Court File and Parties
Ontario Court of Justice
Central West Region
At Orangeville
Between:
Her Majesty the Queen
— and —
Christopher Valleau
Before: Justice Richard H.K. Schwarzl
Heard on: May 10, 2017 and April 11, 2018
Reasons released on: April 30, 2018
Counsel:
Ms. Abby Woolf and Ms. Marie Balogh for the Crown
Mr. David Gomes for the Defendant
SCHWARZL, J.:
1.0: INTRODUCTION
1On April 25, 2016 the Defendant, Christopher Valleau, was involved in a "fender bender" at a local coffee shop. Following a police investigation the Defendant was charged with offences of impaired driving and driving with excess blood alcohol pursuant to sections 253(1)(a) and 253(1)(b) of the Criminal Code. A trial was held. At the conclusion of the evidence I accepted the Crown's invitation to dismiss the count of impaired driving leaving only the driving with excess alcohol charge.
2There are only two issues for me to decide. The first issue is whether the Crown has shown that the first breath test happened within two hours of the incident so as to rely on the statutory presumption of identity of the readings. If not, then the prosecution shall not be permitted to prove the Defendant's blood alcohol concentration without expert evidence, of which there is none. The second issue is whether the Defendant has demonstrated that his rights to counsel was probably breached and, if it was, the breath test results should be excluded from the evidence as a remedy.
2.0: THE ISSUES
2.1: Was the first breath taken within two hours of the incident?
2.1.1: Positions of the Parties
3The defence submits that the only direct evidence of when the driving occurred came from the witness Eric Gibson who said that it happened "around 11:00 p.m." The defence submits that this is an approximation only and therefore the incident may have happened as early or as late as ten minutes on either side of the hour. If so, the defence contends that the first breath test, which was taken at 1:05 a.m., might well be outside the two hour limit by as much as fifteen minutes. Therefore, they argue the Crown has failed to establish an essential ingredient in order to rely on the Certificate of Qualified Technician instead of calling an expert to "read back" the blood alcohol concentration to the time of driving.
4The Crown submits that when examining both the evidence as a whole, they have shown that the time of driving was within the two hour limit so as to rely on the Certificate of Qualified Technician.
2.1.2: Applicable Legal Principles
5Section 258(1)(c) of the Criminal Code creates a presumption that is known as the "presumption of identity" which is a short cut to establishing the driver's blood alcohol concentration at the time of the alleged offence: R. v. Charette, 2009 ONCA 310; R. v. St. Pierre, 1995 CanLII 135 (SCC), [1995] 1 S.C.R. 791. If the Crown can satisfy the preconditions of this subsection, then there is a presumption created that the defendant's blood alcohol concentration at the time of the offence was the same as at the time of testing. However, if the presumption is not available, the crown must prove the defendant's blood alcohol level at the time of the offence by means other than the certificate or the oral testimony of the qualified technician, almost invariably by the expert testimony of a forensic toxicologist.
2.2.3: Principles Applied to this Case
6Mr. Gibson testified that he got to the coffee shop at approximately 11:00 p.m. and drank coffee while sitting in a friend's vehicle. He watched the Defendant back into his own truck which was parked nearby. Gibson got out of his friend's vehicle and confronted the Defendant. After speaking to the Defendant Gibson felt that the Defendant had been drinking alcohol at which point his friend called the police. He said that they then stood around until the police arrived, which was fifteen to twenty minutes after the call. It is clear to me that the time elapsed between the collision and the calling of the police was only a few minutes. Therefore, while Gibson may have arrived at the coffee shop around 11:00 p.m. it was well after that the collision occurred. Common sense and experience dictates that where there is collision involving alcohol people tend to call the police almost immediately.
7P.C. Dent was dispatched to the scene at 11:53 p.m. and arrived at 11:58. P.C. Brennan was dispatched at 11:56 and arrived at 11:59 p.m.
8Assessing the evidence as a whole, and upon applying common sense and experience, there is every reason to believe the call to the police was made within a few minutes of the collision. Given (a) that the police arrived at just shy of midnight and (b) that the call was made fifteen to twenty minutes before they got there, I conclude that the time of the driving that caused the collision was not earlier than 11:30 p.m. which is around one and a-half hours before the first test and well within the statutory limit.
9I am therefore persuaded on the totality of the evidence that the Crown has established that first breath test was taken within two hours of the incident.
2.2: Was the Defendant's Right To Counsel breached by the Police?
2.2.1: Positions of the Parties
10The defence submits that Mr. Valleau's rights to counsel was violated because the police did not give him sufficient information to make an informed choice as to how to exercise it. In particular, they submit that if I accept the Defendant's evidence that he told the police, "I want to speak with a lawyer but I don't have one", the failure of the police to tell him that he could call any lawyer or call any person in order to secure a lawyer violated his rights to counsel. The defence submits that if I do not accept the Defendant's evidence on this issue, then his application must fail.
