Ontario Court of Justice

Old City Hall - Toronto

Court Information

Between: Her Majesty the Queen

And: Bojan Veljovic

Counsel:

• W. Thompson, for the Crown
• B. Starkman, for the Defendant

Heard: January 4 and 20 and March 1, 2012

Reasons for Judgement

Justice Melvyn Green

A. Introduction

[1] Bojan Veljovic was stopped for speeding on Toronto's Gardiner Expressway in the early hours of December 25, 2010. Criminal charges of operating a motor vehicle while impaired and with a blood alcohol concentration (BAC) in excess of the legal limit followed. The defence claims that Veljovic (hereafter, the defendant) was denied his Charter-guaranteed right to consult with his counsel of choice and that the appropriate remedy for this constitutional breach is an order excluding evidence of his Breathalyzer test results. Crown counsel fairly concedes that, in the particular circumstances of this case, this remedy, if granted, leads to acquittals on the impaired driving charge as well as that alleging an excessive BAC.

[2] The trial proceeded by way of a blended proceeding. Two witnesses testified for the Crown: PC Thomas Reimer (the officer who stopped the defendant and made the initial breath demand of him) and PC Drew Henry (a second officer who attended at the scene to secure the defendant's car and his possessions). The defendant testified with respect to the Charter-related issues only.

[3] The burden to establish any Charter breach and the appropriate remedy, if any, falls to the defendant on a balance of probabilities. However, the ultimate burden — that of proving each essential element of both offences — rests, as in all criminal cases, on the Crown.

B. Evidence

(a) Introduction

[4] PC Reimer's evidence addresses both the substantive charges and the defendant's constitutional claims. PC Henry's testimony, like that of the defendant, speaks only to the Charter issues. There is no dispute that the defendant's Breathalyzer test results, as recorded at 4:43am and 5:06am, both read 170 milligrams of alcohol in 100 millilitres of blood — more than double the legal limit. The core dispute, of course, is the admissibility of these BAC results.

(b) The Police Evidence

[5] PC Reimer was on traffic patrol on the Gardiner Expressway in Toronto in the early hours of December 25, 2010. At 3:33am he clocked the defendant driving westward at an excessive rate of speed, gave chase and curbed the speeding vehicle. The defendant was on the phone when Reimer approached his car. At the officer's request, he finished his call and put his cell phone on the passenger seat beside him. The defendant was the only occupant of the motor vehicle.

[6] Other than glossy eyes, the defendant's roadside behaviour, demeanour, mechanical control, speech and mobility gave no cause for concern. However, Reimer could smell alcohol coming from the defendant's car and the defendant admitted having had a couple of beers a few hours earlier. As a result, Reimer formed a reasonable suspicion that the defendant had alcohol in his body and made an approved screening device (ASD) demand. The defendant registered an "F", or "fail", on the ASD, leading Reimer to form the belief that he had been driving with a legally excessive BAC. At 3:44am, he arrested the defendant for this offence. A breath demand and a formal reading of the defendant's right to counsel quickly followed. The defendant said that this was the first time he had faced a similar situation and that he was not sure whether he should speak to a lawyer. Reimer assured the defendant he would ask him again at the station.

[7] Reimer called for assistance to deal with the defendant's car while he escorted the defendant to the station. He checked the inside of the defendant's vehicle while waiting, noting that the defendant's wallet, cell phone and keys were all on the front passenger seat. He left the items in that location and when PC Henry arrived, at 3:56am, instructed him to complete the tow detail, conduct an inventory of the car, and return the defendant's keys, wallet and cellphone to the Division. Reimer then drove the defendant to the Traffic Services station, arriving at 4:07am. Throughout their contact that evening, the defendant was unfailingly polite, co-operative, pleasant and compliant.

