Court Information
Court File No.: Not provided
Date: 2014-01-16
Ontario Court of Justice
Between:
Her Majesty the Queen
— And —
Leonel Alfardo-Delgardo
Before: Justice Sandra Bacchus
Heard: November 12, 2013
Ruling Released: January 16, 2014
Counsel:
- M. Beylin, for the Crown
- H. Spence, for the accused
Bacchus J.:
Introduction
[1] The applicant has applied for an order pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms to exclude all evidence including breath sample results, oral utterances, actions and observations the police made of the applicant, on the basis that the applicant's section 8, 9 and 10(b) Charter rights have been infringed.
Background
[2] On November 3, 2012, at approximately 1:09 a.m., Sergeant Doodnauth Churkoo was travelling northbound on Dufferin north of Highway 401 when he observed the applicant's vehicle which he described as a box cargo truck. Sergeant Churkoo testified that he observed the applicant's vehicle cross the yellow line dividing the north and southbound lanes and also cross the white line separating the passing lane from the curb lane. Sergeant Churkoo described the actions of the applicant's vehicle as "weaving all over the place."
[3] Sergeant Churkoo testified that he followed the applicant's vehicle for approximately 400 or 500 meters and at approximately 1:10 a.m., observed the vehicle make a left hand turn onto Anthony street, and come to a stop at the side of the road next to a fire hydrant.
[4] At approximately 1:11 a.m., Sergeant Churkoo approached the vehicle and observed the applicant in the driver's seat and a second male sleeping in the passenger seat. Sergeant Churkoo testified that he could smell a strong odour of alcohol coming from the cabin of the vehicle and as he moved closer determined that a strong odour of alcohol was coming from the applicant's breath. In addition, Sergeant Churkoo testified that he observed that the applicant had blood shot eyes. When questioned, the applicant advised Sergeant Churkoo that he had consumed two beers.
[5] There is a dispute in the evidence as to whether the applicant slurred his words, was poor in using his fine motor skills and whether he had remnants of vomit on the front of his shirt as testified to by Sergeant Churkoo.
[6] At approximately 1:14 a.m., Sergeant Churkoo cautioned the applicant that he was being audio and video recorded. At approximately 1:16 a.m., Sergeant Churkoo arrested the applicant for impaired operation and moved the applicant into the rear of his cruiser. At approximately 1:19 a.m., Sergeant Churkoo again advised the applicant that he was under arrest and read him his rights to counsel. The applicant was subsequently taken to 32 Division.
[7] At 2:02 a.m., the applicant, in response to his rights to counsel asked to speak to Marvin Blaha. At 2:08 a.m., Police Constable Mailer, the breath technician, placed a call to Mr. Blaha's office and left a voice mail message on behalf of the applicant at Sergeant Churkoo's direction. Sergeant Churkoo testified that shortly after the message was left he advised the applicant that he could contact duty counsel or any other lawyer for the applicant, but the applicant declined this offer.
[8] By approximately 2:17 a.m. when no phone call had been returned by Mr. Blaha, Sergeant Churkoo took the applicant to the breath room so that samples could be obtained from him. At 2:19 a.m., Police Constable Mailer advised the applicant of the earlier attempt he had made to contact Mr. Blaha who he described as a well-known paralegal. Police Constable Mailer asked the applicant if he was satisfied with efforts made and the applicant responded "yes".
[9] Sergeant Churkoo then reiterated that he had asked the applicant if he wished to speak with duty counsel or any other lawyer and the applicant declined. The applicant responded with words to the effect that he knew Mr. Blaha and Mr. Blaha always dealt with his cases which was why he was asking for him for anything that has to do with this. Neither officer acknowledged, questioned or responded to the applicant's statement.
[10] Police Constable Mailer then asked the applicant some health-related questions and provided the applicant with instructions on how to provide a breath sample. At 2:29 a.m., the applicant provided his first breath sample. After cautioning the applicant, police constable Mailer questioned the applicant about his alcohol consumption. The applicant admitted that he had consumed 5 beers and 6 shots of Sambuca starting at about 7 p.m. At 2:52 a.m., the applicant provided the second sample of his breath into the approved device.