11The Crown submits that the Defendant has failed to demonstrate that his rights to counsel was probably breached because there was no reason for the police to believe the Defendant wanted to speak with anyone other than duty counsel.
2.2.2: Applicable Legal Principles
12The police must give a detainee his rights to counsel before breath samples are provided and must give the person both (a) sufficient information and (b) a reasonable opportunity to exercise those rights: R. v. Brydges, 1990 CanLII 123 (SCC), 53 C.C.C. (3d) 330.
13Where the police assist the detainee in exercising his rights to counsel, the police must be reasonably diligent in that assistance: R. v. Wilding, 2007 ONCA 853; R. v. Model, 2016 ONCJ 563 at para 43; R. v. Vernon, 2015 ONSC 3943. However, the police are not required to exhaust all reasonable means for a detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288 para 46-67; R. v. Sharma, [2004] O.J. No. 2991 (S.C.J.).
14The test is not whether the police could have done more, but rather whether the police provided the accused with the necessary information and assistance to allow the accused to exercise his rights in light of the circumstances of the case: R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.) at para 24; R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.) at para 23-24 and 29; R. v. Antoninas, 2014 ONSC 4220 at para 93.
15Where a detainee indicates that he has understood his rights and has been given a reasonable opportunity to exercise them, an equivocal response by him would not, on its own, trigger an obligation on the police to obtain a clear waiver where it is found that nothing about the situation indicated to police (a) that the detainee did not understand his rights or (b) that he was deprived of opportunity to exercise his rights: R. v. J.W.C., [2011] O.J. No. 3608 (C.A.) at para 19 to 30.
16The detainee is required to be reasonably diligent in the pursuit of his rights: R. v. Leclair and Ross, 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 at p. 135; R. v. Richfield, 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23; R. v. Clarke, 2005 CanLII 15452 (ON CA), 196 C.C.C. (3d) 426 at para 31-33; R. v. Van Binnendyk, [2007] O.J. No. 2899 (C.A.).
17Where a detainee wants to call a specific lawyer or a third party to access counsel, he has a duty to tell the police who he wants to call and why: R. v. Williams, [2014] O.J. No. 2559 (C.A.) at para 39; R. v. Johnston, 2004 BCCA 148, 183 C.C.C. (3d) 157; R. v. Antoninas, supra.
18The police are only able to respond to information provided by the detainee and cannot be held to a standard of clairvoyance: R. v. Eakin, 2000 CanLII 2052 (ON CA); R. v. Littleford, 2001 CanLII 8559 (ON CA).
19The police must generally permit the detainee to contact a third party, such as a spouse, parent, neighbour, or paralegal, etc. to facilitate contact with counsel. It may be reasonable for the police to make those contacts on behalf of the detainee: R. v. Tremblay, 1987 CanLII 28 (SCC), 37 C.C.C. (3d) 565; R. v. Crossman, [1991] B.C.J. No. 729 (C.A.); R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.); R. v. Barran, [2004] O.J. No. 1686 (O.C.J.).
20Where the police do not allow a detainee to make their own calls or other inquiries that are part of the exercise of their right to counsel, and there is a real likelihood that the detainee does not fully understand his right to counsel the police have a duty to clarify to the detainee all his options including the right to speak to any lawyer, not just one he already has or duty counsel: R. v. Pangias, [2014] O.J. No. 2058 (O.C.J.); R. v. Sakhavevych, [2017] O.J. No. 5209; R. v. Della-Vedova, [2018] O.J. No. 1596 (O.C.J.).
21Unless the detainee expresses to the police dissatisfaction with advice received, he is not entitled to Charter relief: R. v. Neziol, [2001] O.J. No. 4372 (S.C.J.); R. v. Kumarasamy, supra; R. v. Cairns, 2004 CanLII 17588 (ON CA); R. v. Burley, 2004 CanLII 9437 (ON CA), 181 C.C.C. (3d) 463; R. v. Traicheff, [2008] O.J. No. 4361 (S.C.J.), aff'd [2010] O.J. No. 5355 (C.A.); R. v. Willier, 2010 SCC 37 at para 42.
22The police have no obligation under s. 10(b) to monitor the quality of the legal advice received by a detainee from duty counsel: R. v. Willier, supra at para 41; R. v. Beierl, [2010] O.J. No. 4477 (C.A.). To require the police to do so would undermine the right to confidentiality and privacy a detainee enjoys with his lawyer.
