Court of Appeal for Ontario

Date: 2023-06-28 Docket: C69955

Judges: Lauwers, Pardu and Benotto JJ.A.

Between: His Majesty the King Respondent

And Pheonix Haist Appellant

Counsel: Mindy Caterina, for the appellant Andrew Cappell, for the respondent

Heard: June 13, 2023

On appeal from the conviction entered on April 23, 2021, by Justice Amanda Joy Camara of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant Phoenix Haist says that police violated her s. 10(b) Charter right to be informed of the right to counsel immediately upon detention, as well as failed to facilitate her access to counsel in a timely manner. She submits that her convictions on gun-related offences were unreasonable and a product of a misapprehension of the evidence. She further submits that her refusal to give a breath sample should be excluded because of the violation of her Charter rights under s. 10(b). The appellant did not give evidence at trial.

Factual Background

[2] P.C. Lawrie stopped the appellant for speeding, just after 2:52 a.m., on the Red Hill Valley Parkway. The appellant stopped the vehicle on the right shoulder of the highway, between the guardrail to the right and the traveled portion of the highway to the left. P.C. Lawrie received information that the vehicle the appellant was driving was stolen.

[3] P.C. Lawrie arrested the appellant for possession of a stolen vehicle at 2:57 a.m., while another officer arrested the male passenger of the vehicle for occupation of a stolen vehicle. Immediately upon arresting the appellant, P.C. Lawrie detected the odor of alcohol on her breath. He made a demand for a breath sample at 2:58 a.m., while they were both standing in the area between his vehicle and the guardrail. This took some time, as the appellant refused three times to provide a sample. P.C. Lawrie then arrested her for refusal to provide a sample at 3:04 a.m. He did not have a prisoner compartment in his police vehicle and called for further assistance.

[4] At 3:07 a.m., P.C. Barnes arrived. P.C. Lawrie did a safety pat down of the appellant’s pockets and placed her in the prisoner compartment of P.C. Barnes’ vehicle. At 3:09 a.m., P.C. Lawrie read the appellant her right to counsel. He testified that he knew detainees were to be advised of their right to counsel as soon as possible, but that he waited until she was secured inside a police vehicle to do so, as he was concerned about safety on the side of the road. After reading the appellant her right to counsel, P.C. Lawrie was made aware that alcohol had been found in the vehicle.

[5] P.C. Lawrie arranged for the appellant to be transported to the police station by P.C. Barnes at 3:35 a.m. He said that, in the interval between advising her of her right to counsel at 3:11 a.m. and arranging her transportation at 3:35 a.m., he was occupied with further investigating and documenting items in the appellant’s vehicle. P.C. Barnes was required to wait for P.C. Lawrie to finish these tasks before transporting the appellant to the station, in light of a Hamilton police policy requiring that two officers travel in tandem to take a detainee to the police station, for reasons of officer safety. On the way to the police station, P.C. Lawrie realized he still had the keys to the vehicle the appellant had been driving and had to turn around to deliver them to the officers who were dealing with the vehicle.

[6] P.C. Barnes arrived at the police station with the appellant at 3:46 a.m. They sat in the vehicle, awaiting two or three other vehicles in the sally port ahead of them with prisoners also waiting to be lodged into custody. As P.C. Lawrie was arriving at the station, an officer at the scene of the arrest advised that he had found a loaded firearm inside the vehicle. P.C. Lawrie subsequently arrested the appellant for offences related to the firearm, as well as for breach of undertaking, at 3:57 a.m.

[7] At 3:58 a.m., P.C. Lawrie, once again, read the appellant her right to counsel. After waiting for the detainees ahead of them to be processed, and after the time required to complete the intake process for the appellant, she was finally lodged in a cell at 4:27 a.m. At that point, P.C. Lawrie obtained telephone numbers for the appellant’s counsel of choice and left multiple messages at multiple alternate numbers. There was no response and the appellant ultimately did not speak to her counsel until 5:46 a.m.

Did the trial judge err in dismissing the appellant’s Charter application?

(i) Decision Below

[8] The appellant argued, before the trial judge, that her s. 10(b) Charter rights had been violated at three points:

1. The 12 minutes that elapsed between the appellant’s arrest for possession of a stolen vehicle, at 2:57 a.m., and the advice provided about her right to counsel, at 3:09 a.m., during which P.C. Lawrie administered the breath sample demand;
2. The five minutes that elapsed between the appellant’s arrest for failure to provide a breath sample, at 3:04 a.m. and the advice provided about her right to counsel, at 3:09 a.m; and,
3. The 24-minute delay from the conclusion of the reading of her right to counsel, at 3:11 a.m., to the time police left the scene to transport the appellant to the police station, at 3:35 a.m.

[9] The trial judge dismissed the appellant’s Charter application.

[10] The trial judge held that P.C. Lawrie was obliged, under s. 254(2)(b) of the Criminal Code, to make the demand for a breath sample immediately upon forming the suspicion that the appellant had alcohol in her system. She found that he delayed providing the appellant’s rights to counsel because he was “duty-bound to perform” tasks in relation to the breath sample demand. The trial judge specifically referenced the Supreme Court’s holding, in R. v. Thomsen, [1988] 1 S.C.R. 640, that a failure to provide rights to counsel before a roadside breath demand is a reasonable limit under s. 1 of the Charter because the demand must be administered at roadside and “as quickly as possible.” She concluded that the brief delay in providing the appellant with her right to counsel was a reasonable limit on the right and, thus, did not violate s. 10(b).