[8] At 4:20am, following the booking procedure, Reimer inquired again of the defendant as to whether he wished to contact a lawyer. The defendant was uncertain at first and then said, "maybe we should call [my] lawyer". Asked for his lawyer's name, the defendant could only recall a first name, "Marko" and, according to Reimer, he "was quite adamant that he needed his cell phone to get a hold of his lawyer". Reimer characterized the defendant's insistence as "understandable"; he apologized to him for not having the cell phone. He told the defendant that would be allowed to access his phone when it arrived and he may have told the defendant that he would call PC Henry and tell him to bring the phone to the station. At no point, however, did Reimer call Henry. Nor did Reimer wait for Henry to arrive with the phone despite his expectation that he would arrive "momentarily" and despite the passage of only about 40 minutes since the defendant's arrest. Reimer agreed that he "could have waited" for the phone to arrive, but it was his "opinion that [the defendant had] a right to speak with a lawyer without delay, and so if there's going to be delay with getting his phone, I offered him duty counsel". Reimer continued:

To be honest, and to accept responsibility, all this could have been avoided if I would have just brought the phone with me when I arrested him. And I didn't and it's a mistake. And I tried what I felt was my best to rectify the situation by providing him access to duty counsel. And I know that he wanted to call his lawyer and that I was not able to do that for him. I did what I could, what I thought I could do at the time, and it is what it is.

[9] The defendant guessed that Marco's last name was "Kovac" and Reimer searched, without success, for that name in a lawyers' directory. Without attempting to contact Henry or waiting for him to arrive, a call was placed to duty counsel at 4:27am. Duty counsel returned the call at 4:31am — approximately 45 minutes after the defendant's arrest. Although his testimony is somewhat unclear as to who initiated the call to duty counsel, Reimer accepted the possibility that he did and, in all the circumstances, I find it more likely than not that the suggestion moved from Reimer.

[10] The defendant's conversation with duty counsel lasted for about six minutes. Reimer then asked the defendant if he was "satisfied [he] was able to … get proper advice?" The defendant replied, "Yes, sir. Thank you, sir". Reimer was then "satisfied that [the defendant] was satisfied that he was able to speak with a lawyer". Reimer recognized that the defendant was entitled to speak to his own lawyer even after speaking to duty counsel, but he did not ask the defendant if he still wished to do so or advise him that his phone would likely soon arrive. Instead, the defendant was immediately escorted to the breath room where the first of his two Breathalyzer tests were conducted.

[11] Reimer could not recall what time PC Henry returned to the station, but it was sometime after the defendant spoke to duty counsel (that is, after 4:37am) and before the defendant was released an hour later, at 5:38am. Reimer recalled immediately asking Henry, "where is the cell phone, we need it". He was met with a blank look. The cell phone was not among the property returned to the defendant on his release from the station as Henry had not brought it from the scene. Had he, the "first thing I would have done", said Reimer, was invite the defendant to look up his lawyer's number since "that's the only right thing to do". Indeed, even if the defendant's phone had arrived after his consultation with duty counsel, Reimer "would have asked him, 'Do you want to call your own lawyer?'" Further, said Reimer, the defendant's access to a phone would not have been curtailed or inhibited if he had then understood (as, in fact, he did not) that the defendant wished to contact a law student to facilitate access to a lawyer rather than directly calling a lawyer.

[12] In cross-examination, Reimer testified that he "didn't form the opinion that [the defendant] was impaired by alcohol until after [he] learned the breath result readings" and applied his "training and experience" to those results. Reimer agreed that he was not a toxicologist, nor was he tendered as an expert witness in any scientific discipline.

[13] PC Henry attended at roadside to assist Reimer at 4:03am. He could not recall when he completed his notes referable to the incident (other than that it was before he went off duty that morning) and his memory was far less than photographic.

[14] Henry had no recall of any specific instructions he may have received from Reimer. He understood he was to assist in obtaining a tow. He searched the defendant's car for and secured various valuables. He had no note or memory of seeing let alone retrieving a cell phone. He left the scene at 4:32am and arrived at Traffic Services at 4:41am — a couple of minutes, as it turns out, before the defendant's first Breathalyzer test. Other than transferring the seized property to Reimer upon his arrival, Henry had almost no recall of what occurred in the 35 minutes he remained at the station before leaving at 5:16am. In particular, Henry could not recall discussing any of the seized property with Reimer. However, he did recall speaking with the defendant who asked him for his cell phone. Henry told him he did not see it in the car. Henry could not recall if this was before or after his conversation with Reimer.