[11] Readings were obtained of 160 miligrams of alcohol in 100 millilitres of blood in respect of both samples taken from the applicant. By the time the samples were obtained, Mr. Blaha had not called back nor is there evidence that he had called at any time while the applicant was in police custody.
Analysis
Has There Been a Violation of the Applicant's Section 8 and 9 Charter Rights on the Basis That Sergeant Churkoo Had No Reasonable and Probable Grounds to Make the Breath Demand Pursuant to Section 254(3)(a) of the Criminal Code?
[12] The onus is on the crown to prove that Sergeant Churkoo had reasonable and probable grounds to make the breath demand pursuant to section 254(3)(a), as the Crown seeks to rely on breath samples as a result of a warrantless search. The Court must be satisfied that the findings of fact in respect of the driving and indicia of impairment, objectively support the officer's subjective belief that the applicant was driving while his ability to do so was impaired. The question is whether on the totality of the evidence admitted reasonable grounds exist on both a subjective and objective basis. R. v. Wang, 2010 ONCA 435.
[13] In this case, the following is alleged by the crown to have formed the reasonable and probable grounds for the breath demand made by Sergeant Churkoo:
- that Sergeant Churkoo observed the applicant's vehicle cross the yellow line and the white lines dividing the lanes between two and four occasions;
- Sergeant Churkoo's evidence that the applicant's vehicle was "weaving all over the place";
- that there was a strong odour of alcohol coming from the applicant's breath when Sergeant Churkoo spoke with him shortly after the vehicle stopped and throughout the investigation;
- that the applicant's speech was slurred;
- that the applicant had blood shot eyes;
- that it appeared that the applicant had vomit on the front of his shirt;
- that the applicant's fine motor skills appeared poor.
[14] Sergeant Churkoo's actions and responses to the applicant are captured on the in car camera video. I am satisfied based on the video evidence and Sergeant Churkoo's viva voce testimony that the Sergeant had a subjective belief in his grounds for this arrest. However, I find that Sergeant Churkoo's evidence that the applicant's speech was slurred, that he appeared to have difficulty with his fine motor skills and that he appeared to have vomit on the front of his shirt to be problematic from an objective standard.
[15] Firstly, Sergeant Churkoo's evidence regarding the applicant's poor fine motor skills is inconsistent with his evidence that the applicant had no difficulty retrieving his documents as requested. In addition, there is no evidence of slurring or the applicant's purported difficulty with his fine motor skills captured by the in car camera or booking or breath room video.
[16] In addition, these observations by Sergeant Churkoo are externally inconsistent with the evidence of Police Constable Mailer who testified that he did not note any difficulty that the applicant had with slurring or his motor skills, despite having ample opportunity to make these observations. Nor did Police Constable Mailer see any indication that the applicant had vomited on his shirt. As such, I am not satisfied that these aspects of Sergeant Churkoo's evidence regarding indicia of impairment are objectively reasonable and as such these indicia cannot form the reasonable and probable grounds for the applicant's arrest.
[17] However, Sergeant Churkoo's evidence regarding the manner of the applicant's driving is corroborated by the in car camera video. The applicant's vehicle can clearly be seen to cross and/or straddle the lane boundary lines on at least three occasions: on one occasion, the applicant's vehicle clearly crosses the dividing line for oncoming traffic and on another occasion the applicant's vehicle clearly crosses the dividing line between lanes. Although there might be some basis to assert that Sergeant Churkoo's evidence that the applicant's vehicle was weaving all over the place might have be slightly exaggerated based on the video evidence, the actions of the applicant's vehicle are certainly pronounced and there is no evidence of anything in the road, any traffic, or any vehicle conditions which could account for this manner of driving.
