Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Shelley Duval-Okipniuk
Before: Justice C.M. Harpur
Heard on: January 30 & April 25, 2014
Reasons for Judgment released on: June 18, 2014
Counsel:
- M. Alexander, counsel for the Crown
- N. Stanford, counsel for the defendant
HARPUR J.:
Overview and Undisputed Facts
1Ms. Duval-Okipniuk is charged with the care or control of a motor vehicle on December 7, 2012 with excess blood alcohol. The Crown has proceeded summarily. Trial proceeded on January 30 and April 25, 2014. Judgment has been reserved until this date.
2In advance of trial, Mr. Stanford for Ms. Duval-Okipniuk filed an application for exclusion of Ms. Duval-Okipniuk's over 80 Intoxilyzer readings pursuant to s. 24(2) of the Charter on the basis of alleged violations of Ms. Duval-Okipniuk's Charter sections 7, 8, 9 & 10(b) rights. The voir dire evidence which I heard was blended with the evidence for trial.
3Ms. Alexander for the Crown called the arresting officer, P.C. Adam MacKay, the Intoxilyzer technician, P.C. Nicole Kostiuk, and the booking officer, Sergeant Lewis DaSilva. Mr. Stanford called Ms. Duval-Okipniuk's evidence on the voir dire only.
4There is very little factual dispute. On December 7, 2012 at approximately 8:40 p.m. P.C. MacKay was on general patrol in the town of Innisfil. He came upon a white Honda motor vehicle being driven by Ms. Duval-Okipniuk. Some features of Ms. Duval-Okipniuk's driving struck the officer as unusual. He conducted a traffic stop. He approached Ms. Duval-Okipniuk's vehicle and detected the smell of alcohol in her car. She was accompanied by her teenage son who occupied the passenger seat of the car.
5Ms. Duval-Okipniuk was crying and very upset. She adverted to a recent separation from her husband. After a few minutes, P.C. MacKay radioed for an approved screening device ("ASD") to determine whether there were grounds for an over 80 charge. P.C. Kostiuk arrived in her cruiser with the ASD at 8:50 p.m., one or two minutes after the ASD had been requested. Once in possession of the ASD, P.C. MacKay made an ASD demand. He eventually received a suitable sample and an "F" reading after several abortive attempts by Ms. Duval-Okipniuk which produced error readings. He arrested Ms. Duval-Okipniuk for the excess alcohol offence. He read her rights to counsel and she responded that she did wish to speak with a lawyer. P.C. MacKay then read the Intoxilyzer demand to Ms. Duval-Okipniuk. At 9:07 p.m. he left the scene of the arrest and drove Ms. Duval-Okipniuk to the detachment of the South Simcoe Police Service.
6Ms. Duval-Okipniuk was booked in the presence of Sergeant DaSilva. An audio/video recording of Ms. Duval-Okipniuk's booking was entered into the trial record as Exhibit 2. Ms. Duval-Okipniuk continued to exhibit emotional upset throughout the booking, crying, averting her gaze from the officers and, generally, exhibiting a meek and uncertain demeanour.
7During her booking, Ms. Duval-Okipniuk advised Sergeant DaSilva and P.C. MacKay that she was employed by a lawyer named Ralph Grossi and provided his telephone number to them. With their concurrence, she tried unsuccessfully to reach Mr. Grossi on her phone. She then attempted unsuccessfully to reach a friend who, she thought, might have another number for her employer. Finally, at 9:35 p.m., she left a message on Mr. Grossi's message machine requesting that he call her, leaving the detachment telephone number.
8At approximately 9:45 p.m., P.C. Kostiuk entered the booking room, spoke with Sergeant DaSilva about the efforts to contact counsel and took Ms. Duval-Okipniuk to the breath room. Ms. Duval-Okipniuk's Intoxilyzer samples were given at 9:55 p.m. and at 10:19 p.m.
