the Intoxilyzer machine.

26The alcohol standard solution is contained in a unit, known as a simulator, attached to the Intoxilyzer machine. The solution is used by the machine during calibration checks that the breath technician runs before each breath test. The solution cannot be used indefinitely. Centre of Forensic Sciences guidelines, filed as an exhibit in this case, suggest that the best practice is to change the solution every 15 days or after 50 calibration checks. Cst. Souza testified that the practice at her detachment was to change the solution every Saturday or, at the most, every weekend.

27When a breath technician runs calibration checks on the machine, the machine produces a printout or a "test card." Cst. Souza testified that the Intoxilyzer machine reveals on its test card when the solution is changed, and how many times it has been used. The practice at the detachment was to enter the date the solution was changed into the machine which would cause the machine to reset its counter to zero. The machine would lock itself after its counter reached 50. Cst. Souza testified that if the standard solution was changed, the breath technicians' practice at her detachment was to input the date it was changed into the machine. In this case, the solution had last been changed on October 16, or eight days before the test, according to the test card.

III. The Charter Application

28Mr. Osinski brought an application to exclude the Intoxilyzer results because his rights under ss. 7, 8, 10(a) and 10(b) of the Charter had been violated. He alleged that Cst. Michael lacked reasonable grounds to believe he was impaired, making the Intoxilyzer results the product of an unreasonable search and seizure. He also argued that Cst. Michael did not inform him of the reason for his detention as required by s. 10(a). He further argued that Cst. Michael violated his s. 10(b) rights by not allowing him to contact his counsel of choice and by not permitting him to call counsel immediately upon his arrival at the police detachment. Finally, he argued that Cst. Souza violated his right to silence under s. 7 by misinforming him about the meaning of that right.

A. Section 8 and Reasonable Grounds to Make the Breath Demand

29Cst. Michael had ample grounds to arrest Mr. Osinski for impaired driving and make the breath demand. Mr. Osinski's driving alone suggested that he was impaired. He twice almost hit concrete barriers as the lane he was driving in came to an end. He was not centred in his lanes. He drove far enough into an intersection such that he was blocking northbound lanes of traffic. When he turned left onto Mavis Road, he almost hit the brightly coloured sticks dividing the lanes. When Cst. Michael spoke to Mr. Osinski, he noticed that he could smell alcohol from his breath. The officer also noticed Mr. Osinski had watery eyes and a flushed face.

30In finding that Cst. Michael had sufficient grounds, I reject Mr. Osinski's suggestion that Cst. Michael's observations were exaggerated. Mr. Osinski's driving was concerning enough that Cst. Michael chose to abandon the radio call and instead follow Mr. Osinski's car. Further, while Cst. Michael could not say precisely how far Mr. Osinski had driven past the stopping line, he was clear about the position of the car and how it was blocking the northbound lanes. I am satisfied that he made the observations that he said he made.

31I also reject the argument that the officer took a "glass half empty" approach to assessing Mr. Osinski's driving because he did not consider more benign reasons for his inability to stay in his lane, such as using a phone or being tired. Cst. Michael would have been remiss if he had not stopped Mr. Osinski after seeing the way he was driving. The fact that Mr. Osinski was not slurring his words, and was not unsteady on his feet, does not detract from the obvious signs of impairment that were present. Nor does Mr. Osinski's declaration that he was not drunk. Cst. Michael would have been negligent if he had not arrested Mr. Osinski and made the breath demand. There was no s. 8 breach here.

B. Section 10(a)

32Cst. Michael testified that he stopped Mr. Osinski because he believed he might be impaired. However, he did not explicitly say to Mr. Osinski that he was detaining him because he thought he was impaired.

