Reasons for Judgment

PUGSLEY, B. (Orally):

Overview of Charges and Trial

The defendant faces a single Criminal Code allegation of driving his motor vehicle with a blood alcohol concentration of more than 80 milligrams of alcohol in 100 millilitres of blood. This one day trial commenced at 10:30 in the morning and did not complete on the day scheduled for that trial. On the continuation date, the trial continued after another bifurcated trial continuation on a different case. At the conclusion of that trial, the court reserved its decision to continue the defendant's matter, and at the conclusion of his trial, the court reserved its decision on this case until today. The matter proceeded as a blended trial and Charter voir dire.

Facts

The Stop and Initial Observations

On February 15, 2011, the defendant was driving northbound on a paved road in the Town of Caledon in this judicial region. He was stopped for speeding. In conversation, the officer detected an odour of an alcoholic beverage on the breath of the defendant, who was the driver and sole occupant of his motor vehicle. The defendant admitted to consuming alcohol. The officer made a demand for a sample of the defendant's breath for analysis by an approved screening device and called other officers to the scene with such a device.

The defendant provided a suitable sample on his fourth attempt and registered a fail. He was arrested for the charge before the Court. At the station he provided two breath samples for analysis by an approved instrument. The test results were over the legal limit.

Constable Shay's Evidence

Officer in Charge Constable James Shay of the O.P.P. pulled the defendant over for speeding at about 8:58 p.m. on the date of the alleged offence. He had clocked the defendant's vehicle going at 97 kilometres per hour in a posted 60 kilometre per hour zone. The defendant was the driver and sole occupant of the vehicle.

After detecting an odour of alcohol on the breath of the defendant, the officer asked him if he had consumed any alcohol that day. The defendant stated that he had consumed two shots of cognac about 10 minutes before being stopped and had consumed the alcohol in Bolton.

At 9:01 p.m., the defendant was asked to come to the police officer's cruiser for the purpose of an approved screening device test. The officer described not having such a device with him, but that upon his request, one was brought to the scene by 9:06 p.m. The officer was satisfied that any mouth alcohol from the consumption of alcohol 10 minutes before the defendant was stopped had dissipated by the time he administered the ASD test to the defendant.

The defendant attempted samples at 9:12 and at 9:13, and gave a proper sample in his fourth attempt at 9:14 p.m. The result of that analysis was a fail, providing the officer reasonable and probable grounds to believe that the defendant had operated his motor vehicle with more than the legal limit of alcohol in his blood and the defendant was arrested for that offence.

The assisting officers took charge of the scene of the defendant's motor vehicle, searching the vehicle and remaining until it was towed. In the police car, Constable Shay gave the defendant his rights to counsel. The defendant stated that he understood and asked what happens now, after his arrest. The officer explained.

From the time he was arrested until the time he left the scene with Constable Shay, the defendant asked many questions about what was going to happen next. When provided with the Intoxilyzer demand, the defendant understood, but questioned what he should do, because he didn't have a lawyer. Constable Shay stated that he explained that he could speak to a lawyer but if none, then to the duty counsel if he wished. In response, the defendant continued to ask what happens now, what was going to happen.

The defendant was transported by Constable Shay to the Caledon East O.P.P. Detachment for breath tests. When lodged in the cell, the defendant indicated that he wanted to speak to the duty counsel. At 9:56 p.m., Constable Shay called duty counsel for the defendant. Duty counsel called back at 10:17 p.m. and the defendant spoke to the duty counsel in private from 10:18 p.m. to 10:20 p.m. At that time, Constable Shay delivered custody of the defendant to Constable Roberts, the qualified technician for breath tests. He received custody of the defendant back at the time he released him later that evening.

The defendant stated no dissatisfaction with the duty counsel advice to Officer Shay.

The police officer who searched the defendant's motor vehicle at the scene delivered to Constable Shay a part bottle of Courvoisier cognac, seized from the defendant's motor vehicle. The alcohol was in a 750 millilitre bottle and was labelled 40 percent alcohol by volume.

In cross-examination, the officer conceded that the defendant could have said that his last drink was approximately 10 minutes before Constable Shay asked him about his last drink, but that the officer's recollection was that the defendant said 10 minutes ago. Either way, the officer was satisfied that the consumption of alcohol was very recently before the defendant was stopped.