[18] In addition, Sergeant Churkoo's evidence regarding the strong smell of alcohol coming from the applicant's breath and the applicant's blood shot eyes is both internally consistent with his own actions and response to the applicant, and externally consistent with the evidence and observations of Police Constable Mailer.
[19] I am satisfied therefore that there is an objective basis in the evidence for Sergeant Churkoo's reasonable and probable grounds to believe that the applicant's ability to operate his motor vehicle was impaired by alcohol. I find that the applicant's detention at the roadside and his arrest was lawful and that there was no violation of the applicant's section 8 and 9 Charter rights.
Has There Been a Breach of the Implementation Component of the Applicant's Section 10(b) Charter Right?
[20] Section 10(b) of the Charter provides that everyone has the right upon detention or arrest to retain and instruct counsel without delay and to be informed of that right. The duties imposed on the State include both an information component to inform the detainee of the existence of the right, and an implementation component, to provide the detainee with a reasonable opportunity to exercise the right, and to refrain from eliciting evidence from the detainee until he or she had had that reasonable opportunity except in exigent circumstances. What constitutes a reasonable opportunity will depend on the surrounding circumstances. R. v. Prosper.
[21] In R. v. Willier, 2010 SCC 37, the Supreme Court of Canada considered the issue of whether the police had violated the defendant's reasonable opportunity to consult his counsel of choice. The Supreme Court held that the police did not in any way interfere with Mr. Willier's right to a reasonable opportunity to consult counsel of choice by reminding him of the immediate availability of free Legal Aid and advising him that his counsel of choice would not likely return his call quickly given that it was Sunday.
[22] It is noteworthy in considering how the right to counsel was implemented in Willier, supra, that the police held off commencing their investigative interview for approximately 50 minutes and began their interview with an open-ended invitation to Mr. Willier to contact counsel at any point. The police made this offer even though the accused had spoken with duty counsel twice while he waited for his counsel of choice to call back.
[23] In R. v. Anderson, [2010] O.J. No. 6186, although just 22 minutes had passed between the officer's first phone call to the defendant's counsel and the defendant's attendance at the breath room, the officer made multiple phone calls to the mobile cell number provided by the accused. In addition, the officer did the following: asked the accused if he had any other way of getting hold of his lawyer; conducted all sorts of computer checks to locate the accused's counsel; and initiated the process to call duty counsel without foreclosing this as the accused's only option. It was clear given the officer's efforts that there was no reliable contact information for the person the defendant wished to contact. The court in Anderson, supra, at para. 115, in finding no breach of the defendant's section 10(b) rights, held that the officer's efforts to reach the accused's counsel of choice was a textbook example of how things should be done.
[24] In R. v. Wilding, 2007 ONCA 853, the court found that even though the defendant did not speak to counsel of choice before providing a breath sample, the police did all they could to facilitate contacting counsel including calling a friend of the accused, looking up the lawyers name in a lawyer's directory, and contacting the number of someone with the same name as counsel only to find the number to be out of service.
[25] In this case, Sergeant Churkoo waited approximately 9 minutes for the applicant's counsel of choice to call back before requiring the applicant to attend the breath room to provide samples of his breath. There was no evidence that counsel's messaging centre or voice mail was not receiving calls or that counsel was not available or out of town. The extent of the implementation efforts on the part of the police in this case in addition to the 9 minute wait was an offer to contact duty counsel or another lawyer for the applicant. Even if I accept the crown's argument that I should consider the time up to the taking of the applicant's first breath sample, 21 minutes, as the applicant's opportunity to hear back from counsel, I still find that the effort made to implement the applicant's section 10(b) Charter right was inadequate and did not constitute a meaningful exercise of that right.
[26] In addition, I find that the applicant's affirmative response to the question of whether he was satisfied with the efforts made to contact Mr. Blaha was equivocal and had been qualified when he expressed that his desire to consult Mr. Blaha was because he was the person who did all of his work. The police failed to address what was in essence the applicant's reiteration of his desire to speak to Mr. Blaha.