2.2.3: Principles Applied to this Case
23The application of the relevant legal principles regarding rights to counsel requires me to first make findings of fact.
24P.C. Dent testified that after arresting the Defendant he read him his rights to counsel from a card which stated:
It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for legal assistance. 1-800-265-0451 is a toll free number that will put you in contact with a legal aid duty counsel lawyer for free legal advice.
[Emphasis added.]
25Dent said that when he asked the Defendant if he wanted to speak with a lawyer now, he received the reply "Yes. I can talk to duty counsel." Dent also said that the Defendant spoke with the free Legal Aid lawyer in private for 14 minutes at the police station. He said the Defendant did not express any dissatisfaction with the advice he received.
26Dent stated that the Defendant never asked (a) to be able to speak to a particular lawyer, (b) to look up a lawyer, or (c) to contact a third party so as to engage a lawyer.
27The officer only thought the Defendant was impaired because of the breath test results. He said the Defendant's slow movements and slow speech did not give rise to any concern whether he suffered any cognitive dysfunction or diminished capacity. The Defendant said that he suffers from Asperger's Syndrome, Tourette's disorder, Bi-polar disorder, as well as Attention Deficit disorder but agreed that these conditions did not impact on his perceptions or understandings of the relevant events. Nor did they impair his ability to communicate effectively.
28The Defendant said that Dent asked him if he had a lawyer and that he told the officer he didn't. He also said that had he known he could have done so, he would have asked to call a lawyer other than duty counsel or call his mother to hire one.
29Dent denied that the Defendant ever said words to the effect of "I want to speak to a lawyer but I don't have one." He also disagreed that he asked the Defendant if he had a lawyer. Dent said he made no note of it and that if the Defendant had said these things he would have done something about it. The officer was adamant that he is well aware of his duties regarding the facilitation of rights to counsel and had the Defendant said any such thing he would taken steps to assist the Defendant's request. Dent said he would have worked with the Defendant including referring the Defendant to a list of lawyers posted in the station, looking up lawyers on the internet, and getting in touch with any number of people to try and secure a lawyer other than duty counsel. When asked, the Defendant agreed that he was told he could call any lawyer he wished and that his response was to say that he would speak with duty counsel.
30The Defendant also testified that he did not fully understand his rights to counsel when they were recited by the officer. He went on to say that he didn't fully understand what the legal aid lawyer told him. The Defendant agreed that he never said anything to anybody, whether it was the police or duty counsel, that he didn't fully understand his rights or the legal advice he received.
31Assessing the evidence as a whole, I prefer the evidence of P.C. Dent as to what was, and what wasn't, said regarding rights to counsel. First, unlike the Defendant Dent was sober and not under the influence of alcohol. Second, unlike the Defendant who was scared and nervous, the officer was calm and performing a duty he was well practised in. Third, the officer made notes about what happened whereas the Defendant did not. Fourth, I accept Dent's evidence that had the Defendant wished to speak with someone other than duty counsel he was ready and able to facilitate that request. Since he did not do any of the things he said he could do if such a statement had been made, I conclude the Defendant did not say what he thinks he said. Nor do I find that Officer Dent asked the Defendant if he had a lawyer. I did not find the Defendant to be mendacious or incredible, just unreliable in all of the circumstances.
32Based on my findings of fact, the Defendant's Charter application is dismissed.
33I would add further that there was nothing in the circumstances that should have caused the police to suspect that the Defendant did not fully understand his rights to counsel. Had he wished to speak to a lawyer other than duty counsel or to someone to hire a lawyer, and had he not understood what the legal aid lawyer told him, he failed in his duty to make these things known to the police.
34Even if the Defendant had said that he wanted to speak with a lawyer but didn't have one, in these circumstances the conduct of the police was reasonable. The police explicitly told him he could talk to any lawyer he wished. They did not restrict the Defendant to any limitations of choice. There was nothing in the Defendant's conduct, attitude, appearance, or words that should have caused the police to clarify the Defendant's options. When asked if he wanted to speak to a lawyer right away, the Defendant's clear and unequivocal answer was to speak with duty counsel.
35As a result, I find that the Defendant has failed to demonstrate that it is more likely than not that the police violated his section 10(b) Charter rights to counsel. Therefore, without a breach there can be no remedy. The breath test results shall not be excluded from the evidence.
3.0: CONCLUSIONS
36For all these reasons, I find that the breath tests were taken within the two hour limit and that there was no breach of the Defendant's rights. Accordingly, the Crown has proven its case against the Defendant beyond a reasonable doubt. A verdict of guilty will be recorded on Count #1, Driving with Excess Blood Alcohol.
"R. Schwarzl"
Richard H.K. Schwarzl,
Justice of the Ontario Court of Justice