Court Information

Ontario Court of Justice

Date: 2017-06-22

Court File No.: 15-07058

Parties

Between:

Her Majesty the Queen

— And —

Maurizio Piacampo

Judicial Officer and Counsel

Before: Justice David Rose

Heard on: June 21, 22, 2017

Reasons for Judgment released on: June 22, 2017

Counsel:

• Mr. B. Juriansz — counsel for the Crown
• Mr. R. Covre — Counsel for the defendant Maurizio Piacampo

Judgment

Rose J.:

Introduction

[1] Mr. Piacampo is charged with Impaired and Over 80 Operation on August 28, 2015. After hearing the evidence, the issues at trial were narrowed down to an allegation that Mr. Piacampo's rights were infringed under s. 10(b) of the Charter because the police made insufficient efforts to put him in touch with his counsel of choice, and also whether the evidence is sufficient to sustain a conviction for impaired driving. My review of the facts is therefore tailored to those issues.

Evidence

[2] On August 28, 2015 PC Landry of the York Regional Police was on patrol in a marked police car north bound on Jane Street north of Highway 407. He was travelling in lane 1, meaning the lane on the left approaching Doughton with two vehicles ahead of him. He saw a blue pick-up truck south bound on Jane approach Doughton ahead of him. The truck made a left turn from Jane Street to go east bound on Doughton. Landry testified that the truck made a turn which was dangerously fast for the turn. The vehicle ahead of him had to brake to avoid the truck turning in front.

[3] PC Landry thought enough of it to investigate the driver. He activated his roof lights and turned right to follow the truck which fairly quickly turned left into a plaza ahead of PC Landry. Landry parked his police car behind the truck facing to the right at 10:41 pm. PC Landry's car dash camera capture these events. It was valuable to me in deciding the case.

[4] When PC Landry stopped his car the driver of the pickup truck got out, and Landry noticed him to be swaying. PC Landry asked him to get back in his truck while he reported to his dispatcher his location and the reason he was there.

[5] Landry got out of his cruiser about a minute later and approached the driver's side window of the truck. He asked him how he was and where he was coming from. The driver was Mr. Piacampo. He got out of his truck at that point and PC Landry noticed that his balance was slightly off. He was swaying back and forth and his eyes were glossy. Mr. Piacampo initially said that he was coming from home and then said that he was coming from work going home. Landry detected an odour of alcoholic beverage from Mr. Piacampo's breath. He asked him how much he had to drink and Mr. Piacampo said not much. He explained to PC Landry that he could not provide his driver's licence because he did not have his wallet on him. At that point PC Landry cautions Mr. Piacampo that he is being investigated for impaired driving and that anything he said might be used against him.

[6] PC Landry again asked Mr. Piacampo how much he had been drinking was told just a couple of drinks of vodka. Mr. Piacampo explained that he works in a restaurant and finished work at 10pm. He also explained that he lived and worked near Islington and Rutherford Road, some distance away. At 10:44 PC Landry arrests Mr. Piacampo for impaired driving.

[7] When asked what his grounds for arrest were, PC Landry testified that the glossy eyes, swaying back and forth, odour of alcoholic beverage and the dangerous left hand turn provided the grounds for him to believe that Mr. Piacampo was impaired by alcohol.

[8] Landry testified that Mr. Piacampo's speech was slightly slurred at times and his discussion about where he was coming from and going indicated some confusion. In PC Landry's testimony it didn't make sense.

[9] Once arrested Mr. Piacampo was placed in the rear of PC Landry's car. At 10:48 a primary caution is read to him. At 10:49 Rights to counsel were read, and Mr. Piacampo said that he understood. Landry asked him if he wanted to call a lawyer, and he replies "not right now". At 10:50pm a Breathalyzer demand was read to him and Mr. Piacampo replies that he understands.

