Court File and Parties

Ontario Court of Justice

Date: 2019-04-18

Court File No.: Newmarket 17 05860

Between:

Her Majesty the Queen

— and —

Vanessa Christine Porchetta

Before: Justice David S. Rose

Heard on: April 11, 12, 2019

Reasons for Judgment released on: April 18, 2019

Counsel

T. Vandenen, D. Parke — counsel for the Crown

P. Lindsay — counsel for the defendant Vanessa Christine Porchetta

Reasons for Judgment

Rose J.:

Overview

[1] Ms. Porchetta pleaded not guilty to the Charge of Over 80 Operation under s. 253(1)(b) of the Criminal Code. The allegations arise from an incident on June 29, 2017.

[2] At trial three main issues emerged. The first was whether in law the Crown could rely on the presumption of identity, the second was whether the Crown could rely on the presumption of accuracy, and the last was an allegation that Ms. Porchetta's rights under s. 10(b) of the Charter were violated. Jurisdiction, date, time and identity were all admitted by the defence.

Evidence

[3] Cst. Ou-Yang was on duty at around 2am on June 29, 2017 and heard a radio call about a possible impaired driver in the area of Major McKenzie drive and McCowan drive. It was reported as a Toyota Corolla being operated by a female white with brunette hair. The call reported that the car had hit a curb. He was nearby and decided to investigate. He drove east bound on Major McKenzie drive, and from that point his car dash cam was activated and captured the events which followed. It was a real help in deciding this case.

[4] As Cst. Ou-Yang drove east bound he encountered a Honda Accord driving slowly in the curb lane. It was also travelling east bound, so Cst. Ou-Yang's police car approached it from behind. Major McKenzie is a 70 km/hr. roadway in that section but the Honda was going about 40 – 50 km/hr.

[5] Ou-Yang activated his roof lights and the Honda pulled into a gas station making a right turn, and then stopped. That was at 2:21 am. Ms. Porchetta was the lone occupant, and was in the driver seat when he approached. The conversation almost immediately turned to drinking. Cst. Ou-Yang asked: Hi There? What happened here? Ms. Porchetta said: I blew a flat tire. Ou-Yang then asked: What alcohol have you had to drink tonight. After utterances he then says: You've had nothing to drink? Why do I smell alcohol?

[6] Cst. Ou-Yang testified that he smelled a strong odour of alcohol on Ms. Porchetta's breath. At 2:02 am he formed a suspicion that she had consumed alcohol and asked her to exit the car to do a roadside screening test. Ms. Porchetta did not immediately comply. The dash cam records her refusing to comply with the demand until about 2:10 am when she finally agrees to blow into the ASD. By 2:12 Ms. Porchetta had provided a suitable ASD sample and failed. She was then arrested.

[7] At 02:16 Ms. Porchetta was given her Rights to Counsel and said that she wanted to speak to her own lawyer David Gomes. At 02:18 she was read a standard caution and when asked if she understood said that she didn't and wanted a translator. Cst. Ou-Yang asked her what language of translation she wanted, and she replied, "I don't know, whatever you think is necessary". At that point I could not discern any language accent or inability of Ms. Porchetta to comprehend the English language whatsoever.

[8] At 02:19 a female officer who had arrived on scene did a search of Ms. Porchetta, and at 02:24 she was transported to a Mobile RIDE truck which had a Qualified Breath Technician and facilities for doing a Breath Test. The RIDE truck has its own internal video recording system which was also quite helpful in deciding the case.

[9] They arrived at the RIDE truck at 02:35 am. Sgt. Mohan was operating the truck. He is a Qualified Breath Technician. Again Ms. Porchetta asked to speak to David Gomes, her lawyer of choice. Cst. Ou-Yang then looked for Mr. Gomes's phone number by using the Law Society of Upper Canada web site. That gave him a phone number for Mr. Gomes. Cst. Ou-Yang asked Ms. Porchetta if she wanted to speak with Duty Counsel if Mr. Gomes did not pick up the phone. He called that number standing in front of Ms. Porchetta. There was no answer and he passed the phone to Ms. Porchetta who was seated right there. She left a message for Mr. Gomes.

