Ontario Court of Justice

Date: June 12, 2023 Information No’s: 0611-998-20-687

His Majesty The King

v.

Allen Henriksen

Reasons for Judgment

Before The Honourable Justice G.R. Wakefield on June 12, 2023 at Orangeville, Ontario

Appearances: A. Ansari, Counsel for the Crown D. Lent, Counsel for Allen Henriksen

Reasons for Judgment

Wakefield J. (Orally):

Mr. Henriksen stands charged with two offences, colloquially known as impaired driving and over 80 on the 9th day of June 2020.

The trial was estimated to take two days, but ended up consuming four days of trial, written submissions and a final day of judgment being today. I direct that copies of all written submissions be attached to the information to complete the record.

Charter application and Crown responses were filed regarding alleged breaches of Charter sections 7, 8, 9 and 10.

The Crown case consisted of eyewitnesses, Stephen Delabastide and Mark Pochodaj, together with OPP officers Brittany Clapham, Brittany Robertson, and Sergeant Croll.

No defence testimony was called, nor is there any expectation of same, given it is a defence choice. The heavy onus of proof beyond a reasonable doubt is squarely on the shoulders of the Crown.

Mr. Delabastide testified that he was involved in a motor vehicle accident. It was about 2:00 or 2:30 in the afternoon on a very hot, dry day with sunny skies. He did not see the vehicle driving up behind him until he was rear-ended as he slowed down for an amber light at an intersection. The force of the collision was enough to imbed the other vehicle’s licence plate into the witness’ rear bumper.

The witness looked in the rear-view mirror at the defendant, then got out to inspect the damage. As he does so he sees the defendant exit the other vehicle and then notices the defendant in the ditch, and then lay down in the grass, but did not see the defendant walking there. The defendant was identified by the witness as the same person as the driver of the other vehicle.

The witness and another person who had arrived on scene walk over to the defendant and asked if the defendant was okay, without response by the defendant. Paramedics were also soon on scene.

Mr. Delabastide then testified he heard the defendant complaining about wanting to be covered, so he went to the defendant vehicle and retrieved a blanket. However, he did not see any impairment indicia, nor detect the odour of alcohol on the defendant.

The witness agreed in cross that he did not give any description of the defendant to the police and was in court when the defendant was arraigned, which he conceded assisted in identification of the defendant.

I note that the witnesses confirmed that the driver was still in the ditch area when the paramedics and police arrived, establishing continuity of the defendant as the driver.

Mr. Pochodaj testified that he was the second driver on scene and observed the defendant stumbling as the defendant walked from his vehicle and fell into the ditch.

At first there were only the three people on scene: The other witness, the defendant and this witness. When EMS arrived the witness watched them assist the defendant into the ambulance.

He described the defendant as mumbling something about ‘It wasn’t him’ and ‘To go after them’.

P.C. Clapham testified that this matter was her second or third impaired investigation. She received a radio call regarding a motor vehicle collision and the defendant being in an ambulance and possibly impaired. She was told the defendant was being belligerent towards the EMS in the ambulance. She herself observed the defendant to try and hit one of the EMS while resisting having a mask being put on him.

In so doing, the officer confirmed that she smelled the odour of alcohol and the defendant had glossy eyes. Once the defendant was cleared by EMS and refused to go to the hospital the officer decided to make an ASD demand. Being satisfied as to the device being in good working order, the defendant complied with the demand, resulting in a fail.

Going to grounds was also the assertion by the defendant that he had probably had too much, but that it wasn’t his fault.

The defendant was arrested, given rights to counsel and cautioned as well as the breath demand, and taken to the detachment where the defendant changed his mind given the wait for duty counsel, and wished to then proceed with the intoxilyzer test, which he commenced at the same time as duty counsel called back, in response to which the officer in the breath room advised the defendant.

The defendant elected to speak with duty counsel and did so before being returned to the breath room to complete the process there, resulting in truncated readings of 180 and 170.

P.C. Robertson attended the accident scene to assist the other officers on scene. She observed the imprint of the defendant’s licence plate in the rear bumper of the complainant’s vehicle. Also seen in the defendant’s vehicle were fishing equipment and a half-empty bottle of vodka.

When requested by P.C. Clapham about an intended ASD demand, this officer assisted by retrieving the ASD and bringing it over to the defendant’s location for P.C. Clapham to administer the test.

Sergeant Croll was the Qualified Breath Technician in this investigation. He described the defendant being impatient awaiting the duty counsel call back. The sergeant asked the defendant if he wished to proceed to the test and the defendant said yes. The sergeant directed P.C. Clapham to advise him as soon as duty counsel called. He interrupted the testing when duty counsel called to facilitate the defendant’s access to a lawyer.