[10] PC Landry left the scene with Mr. Piacampo at 10:52, arriving at the 4 district police station 8 minutes later, namely 11pm. At that point he was booked into the station before Sgt. Kemp. PC Landry was present during that procedure. Mr. Piacampo asked to speak to the lawyer Rudi Covre. Mr. Piacampo was lodged in a cell at 11:30, and PC Landry then attempted to find a phone number for Mr. Covre. He did an on line search using Google and found a phone number (416) 455-6327. He called it and left a message. PC Landry could not say what web page came up which gave him that number, but he was clear that it appeared to be the office number of the lawyer Rudi Covre. PC Landry said that he told Mr. Piacampo that a message had been left for Mr. Covre and was told that Mr. Piacampo only wanted to speak to his own lawyer, as opposed to Duty Counsel.

[11] Mr. Covre did not call back, and Mr. Piacampo was taken to the Breath Technician PC Cabraja at 11:57 pm. 4 minutes later PC Landry was advised by PC Cabraja that Mr. Piacampo had asked to speak to Duty Counsel, and 7 minutes after midnight he placed a call to the automated Duty Counsel line. Duty Counsel called back at 29 minutes after midnight. Mr. Piacampo was placed in the room to speak with Duty Counsel and that call was completed at 32 minutes after midnight.

[12] PC Cabraja testified as a Qualified Breath Technician. He said that he received Mr. Piacampo at 11:57pm and had a conversation with him about speaking with a lawyer. PC Landry was not present for that conversation. That conversation was captured on the camera in the breath room. Once again, I cannot emphasize enough how helpful these videos are at trial.

[13] Once in the Breath Room the topic of speaking with Mr. Covre came up. Mr. Piacampo asks if he can call Mr. Covre, and PC Cabraja repeatedly, and with some emphasis asks rhetorically, 'why would that help?'. Cabraja explains that a call has already been made and a message left. There has been no reply. So why, Cabraja asks Mr. Piacampo, would it help to have him call Mr. Covre? How would that change the situation? Mr. Piacampo suggests that maybe if he calls there will be a reply. Cabraja says that Mr. Piacampo will not be allowed to call himself. Mr. Piacampo then says that he doesn't want Duty Counsel to represent him because he wants his own lawyer. In PC Cabraja's evidence Mr. Piacampo seemed not to understand the process.

[14] Ultimately Duty Counsel is again offered to Mr. Piacampo once it is explained that he can have any lawyer he wishes going forward. With that Mr. Piacampo asks for Duty Counsel and PC Cabraja has PC Landry paged for that purpose.

[15] Ultimately Mr. Piacampo provides two suitable samples of his breath into the Intoxilyzer. The first is at 00:50 hours and the second at 01:15am. The readings were 109 and 122 mg of alcohol in 100 ml of blood respectively.

[16] The Crown finished its case by filing an Affidavit under s. 657.3 of the Criminal Code from an Expert Toxicologist Ms. Vivian Luk. She opines that, having reviewed the test records from the Intoxilyzer 8000C used by PC Cabraja that night, that Mr. Piacampo had a blood alcohol content of between 100 and 140 mg % between the hours of 10:41pm and 10:45pm.

Issues

1. Were Mr. Piacampo's rights under s. 10(b) violated in the manner in which the police attempted to facilitate his rights to counsel?

2. Was Mr. Piacampo's ability to operate a vehicle impaired by alcohol?

Findings

Issue 1 – The s. 10(b) Claim

[17] There is no question that an arrestee has the right to call any lawyer he wishes for advice. Once counsel of choice is requested, the police have an obligation to facilitate that contact, see R. v. Willier 2010 SCC 37. In R. v. Traicheff 2010 ONCA 851 the Court approved of the following statement:

Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer's name and another telephone number where he could be reached.

[18] There is, therefore, an intermediate step incumbent on the police when the arrestee asks for a specific lawyer, and that results in a message being left for the lawyer. I understand the intermediate step to include waiting a reasonable time and then asking the person if they want to speak with another lawyer or if there is an alternative method of contacting the stipulated counsel of choice. An extremely helpful discussion of this is found in R. v. Maciel 2016 ONCJ 563 by my brother Stribopoulos J.

