His Majesty the King v. Wilton Edwards, 2024 ONCA 135

Court: Court of Appeal for Ontario Date: 2024-02-23 Docket: COA-23-CR-0030

Coram: Doherty, Trotter and Sossin JJ.A.

Between: His Majesty the King, Appellant And: Wilton Edwards, Respondent

Counsel: Davin Michael Garg and Brent Kettles, for the appellant Eric S. Neubauer, for the respondent

Heard: November 23, 2023

On appeal, pursuant to leave to appeal granted on January 12, 2023, from the judgment of Justice Nancy J. Spies of the Superior Court of Justice, sitting as a summary conviction appeal court judge, dated July 11, 2022, and reported at 2022 ONSC 3684.

Doherty J.A.:

OVERVIEW

[1] The respondent was charged with one count of “over 80” and one count of impaired driving. The Crown proceeded summarily. The respondent was found guilty on both charges at trial. The trial judge entered a conviction on the “over 80” charge and, applying the “Kienapple” principle, stayed the impaired driving charge.

[2] The respondent appealed his conviction to the Summary Conviction Appeal Court (“SCAC”). The SCAC allowed the appeal and ordered a new trial on both charges. On the impaired driving charge, the SCAC held the trial judge failed to give adequate reasons for finding the respondent guilty on that charge. On the “over 80” charge, the SCAC held that the trial judge had erred in law when he found that the police had complied with the requirements of s. 10(b) of the Charter. The SCAC concluded the police had failed to comply with s. 10(b) of the Charter in various ways, and the breathalyzer results should have been excluded from evidence under s. 24(2) of the Charter. The SCAC ordered a new trial on both counts, and further ordered that the breathalyzer results were inadmissible at the new trial. [1]

[3] This court granted leave to appeal to the Crown. On the appeal, the Crown takes aim at both findings in the SCAC. The Crown submits that, viewed functionally in the context of the evidence and the arguments made before the trial judge, the reasons adequately explain the basis for the finding of guilt on the impaired driving charge. In respect of the s. 10(b) ruling, the Crown claims that the analysis of the SCAC is contrary to binding case law and, to a large extent, premised on findings of fact and credibility that are inconsistent with the findings made at trial. The Crown submits that there were no grounds upon which the SCAC could properly set aside the findings of fact and credibility assessments made by the trial judge.

[4] I would allow the appeal. I am in substantial agreement with the arguments made by the Crown on the s. 10(b) issues. The trial judge did not err in holding that the police had complied with their obligations under that provision. The breathalyzer results were properly admitted at trial. I would restore the “over 80” conviction.

[5] I am also satisfied that the SCAC erred in holding that the trial judge’s reasons on the impaired driving charge were inadequate. Although the trial judge addressed the evidence primarily in the context of the s. 10(b) arguments, I think it is plain that the findings extended to a determination that the respondent was impaired by alcohol when he was found asleep behind the wheel of a running, stopped vehicle on an exit ramp from Highway 401.

The Events Leading to the Respondent’s Arrest

[6] Ontario Provincial Police officers responded to a call shortly before 6:00 a.m. on Saturday, October 20, 2018. The call reported a vehicle stopped on an off-ramp from Highway 401.

[7] The officers arrived at the scene at about 6:07 a.m. The officers saw a vehicle stopped in a live lane of traffic on the off-ramp, about a car’s length from the intersection of Weston Road, a busy Toronto thoroughfare. The lights in the vehicle were on and the engine was running. A line of traffic had formed behind the vehicle.

[8] The officers found the respondent sound asleep, sitting in the driver’s seat of the vehicle. The officers rapped on the driver’s side window of the vehicle for several seconds before the respondent roused. When the respondent rolled down the driver’s side window, the officers immediately noticed a strong odour of alcohol. The respondent was confused and disoriented. His eyes were glassy and his words were slurred. He asked the police, “Why are you here? What do you want?”

[9] The respondent’s vehicle rolled backward on two occasions while the officers were trying to speak with the respondent. On the second occasion, it struck the bumper of the truck behind the respondent’s vehicle. The respondent seemed unable to understand when the police told him to “brake” his vehicle and put the vehicle “in park”. [2]

[10] The officers removed the respondent from the vehicle, charged him with impaired driving, advised him of his right to counsel, and took him to the police station. Eventually, a breathalyzer test was administered and the respondent blew .130.