[10] After Mr. Gomes didn't answer the phone and Ms. Porchetta had left a message Cst. Ou-Yang offered her duty counsel and she said yes. At 2:44 he called Duty Counsel and left a message. At 2:47 he called the Duty Counsel hotline. In his evidence, Cst. Ou-Yang testified that he knew that there was an option for a hotline cue, which might get Duty Counsel on the phone earlier. When he called the hotline he got Duty Counsel on the phone right away. He testified that, by that point, he knew that there was not going to be a call back from Mr. Gomes.

[11] Ms. Porchetta spoke with Duty Counsel in the private phone booth in the RIDE truck. She spoke with Duty Counsel from 2:49 am to 02:53 am. Cst. Ou-Yang asked her if she was satisfied with that conversation and she said yes.

[12] By that point Sgt. Mohan was about to receive Ms. Porchetta for breath testing. It is clear from the RIDE truck video that quarters are close, and Sgt. Mohan was in the immediate vicinity during the calls to counsel. As Cst. Ou-Yang testified, Sgt. Mohan realized that Ms. Porchetta's personal phone had another phone number for Mr. Gomes. At 02:58 am he gave her her own phone to get that number.

[13] That other phone number for David Gomes was obtained by 03:00 am and Cst. Ou-Yang permitted Ms. Porchetta to make a second call to Mr. Gomes. She called him and left a voice mail message. By 3:10 there was no call back again from Mr. Gomes and he made a decision to have her start the Breath Testing procedure with Sgt. Mohan.

[14] Sgt. Mohan is a qualified Breath Technician. No issue was raised with his testimony on that fact. He testified that he became involved with Ms. Porchetta at 2:21am on June 29. At that time he was working in a RIDE truck which had an operational Intoxilyzer 8000C. He testified that he had set up that Instrument and done quality checks to ensure that it was working, and capable of accepting a breath sample. He testified to doing various diagnostic checks prior to seeing Ms. Porchetta. These included a diagnostic test, and two calibration checks. He himself changed the alcohol standard solution at 1:17 that night. The calibration check was set to a test value of 100mg % and the machine was at that range. The standard solution was kept in a plastic bottle which had information on the outside which told him that the set value is 100 mg %. The certificate for the standard solution was in the RIDE truck that evening, and he viewed it prior to investigating Ms. Porchetta. He did not test he standard solution himself. As he said in cross-examination, the only way he knew that the solution is certified is by a certificate of Analyst. He has never heard of alcohol standard solutions set to a value other than 100 mg %.

[15] Sgt. Mohan did a self test at 1:22 am which returned a BAC of zero, which he expected because he had not drank that evening. He therefore believed at 1:22 am that the machine was capable of receiving a sample prior to receiving Ms. Porchetta.

[16] The test print out from Ms. Porchetta's test confirmed Sgt. Mohan's evidence that the Intoxilyzer returned a calibration check just prior to Ms. Porchetta providing a sample within 1% of the target value on the cal check of 3:19 and a second at 3:42 which was exactly 100 mg %. In other words there was a deviation of 1% at 3:19 am and zero at 3:42 am.

[17] Ms. Porchetta provided two samples of her breath directly into the Approved Instrument. One was at 3:22 am, and a second at 3:44 am. They were 149 and 150 milligrams of alcohol in 100 millilitres of blood respectively.

[18] Ms. Porchetta testified on the Charter Application. She admitted to all that was seen on Cst. Ou-Yang's in car camera and all that was seen on the internal RIDE truck video. She added that she had no expectations that Mr. Gomes would call back, one way or the other. She wanted to speak to Mr. Gomes because he had helped her in the past, and said that from the beginning. She had his phone number in her phone and told PC Ou-Yang that. She testified that when she told him that she was satisfied with her call with Duty Counsel she was confused and wanted it to end, so she said she was satisfied but she really wasn't. She testified that Mr. Gomes never called back that night, and it wasn't a surprise given the hour.

Issues

[19] Three issues were raised in argument. They are:

1. Does the Presumption of Identity Apply in law – The Shaikh argument
2. Has the Crown complied with s. 320.31 because it did not lead the certificate of analyst into evidence – the Flores argument
3. Has there been a violation of Ms. Porchetta's rights under s. 10(b) because she was never put in touch with counsel of choice?

