ONTARIO COURT OF JUSTICE DATE: 2021·04·15 COURT FILE No.: Toronto Region 4817 998 19-75000683
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
LATAEVIA BEEZER
Before Justice André Chamberlain Heard on February 18, 2021 Reasons for Judgment released on April 15, 2021
Counsel: Ms. Vivian Gallegos ................................................................................. Counsel for the Crown Mr. Terry Hawtin .................................................... Counsel for the defendant Lataevia Beezer
1Lataevia Beezer was driving home early in the morning on December 2, 2018, when she was involved in a motor vehicle accident on King Street East just as she was coming off of Victoria Street; she was driving the wrong way on a one-way street. In this trial, I must determine whether the Crown has proven beyond a reasonable doubt that Ms. Beezer was operating her motor vehicle while impaired at the time of the accident, and whether her refusal of the offer to call her counsel once she arrived at the station was a clear and unequivocal statement and waiver of her right to access counsel.
Facts not in dispute
2Lataevia Beezer was driving south on Victoria Street, south of Adelaide Street; at that point, Victoria Street becomes a one way northbound. A witness who testified at trial, John Bosanac, testified that he was at the back of his company truck on a service call when he observed her driving in the wrong direction. Mr. Bosanac testified that she drove through the intersection at King Street East, made a brief attempt to avoid the collision and t-boned the other vehicle, an SUV.
3Mr. Sayeed Chowdhury was driving westbound, on King Street East when he was struck by Ms. Beezer’s vehicle. He lost consciousness and sustained injuries for which he continues to seek treatment.
4While Mr. Bosanac was checking on the well-being of the other driver, Mr. Sayeed Choudhury, he was briefly approached by Ms. Beezer who was inquiring about the driver’s well-being. At that time, he noted a smell of alcohol coming from Ms. Beezer and reported that to the police once they arrived.
5Police Constable Ryan Ladurantaye, who responded to the call, noted the damage to the front of Ms. Beezer’s vehicle, that she was in the driver’s seat and the lone occupant of her vehicle when he arrived. He noted she was somewhat emotional and that her eyes were red but admitted it could be attributed to the motor vehicle accident. She admitted that she had consumed alcohol earlier. PC Ladurantaye made the demand that she provide a sample of her breath in a roadside device, which she failed. Ms. Beezer was arrested for having over 80 mgs of alcohol in 100 ml of blood while operating a motor vehicle. He noted no other signs or indicia of impairment.
6Ms. Beezer was provided her rights to counsel, verbatim, from the officer’s memo book and cautioned. She indicated she understood. Ms. Beezer advised the officer that she had a lawyer, and PC Ladurantaye indicated they would arrange a call once they were at the station. He then read the approved instrument demand.
7Once they arrive at the station, in a windowed anteroom to the booking hall, the officer offers to arrange a phone call to her counsel. Part of the recording is cut off, but it begins at 4:05:20 a.m. when officer Ladurantaye replies to Ms. Beezer about calling counsel: “Not right now?” and Ms. Beezer responds, “No, sorry”. The officer says, “Well you had said before that you had one. . .,” and she cuts him off and quickly responds, “No, it’s fine.” The conversation that she does not wish to speak to counsel is confirmed just seconds later before the booking sergeant at 4:05:55. Ms. Beezer agrees that this is correct.
8No call to counsel is made on her behalf. She is brought to the qualified breath technician, PC Joseph Baus, and provides a sample at 4:35 a.m., with a reading of 140 and later, at 4:59 a.m., with a reading of 120 mg of alcohol in 100 ml of blood. It is worth noting that in preparation for the second reading, at 4:55 a.m., PC Baus reminds her that she had previously indicated that she had a lawyer shortly after her arrest and tells her she can still call that lawyer. She replies: “No, that’s fine.”
The Issues
- Does the evidence of Ms. Beezer’s driving before and including the collision, coupled with the evidence she had consumed alcohol, satisfy me beyond a reasonable doubt that she was guilty of impaired operation of motor vehicle?