33Crown counsel argued that Mr. Osinski would have known why he had been pulled over because Cst. Michael asked him how much he had to drink and when he had his last drink. The Crown relied on the following passage from the Court of Appeal's decision in R. v. Nguyen (followed by Dambrot J. in R. v. Kumarasamy), which suggests that there is no breach of s. 10(a) where it would be apparent to a detainee why he or she is being detained:

16 The right to be informed of the reasons for detention as enshrined in the Charter and the Canadian Bill of Rights is a codification of the common law described most famously in the case of Christie v. Leachinsky, [1947] A.C. 573 (U.K. H.L.). In Christie, the common law right was essentially described as follows: a person is entitled to be informed of the reason why he or she is being restrained, unless the circumstances are such that he or she knows why. The reasons do not need to be expressed in technical or precise language, but must, in substance, inform the person as to the reason why the restraint is being imposed. [emphasis added]

34Mr. Osinski argued that I ought to follow this court's decisions in R. v. Evans and R. v. Cole, and the Superior Court's decision of R. v. Mayhofer-Lima. Those cases held that compliance with 10(a) requires police to positively inform a detainee of the reasons for detention and that the Crown cannot rely on circumstances that make it obvious to a detainee why he or she is being detained. This view is best summarized by Stribopoulos J. in the following passage:

60 On my reading of the Supreme Court of Canada's jurisprudence, section 10(a) imposes a positive informational duty on the police. In Evans, the Supreme Court referred to the "right to be promptly advised of the reasons for one's detention." It emphasized the need for functional rather than a formalistic approach, making clear that the: "question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to understand his right to counsel under s. 10(b)." In Evans, the Supreme Court did not find a violation of section 10(a) given that the appellant understood his jeopardy because "the police informed the appellant that he was a suspect in the killings shortly after their suspicion formed." [emphasis in Stribopoulos J.'s reasons]

35I do not need to decide which of the foregoing lines of authority to follow because I find that Cst. Michael's questions, in these circumstances, sufficiently informed Mr. Osinski why he was being detained. Unlike Evans, Cole, and Mayhofer-Lima, the first question Cst. Michael asked Mr. Osinski related to his drinking. In all three of those cases, the officer either did not say anything to the detained driver about impaired driving, or said something that might lead the driver to believe he was simply being detained for a traffic investigation.

36Context matters. I see little difference between saying "I'm pulling you over because I think you have had too much to drink" and the pointed questions Cst. Michael asked Mr. Osinski about his alcohol consumption in the context of a traffic stop. In this regard, I adopt the reasoning of my colleague P.A. Harris J. in R. v. Clayton:

8 The section 10(a) question can also be summarily resolved. First, it is common knowledge that driving a vehicle on a public road is a highly regulated activity and motorists may be expected to be stopped with a view to determining their entitlement and capacity to drive: R. v. Weik, [2012] M.J. No. 181 (Man. Q.B.). Not only do police officers have the statutory authorization to determine a driver's sobriety, they have a legal duty to do so: R. v. Orbanski, 2005 SCC 37. In my view, general statements and inquiries made by an investigating officer at the roadside will be a sufficient signal to the driver as to why he or she has been detained and will usually provide sufficient information about the detention to satisfy section 10(a) of the Charter. There is no need for a formal declaration as to the reason for the detention in a motor vehicle roadside investigation because it should be assumed that drivers will know they can be stopped and investigated to check license and registration, vehicle fitness and motorist sobriety. [emphasis added]

37The absence of a "formal declaration" here was not fatal. Cst. Michael complied with s. 10(a).

C. Section 10(b)

38Mr. Osinski alleged that his right to counsel under s. 10(b) was breached in two ways. First, he argued that he was not permitted to contact his counsel of choice. Second, he argued that, once he arrived at the OPP detachment, he was not immediately allowed to call counsel before undergoing booking procedures.

39Mr. Osinski has not established a violation of his right to contact counsel of choice. This is not a case where a driver asked to call a specific lawyer. Although Mr. Osinski initially responded that he had a lawyer, when Cst. Michael tried to suggest how he might find the number for the lawyer, Mr. Osinski then said he did not have a lawyer. Cst. Michael was entitled to take Mr. Osinski at his word. A police officer is not expected to cross-examine a driver at the roadside, but is entitled to act on the information the driver provides. The fact that Mr. Osinski then agreed to be put in touch with duty counsel strongly suggests that he did not have a specific lawyer in mind.