The sergeant confirmed that, when asked, the defendant replied that he was not satisfied with the legal advice from duty counsel.

Sergeant Croll completed the intoxilyzer testing, resulting in the Certificate of Analysis being produced.

I am satisfied that the combined testimony of the two civilians amount to proof beyond a reasonable doubt that the defendant was the driver of the subject vehicle hitting the complainant’s car. Given the totality of identity markers by way of proximity to the defendant’s vehicle, the observation of his walking from that vehicle to the ditch and that he was placed into the ambulance, amounts to my finding that the defendant was indeed the driver.

I find the defendant was impaired. I do take into account there was a collision, which may have resulted in the defendant hitting his head, and the leg injury revealed in the breath room may have been a participating factor in any ambulatory issues. But any such consequences of these factors are, in my mind, minimized by the defendant refusing medical intervention or going to the hospital. However, the fact of the unexplained collision of sufficient force to leave the licence plate impression in the other car’s bumper, the walking to the ditch, asking for a blanket to be covered up, the stumbling observed by Mr. Pochodaj, the defendant’s actions of slapping towards the EMS attendant, the odour of alcohol and glassy eyes all become a constellation of factors on which I find the defendant was indeed impaired.

The intoxilyzer readings, once admitted, would satisfy the over 80 count.

However, the Charter issues here mean my analysis must continue.

In reading rights to counsel to the defendant, P.C. Clapham did not appear to further explain counsel options in response to the defendant advising that he did not have a lawyer, so would, “Have to do duty counsel” as opposed to explaining available options that could be provided at the detachment. By itself, this observation would not amount to a breach since duty counsel was contacted at the defendant’s request and, in rather unusual circumstances, contact facilitated with the defendant.

However, after the duty counsel call was completed and the defendant asked if he was satisfied, the answer was no. That expressed lack of satisfaction was not explored by the involved officers. Indeed, the defendant was cut off when complaining about duty counsel.

While some of the conversation in the hallway regarding the duty counsel complaint was caught on the breath room audio, it was apparent that there was much more conversation that was not being recorded.

Worse, when the defendant changed his mind about waiting for duty counsel that discussion was in the unrecorded hallway without any detailed notes of what was said, let alone verbatim ones. When Sergeant Croll confirmed the defendant wished to not wait for duty counsel and start the testing process there was a total absence of a Prosper warning. Without an independent recording of the conversations in the hallway throughout the detention period it is impossible for me to find any evidentiary grounding that Prosper was complied with in any manner, let alone that the defendant, “Unequivocally, clearly waived his right to counsel while in the hallway.” Without the Prosper warning, let alone some additional inquiry upon the defendant saying he was not satisfied with duty counsel advice, I see no basis to find that there was an informed waiver.

I find that, while assertive at times with the officers, the defendant, in custody, was obviously in a power imbalance dynamic. I disagree with the Crown submissions if they suggest the onus is on the defendant to comply with the Prosper obligation.

To his credit, I do note that the sergeant did direct that he be advised upon duty counsel calling back. Duty counsel did call back around the time of the first test, but in the hallway videos I observed the officer who took the call to be rather slow in her return to the breath room and stopping to have a quick conversation with another officer, or if not stopping, slowing down substantially. While the timing is tight, I am left with a strong concern that, had the officer proceeded directly to the breath room, the first test might have either been pre-empted for the defendant to have access to counsel, or at the very least the test could have been interrupted in order for legal advice to be provided prior to any completed first test. I am not suggesting that officers in this situation are supposed to make a mad dash back to the breath room, but the pace here on the video is not consistent with the importance of facilitating access to counsel before the testing.

I also find that the lack of audio recording in the detachment hallways is shocking and a barrier to a full record of the process in the detachment. Many other police stations, in my experience, have hallway audio, if only at the booking station. How much does a recording device cost to prevent any confusion over what might have been said with the consequential increased costs to the justice system when this evidentiary lacuna becomes an unnecessary triable issue?

It follows that I find breaches of the defendant’s Charter rights, both by way of insufficient informational compliance by the police in both the lack of a Prosper response and the lack of response to the defendant’s complaint about the duty counsel, as well as the delay in interrupting the breath tests as soon as practicable when the duty counsel did call back.

While I am not yet relying on the systemic potential of not audio recording the detachment hallways, I find there is a strong potential for founding Charter breaches on the lack of institutions ensuring an accurate record in future cases. I am concerned that the lack of audio recording has an impact on judicial resources, given the consequential trials and length of trials contesting what was said, but leave this issue to the future with perhaps a more comprehensive record as to whether the OPP do not install audio recording in other or all other detachments.