9At 10:33 p.m. Mr. Grossi returned the message left at his office and spoke with Ms. Duval-Okipniuk.
10In oral submissions, Mr. Stanford submitted that the record gives rise to four issues, three concerning alleged Charter breaches and one concerning the substantive offence.
11As to the Charter, the defence says that (i) Ms. Duval-Okipniuk was not given a reasonable opportunity to confer with Mr. Grossi, her counsel of choice, before being required to provide her Intoxilyzer samples, in breach of her s. 10(b) Charter right; (ii) P.C. MacKay lacked reasonable grounds to believe that the ASD on which Ms. Duval-Okipniuk provided a fail sample was in proper working order, thus eliminating his grounds for the Intoxilyzer demand and resulting in Ms. Duval-Okipniuk's unlawful detention and the unlawful seizure of her breath samples, contrary to Charter ss. 8 and 9; and (iii) P.C. MacKay did not, immediately upon forming the opinion that Ms. Duval-Okipniuk had alcohol in her body, make the ASD demand. It was, accordingly, an invalid demand undermining the ASD result and, in turn, the s. 254(3) demand, and, again, resulting in unreasonable seizures and unlawful detention in breach of respectively, Charter ss. 8 & 9.
12As to the substantive offence, Mr. Stanford submits that the Crown's case depends on proof of excess alcohol by the Certificate of a Qualified Technician ("CQT" - Exhibit 1) and that that certificate is deficient since it has not been proven to meet the pre-requisites of s. 258(1)(g)(i) C.C., specifically, the condition that it pertain to an analysis by means of "…an approved instrument…ascertained…. to be in proper working order by means of an alcohol standard, identified in the certificate,….". The defence argues that the Crown's case falls short in this regard because the alcohol standard referred to in the Certificate of an Analyst ("COA" - Exhibit 4) disclosed by the Crown and purporting to pertain to the relevant alcohol standard, does not have the same lot number as that referred to in P.C. Kostiuk's CQT concerning Ms. Duval-Okipniuk's Intoxilyzer samples.
13For the reasons which follow, I find that Ms. Duval-Okipniuk was not given a reasonable opportunity to speak with her counsel of choice at the police detachment and that, on balancing the factors set out in R. v. Grant, 2009 SCC 32, exclusion of the Intoxilyzer results is called for. There will be a dismissal of the charge. I would resolve the other issues raised by Mr. Stanford in favour of the Crown.
Charter s. 10(b)
14As indicated, the voicemail message left for Mr. Grossi was left at 9:35 p.m. Ms. Duval-Okipniuk was then told by Sergeant DaSilva that she could also speak with a legal aid lawyer. When she inquired whether this would be beneficial, the response was "it will not change anything here but you will have your rights". Ms. Duval-Okipniuk then declined the offer. This was the second time that Sergeant DaSilva had said words to this effect. He testified that his intention, in expressing himself in this manner, was to say that the police were going to have to proceed with the breath sampling process regardless of whether Ms. Duval-Okipniuk spoke with a lawyer.
15I accept the officer's evidence. In this regard, I note that Sergeant DaSilva had, from the commencement of his dealings with Ms. Duval-Okipniuk as disclosed in Exhibit 2, acted courteously and gently toward her. He seemed to be aware of and sensitive to her emotional upset. In my view, he was not attempting to discourage her from contacting counsel or otherwise acting in bad faith.
16At 9:45 p.m., in Ms. Duval-Okipniuk's and P.C. MacKay's presence, Sergeant DaSilva told P.C. Kostiuk that "she doesn't want to call legal aid so she's ready" and, without more, P.C. Kostiuk took Ms. Duval-Okipniuk to the breath room for the first of her samples.