First Argument – Does the Presumption of Identity Apply to this case?

Overview

[20] The defence argues that s. 258 was repealed and not in force at the time of the trial. The argument goes on to say that, because the presumption of identity was repealed, there is no evidence of a Blood Alcohol Content (BAC) at the time of the offence, and an acquittal should follow. Mr. Lindsay places great reliance on the recent decision of Burstein J. in R. v. Shaikh 2019 ONCJ 157. With the greatest of respect to my learned colleague, I come to a different finding on the law.

Discussion

[21] Ms. Porchetta was charged in June of 2017 with excess blood alcohol under s. 253(1)(b) of the Criminal Code. She entered a plea of not guilty on April 11, 2019. On December 18, 2018 Parliament substantially changed the drinking and driving provisions. They did that when they passed, and enacted, Amendments to the Criminal Code, R.S., c. C-46. No longer is the offence centered on the impairment and BAC at the time of driving so much as it is a matter of operating a conveyance while impaired and/or having a BAC in excess of 80 MG % within 2 hours of operating a conveyance.

[22] All of sections 249 to 261 of the Criminal Code (including the heading before s. 249), which were in force up to December 17, 2018 were repealed, see S.C. 2018, c. 21 s. 14 (hereafter the Act to Amend). The new provisions were assigned entirely new section numbers within Part VIII of the Criminal Code, namely 320.11 through 320.4.

[23] On its face, the Act to Amend rendered null and void the entirety of the old offence provisions for drinking and driving. But there is more to it than that. In the case at bar Ms. Porchetta entered a plea of not guilty after December 18, 2018 to the charge of Over 80 Operation under s. 253(1)(b). Mr. Lindsay concedes that the old Over 80 provision remains a valid charge on which to have a trial. It is a fair concession. Clearly s. 253(1)(b) remains valid legislation for charges arising before C-46 came into force. The baby has not been thrown out with the bathwater. Indeed, in R. v. Shaikh Burstein J. convicted the defendant of Impaired Operation for a delict from February of 2018 at a trial started and completed in 2019. The Act to Amend is not the entire answer to the question of applicable legislation in the circumstances.

[24] The reason why s. 253(1)(a) and (b) remain valid charging provisions post December 18, 2018 is found in other legislation. When legislation is repealed and replaced, the Interpretation Act R.S.C. 1985, c. I-21 contains express provisions dealing with such transitions.

43. Effect of repeal Where an enactment is repealed in whole or in part, the repeal does not

(a) revive any enactment or anything not in force or existing at the time when the repeal takes effect,

(b) affect the previous operation of the enactment so repealed or anything duly done or suffered thereunder,

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,

(d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or

(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation, or liability, referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture or referred to in paragraph (d),

and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.

[25] Notably, s. 43(c) stipulates that repeal, in this case of s. 253, does not affect any liability incurred while s. 253 was in force. That is an answer to the question of why s. 253 survives its repeal for purposes of cases coming to trial after December 18, 2018. The law in effect at the time of the conduct remains, notwithstanding its repeal.

[26] S. 43 also goes on to carry the investigation forward. The case may be enforced after the charging provision is repealed, see s. 43(e) et seq.

[27] Two other provisions of the Interpretation Act are important in divining legislative intent.

[28] The first is s. 12, which deems enactments to be remedial, and the second is s. 13.

12. Enactments deemed remedial Every enactment shall be deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

13. Preamble The preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purport and object.

[29] For Bill C-46 it is therefore noteworthy that the preamble to the Act to Amend contains strong language about the intention of Parliament:

Whereas dangerous driving and impaired driving injure or kill thousands of people in Canada every year;

Whereas dangerous driving and impaired driving are unacceptable at all times and in all circumstances;

Whereas it is important to deter persons from driving while impaired by alcohol or drugs;

Whereas it is important that law enforcement officers be better equipped to detect instances of alcohol-impaired or drug-impaired driving and exercise investigative powers in a manner that is consistent with the Canadian Charter of Rights and Freedoms;

