Court Information

Court File No.: Brampton 16-9927 Date: December 4, 2017 Ontario Court of Justice

Between: Her Majesty the Queen — and — Elias Christopoulos

Before: Justice M.M. Rahman

Reasons for Judgment released on: December 4, 2017

Counsel:

• Ikdeep Singh, for the Crown
• Bruce Daley, for the Defendant

I. Overview

[1] Shortly after 1:00 a.m. on August 16, 2016, the applicant/defendant, Elias Christopoulos, drove his Ford Edge into a RIDE check point in Mississauga. Peel Regional Police Constable Dowgialo could smell alcohol on the applicant's breath. The officer asked the applicant how much he had to drink and later had the applicant blow into a roadside approved screening device (ASD). The applicant failed that roadside test and was arrested for driving with excess blood alcohol (over 80).

[2] The applicant was taken to 11 Division where he was given an opportunity to call a lawyer. The applicant was taken to a private room for that purpose and left by the officers to consult duty counsel. After he consulted a lawyer, the applicant took two Intoxilyzer tests that produced readings of 127 milligrams and 117 milligrams of alcohol in 100 millilitres of blood.

[3] As with most drinking and driving trials, the applicant's proceeded as a blended one, with the evidence from the voir dire applying to the trial. The applicant raised two Charter issues and one issue on the trial proper.

[4] On his Charter application, the applicant argued that Cst. Dowgialo's failure to ask him when he had his last drink rendered the results of the ASD test suspect and affected his reasonable grounds to arrest for over 80. The applicant also argued that the four-minute delay between his arrest and Cst. Dowgialo informing him of his right to counsel was a breach of s. 10(b), requiring his breath test results to be excluded under s. 24(2) of the Charter.

[5] Finally, on the trial proper, the applicant argued that the Crown failed to prove that the Intoxilyzer tests were administered as soon as practicable, because the police could not say exactly when he finished consulting with duty counsel. Consequently, he said the Crown cannot rely on the presumption of identity in s. 258(1)(c) of the Criminal Code.

[6] The Crown argued that the officer had reasonable grounds to arrest the applicant because he did ask the applicant when he had his last drink. The Crown also said that there was no breach of s. 10(b)'s immediacy requirement, because any delay was occasioned by officer safety concerns. Further, Crown counsel argued that any breach of s. 10(b) was too remote to trigger the Charter's exclusionary provision. Alternatively, if there was a breach, the evidence should not be excluded under s. 24(2). Finally, Crown counsel argued that there should be no doubt that the applicant's Intoxilyzer tests were conducted as soon as practicable.

[7] These reasons address both my decisions on the Charter application and the trial proper.

II. Charter Application: Was there a breach of s. 8 or s. 10(b)?

A. The Mouth Alcohol Issue

[8] The applicant urged me to find that Cst. Dowgialo did not ask him when his last drink had been, before administering the ASD. He argued that this rendered the ASD result suspect and would undermine the officer's reasonable grounds. The applicant said that I should not accept the officer's evidence that his notation that the last drink was at 11:00 p.m. showed that he had discussed the applicant's last drink prior to administering the ASD. The applicant acknowledged that if I accepted the officer's evidence on this point, then his argument must fail. Applicant's counsel fairly acknowledged that the officer was quite firm in his evidence on this point.

[9] I accept Cst. Dowgialo's evidence that he asked the applicant about how much he had to drink, and received an answer that would reasonably allow him to conclude there was no concern about mouth alcohol. It stands to reason that the officer would have asked this question during a RIDE stop. Therefore, I am satisfied that he had reasonable grounds to make the Intoxilyzer demand based on the applicant failing the ASD test.

B. The Right to Counsel Issue

[10] The applicant argued that the four-minute delay between his arrest and being informed of his right to counsel violated s. 10(b) because he was not informed immediately of his right to counsel.

[11] Cst. Dowgialo arrested the applicant as soon as he failed the ASD at 1:19 a.m. After arresting the applicant, the officer searched the applicant incident to arrest, handcuffed him, and placed him in the back of his police cruiser. The officer then advised dispatch that he needed a tow truck and another officer to deal with the impounding of the applicant's car.

[12] Cst. Dowgialo testified that he went to the applicant's car to get his driver's license and also performed some checks on the applicant using his onboard computer. It was only after performing these checks that the officer informed the applicant of his right to counsel.

[13] In cross-examination, after agreeing he had been trained to ensure Intoxilyzer tests are conducted as soon as practicable, Cst. Dowgialo agreed with defence counsel's suggestion that he had also been trained that compliance with s. 10(b) had to be as soon as practicable, rather than immediately.

Q. Your training as arresting officer was to conduct the tests as soon as practicable, correct?

A. I believe so.

Q. Or reasonable, as soon as reasonable?

A. Yes

Q. And likewise you would've been trained that you were to provide rights to counsel, as soon as it was practicable, or reasonable, correct?