- Were Ms. Beezer’s section 10(b) rights breached by the officers by not being more diligent in facilitating her rights to counsel at the station? In other words, did she decline her rights to counsel in a manner that was clear and unequivocal?
The Law
9In order to convict Ms. Beezer of impaired operation of a motor vehicle, I have to be satisfied beyond a reasonable doubt that her ability to drive that early morning was impaired by alcohol. If I am left with a reasonable doubt – in this case, focusing on Ms. Beezer’s driving behaviour – then I must acquit.
10The Ontario Court of Appeal in R. v. Stellato, [1993] O.J. No. 18 upheld in [1994] SCC no. 51, stated:
14 In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.
11I am also guided by the judgment of Justice Durno; I considered R. v. Grant, 2014 ONSC 1479, [2014] OJ No 1143, in relation to how I must review the cumulative effect of all noted indicia that can be attributed to her impairment, which, in this case, were limited.
50 What the Crown is required to establish beyond a reasonable doubt is any degree of impairment from slight to great, not extreme intoxication. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether the impairment impacts on perception or field of vision reaction or response time, judgment, and regard for the rules of the road. Bush, supra. The indicia noted above provided His Honour with ample bases upon which to reasonably find the appellant's ability to operate a motor vehicle was impaired by the consumption of alcohol. While each item viewed individually would not have met the onus, the cumulative effect of all the indicia provided an evidentiary basis upon which the trial judge could reach the conclusion he did. R. v. Grant, 2014 ONSC 1479, [2014] OJ No 1143
12In this case, there were no clear indicia of impairment, as conceded by PC Ladurantaye, with respect to her behaviour in the limited interactions following the accident. No Centre for Forensic Science expert was called to address the expected impairment one might expect considering the later readings provided by the breath samples into an approved instrument. PC Ladurantaye simply noted Ms. Beezer’s eyes were red and that she was emotional but testified that this was as likely as a result of the accident as it might have been a signal of her impairment. But there were other clues, such as the smell of alcohol noted by the civilian witness, Mr. John Bosanac, who, in his brief interaction with Ms. Beezer did not report any other indicia other than her driving. This was not confirmed by the arresting officer. There was also the admission from Ms. Beezer that she had been drinking earlier in the evening.
13The more serious consideration with respect to evidence of her impairment was focused on her driving on the morning in question. She was driving the wrong way on a one-way street. This is troubling, but can I say it is a function of impairment? In and of itself, I cannot. She drove the whole block against the flow of traffic. But as Mr. Bosanac testified, that road was not busy, there was no other traffic. Distracted or inattentive drivers may take a wrong turn or continue to drive on a road that suddenly becomes a one way without being impaired.
14Then Mr. Bosanac testified that Ms. Beezer drove through the intersection at King Street East and collided with Mr. Choudhury’s vehicle. She did not stop, but then, if she was driving in the wrong direction on a one-way street, there would have been no stop sign to indicate she should stop. She would have approached that intersection with no visible indication that she was going the wrong way except for other street signs facing the other way. It was the early hours of the morning, shortly after 3:00 a.m., there was not a lot of traffic on King Street at that time. There was no indication, other than that Mr. Bosanac’s own truck that there were multiple vehicles parked on both sides of the street which would have also been a signal.
15I was given estimates of speed by a civilian, but no evidence of an accident reconstruction by an expert to provide me with further evidence sustaining that Ms. Beezer’s driving was beyond what any person driving in such a situation might do, having clearly made a serious error in judgment by driving the wrong way down a one way street.
16In conclusion, in evaluating the cumulative evidence of her driving that night, and in light of the lack of other indicia of impairment, I can surely find she made serious errors, but can I conclude that the evidence amounts to proof beyond a reasonable doubt that Lataevia Beezer was impaired while operating that motor vehicle? I cannot.
