ONTARIO COURT OF JUSTICE DATE: 2023 01 18 COURT FILE No.: College Park, Toronto 20-75000600

BETWEEN:

HIS MAJESTY THE KING

— AND —

CHRISTIAN BOLEMWA

Judgment

Before Justice B. Jones Heard on November 2, and 4, 2022; January 11, 2023 Reasons for Judgment released on January 18, 2023

Counsel: J. Foreman........................................................................................... counsel for the Crown R. Chhibber....................................................................................... counsel for C. Bolemwa

Jones J.:

Introduction

[1] On February 3, 2020, Christian Bolemwa was driving his motor vehicle near George Street and Shuter Street in downtown Toronto. He was investigated by Toronto Police Service (TPS) officers who observed him having difficulty making a three-point turn.

[2] Mr. Bolemwa was charged with one count of impaired operation of a conveyance and one charge of operating a conveyance while his blood alcohol concentration was “over 80”. The Crown proceeded summarily, and his trial was conducted before me on November 2, and 4, 2022, and January 11, 2023.

[3] Mr. Chhibber brought an application alleging his client’s rights under sections 8, 9, 10(a) and 10(b) of the Charter were violated. The trial and Charter application were heard in a blended manner on the consent of both parties.

Summary of the Police Evidence

[4] PC Butera and PC Velasco were on duty in the early morning hours of February 3, 2020 in a marked scout car. They were on patrol on Shuter St. just east of George St. At approximately 1:28 am they noticed a grey Hyundai struggling to complete a three-point turn. The vehicle nearly struck their police car. They turned on the car’s video recording system and followed the Hyundai.

[5] The vehicle stopped at the intersection of George St. and Dundas St., then moved slightly into the intersection before stopping a second time. There was no apparent need for this second stop. The driver was progressing slowly and both officers were concerned he was impaired. PC Velasco thought his conduct was dangerous to the safety of other motorists. They decided to pull the driver over on George St.

[6] Almost the entirety of the officers’ further interactions with Mr. Bolemwa were captured on video. Those video recordings provide the best evidence of what transpired. I will only review the salient events from each officer’s testimony in these reasons.

[7] Mr. Bolemwa exited his vehicle and PC Butera told him to get back into the vehicle and stay there. He did not comply and said, “No.” PC Velasco described him having a “dead stare” in his eyes. He also repeated the word “boss” multiple times. PC Butera smelled a strong odour of alcohol coming from his person. He didn’t seem to know what he was doing. His belt and pants were undone.

[8] PC Butera formed a belief that Mr. Bolemwa’s ability to operate his motor vehicle was impaired by alcohol. He placed Mr. Bolemwa under arrest for impaired driving at 1:30 a.m. By 1:35 a.m. he provided him with his rights to counsel, a caution, and then made a breath demand.

[9] Mr. Bolemwa mumbled some incoherent words but did answer “Yes” when asked if he understood his right to counsel. He said he wanted to speak to a lawyer. He said “Ok, ok, come on” in response to the breath demand.

[10] PC Butera and PC Velasco transported Mr. Bolemwa to Traffic Services Division (TSV) and he was paraded before Sgt. Butt at approximately 2:18 a.m. During the drive to TSV Mr. Bolemwa was recorded on the in-car camera (ICC) in their scout car. He was restless, made several utterances, and acted oddly. The car itself began to smell of alcohol as a result of his presence.

[11] PC Gore later located a 1.5 L wine bottle in the front passenger section of Mr. Bolemwa’s vehicle. It was only one quarter full.

[12] Mr. Bolemwa was given his rights to counsel again at TSV. He indicated he wanted to speak to a lawyer. He spoke to duty counsel at 2:57 a.m. PC Velasco ensured this was a French speaking duty counsel as he had been speaking French, as well as English, earlier that evening.