[11] The officers who took the respondent to the police station after his arrest did not note any indicia of impairment, either outside the vehicle on the roadside, or during the booking procedure at the police station. The video of the booking procedure did not reveal any indicia of impairment. The breathalyzer technician who dealt with the respondent about an hour after his arrest, did note a smell of alcohol on the respondent’s breath, but did not observe any other indicia of impairment.

The Evidence Relating to the s. 10(b) Issues

[12] Crown counsel has provided a helpful timeline of the relevant events:

TIMES	EVENTS
6:13 a.m.	At the roadside, Officer Lewis reads the respondent his rights to counsel and advises, “You have the right to telephone any lawyer you wish”. The respondent indicates he has his lawyer’s number in his cellphone. [3]
6:31 a.m.	The respondent arrives at the police station. Officer Lewis gives the respondent his cellphone and the respondent sends a text message to the personal cellphone of his counsel of choice. Officer Lewis asks the respondent whether he has a second lawyer he wishes to contact. The respondent indicates he does not know of a second lawyer to contact. Officer Lewis asks the respondent whether duty counsel would be suitable if his counsel of choice does not respond. The respondent indicates duty counsel would be suitable.
6:37 a.m.	Officer Lewis phones counsel of choice and leaves a voicemail, detailing the situation and asking counsel to call back. The voicemail message on the phone confirmed that the police were calling the number of the lawyer the respondent wanted to contact.
6:49 a.m.	Officer Lewis leaves a message for duty counsel.
6:56 a.m.	Duty counsel calls back.
6:58 a.m.	The respondent speaks with duty counsel for seven minutes. Officer Lewis asks the respondent whether he is satisfied with the consultation with duty counsel. The respondent replies, “sure”.
7:07 a.m.	The respondent is taken to the breathalyzer room. The respondent confirms for a second time that he is satisfied with his consultation with duty counsel. However, he immediately adds, “But I didn’t get a chance to call back my lawyer”. The breathalyzer technician asks if the respondent wants the officers to make a further attempt to contact counsel of choice. The respondent replies, “Sure, that would be good”.
7:14 a.m.	Officer Lewis telephones counsel of choice again and leaves another voicemail.
7:26 a.m.	The respondent is taken back into the breath room.
7:31 a.m.	The respondent provides his first breath sample into the approved breathalyzer instrument an hour after the first attempt to contact his counsel of choice.

The Alleged s. 10(b) Errors

[13] Section 10(b) of the Charter provides:

Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right

[14] Section 10(b) guarantees to persons detained by the police the right to contact and consult with counsel without delay. The right is intended to mitigate the legal jeopardy and psychological disadvantage inevitably flowing from detention by the police: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 27-28.

[15] To serve its intended purpose, s. 10(b) requires that the police inform a detainee of the right to retain and instruct counsel without delay and of the availability of duty counsel. If a detainee indicates a desire to exercise the right to retain and instruct counsel, the police must, absent urgent and dangerous circumstances, afford the detainee a reasonable opportunity to exercise that right. The police must refrain from attempting to elicit evidence from the detainee until he has had a reasonable opportunity to speak with counsel, again except in cases of urgency or danger: Willier, at para. 29; R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 38; R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269.

[16] The police initially advised the respondent of his right to counsel at the roadside immediately after his arrest. There is no complaint with the police decision to take the respondent to the station before giving him the opportunity to contact counsel. There is also no issue that the police made a proper demand for a sample of the respondent’s breath. The alleged s. 10(b) violations relate to the events at the station.

[17] The trial judge held that there was no breach of s. 10(b). The SCAC found that the police failed to comply with s. 10(b) in three ways:

• The police failed to tell the respondent he was entitled to wait a reasonable time for his counsel of choice to make contact before speaking with duty counsel;
• The police, having assumed responsibility for contacting the respondent’s counsel of choice, did not act with reasonable diligence in their efforts to facilitate contact with that counsel; and
• The police failed to wait a reasonable time before requiring the respondent to avail himself of duty counsel.

[18] The Crown contends that each of the three reasons advanced by the SCAC for the failure to comply with s. 10(b) reveal legal error. I agree.