Constable Shay stated that he knew that he had to wait 15 minutes after the last drink to guard against mouth alcohol affecting the approved screening device test and stated that he did wait and had no reason to believe that the defendant had lied about the consumption of his last drink.

After the defendant was arrested, the defendant was very vocal about what would happen next and asked numerous questions of the officer. Constable Shay did not write down exactly what the defendant was saying. He stated he did not require the defendant to speak to duty counsel but rather that if he didn't have a lawyer, he could speak to the duty counsel, a free lawyer. The officer did not ask the defendant if he knew anyone who could find a lawyer for him, but understood that he could look in the lawyers' directory or call a family member if he asked to do so, and Constable Shay would have obliged.

At 9:27 p.m., an assisting officer searched the defendant's motor vehicle at the scene. She located a brown LCBO bag with two sealed bottles of wine behind the driver's seat and closer to the centre of the vehicle. There was a black bag in the centre of the rear bench seat. Inside a zippered pocket in the bag was a half 750 millilitre bottle of cognac. Her search of the vehicle took place after Constable Shay had arrested the defendant.

Constable Roberts' Evidence

Constable Shawn Roberts was the qualified technician who tested the defendant at the detachment. His contact with the defendant in the breath room was audio and video recorded. Excerpts of the recording were played with regard to the defendant's Charter application. On the video, Constable Roberts spoke to the defendant about speaking to a lawyer in private, and asked if he had spoken to a lawyer or the duty counsel. The defendant replied, "whoever you provided." Constable Roberts then told the defendant to let him know if he wanted to speak to one again. The defendant asked what he meant and Constable Roberts explained.

If the defendant had asked the officer to help him find a different lawyer, the officer would have immediately done so. He gave the defendant his options and his obligations. Constable Roberts also explained that he had received a radio frequency interference message from the Intoxilyzer which indicated that the sensor had detected that the officer's portable radio was on. He then turned off the radio and continued. The functioning of the instrument is not affected by this fact. He was referred to the training manual by the defendant and was supported in this conclusion from the manual.

The entire breath room recording was played in the cross-examination of Constable Roberts. The officer made a technician's demand and then cautioned the defendant with respect to not providing a proper breath sample. Both were understood. The defendant then persistently sought to have water from the officer, stating that he would not open the mouthpiece bag until he received a glass of water, and asking the officer if he was a human or was not a human, that water was everywhere. Constable Roberts used his radio to call for water, triggering the RFI alarm.

The defendant then said that having water was his human right, that he had a bottle of water in his car and that he wasn't allowed to drink it. He was then given water. He said he was not trying to give the officer a hard time, that he had no rights and that he was not an impaired driver and didn't want to make his life more complicated. He asked for more water but was told he had had two glasses and would have more after the test.

He asked Constable Roberts what the normal blood alcohol concentration was and how many drinks he could have. The defendant said he'd had a few shots, a couple of shots of cognac, a half hour ago. The officer told him three times that there was no normal and that they would go over the numbers after the tests. The defendant persisted to ask what was normal and what was allowable to drink. On the first attempted breath test the defendant stopped and then started again.

In cross-examination the officer was asked if the defendant's questions about what was normal triggered any concern for the defendant wanting more legal information and the officer said, absolutely not, that these were questions commonly asked during testing of test subjects. The officer was satisfied with the breath test procedure throughout.

Defendant's Evidence

Examination in Chief

On the second day of trial the defendant testified as the first defence witness on the trial and Charter voir dire. He described his practice as a dentist in Toronto. He was asked in his examination in-chief what he understood at the time of his arrest as to his options to get legal advice. He stated that the officer asked, "do you have a lawyer, a drink-drive lawyer" and he didn't have one, no business cards or phone number so the defendant told the officer that he didn't. He stated that the officer then said to him, "then you have to speak to duty counsel," that he had an option.

He understood from watching movies that he had one phone call and could speak to the duty counsel or not, at his option. He thought if he didn't choose duty counsel, he had no option. He would have called friends or family to seek counsel if he knew that that was a third option available to him. He had friends who'd been stopped for drink-drive before or knew others who had. Counsel suggested several names to the defendant as to those he could have called and the defendant said if he knew he could have called them, then he definitely would have done so. He had several numbers in his cell phone. He knew friends of friends who had got a lawyer for drink-drive and had been successful in defending the case.