[13] PC Taylor has been a qualified breach technician since 2013. He had no difficulty communicating with Mr. Bolemwa with the assistance of a second, French speaking officer. While Mr. Bolemwa was showing signs of intoxication, PC Taylor did not have any reason to doubt he understood his rights. He was aware Mr. Bolemwa had spoken to duty counsel and would have given him another opportunity to consult with counsel if he believed it was necessary. He did not, as he was satisfied Mr. Bolemwa had exercised his rights without any cause for concern.

[14] At 3:22 a.m. Mr. Bolemwa provided his first breath sample of 273 mg alcohol / 100 ml blood. At 3:44 am he provided a second breath sample of 276 mg alcohol /100 ml blood.

[15] After he provided breath samples PC Butera and PC Velasco escorted Mr. Bolemwa to 51 Division. PC Velasco believed he was not in a position to care for himself. When she last interacted with him at 4:53 am, he was still very intoxicated and had been exhibiting irrational behaviour. He was screaming in their car that he was “going to die.” It was difficult to calm him down.

[16] In cross-examination PC Butera recalled that either he or PC Velasco did a background check on Mr. Bolemwa and learned he was apprehended in the past under the Mental Health Act. He did not remember exactly when they obtained this information. He had minimal training with respect to individuals with mental health problems but accepted it was a relevant consideration when deciding how he would interact with Mr. Bolemwa. He maintained that he believed Mr. Bolemwa was impaired due to alcohol consumption and that explained the odd behaviour he exhibited over the course of the evening.

[17] Sgt. Butt identified a police document entitled “Prisoner Management Report”. He explained this a document created in the normal course of business as part of the standard booking process. It was filled out by another officer. That officer had been present beside him when Mr. Bolemwa was processed. The document had a section which was marked to indicate that Mr. Bolemwa did not understand his right to counsel. Sgt. Butt did not create this document and could not provide further details about why the booker had endorsed it in that manner. He confirmed that when he read Mr. Bolemwa his right to counsel, Mr. Bolemwa indicated he understood.

Testimony of Mr. Bolemwa

[18] Mr. Bolemwa testified on the Charter voir dire. He is 30 years old. He is originally from the Congo. He suffers from anxiety. When he has a sudden onset of anxiety his heart may beat quickly, he may speak nonsense, and he will have difficulty calming down. His brain can “go all black” and he can have difficulty understanding what is happening in the moment. He also suffers from pain in his stomach or abdomen.

[19] While in the Congo he lived through extremely traumatic experiences. In particular, he witnessed acts of police brutality. He has seen police officers burn people and shoot them. While he appreciates that things are different in Canada, those prior traumatic experiences will sometimes overwhelm him, such as when he sees a police officer’s firearm.

[20] On February 3, 2020, he remembered being stopped by the police officers after he parked his car. He did not immediately understand why. He did not understand what the officers were telling him as he was in the midst of another bout of anxiety.

[21] He believed his seemingly odd behaviour, as captured on the ICC video, can be explained by his anxiety.

[22] At the police division he heard an officer reference a prior suicide attempt and thought they knew about his medical history. He was reluctant to provide more details to the officers as he was cautioned earlier that anything he said could be used against him. Furthermore, in his own words, he felt “absent”, like he was “not there anymore.”

[23] After he spoke to a police officer in French, the reason he was in detention made sense to him. He still did not understand why he was being asked to blow into what appeared to be a balloon. He did not understand what was expected of him.

[24] While he was put in touch with a French speaking duty counsel, he did not understand what they discussed. He was not even sure if they spoke in English or French. He asked an officer to enter the private room where he was speaking with counsel to hear what was being said to him. The officer declined. He did not tell any of the officers that he could not understand the lawyer afterwards as he felt they were dismissive and treating him as if he were just a criminal.

Positions of the Parties

[25] Mr. Chhibber submits the investigating officers did not have reasonable grounds to detain and arrest Mr. Bolemwa and make a breath demand. They violated his rights under sections 8 and 9 of the Charter. There were deficiencies in the notes of PC Butera, and he could not remember some details of his investigation based on his independent recollection. That should cause me concern about accepting his evidence. Similarly, there were some inaccuracies in PC Velasco’s notes.