17In cross-examination, Sergeant DaSilva acknowledged that there was "no rush" to have Ms. Duval-Okipniuk provide the first of her samples in that the two hour time limit required to take advantage of the presumption of identity was not looming. He also said that, because Ms. Duval-Okipniuk's employer was a lawyer, he felt there was a better than usual prospect of Ms. Duval-Okipniuk's call to him being returned, despite the fact that the call was being made on a Friday night.
18As indicated, Sergeant DaSilva said that his remarks to the effect that speaking to counsel "wouldn't change anything" were intended to convey to Ms. Duval-Okipniuk that her obligation to provide samples of her breath would persist despite the advice she received on the call. He said that he did not foresee any prospect, in Ms. Duval-Okipniuk's circumstances, for a lawyer to advise her that she was not obliged to blow. Sergeant DaSilva did acknowledge in cross-examination, however, that it is inappropriate for a police officer to speculate as to what advice might be given by counsel to a client.
19Sergeant DaSilva also acknowledged that the approximate ten minute delay between Ms. Duval-Okipniuk's leaving the message at Mr. Grossi's office and her departing with P.C. Kostiuk to the breath room was solely a result of the fact that P.C. Kostiuk was not previously ready to receive her; that is, none of this delay was attributable to Sergeant DaSilva attempting to provide to Ms. Duval-Okipniuk an opportunity to communicate with Mr. Grossi.
20Finally, with admirable candour, Sergeant DaSilva said that it did not cross his mind to tell Ms. Duval-Okipniuk to wait for Mr. Grossi's return call, that, in hindsight, the police could have waited longer, and that, if he had it to do again, he "would wait a little longer" before allowing the breath technician to proceed.
21In R. v. Willier, 2010 SCC 37 the Supreme Court of Canada commented on the implementation of rights under Charter s. 10(b) as follows:
Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; and Black.
22What constitutes a reasonable opportunity is fact-dependant. Here, the opportunity was for a period of approximately ten minutes and was only available by virtue of the fact that P.C. Kostiuk, the breath technician, was not yet ready to receive Ms. Duval-Okipniuk immediately upon the message being left for Mr. Grossi. There is nothing in the facts to indicate that Ms. Duval-Okipniuk had abandoned her desire or waived her right to speak to Mr. Grossi. While it is true that the police had repeatedly offered to permit Ms. Duval-Okipniuk to speak with duty counsel or legal aid counsel and she had declined, the offer and refusal cannot be taken to have supplanted the prospect of consultation with private counsel. Indeed, Sergeant DaSilva's final advice to Ms. Duval-Okipniuk about a legal aid lawyer was that she could speak to one "until you get ahold of [Mr. Grossi]".
23Sergeant DaSilva is to be credited for his sensitivity in his dealings generally with Ms. Duval-Okipniuk. However, the evidence is that, at the critical juncture when P.C. Kostiuk arrived in the booking room to take Ms. Duval-Okipniuk for her Intoxilyzer samples, neither he, P.C. MacKay nor P.C. Kostiuk turned their mind to the fact that Mr. Grossi had not yet called back and that very little time had elapsed since a message had been left for him. In order for Ms. Duval-Okipniuk to have been given a reasonable opportunity to speak to Mr. Grossi, the commencement of the sampling process ought to have been suspended for a further period.
24Although one might argue that Ms. Duval-Okipniuk was herself under an obligation to raise with the police the brevity of her opportunity to speak to private counsel, the uncontested evidence is that she had never previously been arrested and she was, again, in an emotional and passive condition to the knowledge of the police. Applying an objective test to someone in her circumstances, I do not regard as unreasonable her failure to speak up as she was transferred to P.C. Kostiuk.
25For these reasons, I accept Mr. Stanford's submission that Ms. Duval-Okipniuk's Charter s. 10(b) right was infringed.
Charter ss. 8 and 9 – The Timeliness of P.C. MacKay's ASD Demand
26The evidence makes clear that there was a gap between P.C. MacKay's first detection of the odour of alcohol in Ms. Duval-Okipniuk's vehicle at approximately 8:42 p.m. and his issuance of the ASD demand at 8:50 p.m. Mr. Stanford submits that this delay is not adequately explained and is contrary to the officer's obligation to make the demand forthwith affirmed in, among other cases, R. v. Quansah, 2012 ONCA 123.