He did not ask the police to speak to one or more of these people because he didn't know that he had any right to do so. He believed he only had one phone call. He did speak to duty counsel for one to one and a half minutes by his estimate, but testified at the trial that he did not really feel fully informed about that from the phone call. No one told him after duty counsel that he could get more advice. He only understood that if he had a lawyer he could call that lawyer or he could speak to duty counsel.

Alcohol Consumption

As to his alcohol consumption, the defendant readily admitted buying the bottle of cognac after work that day, on his way home. On his way home, he describes speaking to his ex-wife. He then opened the cognac bottle on Gore Road, north of Highway 7, enroute home. He drank from the bottle for 20 or 30 seconds, put it back in his bag and drove again, on his way home. Where he stopped was 28 kilometres from his home. He stopped the second time just north of the intersection of Gore Road and King Side Road. He opened the bottle again and drank from it again and then put it back into the zippered bag. He then drove north again. He was stopped for speeding by Constable Shay just after he passed Old Church Road. At this point he was roughly 8 kilometres from his home.

He described that he had been speeding. He described his height and weight. The defendant stated that he had consumed alcohol while driving because his conversation with his ex-wife had been very stressful. They had been split for several years, but argued over money and the children not having proper lunches at school. He drank large amounts of cognac while driving to calm himself. He had originally bought the wine to drink and intended to apply the cognac topically to treat a skin condition, but drank it instead.

Cross-Examination

The defendant was the subject of a vigorous cross-examination by the Crown Attorney. He denied drinking regularly and stated that he avoided hard alcohol. The cognac was bought to put on his skin as part of a remedy. On the day in question, he worked until close, close to 7 p.m., but could not describe in exact terms what he did.

That afternoon the principal of the children's school called him to say that the children weren't having lunches and he decided to call his ex-wife after work to find out what had happened. They spoke while he was driving home. The conversation left him upset. He stopped and drank a large amount of cognac from the bottle to calm himself. He was concerned about drinking and driving but thought he would be fine.

He knew he shouldn't drive with any alcohol, and usually two wines was his maximum if he drinks alcohol and drives, but usually he has none at all. He then stated that he hadn't said that two glasses was his limit, that that was what he thought he was supposed to have or take a taxi. When asked if he had already not gone over the limit by having two to three ounces of cognac at the first stop, he said that that was normally legal, that you could have two shots and still drive, but he likes to have no alcohol when he is driving. He did not call a taxi this time because he was still legally allowed to drive and was only 20 minutes away from his home. He knew that in 20 minutes he would be home and he knew that the alcohol would not be fully effective by that time.

The defendant then stated that he stopped again after about 10 more minutes of driving because he was being stressed and felt that he had to take more shots of alcohol. This time he drank more than at the first stop. In other words, between the two stops, he drank 10 to 11 ounces of straight cognac. The defendant stated that 350 millilitres was gone from the bottle, and maybe he drank 300 millilitres, so that perhaps he had spilled some alcohol on himself. As the defendant said, no one drinks straight from the bottle. He had no idea how much he spilled on himself and admitted that it was possible that he drank 200 to 250 millilitres of cognac at the second stop in perhaps one minute.

He kept the bottle in his leather zippered bag and not the LCBO bag, because he knew he wasn't supposed to have alcohol nearby when he was driving. He did not consider calling a taxi after the second stop because he was in too much stress after speaking to his ex-wife, and he was only eight minutes away from his home and the road was pretty empty at 8 p.m. He was almost home.

The defendant agreed that he had a lawyer for real estate. When asked why he didn't call that lawyer, he testified that he was never given any options to call anyone. He was told to follow the officer to the police car. He would not call his real estate lawyer at 8 p.m. and he only does real estate and didn't know whether he dealt with other matters.

He testified further that no one gave him the option to call and all the time he asked the officer what all his options were and he was handcuffed and asked if he had any lawyer and said no.