[26] He asks me to consider that while Mr. Bolemwa’s driving and conduct may have warranted the attention of the officers, both officers were too quick to assume he was an impaired driver. These were new, inexperienced officers who did not give alternative explanations sufficient consideration before placing him under arrest. Rather, from the moment they saw him outside his vehicle, there were signs that Mr. Bolemwa may have been in the midst of a mental health crisis. They should have fully explored whether that explained his questionable driving.

[27] After he was arrested the officers did not make sufficient inquires to ensure Mr. Bolemwa understood why he was under arrest and his right to counsel. His rights under sections 10(a) and (b) of the Charter were violated. He was a particularly vulnerable individual and the officers should have been more responsive to his needs. This case should be characterized as one of “special circumstances.” Once Mr. Bolemwa arrived at the division the officers had an obligation to obtain appropriate mental health assistance for him. They also should also have been aware that he had difficulty understanding duty counsel after he invited PC Butera into the room to hear what duty counsel was telling him. Even if he did not expressly state he did not understand or was dissatisfied with the legal advice he was receiving, his conduct revealed that he did not understand the jeopardy he was facing or his rights. This ought to have raised concerns with the investigating officers. They had a positive obligation to take enhanced measures to ensure his right to counsel was not violated.

[28] Mr. Foreman submits the investigating officers did have reasonable and probable grounds to arrest Mr. Bolemwa for impaired driving. The officers observed unusual and unsafe driving and once they stopped his vehicle there were visible signs of impairment. Regarding his right to counsel, Mr. Bolemwa can be heard on video multiple times indicating that he understood his right to counsel. He was provided duty counsel services which he accepted, and he never complained about the legal advice he received to an officer.

[29] Regarding the impaired count, Mr. Foreman encourages me to consider not only the evidence of Mr. Bolemwa’s driving, but the observations the officers made once he exited his vehicle. He was showing obvious signs of impairment and a smell of alcohol was emanating from him. Furthermore, in his car the officers located an open bottle of wine.

[30] Mr. Chhibber cautions me that the evidence of poor driving is better characterized as cautious driving. He asks me to fairly consider the alternative explanation that his client’s mental health issues may explain his seemingly erratic behaviour once in police custody. I should be left with a reasonable doubt that his ability to operate his vehicle was impaired by alcohol.

Presumption of Innocence

[31] Mr. Bolemwa is presumed innocent. The Crown bears the burden of proving his guilt beyond a reasonable doubt.

Analysis

(i) Charter Sections 8 and 9 - Initial Police Investigation, Arrest and Breath Demand

[32] PC Butera testified in a clear and straight-forward manner. He explained when he had an independent recollection of what occurred and when he did not and had to rely upon his notes to refresh his memory. He responded to questions in cross-examination succinctly. His observations were confirmed by the video surveillance footage. I accept his testimony.

[33] PC Velasco also testified frankly and fairly. She explained why she took the investigative steps she felt were appropriate based on her first-hand observations. She explained her basis for believing Mr. Bolemwa may have been an impaired driver. She answered Mr. Chhibber’s questions directly in cross-examination. She accepted there were some frailties in her notes, and that it may have been unfair to characterize Mr. Bolemwa’s initial utterances in the squad car as “mumbling” given there was a glass barrier between him and the officers which obstructed her ability to hear everything. Yet she maintained her position she witnessed several signs of impairment. Her observations were also confirmed by the video surveillance footage, and I accept her testimony.

[34] Certain minor details of PC Butera’s interactions with Mr. Bolemwa were not clearly written in his notes and he relied upon his discussions with PC Velasco following the investigation to confirm the times when key events in the investigation transpired. This was his first impaired driving investigation, and he was a relatively new officer. This does not detract from his credibility nor affect the reliability of his testimony in light of the honest and comprehensive manner in which he responded to questioning.