Were the police required to tell the respondent he was entitled to wait a reasonable time for counsel of choice to call back before speaking with duty counsel?

[19] The informational component of s. 10(b) requires the police to advise the detainee of the availability of Legal Aid/duty counsel: R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Bartle, [1994] 3 S.C.R. 173. The SCAC concluded that in addition to telling the detainee he had a right to speak with duty counsel, the police were also obliged to tell the detainee that he was entitled to wait a reasonable time for his counsel of choice to respond before choosing to speak with duty counsel. The SCAC held, at para. 72:

In this case, it is undisputed that the officers never advised Mr. Edwards that he could wait a reasonable time for his counsel of choice to call back. Their actions also left him with the impression that he could not wait any longer and so his only option was the duty counsel advice he had already received. The failure of the trial judge to even consider these informational breaches was clearly an error in law. Moreover, had the trial judge considered the issue, there could be no dispute that as a result, there was a clear failure of police to fulfil their informational obligation to Mr. Edwards and thus a violation of his s. 10(b) rights. [Emphasis in original.]

[20] The informational breach of s. 10(b) found by the SCAC is identical to the informational breach of s. 10(b) identified in Prosper. The facts of that case were, however, different. In Prosper, the police made a breathalyzer demand. The detainee asserted his right to counsel. He was given a list of names of counsel who he could speak with on the telephone. After unsuccessfully attempting to contact all of the lawyers on the list, the detainee was offered a telephone book so he could look up the names of “private lawyers”. The detainee declined to make further attempts to contact counsel, indicating he could not afford to pay a “private lawyer”. The detainee agreed to forgo his right to counsel and take the breathalyzer test.

[21] The majority held that the detainee’s purported waiver of his right to counsel was ineffective in the circumstances. An effective waiver required that the detainee be told that the police could not administer the breathalyzer until the detainee had a reasonable opportunity to contact counsel. In the words of Lamer C.J.C., at p. 274:

In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell a detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. [Emphasis added.]

[22] The holding in Prosper is explained in Willier. In Willier, after an unsuccessful attempt to contact counsel of choice, the detainee was advised that it was unlikely he would be able to contact his lawyer until the next day. The police reminded the detainee of the immediate availability of duty counsel. The detainee chose to speak with duty counsel and expressed satisfaction with the advice he received. The police proceeded to question the detainee after he had spoken with duty counsel.

[23] In Willier, the detainee, relying on Prosper, argued that he should have been told he was entitled to wait a reasonable amount of time to permit his lawyer of choice to respond before speaking with duty counsel. The majority in Willier distinguished Prosper, holding that the additional informational requirement in Prosper applied only where a detainee was diligent but unsuccessful in contacting counsel and subsequently declined counsel. In short, Prosper was a waiver case. The “additional informational obligation” laid down by Lamer C.J.C. was intended to ensure that the waiver of the right to counsel was both informed and effective. In Willier, there was no waiver. The detainee had elected to exercise his right to counsel by speaking with duty counsel. The majority said, at para. 39:

The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10(b) right. Instead, unsuccessful in contacting Mr. Royal, he exercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with a Prosper warning, and its absence fails to establish a Charter breach.

[24] Willier applies in this case. The respondent, having been unsuccessful in contacting counsel of choice, chose to exercise his right to counsel by speaking with duty counsel. There was no waiver and, hence, no concern about the validity of any waiver.

[25] R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, released at the same time as Willier, adopts the same reasoning. In McCrimmon, the detainee indicated he wished to speak with a named lawyer. The police attempted, unsuccessfully, to contact that lawyer. The detainee advised the investigating officer that he was unsure whether the named lawyer would return the call. The officer asked the detainee if he would like to speak with a Legal Aid lawyer. The detainee replied that he would, but that he would prefer to speak with named counsel. The detainee then spoke privately with duty counsel for about five minutes, after which he was questioned by the police. In rejecting the submission that the detainee’s rights under s. 10(b) had been breached, the majority said, at para. 19:

While Mr. McCrimmon expressed a preference for speaking with Mr. Cheevers [the lawyer], the police rightly inquired whether he wanted to contact Legal Aid instead when Mr. Cheevers was not immediately available. Mr. McCrimmon agreed, exercised his right to counsel before the interview began, and expressed satisfaction with the consultation. He also indicated an awareness of his rights at the commencement of the interview. In these circumstances, there was no further obligation on the police to hold off the interrogation until such time as Mr. Cheevers became available.