The defendant, in cross-examination, denied that consuming perhaps 400 millilitres of cognac could affect his memory since he had drank it very close before the time that he was stopped, and he knew that the alcohol would take 20 to 30 minutes to fully affect him. The only effect was later at the station. He then said that he felt only a little bit fuzzy, but the officer said he wasn't impaired. He then said he only felt a slight effect of alcohol.

The Crown Attorney asked the defendant if, when he first given his rights to counsel, whether it was read and a number of options were given. The defendant stated that the officer never told him that. He was asked if the defendant remembered the officer reading from a card and replied that the officer asked if he had a lawyer. Specifically, he denied that the officer, when reading him his rights to counsel from the card, read to him the part of that right that he could call any lawyer. Rather, he was asked about his accent and if he was a Canadian citizen and it was the officer who searched his car, not someone else.

The Crown asked the defendant if he recalled the officer reading from a card. The defendant replied, "not in plain language for a normal person," that he said, "do you have lawyer." The Crown then asked the defendant after he read the card and the defendant interjected that he did not know where he read from, but that he believed that the officer had not read from a card.

The Crown started again, asking the defendant if he recalled the words, "It is my duty to inform you," and the defendant said he did recall those words. When the Crown continued, "that you have the right to call any," the defendant interjected with the question where he would make a phone call from, stating that, first of all, he was in the back of a police car and the officer never gave him the options after the test was done and over, and he was cuffed and searched, and then he said, "you have the right to call a lawyer and do you have one," and it was confusing to the defendant because normally no one knows what counsel is.

The Crown again directed the defendant to the words from the officer at the roadside, that he had the right to call any lawyer and the defendant again interjected that he couldn't call, he was cuffed and had no cell phone and was in the middle of nowhere and no one told him how to call a lawyer. He described that he panicked in that moment and they asked, "do you have lawyer," and that was it. No one told him why he needed to call a lawyer or how to call and he panicked. He felt like he was being treated like a criminal. Why would he call a lawyer, the defendant asked the Crown. He didn't know if he had to do it. He asked many times why he had been arrested and what was going on and kept asking and no one answered him. They weren't concerned about him, only his accent.

The defendant then testified that the police asked him if he had a lawyer, and he assumed he needed a drink-drive lawyer and they didn't say "do you have a drink-drive lawyer" because why would he have such a lawyer?

The Crown asked the defendant if he recalled seeing Constable Roberts on the breath room video say to him, "if you want to speak to a lawyer, let me know and that Constable Roberts would arrange it." The defendant replied that no one said he could call a friend to call and he was misled by the officer. The Crown asked if he recalled seeing the video and the defendant replied, "not in my mind," that it was not a pleasant video and that he did not know 100 percent of his rights with regard to the number of calls and if he could call a friend. Rather, he asked the police, "what should I do, what are my options" and all they said was, "if you have a lawyer."

When the defendant's mind was expressly directed towards the video recorded advisement by Constable Roberts, the defendant stated that it was hard to pay attention, especially when it was done in official language and that, at any rate, he had already spoken to the duty counsel.

Re-Examination

In re-examination, the defendant testified that he didn't measure how much he had to drink on the first stop because it was dark out, but it was less than what he drank the second time he stopped. By his recall, he had a couple of sips the first time. He believed that two to three ounces of liquor would not put him over the legal limit.

In re-examination, he admitted that he now recalled Constable Shay read his rights from the card, but that it meant nothing to him. He was in the middle of the woods and didn't understand what had happened to him. He wouldn't have called his real estate lawyer because it would have been shameful, rather, he would have called his father, his sister or friends.

Stipulation

The Crown and the defence stipulated that 400 millilitres of cognac had been removed from the 750 millilitre bottle of cognac seized by the police.

Expert Evidence

Defence Expert - Mr. Mofta

The defendant's expert witness, Mr. Mofta, testified next. He was qualified as such without issue. The defendant's alcohol consumption scenario was put to Mr. Mofta. As a bolus drinking scenario, the defendant's blood alcohol concentration at the time he was stopped by Constable Shay would have been between 58 and 63 milligrams of alcohol in 100 millilitres of blood. The blood alcohol concentration measured by the Intoxilyzer later in the evening would match the alcohol the defendant stated he had consumed in his car.