[35] I emphasize that nearly every aspect of the officers’ involvement in this investigation was captured on the videos filed by the Crown and there is little that is factually in dispute about what occurred following the officers’ initial decision to follow Mr. Bolemwa’s vehicle.

[36] The officers developed reasonable grounds to suspect that Mr. Bolemwa was having difficulty operating his motor vehicle based on their observations. Driving is a licensed, regulated activity, subject to control at all times in the interests of public safety. While both officers were new and inexperienced, each had an objective basis to come to these conclusions. Mr. Bolemwa’s driving was notably unsafe and both officers could reasonably consider that one reason why he was driving in this manner was that he was impaired.

[37] PC Butera made the following observations of Mr. Bolemwa after he stopped his motor vehicle which informed his subjective belief for his subsequent arrest:

• He had difficulty controlling his vehicle and nearly struck the police car;
• He looked confused in the vehicle while driving;
• He was unsteady of his feet;
• He has glossy eyes;
• A strong odour of alcohol was coming from his breath; and
• He would not listen to basic police commands such as to stay in his vehicle.

[38] The Crown bears the onus of justifying an arrest in the context of a warrantless search: R. v. Gerson-Foster, 2019 ONCA 405, at para. 75. The officer must subjectively believe the person committed the offence, and objectively, there must exist reasonable grounds for this belief: R. v. Rhyason, 2007 SCC 39 at para. 12.

[39] I observed Mr. Bolemwa in court and noted that his eyes, when testifying, appeared bloodshot. Mr. Chhibber argues that the officers may have mistakenly associated such an observation at the time of their initial investigation as a sign of impairment when in fact it is just how his client’s eyes normally appear. Mr. Bolemwa’s lack of responsivity to their verbal commands may have also been a result of his anxiety as opposed to impairment.

[40] There is merit to these submissions. However, PC Butera nevertheless had ample grounds to arrest Mr. Bolemwa based on the totality of his observations. An officer need not rule out any and all possible alternative explanations for unsafe driving in order to form a reasonable basis to investigate a motorist for possible impairment: see R. v. Bush, 2010 ONCA 554 at para. 57. His assessment of Mr. Bolemwa’s demeanor was confirmed by PC Velasco and my own review of the video evidence from the officers’ scout car camera. There was no violation of his rights under sections 8 or 9 of the Charter.

(ii) Charter Section 10(a) – Reasons for Detention and Arrest

[41] Charter section 10(a) requires that upon detention a person must be advised, in clear and simple language of the reasons for the detention: see R. v. Roberts, 2018 ONCA 411 at para. 78. The onus of establishing a breach of these rights lies on Mr. Bolemwa.

[42] PC Butera and PC Velasco detained Mr. Bolemwa shortly after 1:28 am. He exited his vehicle and approached the officers. After a brief interaction he was arrested for impaired driving at approximately 1:30 am. He was informed in straightforward language why he was under arrest. At 1:35 am they informed him again he was arrested for impaired driving.

[43] I find no violation of section 10(a) of the Charter.

(iii) Charter Section 10(b) - Right to Counsel

[44] Mr. Chhibber submits that his client was particularly vulnerable due to his intoxicated state and visible signs of mental illness. He was upset, appeared confused at times, and had difficulty responding to some of the officers’ questions. The officers also became aware of a prior apprehension under the Mental Health Act in 2019 while they were processing him at TSV. As his client testified, he was suffering from anxiety. The officers knew something was amiss with him. He submits these unusual circumstances placed a greater burden on the officers to assist Mr. Bolemwa and ensure his rights were meaningfully provided.

[45] The police must inform a detained person of his right to counsel immediately upon detention and the duty to facilitate access to a lawyer arises immediately upon the detainee’s request to speak to counsel: R. v. Willier, 2010 SCC 37 at paras. 29-33. The arresting officer is under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonable opportunity.