A. Correct

Q. No one ever told you, you had to give them their rights to counsel immediately, forthwith or right away?

A. No

Q. No one ever told you that

A. Yeah as soon as practicable because we encounter different individuals and sometimes it is not practicable to give rights to counsel right away.

[14] In re-examination, Cst. Dowgialo explained that, to him, as soon as practicable meant "when it is safe to do so."

[15] The applicant argued that Cst. Dowgialo's failure to immediately inform him of his right to counsel violated s. 10(b). The applicant said that any officer safety concerns ended once he was secured in the back of the cruiser. He argued that the officer's decision to delay informing him of his right to counsel to instead retrieve the applicant's license, and perform checks on the computer, violated s. 10(b)'s immediacy requirement.

[16] Crown counsel argued that the short delay in this case was justified by officer safety concerns. He said that, even though the applicant was secured in the back of the police cruiser, the officer was justified in performing checks to find out who he was dealing with and that those checks are a component of ensuring officer safety.

[17] I agree with that applicant that there was a breach of s. 10(b)'s immediacy requirement, albeit a minor one. Police are entitled to delay complying with s. 10(b) where they have officer safety concerns. However, in this case those concerns ended once the applicant was placed in the back of the cruiser. Cst. Dowgialo agreed that he had no safety concern after that point. I find that the delay occasioned by the officer conducting checks on the applicant was not justified by officer safety concerns. The applicant was not informed of his right to counsel immediately.

III. Section 24(2) of the Charter

A. Was the Evidence Obtained in a Manner that Violated the Charter?

[18] Crown counsel argued that the breath test results are too remote from any Charter breach, so the evidence was not obtained in a manner that violated the Charter. He said that the officer's ultimate compliance with s. 10(b), and the applicant's contact with counsel, effectively severed any connection with the breach and constituted a so-called "fresh start."

[19] I cannot accept the Crown's submission that the breach is too remote. Both the Supreme Court and the Court of Appeal have urged a generous interpretation of the phrase "obtained in a manner." Indeed, the Court of Appeal recently held that s. 24(2) can be triggered even where the evidence is obtained prior to a Charter breach.

[20] In this case, there is a strong temporal and contextual connection between the breach and the obtaining of the breath samples. The breach occurred in the same investigative transaction as the obtaining of the evidence that the applicant seeks to exclude. Therefore, it is necessary to consider whether the evidence should be excluded under s. 24(2) of the Charter.

B. Should the Evidence be Excluded?

[21] The applicant argued that Cst. Dowgialo's ignorance of the requirements of s. 10(b) demonstrates a systemic issue with Peel Regional Police's training. He said it is troubling that Cst. Dowgialo only learned during this trial that he had to inform detainees of their right to counsel immediately.

[22] The applicant relied heavily on this court's decision in R. v. Sandhu. In that case, Justice Schreck found that Peel Regional Police officers have repeatedly demonstrated a failure to understand the requirements of s. 10(b). Justice Schreck found that this failure appeared to be a systemic problem which rendered the breaches more serious. The applicant argued that the breach is so serious that it requires exclusion of the evidence, even though the other two steps of the R v. Grant inquiry favour admission.

[23] On the first step of the Grant inquiry, I agree with the applicant that the breach in this case was serious. Although the breach was minor, in the sense that it was only a very brief delay in complying with s. 10(b), it was caused by the officer's ignorance of the Charter. Breaches that are borne of ignorance of well-established Charter standards cannot be considered good faith errors. They are serious. It is not asking too much to expect police officers to know something as basic as when a person in their custody must be informed of his or her right to counsel.

[24] I also cannot accept the Crown's submission that Cst. Dowgialo simply got his terminology mixed up and seemed to understand that he was required to inform a detainee of the right to counsel as soon as it was safe to do so. I agree that his explanation of the immediacy requirement might suggest that. However, his actions in this case undermine any such conclusion. The first step of the Grant inquiry favours exclusion of the evidence.

[25] On the question about whether Cst. Dowgialo's ignorance of Charter standards is part of a systemic problem, I am not satisfied that I have a basis, on this record, to find such a systemic problem. There are clearly many cases where Peel Police officers have not complied with s. 10(b), or demonstrated that they do not know they have to comply with the informational component of that section immediately. The law has been settled for several years. This is not an error any officer should make in 2017.

[26] However, finding a systemic problem would require the kind of statistical evidence that is not before me. Drawing a conclusion of a systemic problem based on trial judgments of this court risks drawing a conclusion based on a small, and potentially unrepresentative, sample of cases. On the one hand, it is possible that those cases are a representative sample that would permit a court to draw a reliable conclusion. On the other hand, it is important to keep in mind that not every case gets to trial. And those cases that get to trial are often the ones with triable issues such as a violation of s. 10(b).

[27] I am not persuaded that Cst. Dowgialo's testimony that he was trained to inform detainees of their right to counsel as soon as practicable demonstrates a problem with the way officers are trained. The way the cross-examination unfolded does not give me much confidence in the accuracy of Cst. Dowgialo's memory about how he was trained. The cross-examination on this issue conveniently juxtaposed the as soon as practicable requirement to administer Intoxilyzer tests with the suggestion that the same timeliness requirement applied to s. 10(b)'s informational requirement. All it established was that this officer remembered his training a certain way and was wrong about the requirements of s. 10(b).

