DATE: 2023·07·13 Toronto

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

DORIS XHIALLI

Before: Justice Michael Waby Heard: June 12 and 13, 2023 Reasons for Decision released on: July 13, 2023

Counsel: M. Paramalingham, for the Crown H. Spence, for the Accused

Waby, M. J.:

INTRODUCTION

[1] Doris Xhialli is charged with a single count of failing or refusing without reasonable excuse to provide a breath sample contrary to s 320.15 (1) of the Criminal Code.

[2] On February 9, 2022 at around 2:13 p.m., police received a phone call from a member of the public about a male drinking vodka in the driver’s seat of his silver Toyota car in a parking lot in the City of Toronto. Police attended the scene in response to this call.

[3] Upon arrival, PC Ng encountered Mr. Xhialli who was the sole occupant of this silver Toyota motor vehicle located in the parking lot in a shopping mall. The officer spoke to the Accused who was in the driver’s seat. As he approached Mr. Xhialli, PC Ng noticed what appeared to be an open bottle of Grey Goose vodka between the Accused’s legs. As the Accused moved his position in the seat, the open bottle tipped and some of its contents spilled over inside the car. The officer saw the tachometer lit, the engine was not running but the keys were in the ignition and the ignition was in the ‘on’ position.

[4] The officer asked the Accused to get out of the car and based upon his observations and the information he had received he required Mr. Xhialli to provide a suitable sample of breath into the Approved Screening Device (“ASD”) that the officer had with him.

[5] Given concerns about residual mouth alcohol, PC Ng advised the Accused that he would need to wait for 15 minutes before administering the test. A lengthy exchange lasting approximately 15 minutes then ensued between the Accused and PC Ng which culminated in the Accused telling the officer more than once that he would not provide the required breath sample. Mr. Xhialli was arrested by the officer and given his rights to counsel.

[6] Date, time, jurisdiction and identity are not in issue. The Crown led evidence from Angel Baker who originally called police and PC Ng the arresting officer. Video from the officer’s body worn camera was entered as an exhibit. The Accused did not testify and the defence called no evidence.

[7] The Defence seeks to exclude the Accused’s failure or refusal to provide a breath sample and submits that there was a breach of the Accused’s 10(b) Charter rights.

[8] There are two issues before me in this case. Firstly, should the arresting officer have provided the Accused with a ‘last chance’ to provide a breath sample following his arrest? Secondly, did the officer breach the Accused’s 10(b) rights following arrest by not providing Mr. Xhialli with the opportunity to contact counsel prior to his release from the scene or was there an effective waiver of this right by the Accused?

Issue 1. ‘Last Chance’ Sample

Position of the Parties

[9] Ms. Spence submits that the officer used overly technical language in his dealings with the accused for whom English was second language and that PC Ng should have provided the Accused with a last chance to provide a breath sample shortly after his arrest because she submits it was clear Mr. Xhialli was genuine in his offer to provide a sample and that his earlier refusal had not crystalized.

[10] The Crown submits that on the facts of this case there was no legal requirement for the officer to provide any further opportunities for the Accused to provide a breath sample. Mr. Paramalingham submits that the Accused was clear and unequivocal in his refusal to provide a sample and Mr. Xhialli made it clear that he disagreed with the legitimacy of the officer’s demand because the Accused said he was in a parking lot and not driving on the road.

[11] In this case, I am assisted greatly by the body worn video footage which is an exhibit and which captured the entirety of the interaction between the officers and Mr. Xhialli. This video is the best evidence of what occurred on the night in question and its availability is a testament to the benefits of such footage as an objective and impartial observer of what occurred. No issues were raised as to the voluntariness of any utterances on the part of the Accused on the video.

[12] The video clearly shows that the officer used conversational language and a relaxed tone with the Accused throughout his dealing with him and only resorted to formal language when complying with the wording and requirements of making a valid and unequivocal breath demand or when providing the Accused with his rights to counsel.

[13] The video makes it clear that the Accused had no difficulty understanding anything the officer told him. The issue was that he disagreed with what he was being required to do and he clearly did not wish to do it.

[14] Although not required to do so, the officer diligently requested a time stamp to allow 15 minutes to pass from his initial interaction with the Accused before making the demand because of his concerns about residual mouth alcohol. Throughout almost the entirety of the 15-minute wait, the Accused repeatedly and almost continuously argued with PC Ng about his obligation to provide a breath sample and frequently interrupted the officer. By my count, in excess of 17 times, the Accused tells PC Ng words to the effect of “but I’m in a parking lot.”

[15] The Accused also repeatedly stated that despite being in the driver’s seat of the motor vehicle with the keys in the ignition and the dashboard panel on he had no intention of driving and that someone else was coming to drive the car.

[16] Throughout the entirety of the engagement between the officers and the Accused up to the point of arrest the body worn camera footage fully captures the car of the Accused in the background and the space in which it was located. At no point does anyone approach the car, apart from a member of the public who was parked next to the Accused and for whom the officer moved his scout car to enable her to leave her parking space.

[17] Similarly in the 35 minutes after arrest and prior to release at the scene while the routine paperwork is being completed, no one appears or engages with the accused or the officers to suggest that they are there to drive the Accused car or identifies themselves as being associated with the Accused or his car.

[18] I am satisfied that no one else associated with the Accused was at the scene or intending to attend the scene in connection with the care and control or operation of his car. The Accused was the sole person in care and control of his motor vehicle.

[19] At 14:54, the officer asks the Accused whether he will provide a sample following the making a demand. The Accused replies “sir, I cannot do that because my car is in the parking lot.” In saying “I cannot do that” it is clear the Accused meant “I will not do that.”