[46] In Willier, the Supreme Court held that the implementational duty and the obligation to hold off are contingent on a detainee’s reasonable diligence in attempting to contact counsel: see para. 33. Unless a detainee indicates, in a diligent and reasonable manner, that the advice he or she received from counsel is inadequate, the police may assume they have met their constitutional obligations and continue with their investigation: Willier at para. 42.

[47] There was no evidence presented on the voir dire that Mr. Bolemwa complained about the legal advice he received to any of the officers. Mr. Bolemwa himself testified that he did not actually articulate his concerns to the officers as he felt they were not interested in hearing what he had to say. He explained that he tried to invite an officer into the private room where he was speaking to counsel but the officer declined. PC Butera confirmed that Mr. Bolemwa did appear to be attempting to get his attention while he was in this private room, and PC Butera limited his involvement to ensuring Mr. Bolemwa could speak to duty counsel. There is nothing more PC Butera could have done in these circumstances. The police are not required to somehow monitor the nature or quality of discussions between a detainee and counsel and officers must respect solicitor-client privilege: see Willier at para. 41.

[48] Normally police officers do not have a duty to positively ensure that a detainee understands what his rights under section 10(b) entail. They are only required to communicate those rights to the detainee: see R. v. Culotta, 2018 ONCA 665 at para. 38, upheld at 2018 SCC 57; R. v. Tessier, 2022 SCC 35 at para. 89. However, in R. v. Evans and R. v. Bartle, the Supreme Court of Canada recognized that in individualized cases involving particularly vulnerable detainees, the police must demonstrate greater due diligence to ensure compliance with the requirements of section 10(b) of the Canadian Charter of Rights and Freedoms.

[49] These cases address “special circumstances”, such as where a detainee is extremely intoxicated, suffers from an obvious mental health issue, or is under severe emotional distress: see, Evans, supra; R. v. S. L.H., 2004 BCSC 410. They can also include situations where a detainee has obvious language difficulties with the language used by the officers: see R. v. Vanstaceghem. The police officers are then required to take "additional steps to ensure that the detainee comprehends the rights guaranteed by section 10 (b), and the means by which they can be exercised”: see Bartle, supra at para. 39.

[50] I do not accept that Mr. Bolemwa’s case falls into such a category. He was not nearly as vulnerable as that line of cases envisions. For example, in Evans, the Supreme Court held the accused was a youth with severe cognitive difficulties that the police ought to have been aware of from the beginning of their interactions with him. By contrast, in this case, the officers repeatedly informed Mr. Bolemwa of his right to contact a lawyer and he indicated he understood that right on the video recordings. He was a mature adult. While he was demonstrating significant indicia of being intoxicated and was emotionally upset at times while in police custody, he was able to respond to police questioning when he focused. As a result of Mr. Bolemwa speaking both French and English, the officers provided him with a French speaking duty counsel and had a French speaking officer explain matters to him.

[51] Mr. Bolemwa testified on the voir dire that he generally did not understand what was occurring at the police station. His evidence was fraught with difficulties. He had significant memory gaps. He could not provide details about the times he left his house or arrived at the bar he visited. He admitted to drinking beer and wine that evening prior to being arrested and taking a prescription medication that can affect his memory.

[52] I accept that he suffers from anxiety and that it can have a powerful impact on him. His prior life experiences made an encounter with the police particularly stressful. Certainly, some of his behaviour may be logically explained by this condition. On his own evidence, however, he tries to forget experiences involving high anxiety. In cross-examination he routinely tried to deflect some of Mr. Foreman’s questioning and at other times claimed he did not remember well enough when he could not provide specific details. Overall, I do not find he was a reliable witness.

[53] He was adamant he did not understand his right to counsel but his responses on the video evidence flatly contradict that claim. Even if I were to accept that he did have some difficulty understanding his right to counsel, he did not articulate any concerns to the officers after he spoke with duty counsel.