(c) The Defendant's Account

[15] The defendant filed an affidavit in support of his Charter application. He affirmed it under oath. The affidavit explained that "Marko Kovak" was an acquaintance. His number was in the defendant's cell phone directory. Kovak was taking a "law-related course" at the University of Toronto and worked for a lawyer. The defendant reasoned that Kovak would "be able to get me legal assistance". In brief supplementary direct examination, the defendant further explained that he was very nervous when he spoke to duty counsel and asked no questions of him as he did not know him and did not feel that he could trust him. His intention was to reach Kovak and, through him, to contact the lawyer who employed him. The defendant did not personally know Kovak's employer but he trusted Kovak and, by extension, the lawyer Kovak would recommend.

[16] The defendant agreed that he had drunk more than two beers on the evening in question, but denied that it affected his cognitive abilities. He wanted to speak to his own lawyer. Indeed, he recalled asking PC Reimer to try and reach Kovak even after speaking with duty counsel, but was advised that the police could not locate his phone. The defendant allowed that Reimer's testimony to the effect that he was satisfied with the advice he received from duty counsel "may" have been accurate. The defendant's own recall, however, was that Reimer asked if he understood what he had been told by duty counsel, to which he replied in the affirmative. The defendant also recalled Reimer telling him he was going to call the second officer to retrieve his cell phone and bring it to the station, and, after a few minutes, returning to report that the officer could not find the phone inside the defendant's car.

[17] The defendant repeatedly characterized his treatment by PC Reimer as "polite" and "fair".

C. Analysis

(a) Introduction

[18] The presenting factual scenario is such that, as Crown counsel fairly concedes, both charges must fail if the evidence of the defendant's Breathalyzer results is excluded at his trial. In my view, however, the fate of the impaired driving may be determined independently of any Charter considerations. Accordingly, I first address the impaired driving charge. I then turn my attention to that alleging driving with an excessive BAC.

(b) Impaired Driving

[19] PC Reimer did not form reasonable grounds to believe the defendant was impaired until after he learned the Breathalyzer results. The standard the Crown must satisfy to secure a conviction is much higher than that Reimer had to meet to effect a lawful arrest, but the underlying reasoning process is the same: absent the Breathalyzer results there is simply no basis upon which I could possibly find the defendant guilty of this charge. The question, then, is whether I may have regard to the Breathalyzer readings in determining the validity of this count?

[20] In my view, while I may sometimes consider such evidence it does not, in the circumstances of this case, convert what is otherwise a patently inadequate prosecution into a finding of guilt. Given the almost complete paucity of any indicia of impairment, I here echo the conclusion I reached in R. v. Selvarajah, 2011 ONCJ 468, at para. 17:

[A]bsent qualified expert evidence relating BAC readings to a defendant's ability to drive (and there is none here), consideration of Breathalyser test results in the requisite assessment does not permit a trier to speculate as to the qualitative impact of the documented readings on the ability at issue.

(See also: R. v. Ostrowski (1958), 122 C.C.C. 196 (Ont. H.C.J.); R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.), at para. 22; and R. v. Nandlall, [2009] O.J. No. 3452, esp. at para. 6.) BAC readings may be of some assistance in the determination of impairment without resort to an expert opinion (for example, where the issue of alcohol consumption itself is at issue), but this is not such case. And despite his self-puffery on the subject, Reimer was not an expert witness nor was he tendered as one. The absence here of probative evidence of impairment other than that mediated through uninterpreted Breathalyser results leaves me unpersuaded. Accordingly, I find the defendant not guilty of the offence of operating a motor vehicle while his ability to do so was impaired by alcohol.

(c) Driving with an Excessive BAC

(i) Introduction

[21] The integrity of the Breathalyzer results is not here subject to challenge. The defense to the count of driving with an excessive BAC is predicated on a claim that the defendant's right to counsel, as guaranteed by s. 10(b) of the Charter, was violated and that the appropriate remedy is a s. 24(2) order excluding evidence of his breath test results at trial. Exclusion would, of course, prove fatal to the Crown's successful prosecution of this charge.