The Allegation of a Charter breach of Ms. Beezer’s Rights to Counsel:
17Section 10(b) of the Charter of Rights and Freedoms reads:
- Everyone has the right on arrest or detention: to retain and instruct counsel without delay and to be informed of that right;
18Counsel for Ms. Beezer relies on the Supreme Court of Canada ruling in R. v. Prosper, [1994] S.C.J. No. 72 for the proposition that once Ms. Beezer had indicated to officers in the scout car that she had counsel, her decision to decline counsel once they were at the station required a ‘Prosper warning’ in order to ensure it was a valid waiver.
19In that case, Mr. Prosper had indicated a desire to consult counsel. Once at the station, he attempted to call some 15 different Legal Aid lawyers without success. Upon exhausting the list of names after approximately 37 minutes, the officer asked Mr. Prosper if he wished to call other lawyers and provided the appellant with a telephone book. Mr. Prosper declined to do so for fear of not being able to afford the lawyer’s fees.
20At paragraph 44 of the Prosper decision, the Court found that for a waiver to be real and informed, it must be made with a clear indication that the defendant has changed her mind.
“Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown: Ross, at pp. 11-12. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion.” R. v. Prosper, [1994] S.C.J. No. 72
21I also considered R. v. Malhomme, [2015] A.J. No. 1023; 2015 ABQB 550, Alta Q.B.:
30 Returning to this case, the first reasonable opportunity to contact counsel occurred upon arrival at the booking hall. The evidence was that once at the detachment, a telephone could have been available to the Appellant and he had a reasonable opportunity to contact a lawyer. The officer made it known to the Appellant that there were several phone rooms available. I find that Cst. Ludvig satisfied the implementational component of s. 10 (b).
31 The onus is on the Crown to prove waiver. The trial judge had the opportunity to view the officer testifying with respect to his discussions with the Appellant. The judge found that the police officer, being concerned about the Appellant's level of intoxication, was concerned about whether or not he recalled that he wished to exercise his constitutional right. The trial judge was clearly alive to the fact that in some circumstances, giving the right to counsel a second time might be problematic. However, the trial judge found as a fact in this case that there was no evidence that the officer was attempting to encourage the Appellant to change his mind. When asked if he wanted to exercise this right, the Appellant responded with an unequivocal "No". When read the waiver, he answered in a way that indicated that he understood and did not wish to contact a lawyer at that time.
22Ms. Beezer, when she was read her rights to counsel and cautioned in the police vehicle, she responded that she had a lawyer. Officer Ladurantaye informed her that they would facilitate a call when they arrived at the station. Following her transport to the station, the officer testified that they would arrange her call to her counsel, she replies, “No, sorry . . .”, and he responds, “Well you had said before that you had one. . .,” and she cuts him off and quickly responds, “No, it’s fine.” In my view, her waiver is clear. She was given her rights to counsel on more than one occasion, she clearly appeared to understand them.
23Ms. Beezer did not testify but, clearly, sometime between the time she was arrested and the time she was brought to the station, she decided she did not wish to speak to her counsel. The officer did not simply accept her first waiver, he reminded her she had told them in the scout car that she had a lawyer. Her reply was clear and unequivocal, “No, it’s fine.” Seconds later, before the booking sergeant, PC Ladurantaye tells the booker that she was advised of her rights to counsel, that she indicated she had a lawyer on the scene, but that just before she was brought into the booking room, she declined that offer to arrange that call. The booker asks her: Is that correct? and she confirms that information.
24Considering her decision to decline counsel was made to the officer on arrival, which he challenges, reminding her she had previously indicated she had a lawyer, and she repeats, “No, it’s fine.” And again, confirms this seconds later with the booker, I find her waiver was clear and absolute. Nothing in the evidence before suggested anything else in the circumstances. I therefore find no breach of Ms. Beezer’s 10(b) rights to counsel.
Conclusion
25Based on the above findings, I therefore dismiss the impaired operation of a motor vehicle but must find you guilty of operating of motor vehicle with more than 80 mg of alcohol in 100 ml of blood.
Released: April 15, 2021 Signed: “Justice André Chamberlain”