[27] The breach, in my view, is not remedied by Sergeant Churkoo's evidence that he would have interrupted the test to allow the applicant to speak to Mr. Blaha if Mr. Blaha had called back; the opportunity afforded to the applicant to contact counsel/agent was not reasonable in the first place. In R. v. Zoghaib, 2005 O.J. No. 5946, the court found that although the accused had not complained about the advice she received from duty counsel, her section 10(b) rights had already been breached before she spoke to duty counsel. Similarly I find in this case that although the applicant did not complain, the minimal steps taken to contact his counsel are insufficient to satisfy the implementation component of the applicant's section 10(b) right.
[28] The police should have held off requiring that the applicant provide samples of his breath for a reasonable length of time given the time of day counsel was being contacted. Expecting a return call in that brief time frame at that time in the morning is patently unreasonable. In addition, following the applicant's comments to the officers that Mr. Blaha did all his work which is why he wanted to speak with him, either Sergeant Churkoo or police constable Mailer should have asked the applicant if he wanted them to place a second call to Mr. Blaha or wait a little longer to see if the message was returned. Although not much was required of the police to meet the implementation component of the applicant's section 10(b) right, I find that the failure to take these steps has resulted in a breach.
Is There a Basis to Exclude Evidence Pursuant to Section 24(2) of the Charter Given the Nature of the Section 10(b) Violation Found in This Case?
[29] Pursuant to section 24(2) of the Charter, the applicant has the burden to establish on a balance of probabilities if the admission of evidence obtained in violation of the Charter breach would bring the administration of justice into disrepute. The court must consider the seriousness of the Charter infringing state conduct, the impact of the breach in the Charter protected interests of the applicant, and society's interest in the adjudication of the case on its merits. R. v. Grant, 2009 SCC 32.
[30] In considering the seriousness of the breach in this case, there is no evidence of any bad faith on the part of the police in dealing with the applicant. Sergeant Churkoo was courteous and attentive to the applicant throughout the investigation and did his best to carefully explain each stage of the investigation to the applicant. In addition, this is not a case where the applicant expressed a desire for counsel of choice and was expressly denied access to counsel of choice.
[31] However, as the applicant's attendance to give breath samples was well within the legislated two hour requirement which would allow the State to rely on the certificates of analysis, there was simply no urgency which would justify the limited amount of time the police waited for a call back in this case. The rushed nature of the implementation component of the applicant's section 10(b) right stands in stark contrast to the otherwise careful manner in which Sergeant Churkoo seems to have conducted the other aspects of this investigation. It appears, given the limited time the police allotted for the call back, and given police constable Mailer's comment that Mr. Blaha was a well-known paralegal, that the police had predetermined that the applicant's requested agent would not call back.
[32] Two factors aggravate the seriousness of the breach in my view. First, that Sergeant Churkoo was operating under a misapprehension that the applicant was required to provide breath samples "forthwith" and therefore he could not wait to afford the applicant a further opportunity to reach his counsel of choice. Sergeant Churkoo failed to fully appreciate the extent of his obligations pursuant to section 10(b).
[33] Secondly, Police Constable Mailer's testimony that in fact he would have waited longer to afford the applicant a meaningful opportunity to receive a call back from his counsel of choice. Despite having this view, Police Constable Mailer did not express it during the critical time of the investigation and did nothing to further the applicant's opportunity to contact counsel.
[34] As such, I find that in all the circumstances, the breach of the applicants section 10(b) right is a significant violation.
[35] I have considered the public interest in a trial on its merits and the scourge impaired driving causes in our community. I adopt the view expressed by the court in Markovic, supra, para. 54: "the 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 theirs rights to counsel and require the 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."
[36] I find that to admit the evidence of the breath tests and the statements made by the applicant to Police Constable Mailer which followed the breach of the applicant's section 10(b) Charter rights would bring the administration of justice into disrepute and this evidence is excluded.
Reasons released: January 16, 2014
Signed: Justice Sandra Bacchus