(ii) The Alleged S. 10(b) Breach

[22] The general principles governing the right to counsel are long settled. Persons detained by the police must be informed forthwith of their right to consult a lawyer and, if they elect to do so, promptly afforded such opportunity. Detainees are both vulnerable to the exercise of the state's power and in legal jeopardy. Section 10(b) is designed, as said by the Supreme Court in R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 28, to provide detainees with an "opportunity to mitigate this legal disadvantage." The provision, the Court stated at para. 27, is intended to ensure "that detainees have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations."

[23] A detainee's right to counsel extends to his or her counsel of choice, as does the police implementational obligation to provide a reasonable opportunity to exercise such right and, as said by the Supreme Court in R. v. Bartle (1994), 92 C.C.C. (3d) 289, at 301, "to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity". Justice Bruce Durno captures the first of these correlative duties in R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont. S.C.J.), at para. 25:

In the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee's efforts to do so: R. v. Brydges (1990), 53 C.C.C. (3d) 330 (S.C.C.). This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel's number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.

Both PC Reimer and Crown counsel expressly accept the validity of this proposition.

[24] Applying the relevant principles, I find that PC Reimer failed to comply with the implementational duties imposed on him by s. 10(b) of the Charter. Reimer knew that the defendant wanted to speak to his counsel of choice. He knew as well that the co-ordinates for the lawyer the defendant wished to consult were in the defendant's cell phone directory. He knew, further, that he had left the cell phone on the front seat of the defendant's car and directed PC Henry to collect the phone, along with other items belonging to the defendant, and bring them to the station. Reimer at no point doubted the sincerity of the defendant's wish to consult his counsel of choice. Further Reimer recognized the primacy of the defendant's election and, as well, that it mattered not whether a detainee sought to contact counsel directly or indirectly through a call to a third party. Reimer, of course, did not know the defendant was pursuing counsel indirectly, but, as he readily acknowledged, the distinction had no impact on his constitutional obligations. The fact that the defendant's cell phone was never returned to the station is similarly immaterial to any s. 10(b) analysis. By way of analogy, the assessment of the validity of a state-executed search does not depend on whether it generates evidence of crime or whether the police methodology proves impossible to execute.

[25] Reimer endeavoured to locate the name provided by the defendant in a lawyer's directory. This proved unavailing. On his own admission, he made no effort to contact Henry to urge him to attend at the station with the defendant's phone. As Reimer reasoned, Henry would soon arrive with the phone in any event. Yet Reimer did not wait for Henry's imminent return. Instead, the evidence persuades me that Reimer, having been unable to locate the name advanced by the defendant, suggested that he call duty counsel. The defendant, who was compliant throughout the evening, accepted Reimer's advice. When the consultation was complete, Reimer says the defendant answered affirmatively to his question of whether he was satisfied that he received proper advice. Even accepting that this exchange occurred, I have great difficulty understanding how this accused — a man who had no prior engagement with the criminal justice system — would be in a position to assess the quality of the advice he had just received. I have no difficulty accepting the defendant's evidence to the effect that he wanted to speak to a lawyer he had reason to trust and that duty counsel — a complete stranger — did not so qualify.

[26] Reimer did not then inquire whether the defendant still wished to try and reach his counsel of choice. Instead, he immediately escorted the defendant to the breath technician and the breath tests that followed. A "reasonable opportunity", as understood in this context, "depends on the circumstances as a whole": R. v. Willier, supra, at para. 35. The urgency of an investigation and the diligence of a detainee are clearly important factors in this assessment. Here, no doubt is raised as to the defendant's diligence. Nor did any immediate urgency then surround the taking of the breath tests as less than an hour had passed since the defendant's detention. As said by then Chief Justice Lamer in R. v. Ross, [1989] 1 S.C.R. 3, at 11 (and affirmed in R. v. Willier, supra):

[A]ccused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.

[27] Reimer at no point contacted Henry. Despite his expectation that he would immediately arrive, Reimer did not wait for Henry. Nor did he call Henry to determine his status or ETA or to alert him to the importance of returning quickly with the cell phone. As he understood the situation, Reimer had the means to put the defendant in contact with his counsel of choice. Other than a search through a lawyers' phonebook, he did nothing to exercise those means. He did not wait for Henry. He did nothing to expedite his return or alert him to the potential constitutional significance of the cell phone. I appreciate that the test to be applied in assessing the propriety of Reimer's conduct is one of reasonableness rather than perfection. Given the absence of any urgency, Reimer, in my view, fell short of that constitutional standard. In the circumstances I have detailed, I find that the defendant's s. 10(b) rights, and in particular his right to consult with his counsel of choice, was infringed by the police. As said in Kumarasamy, supra, at para. 21, "[t]he availability of duty counsel 24 hours a day cannot be used to trump a detainee's right to counsel of choice".