[26] Counsel for the respondent submits that even if Prosper is not directly controlling, the right to counsel of choice requires that the police not do anything to mislead the detainee about his right to a reasonable opportunity to contact counsel of choice. Counsel argues that if the police intentionally or unintentionally suggest to the detainee that he should or must forgo his right to counsel of choice in order to speak with duty counsel, the police conduct will violate s. 10(b). Counsel further contends that in some circumstances, and this case presents one example, the only way the police could avoid misleading the respondent was to specifically tell him he was entitled to wait a reasonable time for his counsel of choice to return the call before choosing to speak with duty counsel.

[27] The right to counsel in s. 10(b) clearly includes the right to a reasonable opportunity to contact counsel of choice. Police conduct which interferes with a detainee’s ability to contact counsel of choice within a reasonable time will amount to an infringement of s. 10(b). Counsel has provided this Court with several cases involving allegations that the police conduct led the detainee to believe that he had to either speak with duty counsel when offered, or forgo the opportunity to consult with counsel: e.g. see R. v. Vernon, 2015 ONSC 3943, 88 M.V.R. (6th) 84, leave to appeal refused, 2016 ONCA 211; R. v. Lewis, 2019 ONSC 5919, 451 C.R.R. (2d) 190, at paras. 38-41. In those cases, trial judges had made findings that the conduct of the police led the detainee to believe that his only option was to speak with duty counsel, and that waiting to speak with counsel of choice was no longer a viable option: see also Willier, at para. 43.

[28] In the present case, the trial judge did not find that the respondent was in any way misled or coerced by the police into believing his only option was to speak with duty counsel. On the trial judge’s findings, the respondent was offered the opportunity to speak with duty counsel, accepted that opportunity, spoke with duty counsel, and twice indicated he was satisfied with the conversation. The trial judge specifically rejected as untrue the respondent’s evidence that he was dissatisfied with his conversation with duty counsel, stating at para. 29:

Mr. Edwards had already told the police he was satisfied with his conversation with duty counsel. That exchange was clearly captured on video and I do not accept Mr. Edwards’ testimony that he was unhappy with his conversation with duty counsel. Mr. Edwards was perfectly capable of expressing discontent.

[29] The trial judge found as a fact, contrary to the respondent’s testimony, that the respondent could, and did, make the choice to speak to duty counsel. He exercised that choice and told the police, on two occasions, that he was satisfied with the consultation.

[30] The SCAC made a different credibility assessment and different findings of fact. In doing so, she held, contrary to the trial judge’s finding, that the respondent was “credible” on the relevant issues. On the findings made by the SCAC, the respondent was “steered” to duty counsel. The findings made by the SCAC brought the facts of this case into line with cases like Vernon and Lewis.

[31] The SCAC could reverse the trial judge’s factual findings and credibility assessments only in very limited circumstances: R. v. Sheahan, 2017 ONCA 159, 8 M.V.R. (7th) 1, at paras. 12-13. Her reasons do not identify the basis upon which she set aside the trial judge’s findings and I see no grounds for doing so. On those findings, Willier and McCrimmon control. It was unnecessary to expressly advise the respondent that he was entitled to wait a reasonable amount of time to communicate with his counsel of choice before speaking with duty counsel. The failure to do so did not constitute a breach of s. 10(b) of the Charter.

Did the police take reasonable steps to contact the respondent’s counsel of choice?

[32] A detailed timeline is set out above (para. 12). The relevant events occurred between 6:31 a.m. and 7:31 a.m. During that time, the respondent texted his counsel of choice and the police placed two phone calls to counsel’s personal cellphone and left messages. The police also asked the respondent if he had any other lawyer he wanted to call. Finally, the police offered to contact duty counsel. The respondent accepted the offer and the police contacted duty counsel. He spoke with the respondent for seven minutes, after which the respondent indicated he was satisfied with the consultation. The administration of the breathalyzer test began almost exactly an hour after the respondent’s first effort to contact his counsel. His counsel never did contact the police station.