[11] The trial judge also concluded that the 5-minute delay between the arrest for refusing to provide a breath sample and the s. 10(b) advice was reasonable in light of safety concerns. P.C. Lawrie was concerned about standing on the side of the highway, in the middle of the night, when other motorists were passing by at high speed. The trial judge found that he acted appropriately by waiting until the appellant was in the police vehicle to advise her of her right to counsel.

[12] The trial judge further rejected the argument that the delay in leaving the roadside to facilitate access to the appellant’s counsel was unreasonable. P.C. Lawrie had some tasks he had to perform at the scene on the side of the highway, including securing the alcohol found in the vehicle. She found the police policy, requiring tandem transport of detainees to the station by two officers, to be “principally grounded; that is, for officer and prisoner safety.”

[13] Once at the station, police acted expeditiously. Although they had to wait for other detainees to be processed, once it was the appellant’s turn, she was processed promptly. P.C. Lawrie made diligent efforts to contact the appellant’s counsel as soon as she was lodged in a cell, and held off any questioning until she had, in fact, spoken to her counsel.

(ii) Analysis

[14] In our view, the trial judge did not err in holding that the delay in providing advice about the appellant’s right to counsel, caused by P.C. Lawrie making the breath sample demand, did not violate the appellant’s s. 10(b) Charter rights.

[15] As this court noted in R. v. Quansah, 2012 ONCA 123, 286 C.C.C. (3d) 307, at pp. 22 and 26:

So long as the demand is validly made pursuant to s. 254(2) – that is, so long as it is made “forthwith” – for Charter purposes there is no unjustified seizure or arbitrary detention or breach of the requirement to advise the detainee of his or her right to counsel.

[T]he constitutional validity of s. 254(2) depends on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit for the police demand for a breath sample and explicit for the mandatory response: the driver must provide a breath sample “forthwith”. The term “forthwith” in s. 254(2), therefore, means “immediately” or “without delay” and indicates a prompt demand by the peace officer and an immediate response by the person to whom that demand is addressed.

[16] The trial judge did not err in concluding that the appellant’s right to counsel was properly suspended, both for the impaired driving investigation and the arrest for the stolen vehicle, to allow P.C. Lawrie to comply with the immediacy requirement of s. 254(2).

[17] We also see no error in the trial judge’s conclusion that the five-minute delay was justified for safety reasons.

[18] Nor did the trial judge err in concluding that the delay in implementing the appellant’s access to her counsel did not violate her s. 10(b) right. The steps taken at the roadside and at the police station were necessary and appropriate, given the location and circumstances of the arrest and the unfolding of events. Both officers and detainees are protected by a policy that requires two officers, in tandem, to transport a prisoner to the police station.

[19] The Charter challenge having been dismissed, there is no other basis advanced on appeal to undermine the conviction for refusal to comply with the breath sample demand.

Did the trial judge err in concluding that the appellant was in possession of the firearm?

[20] The firearm was found inside a pink and white makeup bag, below a tipped-over brown purse, in which a receipt in the appellant’s name was found. The purse contained female clothing, makeup, and other feminine items. There was no evidence that the male passenger had any knowledge of the firearm. There was lots of other debris in the vehicle, including male and female identification in the names of others, as well as another black purse.

[21] The appellant submits that the trial judge erred in failing to consider:

1. The other identification found in the car;
2. The possibility that the receipt might not have been in the brown purse but might have, instead, fallen below the brown purse during the tow; and
3. The presence of another black purse in the front of the vehicle.

[22] The appellant further submits that, while the trial judge correctly cited the Villaroman standard, she applied the standard incorrectly by convicting the appellant based on the most logical inference, rather than on the only logical inference.

[23] Finally, the appellant submits that the convictions based on possession of the firearm were unreasonable. She highlights that: (1) she did not own the vehicle (it had been rented by her ex-husband); (2) there was no evidence of how long she had been in possession of the vehicle or had access to it; (3) there was identification belonging to others in the vehicle; (4) the receipt might not have been in the brown purse; (5) there was another black clutch purse in the front seat; and (6) the firearm was not in plain view – it was in the back seat in a makeup bag.

(iii) Analysis

[24] We are not persuaded that the trial judge misapprehended or ignored the evidence highlighted by the appellant. The trial judge was not obliged to specifically refer to each item of evidence and, further, there is no reason to believe that the trial judge did not consider that evidence. The central plank of the trial judge’s reasoning was the fact that guns are valuable items. She reasoned as follows:

Guns are valuable items. … There is a common-sense inference that: "Parties generally do not hide their valuables in someone else's car unless they know and trust the owner of the car to look after the valuables for them." … It makes little sense that some other party put the firearm in a feminine makeup bag and left it in the car without telling the driver. When all the circumstantial evidence is viewed as a whole, the most logical inference is that the makeup bag and restricted firearm were in the possession of Ms. Haist. I find that Ms. Haist was in possession of the firearm and that she had control over that firearm.

[25] The trial judge was not satisfied, beyond a reasonable doubt, that the male passenger had any knowledge of the firearm or control over it and acquitted him on the gun charges. She was satisfied beyond a reasonable doubt of the appellant’s guilt on the firearm charges.

[26] As this court pointed out in R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at para. 39, “[f]undamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused.”

[27] Further, as noted in para. 38 of Lights, “a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused’s innocence.”

[28] Here, the trial judge gave careful and detailed consideration to the same arguments as made on appeal. A trier of fact, here, “acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole”: Lights, at para. 39.

Conclusion

[29] Accordingly, the appeal is dismissed.

“P. Lauwers J.A.”

“G. Pardu J.A.”

“M.L. Benotto J.A.”