[28] Therefore, I am not satisfied that the applicant has established a systemic problem with Peel Police's understanding, or improper training, of the requirements of s. 10(b).

[29] Both the second and third steps of the Grant inquiry favour admitting the evidence. The impact of the breach on the applicant's Charter-protected interests was not significant. Cst. Dowgialo did not question the applicant before he informed him of his right to counsel. More importantly, the four-minute delay did not have any impact on the applicant's ultimate exercise of his right to counsel. Finally, as counsel acknowledged, the third step of Grant weighs against excluding the evidence. The breath test results are highly reliable evidence, and without them the Crown would have no case.

[30] Balancing the three Grant factors, I find that the evidence should not be excluded. Although the breach here was serious, it was not so serious that it overwhelms the other two factors favouring admission. I should add that, even if I had found that the breach here exemplified a systemic problem with the Peel Regional Police's understanding of s. 10(b), I still would not exclude the evidence.

[31] The text of s. 24(2) requires a court to apply its exclusionary discretion "having regard to all the circumstances." Focussing only on the police conduct here without balancing it against the negligible impact on the applicant's ultimate exercise of his right to counsel would involve disregarding the Charter's language. The applicant ultimately exercised his right to counsel before providing breath samples. The four-minute delay in advising the applicant of his right to counsel had no impact on his exercise of that right. Having regard to all the circumstances, I cannot find that admitting the evidence would bring the administration of justice into disrepute in this case.

IV. The Trial Proper: Were the tests done as soon as practicable?

[32] The only issue raised by the defence on the trial proper was whether the breath tests were taken as soon as practicable. The applicant argued that the Crown is unable to account for the entire period of time that he was in the private room to consult with counsel. He argued that the Crown cannot prove when he finished his call with duty counsel because no police officer went to the room to see if he had finished his call. The applicant said that because the Crown cannot say whether the applicant was on the phone for the full 17 minutes that he was left in the room, it has failed to meet its burden of proof.

[33] The Crown must prove, beyond a reasonable doubt, that the breath tests were administered as soon as practicable. If the Crown does not meet that burden, it cannot rely on the presumption of identity in s. 258(c) of the Criminal Code. Without that presumption, and absent expert evidence, there is no evidence of the driver's blood alcohol content at the time of driving. There is no need for the police to account for every minute of delay. The question is whether the tests were taken reasonably promptly and whether the police acted reasonably. This determination must be made having regard to the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence.

[34] The total delay from the time the applicant was driving to the taking of the first sample was an hour and seven minutes (1:13 a.m. to 2:20 a.m.). Both samples had been taken within an hour and 29 minutes, well within the Criminal Code's outside limit of two hours.

[35] In this case, I find that the Crown has proven beyond a reasonable doubt that the tests were taken as soon as practicable. I cannot accept Mr. Daley's submission that, because the police did not know the precise moment the applicant was off the phone, the Crown cannot meet its burden.

[36] Cst. Dowgialo testified that either he or the cells officer would have told the applicant to knock on the door, or appear at the door's window, once he had finished speaking with counsel. He also testified that he would not approach the door to check on the applicant because the door is not soundproof and he would have been able to hear the conversation. Cst. Halfyard testified that his practice was to tell arrested persons that they ought to knock on the door once they finish speaking with counsel. He also testified that there was a light visible outside the room which would indicate when the phone line was in use and that this light would have been visible from the cell area.

[37] The fact that the officers did not know who let the applicant out of the room does not concern me. They were clear about the usual way people are told to alert the police that they are finished their call with counsel. The door could only be opened from the outside, meaning somebody would have gotten the applicant from the room. Cst. Dowgialo did not approach the door because he wanted to ensure that the applicant had privacy. Presumably other officers followed the same precaution. It is reasonable to infer that whoever retrieved the applicant from the room would have done so once the applicant made it known that he was finished his call.

[38] The length of time that the applicant was in the consultation room also does not give me any cause for concern. While 17 minutes may seem like a long time to consult with counsel, I am also mindful that the applicant was extremely concerned at the roadside, to the point that it caused a delay in Cst. Dowgialo's recitation of his right to counsel. It is not surprising that his phone consultation may have been a lengthy one.

[39] Based on all the evidence, I find that the applicant was speaking with duty counsel while he was in the room and that he would have followed the usual instructions by letting the officers know when he was finished.

[40] Because the tests were conducted as soon as practicable, the Crown is entitled to rely on the presumption of identity. The breath test results were over the legal limit. The Crown has otherwise met its onus in establishing that the applicant drove with excess blood alcohol. I did not under Mr. Daley to suggest any differently. Consequently, the applicant is guilty of the single count of driving over 80.

Released: December 4, 2017

Justice M.M. Rahman