[54] Regarding his mental health, PC Butera and PC Velasco believed he was impaired and that explained his behaviour. PC Taylor stated in his experience it can be difficult to distinguish between someone whose behaviour is a result of intoxication as opposed to a mental health issue. Regardless, he had no concerns that Mr. Bolemwa did not understand his rights. If he had those concerns, he would have ensured Mr. Bolemwa had another opportunity to speak to counsel. A detainee appearing intoxicated, or distressed, is not enough to require the police to make further inquiries into his understanding of his right to counsel: see R. v. Ran, 2022 ONCJ 456 at para. 25.

[55] Mr. Bolemwa was able to express himself and respond to questions from the officers in both languages. The officers explained his rights to him in a meaningful and comprehensive manner. I do not find he was confused about what was said in English. He comprehended his rights. He responded that he understood and wanted to speak to a lawyer more than once.

[56] I have furthered considered that on the Prisoner Management Report an officer indicated that Mr. Bolemwa did not understand his right to counsel. This officer did not testify. While the document was admitted an as exhibit, it is of limited weight when considered for this portion of its contents. Four officers who testified on the Charter application gave testimony that in their subjective assessment Mr. Bolemwa did understand his right to counsel.

[57] Mr. Chhibber is correct that at times Mr. Bolemwa’s responses to police questions did not seem to make sense. During the booking process it took multiple efforts to have him provide basic information. Some questions he did not answer at all. By way of another example, PC Velasco accepted in cross-examination that she was concerned he did not seem to understand questions when she transported him to 51 Division about how he might be able to get home. The mere fact his degree of comprehension appeared to vary throughout the night does not mean that his right to counsel was violated. The officers collectively made repeated efforts to ensure he was humanely treated and that he was informed of his rights. They acted diligently and with due attention to his needs and individual circumstances. It was reasonable for them to infer that he understood his 10(b) rights. I do not find, viewed objectively, there were special circumstances requiring the officers to do anything beyond what they described.

[58] It is Mr. Bolemwa’s onus to establish a violation of his section 10 (b) rights on a balance of probabilities. I find he has not met that onus. There was no breach of his right to counsel.

“Over 80”

[59] In light of my Charter rulings, the evidence of the breath samples is admitted. I find him guilty of count 2.

Impaired Driving

[60] Any degree of impairment, from slight to great, is sufficient to make out the offence of impaired driving: R. v. Stellato.

[61] PC Butera observed Mr. Bolemwa had difficulty navigating his motor vehicle and nearly struck the police car. He stopped unnecessarily in an intersection before being pulled over. He drove unusually slowly. He had a strong odour of an alcohol beverage. He would not listen to the officers’ commands and PC Velasco noted a “dead stare” in his eyes and he seemed to lack balance at times. A partially consumed wine bottle was located in the front passenger area of his vehicle.

[62] The video evidence demonstrates that Mr. Bolemwa was often incoherent. While in the back of the officers’ squad car, he appears to have difficulty focusing and repeats words or phrases for no apparent reason. While waiting to be processed at TSV, at one point shortly before he was booked Mr. Bolemwa nearly fell asleep.

[63] During the booking process, PC Butera noted that Mr. Bolemwa was having difficulty standing and was not steady on his feet. He could not even tell the booking officer his full first and last name.

[64] There was no defence evidence called on the trial proper.

[65] The sum total of the Crown evidence proves beyond any reasonable doubt that Mr. Bolemwa was heavily intoxicated by alcohol on the evening of February 3, 2020. I have no difficulty concluding his ability to operate a conveyance was impaired by alcohol. It is the only reasonable conclusion to draw from the evidence. I do not find the mere possibility that his behaviour was due to mental health concerns is a plausible alternative explanation. Even if his anxiety played a role, alcohol played a significant role as well.

[66] I find him guilty of count 1.

Released: January 18, 2023 Signed: Justice Brock Jones