27At 8:42 p.m. P.C. MacKay first spoke with Ms. Duval-Okipniuk. He asked where she was coming from and whether she had been drinking. He asked for and ultimately received from her son her licence, ownership and registration and the son's identification. He detected the smell of alcohol in the vehicle. He stepped away from Ms. Duval-Okipniuk's car and called her identification in over his radio to see whether Ms. Duval-Okipniuk was wanted in relation to any other offences. He then re-approached the driver's door of her car, spoke further with her, detected a strong odour of alcohol on her breath and made his decision to proceed with the ASD. He radioed for an ASD and asked Ms. Duval-Okipniuk to exit her car to provide an ASD sample. The ASD arrived and the formal demand was made.
28On this chronology, the delay between P.C. MacKay's detection of the odour of alcohol on Ms. Duval-Okipniuk's breath and his demand for the sample is very brief and is attributable to his call for the ASD, Ms. Duval-Okipniuk's exit from her car and P.C. Kostiuk's delivery of the ASD within one to two minutes of the request. Even if one regards Quansah as imposing the most stringent of immediacy tests, this delay did not go beyond the lapse of time reasonably required by P.C. MacKay to carry out his ASD-related duties.
29Moreover, in Quansah, although LaForme, J., for a unanimous court, said that "the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body" and "the immediacy requirement, therefore, commences at the stage of reasonable suspicion", he also expressly recognized three qualifying circumstances which had been identified by Hill, J. in R. v. Fildan (2009), 69 C.R. (6th) 65 (S.C.J.). The first two of these are the following:
(1) Where the police officer takes further reasonable steps (such as sobriety and physical coordination tests) to determine whether there are reasonable grounds for an intoxilyzer demand (R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.) at para. 19, 27, 57) or
(2) Where the officer asks questions to learn the amount of alcohol said to have been consumed – with confidence that only one drink was consumed, the constable may direct the motorist on his or her way: (Megahy, at para. 17-8),
30Even if P.C. MacKay had smelled alcohol on Ms. Duval-Okipniuk's breath when he first spoke to her, he was not obliged to proceed only by way of an ASD demand. The ASD is only one of the investigative tools of the police in conducting a drinking/driving investigation. It would make little sense to interpret the law as requiring a police officer to implement ASD testing in every case in which he has detected alcohol on a detainee's breath, eschewing resort to any other tools or further consideration of whether the investigation need proceed at all.
31Accordingly, I do not regard the approximate seven or eight minute delay between P.C. MacKay's initial detection of alcohol in Ms. Duval-Okipniuk's car and his ASD demand as contrary to the "forthwith" obligation. The demand was not improperly made on this basis.
Charter ss. 8 and 9 – Did P.C. MacKay Have Reasonable Grounds for the Intoxilyzer Demand?
32P.C. MacKay gave evidence about his use of the ASD. He said that Ms. Duval-Okipniuk only produced a suitable sample after approximately five attempts. He said that, during those attempts, he received an error message. He thought the message was "ERR" or "ER". P.C. MacKay said that the only other non-suitable-sample ASD message with which he was familiar was "low bat" indicating a low battery. P.C. MacKay said that he did check the date of calibration of the ASD and found it to have been within the appropriate time limit. He said that he did not consider the error message which he viewed as indicating that the ASD was not in proper working order.
33P.C. Kostiuk, the breath technician, testified in cross-examination that she believed that an ASD has six different error codes, one of which, "EO", means that the subject is not providing enough breath or breath for a long enough time. She said that if any error code which she did not recognize, including "ER" or "ERR", appeared, she would not proceed to use the ASD because she could not be sure it was in proper working order.