[19] In argument Mr. Jurianz suggested that Traicheff does not have precedent value, and is nothing more than an endorsement. Having reviewed the decision, I do not agree. The Court of Appeal has indeed let it be known that endorsements should not be relied on for unwarranted legal principles, see R. v. Singh 2014 ONCA 293 at par. 12. I do not see the phrase endorsement on my copy of Traicheff. If Traicheff should not be relied on by me as a matter of law then that is a ruling which must be made by a more senior court. Indeed, the Court of Appeal's ruling in R. v. Vernon 2016 ONCA 211 appears to confirm my legal finding.

[20] In this case the police took control of access to counsel. PC Landry made the call to Mr. Covre, and he was the one who decided to present Mr. Piacampo to the Breath Technician. PC Cabraja was quite clear that Mr. Piacampo had to leave to the police to make the call.

[21] In the circumstances I find that Mr. Piacampo's rights under s. 10(b) were violated when PC Landry failed to take any intermediate step once it was clear that Mr. Covre was not going to call back. Mr. Piacampo's exchange with PC Cabraja bolsters this finding. Mr. Piacampo was under some misunderstanding of whether the lawyer he could speak to would represent him in Court. I am also somewhat concerned by PC Cabraja's exchange with Mr. Piacampo. Cabraja's exchange on this point was dismissive and condescending. PC Cabraja's question, 'what would it matter if you called Mr. Covre entirely' misses the point. At that stage in the process the question was what were the police going to do. They could make additional efforts to contact Mr. Covre either with or without Mr. Piacampo's input, or they could ask him what he would like to do at the point when counsel of choice was a dead end. In the end Mr. Piacampo asked for Duty Counsel and was given access to one.

Should the Breath Evidence be Excluded Under s. 24(2)?

[22] Taking the three part analysis from R. v. Grant 2009 SCC 32 in turn. I would find that the Charter Breach was only minimally serious. PC Landry did take positive steps to find Mr. Covre's number, called it and left a message. The Police gave time for Mr. Covre to call back, which he didn't. The Charter breach lies in failing to take any further steps to contact Mr. Covre. Notwithstanding PC Cabraja's exchange with Mr. Piacampo there was no deliberate effort to deny Charter rights or anything close to it. The first factor favours admission of the breath evidence.

[23] The second factor is the impact of the Charter breach on the interests of the Accused. In this prong the Charter Breach is much attenuated by the fact that Mr. Piacampo was given access to legal advice via duty counsel, and he spoke with duty counsel. In other words, he may not have received advice from Mr. Covre, but he got legal advice before he provided breath samples. There is no absolute right to counsel of choice and the availability of free, on call, Duty Counsel is an important backdrop when considering cases like this, see R. v. Richfield (2003), 178 C.C.C. (3d) 23; R. v. Bartle (1994), 92 C.C.C. (3d) 289 (S.C.C.); R. v. Brydges (1990), 53 C.C.C. (3d) 330. I would therefore find the second factor of Grant pulls towards admission of the evidence.

[24] Turning to the third factor in Grant, I would observe that society always has in interest in cases being decided on their merits. The question is always by how much. In this case the impugned evidence is in the form of breath analysis results which were subject to an expert opinion. They were uncontradicted and reliable. Drinking and driving continues to bedevil this community and in the circumstances I would find that the third factor strongly favors admission of the evidence. In sum, putting the Grant analysis together all factors speak to admission of the evidence, not exclusion. The evidence is admitted.

Issue 2 – Impaired Driving Charge

[25] Turning to the impaired driving charge. I could not see evidence of bad driving, and PC Landry's evidence must be scrutinized against the video recording. Mr. Piacampo drove and parked his car unremarkably once he was being followed by PC Landry. The evidence of motor control problems amount to some swaying which I did not observe on the video, and slightly slurred speech at times. I have considered the opinion of Ms. Luk that persons with a BAC over 50 tend to be impaired. Ms. Luk did not testify and her opinion as to the fact of impairment, as opposed to BAC, is not based on the facts before me. I would afford it minimal weight. In the end I find that the indicia of impairment is so frail that it leaves me in a state of reasonable doubt. Mr. Piacampo is acquitted of that charge.

[26] Given my findings above Mr. Piacampo is convicted of the Over 80 charge.

Released: June 22, 2017

Signed: Justice David Rose