40I also find that the police did not unconstitutionally delay Mr. Osinski's contact with duty counsel once he arrived at the detachment. It is important to consider what took place when Mr. Osinski arrived at the detachment. As he was being booked, Cst. Souza testified that she was trying to ensure Mr. Osinski understood why he had been arrested and that he understood his right to counsel. This occurred sometime between 3:16 and 3:24 a.m. Cst. Michael called duty counsel at 3:28 when he had finished booking Mr. Osinski.

41The police are required to facilitate access to counsel at the "first reasonably available" or "earliest practical" opportunity. Cst. Michael was entitled to take the time to book Mr. Osinski before he made the phone call to duty counsel. During the booking process, Cst. Michael had Mr. Osinski read out the sign that spelled out his right to counsel to ensure that he understood it. Moreover, it is apparent that Cst. Souza used the time during the booking procedure to explain to Mr. Osinski why he had been arrested before taking breath tests. This is not a case where the police simply kept a detainee waiting for no reason while they performed unrelated administrative tasks. Mr. Osinski's access to counsel was facilitated at the earliest practical opportunity.

D. Section 7

42Mr. Osinski had been informed that he was not required to say anything at least twice, once by Cst. Michael and once by Cst. Souza. During the waiting period between the two breath tests, Cst. Souza tried to engage Mr. Osinski in conversation by asking him about his job. Mr. Osinski responded that he did not believe he had to answer any questions. Cst. Souza then commented that she considered the right to remain silent really to mean that he did not have to say anything incriminating. After that Mr. Osinski did engage in conversation with Cst. Souza.

43Cst. Souza's statement about Mr. Osinski's right to remain silent was wrong. By misinforming Mr. Osinski about the meaning of his right to remain silent, Cst. Souza breached that right. Even if I accepted the Crown's argument that, to find a breach of s. 7, I would have to find that Mr. Osinski's right to silence was actually undermined, in this case I find that it was. As soon as Cst. Souza qualified the meaning of the right to remain silent, Mr. Osinski began talking. The fact that he did not actually say anything incriminating is of no moment.

E. Section 24(2)

44Having found a breach of s. 7, I must consider whether the Intoxilyzer breath test results ought to be excluded under s. 24(2) of the Charter.

45In my view, none of the three factors outlined in R. v. Grant favours exclusion.

1. The Seriousness of the Breach

46When Cst. Souza misinformed Mr. Osinski about his right to silence, she was not actually trying to undermine that right. It is apparent from watching the video that she was simply trying to engage him in conversation while waiting to perform the second test. I accept her evidence that she was not trying to mislead Mr. Osinski. This was not a serious breach.

2. Impact on the Applicant's Charter-Protected Interests

47Cst. Souza did not attempt to elicit any incriminating evidence from Mr. Osinski, nor did he provide any. The breath samples would have been obtained regardless of anything he said. The breach's only connection to the breath sample result was temporal. The evidence would have been discoverable without the breach. Indeed, Cst. Souza had already obtained the result of the first test before making the impugned comment. The result of Cst. Souza's incorrect statement about the right to silence had a minimal impact on Mr. Osinski's Charter-protected interests. The second Grant factor also favours inclusion.

3. Society's Interest in an Adjudication on the Merits

48The breath samples and ensuing test results are highly reliable evidence. Without this evidence, the Crown would have no case on the over 80 charge. As the Supreme Court observed in Grant, the third branch of the 24(2) inquiry will rarely favour exclusion of breath samples:

110 The third line of inquiry — the effect of admitting the evidence on the public interest in having a case adjudicated on its merits — will usually favour admission in cases involving bodily samples. Unlike compelled statements, evidence obtained from the accused's body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission.