(iii) The Question of Remedy: S. 24(2)

[28] Not every infringement of an accused's constitutionally protected rights gives rise to remedy. A court is afforded a discretion to determine such redress, if any, as is "appropriate and just". Further, where, as here, the remedy sought is one of the exclusion of evidence, an accused must establish on the balance of probabilities that its admission would "in all the circumstances … bring the administration of justice into disrepute". There has been some jurisprudential revision of the proper interpretation and application of this standard. At one time, many jurists favoured near-automatic exclusion in alcohol and driving prosecutions where the impugned evidence was Breathalyzer test results and the constitutional breach, so found, a violation of an accused's right to counsel. The Supreme Court's reformulation of the s. 24(2) analytical framework in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 effectively raised the bar for defendants seeking a constitutional remedy in these circumstances. In my view, this is one of those cases where the pre-Grant approach may well have led to exclusion. However, under the prevailing law I conclude that the appropriate and just result is admission of the test results, not their exclusion.

[29] Section 24(2) looks to the integrity and repute of the administration of justice in the long term. The analysis is primarily objective and the focus prospective. Three avenues of inquiry are mandated. Regard must first be had to the seriousness of the Charter-infringing state conduct. The second concern is the impact of the breach on the Charter-protected interests of the accused. The third consideration is society's interest in an adjudication of the case on its merits. These assessments must then be balanced "to determine whether, considering the circumstances, admission of the evidence would bring the administration of justice into disrepute". The test is a flexible, multi-faceted and contextual one that comprehends, as constitutionally dictated, "all the circumstances" and that weighs competing interests and values in achieving the proper balance "between the search of truth and the integrity of the trial". (See Grant, supra, at paras. 67-71, 102.)

[30] The first line of inquiry focuses, here, on PC Reimer's conduct. As I have found, Reimer's response to the defendant's detention fell short of his implementational obligations under s. 10(b) of the Charter. However, his conduct was not egregious, willful, nor deliberately intended to subvert the defendant's Charter rights. There was, as yet, no urgency and Reimer ought to have at least waited for the cell phone to arrive or made some effort to determine its whereabouts and expedite its arrival. He did not. He appears, to me, to have confused the defendant's right to counsel of choice with his right to prompt legal advice. This does not, I find, amount to bad faith or even reckless disregard of the defendant's rights. Nor, on the evidence before me, does it reflect a pattern of neglect or denial of Charter-protected rights on the part of the police. I note, as well, that the defendant has nothing but praise for his treatment by PC Reimer.

[31] The second factor here requires examination "of the degree to which the search and seizure intruded upon the privacy, bodily integrity and human dignity of the accused": Grant, at para. 109. There is, of course, a spectrum of state trespass on these protected interests, but breath tests (unlike, for example, the forcible taking of blood samples or a rectal cavity search) lies towards the less intrusive end of the continuum.

[32] The third inquiry, as fairly conceded by the defence, favours inclusion of the impugned evidence. That evidence is reliable and critically material to the prosecution, and societal interest in a trial on the merits in situations that present a hazard to public safety is predictably high.

[33] Balancing these considerations I find no principled or fact-driven reason to depart from the generic guidance offered by the Supreme Court in such cases. As said in Grant, at para. 111:

While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [Emphasis added.]

[34] In the result, I conclude that the repute of the administration of justice is better served through the admission of the evidence of the breath test results than their exclusion. Considering that evidence, I have no difficulty finding that the defendant operated a motor vehicle with an excessive blood-alcohol concentration and find him guilty of that charge.

D. Conclusion

[35] The defendant is found not guilty of the charge of impaired driving but guilty of driving with an excessive blood-alcohol concentration.

Released on May 30, 2012

Justice Melvyn Green