In assessing the Grant criteria, I find that while I do not find any premeditated intent to breach the defendant’s rights, the accumulation of actions frustrating the defendant’s right to counsel is very serious, especially when the defendant was cut off in his complaint about the duty counsel and the Crown’s acknowledged breach of delaying informing the defendant of the duty counsel call back, an acknowledgment with which I agree.

I find a serious impact on the defendant’s right to access counsel in that there was a functional failure to uphold the state’s obligations, both with the informational and facilitation of his right to counsel. It is not for me to second-guess what counsel’s legal advice might be.

I agree that there is a strong societal interest in an adjudication on its merits and the exclusion of investigative evidence undermines that. That balancing of the societal value in adjudicating on the merits of a charge is especially important in cases of drinking, driving and the carnage it causes in all of our communities.

However, there is also a strong, if not stronger, societal interest in protecting Charter rights for all members of the public in addition to the defendant. Sections 10(a) and 10(b) are foundational protections for everyone in society being detained in custody. The state obligation to ensure access to counsel ensures that all detainees have the ability to contact others outside of the holding facility and prevent illegal detentions as well as, for example, the ability to arrange for counsel and potential sureties if being held for a bail hearing to minimize the length of being deprived of one’s liberty. To lessen the importance and necessity of enforcing s. 10 protections where the likelihood of immediate release is to erode that importance when release is not necessarily anticipated.

I find that in balancing the Grant criteria, the circumstances here would result in the risk of bringing the administration of justice into disrepute should I admit the evidence of the breathalyzer readings into the trial.

The evidence in the charge of over 80 is hereby excluded.

The next question is whether the evidence regarding supporting a finding of impairment should be excluded.

R. v. Pino, 2016 ONCA 389 directs the analysis under s. 24(2) of the Charter to be, at paragraph 72:

“Based on the case law, the following considerations should guide a court’s approach to the ‘obtained in a manner’ requirement in s. 24(2):

• The approach should be generous, consistent with the purpose of s. 24(2);
• The court should consider the entire chain of events between the accused and the police;
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections;
• But the connection cannot be either too tenuous or too remote.”

Paragraph 73:

“Here, the two s. 10(b) breaches, along with the s. 8 breach meet the ‘obtained in a manner’ requirement. The marijuana seized from the trunk of Ms. Pino’s car and all three Charter breaches are part of the same transaction. That transaction or the common link between the evidence and the breaches is Ms. Pino’s arrest.”

I do accept that in the case above there is both a temporal and perhaps a contextual component in that the observations made of the defendant were part of the same investigation. That is not the same as finding that it was part of the same transaction or course of conduct given that the breaches are completely contained from the moment of arrest and within the detachment, other than, at arrest, the need for more explanation regarding choice of counsel when rights to counsel were first provided, which I am not relying upon in my analysis.

While I must be generous and consistent with the purpose of s. 24(2), but ensure that any connection between the evidence and the breaches not be too tenuous or too remote.

In the case at bar, the evidence to support the finding of impairment was completed on the scene by observations of the civilian witnesses to form my conclusion that their testimony created a strong inference of the defendant being the driver as well as the observations of the defendant stumbling and his behaviour in the ditch. With the officers’ observations as to his conduct with the EMS attendants prior to arrest, the odour of alcohol observed on the defendant prior to arrest, his glassy eyes and unexplained accident amount to, as previously stated, proof beyond a reasonable doubt of impairment.

All of this evidence supporting a finding of impairment occurred prior to the arrest, let alone the state conduct at the detachment. None of the police actions on the scene prior to arrest amounted to any form of Charter breaches and, as such, I find the temporal connection to state misconduct by itself is too remote and tenuous in the specific facts here, and my conclusion is restricted to the facts at trial in this case only. Other factual connections may very well result in a different result.

In conclusion, while the evidence on the over 80 is excluded and a verdict of not guilty entered, I do find the defendant guilty of impaired care and control.

...REMAINDER OF PROCEEDINGS RECORDED, BUT NOT TRANSCRIBED

…WHEREUPON THESE PROCEEDINGS WERE ADJOURNED

Certification

Form 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Kendra Kelly certify that this document is a true and accurate transcription of the recording of R. v. Allen Henriksen in the Ontario Court of Justice held at 10 Louisa Street, Orangeville, ON. taken from Recording No. 0611_102_20230612_090631_6_WAKEFIG.dcr, which has been certified in Form 1.

July 4, 2023 Kendra Kelly (Date) (Electronic signature of authorized person)