Whereas it is important to simplify the law relating to the proof of blood alcohol concentration;

Whereas it is important to protect the public from the dangers posed by consuming large quantities of alcohol immediately before driving;

Whereas it is important to deter persons from consuming alcohol or drugs after driving in circumstances where they have a reasonable expectation that they would be required to provide a sample of breath or blood;

Whereas it is important that federal and provincial laws work together to promote the safe operation of motor vehicles;

And whereas the Parliament of Canada is committed to adopting a precautionary approach in relation to driving and the consumption of drugs, and to deterring the commission of offences relating to the operation of conveyances, particularly dangerous driving and impaired driving;

[30] I would therefore give effect to the preamble as mandated by s. 13 of the Interpretation Act to find that, in law, Parliament's intention with C-46 was to simplify the manner of proof when the defendant is charged with excess blood alcohol. This was a legislative response to the unacceptable level of dangerous driving occurring in Canada which kills or injures thousands of people each year. I find that Parliament's intention is clear and unambiguous. Any suggestion that C-46 rendered the manner of proof of BAC more difficult would be in tension to the clear, unambiguous language of Parliament. It is axiomatic that principles of statutory interpretation require the Court to read the words of the Criminal Code in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament, see R. v. Myers 2019 SCC 18 at par. 19. The Criminal Code must be read as a coherent whole.

[31] Parliament's intention to simplify the manner of proof in Over 80 cases goes back some time. Indeed, the history of excess blood alcohol driving provisions in the Criminal Code is a history of more or less constant legislative change. As the Supreme Court commented in R. v. Alex 2017 SCC 37, [2017] 1 S.C.R. 967 at par. 2:

To address the challenges posed by the large number of drinking and driving offences, Parliament has, over the years, taken steps to simplify and streamline the trial process. One such step, which dates back to 1969, involved the introduction of evidentiary shortcuts into the Criminal Code, R.S.C. 1985, c. C-46. These shortcuts, now found in ss. 258(1)(c) and 258(1)(g) of the Code, permit the Crown to establish an accused's blood-alcohol concentration at the time of the alleged offence by filing a certificate recording the accused's breath readings.

[32] It is not surprising therefore, that the application of old and new amendments to those provisions should have been considered by senior appellate courts as they apply to cases which are investigated before such changes and come to trial after.

[33] C-46 is the latest is a long history of legislative amendments to the Criminal Code speaking to the BAC of drivers. Chemical analysis of a driver's blood first entered the Code in 1951, see S.C. 1951, c. 47. Amendments were passed in: 1959, see S.C. 1959, c. 41; 1969, see S.C. 1968-69, c. 38; 1976, see S.C. 1974-75-76, c. 93; 1985, see R.S.C. 1985, c. 27 (1st Supp.); 1997, see 1996, S.C. 1997, c. 18; and 2008, see S.C. 2008, c. 6.

[34] In R. v. Ali, [1980] 1 S.C.R. 221 the Court considered the legislative change from one breath sample being required to two. The Court found that changes to the manner of proof in Over 80 cases are clearly substantive. It would be virtually impossible to try a case on the basis that the Crown had to prove two breath samples when only one was required by the police at the time of arrest. Importantly the substantive quality of the provision lay in what was expected of the arrestee and the police as regards providing a breath sample, see also R. v. Copley (1988), 28 O.A.C. 81 (C.A.).

[35] In R. v. Dineley 2012 SCC 58, [2012] S.C.J. No. 58 the Court once again was asked to consider whether changes to s. 258 were substantive or procedural. That Court identified the framework to be used to determine whether a changed enactment applies to historic prosecutions.