In cross-examination, Mr. Mofta agreed that he had not tested the defendant and so did not know the defendant's pattern of absorption of alcohol. If the defendant was wrong about the timing of consumption by 5 or 10 minutes, this would not change the expert's opinion. If a different amount of alcohol was consumed, or at a different time, then this would change his expert opinion. If off by 15 minutes, then the defendant may have been over 80 at the time he was stopped, but it was not likely and it would have been perhaps 81 to 82 milligrams of alcohol in 100 millilitres of blood.

If the defendant consumed 14 ounces of cognac, half an hour before being stopped, then his blood alcohol concentration would have been slightly over 100 at the time he was stopped.

Defence Character Witnesses

The defendant called two friends of the defendant's who both testified that had the defendant called them that night, they would have tracked down a criminal lawyer for him to speak to.

Legal Issues

The defence raises two issues with respect to the Criminal Code charge here:

1. That the police failed to properly inform the defendant of his rights to counsel and then to implement that right. The remedy should be the exclusion of the breath test results.

2. The defendant's drinking pattern was such that his blood alcohol concentration at the time of driving was under the legal limit.

The Crown submits that there was no Charter breach, and that the bolus drinking defence rests on the shoulders of the defendant's credibility as to what he drank and when, and that the defendant was simply not believable in that evidence.

Court's Analysis

Charter Right to Counsel

In the court's view, there is simply no breach of the defendant's Charter of Rights here. The defendant's evidence as to what happened at the roadside and at the station is in most respects entirely at odds with that of the officers involved. The defendant eventually conceded some small effect on his memory of the consumption of 400 millilitres of straight cognac, but that he was:

(a) never read his rights to counsel by the officer; (b) was read those rights but didn't understand them; (c) didn't recall Constable Roberts telling him he could speak to a lawyer at any time, even after seeing Constable Roberts do so on the breath room video, because the video was too painful to watch and, in any event, all he told him was that if he didn't have a lawyer he had to speak to duty counsel.

The police never misled the defendant as to his rights, were entirely professional, advising the defendant as to his rights and implementing any desire by the defendant to assert those rights. There is no evidence that the defendant misunderstood the police and a multitude of evidence that he was uninterested in anything they said to him, just as he was uninterested in answering the questions put to him by the Crown in cross-examination, returning rather, repeatedly, to his thesis rather than to the facts. He stated repeatedly statements from the officers that were never put to the police in their evidence. He finally said in re-examination that he wouldn't have called his real estate lawyer anyway because it would have been too shameful. Rather, he hangs his constitutional hat on the supposed duty of the police to explore at length all other means by which he might have found a lawyer by calling random friends and patients to get the name of a lawyer he never said he wanted to speak to at any time in any event.

The police have a duty to advise the defendant as to his rights to counsel. They did so and in a fully constitutionally appropriate way. The court accepts that the police in doing so, told the defendant that he could call any lawyer and that he could have free advice from a duty counsel lawyer if desired. The defendant had no lawyer and asked what he should do and was told he could speak to duty counsel. This he did. The defendant took no steps to assert any other right nor to seek to contact counsel or friends or see a lawyers' directory. In other words, he was content to speak to the free lawyer established to give him advice in just this situation.

The defendant briefly submitted that how could the defendant have received meaningful advice from the duty counsel in a two minute phone call. There is no evidence at all with respect to that issue, other than the defendant's half hearted statement that he didn't think the advice was that good.

The defendant's evidence suffers a final blow from the evidence of the video, when Constable Roberts specifically reminded the defendant that, if he wished to speak to a lawyer at any time, Constable Roberts will arrange that. Nothing could be clearer, yet the defendant could not be brought to the point of acknowledging that this was said to him in his cross-examination. The defendant repeatedly expressed his concerns to Constable Shay. Those concerns were, what's going to happen on the breath test, not concerns about his rights to counsel.

In summary, the police properly administered and implemented the defendant's rights to counsel in this case. There was no breach. If the court had found otherwise on these facts, it would not have excluded the breath test results on a Regina v. Grant analysis. The officers acted properly, promptly and gave effect to the right of the defendant to speak to counsel. There is no evidence he was deprived of any right to meaningful legal advice. The evidence gathered is minimally intrusive and highly probative and the public interest would require that this evidence not be excluded on any Charter breach, such as urged by the defendant. The defendant's application to exclude under the Charter is, therefore, dismissed.