[33] After reviewing the evidence, the trial judge indicated he was satisfied that the respondent had been given a reasonable opportunity to contact counsel of choice. On the trial judge’s view, the respondent had chosen to speak with duty counsel and indicated he was satisfied with that consultation.

[34] The SCAC concluded the police had not taken reasonable steps to connect the respondent with counsel of choice. She reached that conclusion for two reasons. First, there were things the police did not do that they reasonably could have done to assist the respondent in contacting counsel. For example, the police did not make any effort to find out if the named counsel had a website that might contain an “after-hours” phone number. Nor did the police specifically ask the respondent if he had another way of contacting his counsel.

[35] The second reason the SCAC concluded the police had not acted reasonably in attempts to facilitate contact with counsel arose out of her characterization of the police offer to contact duty counsel. The SCAC described the offer as an effort by the police to “direct Mr. Edwards to duty counsel”. On her view of the evidence, the police “steered” the respondent toward duty counsel virtually from the arrival at the police station.

[36] The obligation on the police to facilitate contact with counsel and the responsibility of the detainee to take reasonable steps to contact counsel work in tandem. The police must make reasonable efforts to connect the detainee with counsel of choice “without delay”: Willier, at para. 29. The detainee must exercise reasonable diligence in his or her efforts to connect with counsel of choice: Willier, at para. 33; R. v. Ghotra, 2020 ONCA 373, 388 C.C.C. (3d) 416, at paras. 33, 38-41, aff’d 2021 SCC 12, 405 C.C.C. (3d) 160. Both obligations are tested against reasonableness-based standards: R. v. Tremblay, [1987] 2 S.C.R. 435, 37 C.C.C.(3d) 565; Bartle, at p. 192; R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.).

[37] The language used in some cases suggests a different test if the police have assumed control over the means by which counsel can be contacted, as for example in this case when the police took the respondent’s cellphone. Those cases speak in terms of the police having to pursue access to counsel as “diligently” as the detainee would personally have done so. This language suggests a personalized or subjective component to the requirements imposed on the police by s. 10(b), and raises the possibility that the police could act reasonably in attempting to contact counsel and yet still breach s. 10(b) because, despite acting reasonably, they failed to do something the accused would have done to contact counsel: see R. v Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 43; R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at para. 42; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 30-31; R. v. Maciel, 2016 ONCJ 563, 32 C.R. (7th) 174, at paras. 42-43; R. v. Ali, 2018 ONCJ 203, 29 M.V.R. (7th) 143, at paras. 57-59, aff’d 2020 ONSC 1005, 63 M.V.R. (7th) 323.

[38] On my reading, these authorities do not intend to, and more importantly could not as a matter of law, depart from the “reasonable diligence” standard repeatedly accepted in the Supreme Court of Canada jurisprudence: Willier, at paras. 33-35; McCrimmon, at para. 17.

[39] As I read the cases, while they refer to acting as “diligently” as the detainee would have acted, they also refer to the detainee as using reasonable diligence in seeking out counsel: e.g. see Ali, at paras. 58-59. In other words, the diligent detainee in the circumstances is a detainee who acts with “reasonable diligence”.

[40] I would also observe that there are significant difficulties in applying a diligence standard that would incorporate the steps a particular detainee would take in a given situation. The police would in most cases have no way of knowing what the detainee would have done in the specific situation, and therefore no way of knowing how they could properly comply with their obligation under s. 10(b). However, if the police obligation is measured strictly in terms of reasonable diligence, the police should have no difficulty in understanding the requirements imposed by that obligation in any given situation.

[41] A subjective test which looks to the detainee’s particular expectations could also undermine the very purpose of s. 10(b). There are situations in which a particular detainee would do nothing to contact counsel of choice, other than wait for the police to do so. The protection afforded by access to counsel would be significantly diminished, if the police were to be absolved of their responsibility to take reasonable steps to connect a detainee with counsel, in cases where the police had assumed control over contact, simply because on the evidence, the detainee would not have taken any reasonable steps to contact counsel.

[42] The purpose of s. 10(b) is best served by testing police compliance with their requirements against the reasonable diligence standard. That standard will, of course, reflect the particular circumstances of the case, including the extent to which the police have assumed control of the detainee’s ability to contact counsel. If the police assume that control, it is reasonable to expect that the police will take a more active role in contacting counsel.