10 There are a number of rules of interpretation that can be helpful in identifying the situations to which new legislation applies. Because of the need for certainty as to the legal consequences that attach to past facts and conduct, courts have long recognized that the cases in which legislation has retrospective effect must be exceptional. More specifically, where legislative provisions affect either vested or substantive rights, retrospectivity has been found to be undesirable. New legislation that affects substantive rights will be presumed to have only prospective effect unless it is possible to discern a clear legislative intent that it is to apply retrospectively (Angus v. Hart, [1988] 2 S.C.R. 256 (S.C.C.), at pp. 266-67; Application Under s. 83.28 of the Criminal Code, Re, 2004 SCC 42, [2004] 2 S.C.R. 248 (S.C.C.), at para. 57; R. v. Wildman, [1984] 2 S.C.R. 311 (S.C.C.), at pp. 331-32). However, new procedural legislation designed to govern only the manner in which rights are asserted or enforced does not affect the substance of those rights. Such legislation is presumed to apply immediately to both pending and future cases ([Application Under s. 83.28 of the Criminal Code, Re, at paras. 57 and 62; Wildman, at p. 331).

[36] The background for Dineley is that in 2008 Parliament changed s. 258 to take away the defence of 'evidence to the contrary', or what was known as the "Carter" defence. The Court in Dineley found that s. 258 affects a substantive right, not a procedural one. One of the reasons why is that,

21 The possibility for the accused of rebutting the statutory presumptions by means of a Carter defence (under the former legislation) or by adducing evidence related to the instrument (under the Amendments) is determinative of whether the infringement of the right to be presumed innocent is justified. However, the conclusion that the infringement is justified in the context of the new legislation does not alter the fact that constitutional rights are affected. This is a further indication that the new legislation affects substantive rights, since constitutional rights are necessarily substantive. When constitutional rights are affected, the general rule against the retrospective application of legislation should apply.

[37] The nature of the substantive right, in the Court's finding, lay in the manner in which Parliament determined how to defend the charge, not just for the old provision, but the new one too. I do not read Dineley as finding that the old s. 258 section was substantive but the new one wasn't. I read Dineley as finding that both the old s. 258 section, and the new one (sans "Carter" defence) were both substantive provisions. Both affected the manner of proof in an Over 80 case. Both affected how the defendant made full answer and defence to the charge. The new provision from Dineley is exactly the provision in force on June 29, 2017. It contains a law creating a presumption arising out of certain facts and is therefore substantive, see R. v. Wildman, [1984] 2 S.C.R. 311. As the Court found in the companion case to Dineley, "The amendments have not changed the nature of these presumptions" see R. v. St. Onge-Lamoureux 2012 SCC 57, [2012] S.C.J. No. 57.

[38] Aside from the substantive nature of s. 258, and the clearly substantive changes to the drinking and driving legislation, I find that Parliament had a clear intention in C-46 to simplify the law relating to proof of BAC. It would be quite inconsistent to find that Parliament intended to keep s. 253(1)(b) intact for legacy cases but make it substantially more difficult to prove those charges by wiping away the presumption of identity and rendering null and void the police investigations for those cases. That would be absurd. Furthermore, C-46 affected not just the new law, but the old one as well, as discussed above. If Parliament were to have intended the preamble about simplification of manner of proof of BAC in Over 80 cases to apply only to new charges under s. 320.14, but not the old ones that it repealed but still in the Court system, it would have said so. I disagree with Burstein J.'s finding in Shaikh at par. 34 (iii) that the new evidentiary provisions can be adopted to trials of existing charges. It is not possible to do that and still implement Parliament's express intention to simplify proof of Over 80 cases. The new Over 80 and impaired operation provisions are quite different. The presumption of identity is unnecessary in the new provisions because the new legislation doesn't require proof of BAC at the time of driving.

[39] For these reasons I find that, in law s. 258 applies to the case at Bar.

Second Argument – Has the Crown proven the Presumption of Accuracy

[40] The Act to Amend gave statutory content to the presumption of accuracy. It did that in s. 320.31, which reads,

320.31 (1) If samples of a person's breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person's blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person's blood alcohol concentration at the time when the analyses were made — if

(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;

(b) there was an interval of at least 15 minutes between the times when the samples were taken; and

(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.

[41] That section was directed by Parliament to apply to transitional cases. Again, quoting from the Act to Amend,

32 (2) Subsection 320.31(1) of the Criminal Code, as enacted by section 15 of this Act, applies to the trial of an accused that is commenced on or after the day on which that section 15 comes into force if the sample or samples to which the trial relates were taken before that day.