34Combining these pieces of evidence, Mr. Stanford submits that P.C. MacKay's reliance on the ASD "fail" reading in Ms. Duval-Okipniuk's case was not objectively reasonable. The defence argument is that he, like P.C. Kostiuk, ought to have been aware that, given the error message being produced by the ASD, it could not be relied upon.
35As held in R. v. Mastromartino; R. v. Farrugia; R. v. Martins; R. v. Young, 2004 CanLII 28770 (ON SC), a police officer using an ASD must have a reasonable belief that the device is in working order. However, it is P.C. MacKay's belief and not P.C. Kostiuk's which is relevant here. Although P.C. Kostiuk would apparently not have regarded the ASD result as reliable, P.C. MacKay's conclusion was to the contrary. The evidence does not establish that P.C. MacKay's belief, although contrary to P.C. Kostiuk's, was unreasonable. The fact that P.C. Kostiuk is a breath technician and P.C. MacKay is not – as far as I can see, the only basis on which the point might be argued – is not adequate for this purpose.
36The onus on this aspect of Ms. Duval-Okipniuk's Charter application being on her, I am not satisfied that P.C. MacKay's s. 254(3) C.C. demand was unjustified and the consequent detention and seizures in breach of Ms. Duval-Okipniuk's Charter rights.
The Substantive Offence – The Discrepancy Between Exhibits 1 and 4
37Exhibit 4, the COA, makes reference to "Alcohol Countermeasure Systems Ethyl Alcohol Standard Lot 201012B". Exhibit 1, the CQT, makes reference to "Alcohol Standard Lot Number 20719".
38P.C. Kostiuk explained this discrepancy as an error on her part. She said that her error consisted of printing out and providing to the officer in charge "the wrong" (of two) COAs which had been pre-programmed in the Intoxilyzer computer. She said that two alcohol standards were present in the breath room on December 7, 2012 and that, although she made use of alcohol standard lot 20719 in taking Ms. Duval-Okipniuk's samples, she made reference in the COA to the other. She testified, and I accept, that she was able to confirm the accuracy of the CQT in this regard by reference to the Intoxilyzer sample printouts and her notes.
39Ms. Alexander's submission is that the Crown has met its burden for the purpose of relying on the presumption of identity in s. 258(1)(c) C.C. She notes that part of P.C. Kostiuk's viva voce testimony is that the CQT "accurately reflects the testing procedure [I] did with Ms. Duvall". Thus, the Crown says, even if there were deficiencies in the CQT, P.C. Kostiuk's evidence in court provides a sufficient alternative.
40The Crown's further position is that, even if it were relying on the CQT alone, such doubt as might exist about its accuracy has been eliminated by P.C. Kostiuk's evidence concerning it and the COA and thus it can be relied upon.
41I agree with both of the arguments advanced by the Crown, which is not precluded from relying on the presumption of identity.
Charter s. 24(2)
42My finding is that Ms. Duval-Okipniuk was denied a reasonable opportunity to speak with her counsel of choice contrary to her Charter s. 10(b) right.
43Since the decision of the Supreme Court of Canada in Grant, supra, the law is clear that there is no presumptive exclusion for Charter infringements which fall into a particular category, such as the acquisition from an accused of conscriptive evidence or the denial of the right to counsel. Rather, as with all manner of Charter infringements, the court is required to inquire into the seriousness of the Charter-infringing state conduct, the impact on the Charter-protected interests of the accused, and society's interest in an adjudication on the merits.
44As to the seriousness of the offence, Sergeant DaSilva and P.C. MacKay were aware that a message had been left for Mr. Grossi only approximately ten minutes earlier than their surrender of Ms. Duval-Okipniuk to P.C. Kostiuk. P.C. Kostiuk knew that a message had been left but did not know, and did not inquire into, when. I find that none of the officers was acting in bad faith and that their failure to provide a greater opportunity to Ms. Duval-Okipniuk is properly described as inattentive rather than abusive. Nonetheless, the fact that none of them raised a red flag suggests systemic and not isolated inadvertence. Bearing in mind the admonition in Grant that s. 24(2)'s focus is societal and is aimed at systemic concerns, I regard the seriousness of the breach as high and favouring exclusion.