Bolus Drinking Defence

The bolus drinking defence relies heavily on the credibility of this defendant. As already observed, that credibility suffered greatly, particularly under cross-examination. In cross-examination, the defendant talked at cross purposes, failed to answer very simple questions placed to him, and placed his credibility squarely at odds with the credibility of the Crown witnesses who were excellent and very professional witnesses. Further, the defendant's evidence in cross-examination was clearly coloured by the expert evidence he was soon to call, but didn't presumably know at the time he was stopped. Twice the defendant stated that, although he preferred to never consume any alcohol at all when he drove, and knew, in any event, that two to three ounces of alcohol were fine, he nonetheless consumed 400 millilitres of straight cognac in the course of his journey, saying that he did so because he knew the alcohol would not affect him until after he got home. How did he know this at the time he was stopped?

He claims to drink one, or at the most two glasses of wine at a time, and preferred not to drink any alcohol at all if he was going to be driving. How did he know when he drank 400 millilitres of 40 percent alcohol that he could get home before that alcohol was absorbed enough to put him over the legal limit? Plainly put, his evidence that he knew and considered that, at the time he drove is unbelievable. Rather, this evidence is from what he learned later, while crafting a defence drinking scenario to support a bolus drinking analysis.

In-chief, but more so in cross-examination, the defendant was an unsatisfactory and profoundly unbelievable witness. He would have this Court believe that he was so stressed and upset about the acts of his ex-wife over the telephone, that the only relief he could resort to was to:

(1) Stop on the side of the road at night; (2) drink large amounts of hard liquor; (3) carefully replace the open bottle in his leather satchel because he knew open alcohol in the vehicle was illegal; (4) drive on for another 10 minutes at excessive speed by his admission; (5) stop a second time when only minutes from the sanctuary of his home, and drink an even larger amount of alcohol on the roadside because he still felt so stressed from the telephone call and then again, carefully replace the bottle back in his zipped leather bag; and (6) drive on home, speeding nearly 40 kilometres over the speed limit until stopped by the police.

Further, a seventh feature, all the drinking was carefully calculated so that he knew he could get home before being over 80. This is a witness who says he rarely drinks any alcohol when he's going to drive, who rarely drinks hard liquor at all, who does not drink regularly at all, who bought the cognac as a skin treatment, not to drink, and who when he drinks and drives, only has one or two wines, and finally, recalls the timing of his consumption, point eight, with exquisite detail while recalling virtually nothing else accurately thereafter, even when he sees himself on the video at his trial.

In cross-examination, the defendant said it all: he was only a few minutes from home. The road was pretty empty at 8 p.m. in Caledon, and he was almost home, so he consumed huge amounts of a drink he never drinks, from a bottle at the roadside, drinking and driving grossly, by his own admission, but seeking to avoid a Liquor Licence Act charge by replacing the bottle in his zippered leather bag each time.

The expert opinion of Mr. Mofta is only as accurate as the information upon which it is based. The court cannot accept that information as at all credible. In spite of his professional accomplishments, the defendant in his evidence was one of the most incredible witnesses the court has had the misfortune to encounter in 10 years sitting as a judge. The evidence of his alcohol consumption makes no sense, is concocted and is calculated to support a defence expert opinion. The court does not believe the defendant was so stressed by a phone call to his ex-wife about his children's lunch money that he could not travel a few more minutes before consuming huge amounts of alcohol but instead had to stop to guzzle raw cognac from the bottle twice. His evidence as to what he drank and when is built on the impossible foundation of his total lack of credibility. The court does not believe the defendant, and without his evidence, Mr. Mofta's expert report cannot found a defence to this charge.

Plainly put, the court does not believe the defendant. His evidence does not leave the court with a doubt as to the proof of the charge here and the Crown has proven the Criminal Code charge beyond a reasonable doubt. The blood alcohol readings were well over the legal limit.

Verdict

The defendant must be convicted of the over 80 charge.

At the start of the trial, the defendant pled guilty to the two Provincial Offences Act offences, speeding and driver having alcohol readily available. The evidence given by the officers supports those pleas and the defendant must be found guilty on each of those counts as well, but the passing of sentence on those two counts is suspended.