[42] That part of the analysis is straightforward. Mr. Lindsay argues that, as a matter of proof, the Crown must prove that the alcohol standard is certified by an analyst. When Sgt. Mohan testified that he viewed the certificate of the alcohol standard solution in the RIDE truck and then the label on the plastic bottle on the standard solution which he changed, that is insufficient to make out that language in s. 320.31(1).

[43] I would narrow the argument on the point to this question: can the Crown prove that the standard solution is certified by viva voce evidence of the Qualified Technician, or is a higher standard required, namely a certificate, per s. 320.32 or viva voce evidence from the analyst who tested the standard solution?

[44] In this case the evidence from Sgt. Mohan was that he didn't test the standard solution himself. He saw the certificate in the RIDE truck and on the bottle for the solution when he changed the solution. He said that the certificates, including the ones he saw do not specify the concentration, but he had never heard of a solution other than one calibrated to something other than 100mg %. He testified at length that the standard solution was calibrated to 100 mg % and his calibration checks confirmed that the machine was detecting the standard solution at that level. In other words, the standard solution portion of the calibration check confirmed that the Approved Instrument was working properly. His calibration checks were put into evidence in the form of the standard print out from the Intoxilyzer. That document tends to confirm his testimony that he performed standard calibration checks where returned values of .099 and 100 and that he changed the standard solution at 1:17 on June 29, 2017.

[45] The structure of s. 320.31 sets Parliament's standard for proving the presumption of accuracy. There are several requirements: an approved instrument; a qualified technician; the readings; the calibration checks which put the approved instrument within 10% of the target value of the standard solution; that the standard solution approved by an analyst; the 15 minute interval; and that the two samples are in good agreement, namely within 20 mg. %.

[46] A qualified technician can clearly testify to much of that as direct evidence. He or she can testify about their designation as a Qualified Technician, what they saw when they performed calibration checks and what the subject breath tests were and when they were completed. But it would be absurd to say that the Qualified Technician cannot testify that the thing that he or she manipulated was or was not an approved instrument. The Intoxilyzer must be an approved instrument, but the Qualified Technician can testify that the device they used was just that. No further proof is required.

[47] I find that the same applies to proof that the standard solution is certified by an analyst. Mr. Lindsay is quite correct that certification can be proven by certificate under s. 320.32. But it can also be proven by viva voce evidence from the Qualified Technician the same way that the Qualified Technician can testify that the Intoxilyzer was an approved instrument based on its appearance and operation.

[48] A similar argument was considered in R. v. Ware (1975), 30 C.R.N.S. 308 (Ont. C.A.) where the District Court held that the Crown bore an onus to adduce direct evidence that the standard solution was suitable. The Court of Appeal rejected that finding, holding that the Crown need not prove analysis of the solution. It can be adduced by viva voce evidence from the Qualified Technician. The Court of Appeal came to the same conclusion in R. v. Harding (1994), 17 O.R. (3d) 462 (C.A.). In Harding the legislation under scrutiny (258 (1)(f)) was similar to s. 320.32 insofar as s. 258(1)(f) also required proof of suitability of the alcohol standard.

[49] In the case at Bar I am satisfied that Sgt. Mohan was a Qualified Technician, that he was operating an Approved Instrument, and that he was using a standard solution which was calibrated to 100 mg %. His evidence that he viewed the Certificate of Analyst which evidenced suitability for the standard solution as well as his evidence that he is not aware of a standard solution which was not 100 mg % is uncontradicted. I accept it. In argument I was directed to the decision R. v. Flores-Vigil 2019 ONCJ 192. It follows that I have come to a different conclusion than Parry J. but a similar one to Justice De Filippis in R. v. Does 2019 ONCJ 233.

[50] Applying the law to the facts in the case at Bar, the Crown has established each of the elements of the offence in law.

Was there a violation of Ms. Porchetta's rights under s. 10(b)

[51] Based on the evidence heard I find that Ms. Porchetta told PC Ou-Yang very early in the proceedings that she wanted to speak to Mr. Gomes, her lawyer. He was quite correct that she had no right to speak to counsel prior to providing an ASD sample, but once she was arrested he knew from the beginning that she wanted to speak to counsel of choice. He knew that she had counsel of choice. He knew that she had his phone number in her cell phone which was with her.