[43] Neither of the reasons offered by the SCAC for finding the police had not taken reasonable steps to connect counsel with the respondent are persuasive. The suggestion that there may have been a website with additional contact information available to the police is speculative. It is equally speculative to assume that even if there was a website, the phone number would be any different than the private cellphone number the police already had. The defence led evidence from the person the respondent was attempting to contact. If there were readily available alternative means by which to contact that person, it is fair to expect that the defence would have brought that evidence forward. In any event, the proper approach to s. 10(b) is to ask whether, in all the circumstances, the police took reasonable steps to connect the detainee with counsel of choice, not whether there is some additional step the police did not take which may have assisted in contacting counsel.

[44] I also cannot agree that the police failure to specifically ask the detainee whether he had some other way of contacting counsel of choice rendered the police efforts unreasonable. The police and the respondent were engaged together in an effort to contact counsel. Both had left messages for counsel, and the police had asked the respondent whether he had any other counsel that he might wish to contact. In these circumstances, it is entirely reasonable for the police to assume that if the respondent had further information that might assist in contacting his counsel, he would provide it to the police. The respondent, who testified on the s. 10(b) voir dire, did not suggest he had any additional information that he would have given the police had they asked for it.

[45] Finally, the SCAC finding that the police did not act diligently in connecting the respondent to counsel, but instead “steered” the respondent to duty counsel is, for the reasons explained above, contrary to the trial judge’s findings of fact on the issue. There is no reason to set aside the trial judge’s findings and the SCAC was wrong in doing so.

Did the police wait a reasonable time for counsel of choice to call back before proceeding with the breathalyzer test?

[46] The police administered the breathalyzer test an hour after the respondent made his first attempt to contact counsel. The SCAC found that the time given to the respondent to contact counsel of choice was inadequate. This finding, like others made by the SCAC, was predicated on her determination that within moments of affording the respondent the opportunity to contact counsel, the police began to “steer” the respondent toward duty counsel. The SCAC accepted the respondent’s evidence that he believed he had no choice but to speak with duty counsel and, if given the opportunity, would have waited to speak with counsel of choice.

[47] Once again, the SCAC substituted her findings of fact and credibility for those of the trial judge. She was not entitled to do so. Whether the police complied with their obligations under s. 10(b) must be tested on the facts as found by the trial judge.

[48] I find no error in the trial judge’s conclusion that the police waited a reasonable time before proceeding with the breathalyzer test. Reasonableness is not simply a measure of time, but looks to the circumstances of the case: Willier, at para. 35. In this case, the police waited an hour from the respondent’s first attempt to contact counsel until they required the respondent to provide a breath sample. In that hour, three attempts were made to contact counsel of choice, the respondent declined an offer to contact other counsel, and the police put the respondent in contact with duty counsel, who spoke with the respondent for some seven minutes. On the evidence accepted by the trial judge, the respondent was satisfied with the advice provided by duty counsel. The fact the respondent received legal advice with which he was satisfied, while waiting for counsel of choice to contact him, was a relevant consideration in determining whether the police waited a reasonable time for counsel of choice to call back.

Conclusion

[49] The SCAC erred in law in finding that the police did not meet their obligations under s. 10(b) of the Charter. There was no breach of s. 10(b). There was no reason to exclude the breathalyzer results from evidence. On those results, the respondent was properly convicted of “over 80”.

The Adequacy of the Reasons on the Impaired Driving Charge

[50] The trial proceeded by way of a combined application to exclude the breathalyzer results under s. 24(2) of the Charter and a trial on the merits of the charges. The respondent testified on the Charter issues, but not on the merits of the allegations.

[51] In keeping with the manner in which the trial had proceeded, the trial judge addressed the Charter issues and the merits in one set of reasons. The reasons focused largely on the Charter-related issues. Based on the trial judge’s ruling on the Charter issues, he admitted the breathalyzer results leading to a finding of guilt on the “over 80” charge. The trial judge then turned to the impaired driving charge and said, at para. 33:

In respect of the impaired care and control charge, I am satisfied that the only explanation for the state of Mr. Edwards’ obliviousness to his surroundings and his level of confusion upon being woken by the officer is that he was impaired by alcohol. Mr. Edwards is also guilty of impaired care and control.