49The third Grant factor favours inclusion of the evidence.

4. Conclusion on s. 24(2)

50Because all of the Grant factors favour inclusion of the evidence, there is no need to conduct the usual balancing exercise. I cannot find that the admission of the evidence would bring the administration of justice into disrepute.

51The application to exclude evidence is therefore dismissed.

IV. The Trial Proper

A. Evidence of Impairment

52I have outlined the evidence of Mr. Osinski's impairment above in paragraph 29. As explained above (at paragraphs 30 and 31), I reject Mr. Osinski's suggestion that Cst. Michael's evidence about his driving was exaggerated and that, because he did not make his notes as the events were unfolding, his evidence is unreliable. His notes of the incident were not made very long after it occurred. Also, Mr. Osinski's driving was concerning enough to Cst. Michael that he abandoned the radio call he was on to pursue what he thought might be a drunk driver. As explained above, I am unconcerned by Cst. Michael's inability to recall the precise distance Mr. Osinski was from the stop line of the intersection leading onto Mavis Road.

53Further, the fact that Cst. Souza did not record or relate each of the things that Cst. Michael said he observed does not give me any reason to doubt his observations. As Crown counsel observed, Cst. Michael was never confronted with the alleged discrepancy between what Cst. Souza had recorded and what he had told her. In any event, Cst. Michael's job in telling Cst. Souza his grounds for believing Mr. Osinski was impaired would not necessarily require him to include every detail that he had observed.

54Nor do I have any doubt about his observations of Mr. Osinski's appearance and the smell of alcohol on his breath. The fact that Mr. Osinski was shaking does not factor in to my assessment of impairment at all, because it is equally consistent with him being nervous about having been pulled over. I am satisfied beyond a reasonable doubt that Mr. Osinski was driving as Cst. Michael described.

55In my view, there is sufficient evidence to prove that Mr. Osinski's ability to drive was impaired by alcohol. The Crown must prove any degree of impairment, from slight to great. Although Mr. Osinski pointed to a few signs that he said show he was not impaired – such as his speech and his ability to walk steadily – these do not detract from the obvious signs of impairment. Driving a car requires more attention and motor skills than walking or talking. It is entirely possible to be impaired but not unsteady on one's feet and not have difficulty forming words. There was ample evidence of the difficulty Mr. Osinski had driving his car. He could not stay within his lane. He almost hit barriers. He drove into the middle of an intersection and, when turning, almost hit lane-marking sticks. Those observations combined with the alcohol on his breath and his watery, red-rimmed eyes satisfy me beyond a reasonable doubt that his ability to drive was impaired by alcohol.

B. The Alcohol Standard Solution

56Mr. Osinski took issue with the reliability of the Intoxilyzer test results by arguing that there was evidence of operator error. He took issue with the OPP's failure to maintain a proper record of the alcohol standard solution used during the pre-test calibration checks of the machine.

57In my view, the evidence does not raise any doubt about the proper operation of the machine or the reliability of the results in this case. Cst. Souza's evidence about the way her detachment kept track of the alcohol standard solution used in the machine leaves me with no doubt about the suitability of the solution used to test the machine in this case. While there always remains a theoretical possibility that one of her colleagues did not follow the detachment's practices, I find that to be pure speculation in this case.

58Because there is no doubt about the proper operation of the machine in this case, the Crown is entitled to rely on the presumption set out in s. 258(1)(c) of the Criminal Code. I find that the readings are accurate and that Mr. Osinski's blood alcohol level was over 80.

V. Conclusion

59Mr. Osinski's right to remain silent under s. 7 was violated, but that violation does not require exclusion of the breath test results under s. 24(2) of the Charter.

60Because Mr. Osinski's ability to operate his car was impaired by alcohol, he is guilty of impaired operation. Finally, because Mr. Osinski's blood alcohol level was over 80, he is guilty of driving over 80.

Released: June 14, 2017

Justice M. M. Rahman