45Turning to Grant's second line of inquiry, the practical impact of the over-hasty delivery of Ms. Duval-Okipniuk to P.C. Kostiuk is unclear. Certainly, it was, at 9:45 p.m., a denial of her right to a reasonable opportunity to confer with her counsel of choice. However, the record does not establish that a reasonable opportunity to consult with Mr. Grossi would have extended to the 10:30 p.m. return call from him nor that any discussion with him would have altered the course of events which produced Ms. Duval-Okipniuk's incriminating breath samples. Neither, however, does the record establish the contrary. Thus, discoverability plays no useful role in this part of the Charter s. 24(2) analysis: R. v. Coté, [2011] SCC 46, para. 70.
46In the recent decision of the Ontario Court of Appeal in R. v. MacMillan, 2013 ONCA 109, the facts were that the accused was detained at 6:19 p.m. and provided a "fail" ASD sample at 7:16 p.m. without, in the interim, being given rights to counsel. At 7:32 p.m., prior to providing Intoxilyzer samples, the accused spoke with counsel. The Court of Appeal held that Ms. MacMillan's "right to choose whether to speak to counsel" under Charter ss. 9 and 10(b) was "seriously impacted" and characterized the impact as "favouring exclusion, but not strongly". The first and third lines of inquiry in MacMillan were seen to favour inclusion. The detention and rights to counsel breaches were considered to be "driven, in a significant respect, by the unusual circumstances", namely, the effort of the investigating officers to obtain medical assistance for the accused. The Supreme Court held that the Intoxilyzer samples ought to have been admitted.
47Here, there do not appear to me to be any unusual circumstances mitigating the denial of Ms. Duval-Okipniuk's right to counsel of choice. Rather, as in MacMillan but without its countervailing features, the impact should be seen as material and favouring exclusion.
48The third line of inquiry from Grant favours inclusion of Ms. Duval-Okipniuk's Intoxilyzer readings. The desirability of a decision on the merits is as prevalent in this case as in most. The seriousness of the offence of operating a motor vehicle with an excessive blood alcohol concentration is beyond dispute and the evidence of the Intoxilyzer readings of Ms. Duval-Okipniuk's blood alcohol concentration is both reliable and vital to the Crown's case. On the other hand, fortunately, this case did not involve an accident, property damage or personal injury.
49In balancing the lines of inquiry, I note and agree with the reasoning of Greene, J. in R. v. Markovic, 2013 ONCJ 300:
On the flip side, police and the Crown are statutorily given extra powers to detect impaired drivers and enforce impaired driving laws. These extra powers permit officers to delay giving accused persons their rights to counsel and require detained persons to incriminate themselves by making it an offence to refuse to comply with a demand for a breath sample. All these intrusions are necessary in order to properly protect the public but they are intrusions and, as such, the police and prosecution must be held to a high level of compliance.
and that of Cooper, J. in R. v. Vizzari, [2012] O.J. No. 294:
It is vital to the administration of justice that the implementation of the right to counsel and the corollary right to have a reasonable time to consult counsel of choice do not become perfunctory rituals for investigating officers, to which only lip service is paid. It is important to convey to police officers the importance of these rights.
50This case is, as Ms. Alexander fairly concedes, a "close call" where Charter s. 24(2) is concerned but, given the seriousness of both breach and impact, I am satisfied that the admission of the breath samples into evidence would bring the administration of justice into disrepute.
51For these reasons, the charge is dismissed.
Released: June 18, 2014
Signed C.M. Harpur
Justice C.M. Harpur, O.C.J.