[52] I find that PC Ou-Yang made a proper effort to put Ms. Porchetta in touch with Mr. Gomes by calling his phone number but it was incomplete. He knew that she had a phone number for Mr. Gomes in her phone but instead chose to look up his phone number independently.

[53] PC Ou-Yang did not advise Ms. Porchetta that she had the right to wait for Mr. Gomes to call back and had the right to explore other options to reach him or another counsel of choice before putting her on the phone with duty counsel.

[54] I find that when Sgt. Mohan became involved the second phone number for Mr. Gomes was obtained and a call placed. This was after Ms. Porchetta spoke with Duty Counsel. There was a 20 minute wait from the time that the second call was placed to Mr. Gomes until the time that she provided her first breath sample. There was no follow up between the police and Ms. Porchetta about whether she wanted to pursue another avenue to reach Mr. Gomes. I find that Ms. Porchetta told PC Ou-Yang that she was satisfied with her call to Duty Counsel, and that her demeanor on the two videos played at the trial show her to be quite capable of asserting herself with the police.

[55] When the arrestee asks to speak to counsel the police become effectively the agent for the arrestee. The police make the call and find the phone number. The arrestee can do nothing but wait for the police to effect that contact. When the arrestee asks to speak to a specific lawyer, they have a right to have the police put them in touch with that lawyer. This situation was addressed by the Ontario Court of Appeal in R. v. Traicheff 2010 ONCA 851,

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.

[56] In this case Ms. Porchetta's rights were violated when she asked to speak to Mr. Gomes and gave PC Ou-Yang the information on where to find it. The violation is that he didn't call that number and did not wait before calling duty counsel. His interest in calling duty counsel was set when he discussed with her what would happen in the event that Mr. Gomes did not answer the phone. That topic was raised before the call to Mr. Gomes was even made. Ms. Porchetta had a strong interest in speaking with counsel of choice, and the police were then affixed with pursuing that as diligently as she would have, see R. v. O'Shea 2019 ONSC 1514.

[57] There is a second component to the Charter violation, which is that after the second call was placed to Mr. Gomes the intermediate step was not complete. The police should have told her that she had the right to speak with another lawyer of choice or pursue another method of reaching Mr. Gomes if she had one.

Admissibility of the Breath Samples – s. 24(2) of the Charter

[58] Moving to the analysis under s. 24(2) of the Charter. I would find that the Charter violation is a technical one. Cst. Ou-Yang and Sgt. Mohan made calls to two different numbers in an effort to reach counsel of choice. Ou-Yang himself did research to find one of the numbers. The second call was made after she spoke with Duty Counsel which is evidence that the police were quite interested in making good on their obligations to provide her with access to counsel of choice. There was a 20 minute wait before she started her breath tests. In the circumstances, this is not a serious Charter violation. It is clear to me that Cst. Ou-Yang was motivated to ensure that Ms. Porchetta was put in touch with counsel of choice. He wanted to make sure that if Mr. Gomes wasn't available that there was a fall back option. The first limb of the analysis favours admission of the breath tests.

[59] The affect on Ms. Porchetta's Charter protected interests were minimal. She spoke with duty counsel prior to doing the breath tests. She said that she was satisfied with her phone call and I would place minimal weight on her testimony at trial that she felt pressured to do that. My review of the video evidence shows Ms. Porchetta to be of a mind inconsistent with being pressured. In fact, she was asserting her wishes and thoughts on PC Ou-Yang without hesitation. The second limb of the analysis favours admission of the evidence.

[60] Lastly, the public has a strong interest in a trial of this case on its merits. The breath tests were reliable evidence without which there is nothing to the case. Drinking and driving is a serious problem in York Region. The third factor also favours admission of the evidence. The breath evidence is therefore admissible at this trial. Exclusion of evidence would bring the administration of justice into disrepute.

Conclusion

[61] For the above reasons, and despite the able submissions of Mr. Lindsay, Ms. Porchetta is convicted of the charge.

Released: April 18, 2019

Signed: Justice Rose