[52] The SCAC was satisfied that, while the trial judge properly considered certain potentially exculpatory evidence in the context of determining whether the police had reasonable grounds to arrest the respondent, one of the issues on the voir dire, the trial judge did not revisit that evidence when considering whether the Crown had proved beyond a reasonable doubt that the respondent was impaired. While it is true that the trial judge did not repeat the evidence and expressly consider the evidence in the context of the reasonable doubt standard, his failure to do so does not render the reasons inadequate. Trial judges are presumed to know the law, especially legal principles as basic as the standard of proof. Nor are they necessarily required to rehearse the evidence, particularly when they have already addressed the evidence in detail on a related issue in the reasons. In the end, the question becomes whether the failure to repeat the evidence and restate the findings made with specific reference to the applicable standard of proof rendered the reasons inadequate as a matter of law.

[53] The approach to be taken by appeal courts to claims of inadequate trial reasons is well established. The SCAC, at paras. 27-30, canvassed the leading authorities. I need not repeat that exercise.

[54] The trial judge made strong findings of fact in the course of his s. 10(b) analysis. He emphasized the circumstances in which the police came upon the respondent and the respondent’s reaction to the police, at para. 15:

[T]he circumstances of what the officers witnessed amount to much more than a benign description of an individual ‘asleep in a vehicle’. Mr. Edwards was asleep, in a running vehicle in a live lane of traffic on an off-ramp from Highway 401. He remained asleep through apparent honking, the arrival of a tow truck and the arrival of police. Indeed, he remained asleep even when police knocked on his window. Those circumstances amount to a level of obliviousness to one’s circumstances consistent with a highly impaired state of judgment.

[Emphasis in the original.]

[55] The SCAC, at para. 40, indicated the trial judge failed to consider the “reasonable innocent inference” that the respondent was not impaired, but was in a “deep sleep” when the police found him. With respect, this “innocent inference” is not innocent at all. On the evidence, the respondent did not fall asleep while driving the vehicle. The vehicle did not leave the roadway. Instead, the vehicle was stopped on the off-ramp lane from Highway 401. Clearly, the respondent stopped the vehicle, put it in neutral, left the engine idling, and proceeded to fall into a deep sleep with the vehicle sitting in an active off-ramp lane from Highway 401.

[56] To describe the respondent as “asleep” does not offer an “innocent inference” concerning his behaviour. The fact that he was “asleep” (or unconscious or passed out) in the place and circumstances where he was found is entirely consistent with the trial judge’s finding that he was in a “highly impaired state”. A “reasonable innocent inference” would have to offer some “innocent” explanation for the respondent’s decision to stop his car in a live lane of traffic on an off-ramp from Highway 401, leave it running, put it in neutral, and go to sleep behind the wheel. Fatigue alone offers no “innocent inference” for such dangerous decision-making.

[57] The respondent did not testify on this part of the trial. Considering the entirety of the evidentiary record, as this court must do when addressing the sufficiency of reasons, I see no reasonable conclusion other than that the respondent was oblivious to his circumstances and that his obliviousness was, in part at least, a consequence of his consumption of alcohol. That conclusion compels a conviction on the impaired driving count.

[58] The reasons were adequate.

Conclusion

[59] I would allow the appeal, set aside the order of the SCAC, and restore the order of the trial judge. The conviction and sentence on the “over 80” charge are restored, as is the stay entered on the impaired driving charge.

Released: February 23, 2024 Doherty J.A. I agree. G.T. Trotter J.A. I agree. Sossin J.A.

Notes

[1] The order by the SCAC of a new trial on the “over 80” charge is confusing. Having found that the breathalyzer results were inadmissible, there was no evidence to support the “over 80” charge and the SCAC should have acquitted on that charge and limited the new trial to the impaired driving charge.

[2] It turns out the vehicle had a standard transmission and therefore did not have a “park” gear. The SCAC determined that the officers’ reference to the word “park” may have confused the respondent and explained his lack of reaction. There was no suggestion the car did not have brakes, the other word used by the police.

[3] As it turns out, the person the respondent referred to as his lawyer, was in fact a paralegal. Neither parties suggest that this distinction has any effect on the outcome of this appeal. I will use the term “lawyer” or “counsel”.