[20] At 14:57 hours, the officer makes a further demand of the Accused to provide a sample and advises him of the requirement to do so. The Accused again replies “I cannot do that.” PC Ng then makes the formal demand and the Accused shakes his head and says “no”. PC Ng again advises the Accused of the consequences of failing to provide a sample and the Accused interrupts him and again says “I’m in a parking lot.”

[21] At 14:59 hours, one minute prior to the officer administering the breath sample, the Accused talks over PC Ng and is heard to say twice “I want my lawyer.” PC Ng then continues to read the approved wording for a demand and asks the Accused “are you going to provide a sample as required, yes or no?” The Accused pauses briefly and considers the officer’s demand, shakes his head and firmly and clearly says “no”. Despite this, the officer waits the final minute to address the issue of residual mouth alcohol and advises the Accused “we will go over this again in a minute.” During this time, another unidentified uniformed officer at the scene also advises the Accused of the consequences of failing to provide a sample.

[22] At 14:59 hours and 41 seconds and while PC Ng is repeating his demand, the Accused begins to shake his head and tells the officer that he will not provide a sample. PC Ng once again explains the consequences of a refusal and while doing so the Accused twice says he will not provide a sample and continues to talk over the officer and then three times states “I want to speak with my lawyer.” He continues saying this as the officer completes the breath demand.

[23] PC Ng again asks the Accused if he will comply with the demand and the Accused shakes his head again and twice says “no”. He is then arrested and handcuffed at 15:00 hours. While being subject to a pat-down search some 2 minutes later, the Accused is heard quietly saying “I can do it, I can do it now”. The officer advises the Accused that he was given ample opportunity to provide a sample and that he is under arrest for refusal or failing to provide a sample of his breath.

[24] At the point in time that the Accused says “I can do it, I can do it now”, he is under arrest, cuffed and being searched. I accept that Mr. Xhialli appears rather subdued and that this may well, in part, be due to his recent arrest. However, his tone and manner appeared half-hearted at best. The comment is not repeated and the Accused does not make any other offer of any sort to provide a sample or to further engage the officer on this issue.

[25] If Mr. Xhialli had been even partly as clear or determined after his arrest as he was before it, the situation may well have been different. Nothing in Mr. Xhialli’s words or actions post-arrest conveyed to me a realistic or meaningful desire to provide a breath sample and ‘undo’ what has occurred.

[26] The law recognizes that a driver’s refusal to provide a sample may not be considered final where the driver later offers to blow into the device. A refusal to provide a sample will not constitute the actus reus of the offence where it is accompanied by a change of mind and an offer to provide a sample occurring within the same transaction. R. v. Domik (1979), O.J. No. 1050.

[27] Determining whether a refusal to provide a breath sample and a subsequent offer to do so form part of a single transaction involves the application of a legal standard to a set of facts. As such, it is a question of mixed fact and law: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 35; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 26, 28.

[28] In determining whether an accused, who initially refused and later changed his mind, is guilty of this offence, the court ought not to minutely dissect a single conversation or take a single sentence out of context. It would seem that whether there has been a refusal depends on consideration of all the circumstances of each individual case, including the time elapsed and whether it can be said that the accused's offer to take the test was severable from his earlier words to the contrary: R. v. Cunningham (1989), 1989 ABCA 163, 1989 Carswell Alta 217, 49 C.C.C. (3d) 521 (Alta. C.A.).

[29] A motorist's mistaken belief that a police officer had no right to make the demand is not a reasonable excuse. R. v. MacIntyre (1983), 1983 Carswell Ont. 37, 24 M.V.R. 67 (Ont. C.A)

[30] Defence counsel Ms. Spence has provided me with a number of helpful authorities, including R. v. Domik (1979) J. No. 1050, R. v. Khandakar, [2023] O.J. No. 1392 and R. v. Franchi, [1999] O.J. No. 4895 and R. v. Chance, [1997] O.J. No 4939. A number of the authorities provided involve cases where the Accused had provided a number of inadequate breath samples or feigned a number of attempts at doing so.

[31] I note that this is not the factual scenario before me. In the face of clear and unequivocal demands, at no point during his entire interaction with the officers does Mr. Xhialli actually even attempt to provide a breath sample.

[32] This is not only factually distinct from a number of the other cases I have been provided with but reinforces for me the determination of Mr. Xhialli not to provide a breath sample. This is not a case where someone made one or more half-hearted attempts at blowing before resigning themselves to their fate and then made a genuine offer and attempted to take the test properly.

[33] In R. v. Franchi, Hill J. indicated that to determine whether the refusal and the subsequent agreement to provide the sample were part of the same transaction a judge should consider “the totality of the circumstances, including how the driver refused, the time between the refusal and the change of mind, and the availability of the device.”

[34] I have little difficulty in concluding on the evidence before me that in terms of its timing the comment made by the Accused to the officers 2 minutes after his arrest and while still at the scene with the device present could legitimately form part of the same transaction. However, this alone does not determine the issue.

[35] While the relevant case law applies or acknowledges the “same transaction” test, the results in these cases vary depending on the determinative factual findings.

[36] In determining whether a refusal to provide a breath sample and a subsequent offer to do so form part of a single transaction, it is self-evident that any subsequent offer to do so must be a realistic and credible one the part of the Accused. If the offer is not credible, it is meaningless and does nothing to impact the events that have occurred up to that point.

[37] Ms. Spence submits that the arrest was a sobering event that clearly impacted the Accused and that he then made a genuine request to be given a further chance to provide a sample. Defence counsel put it to PC Ng in cross-examination that the offer to blow by the Accused seemed genuine to which the officer testified “I don’t know, I’ve never dealt with the accused before and I’ve been lied to before.” With the benefit of the video footage and PC Ng’s evidence before me, I do not find that the offer by Mr. Xhialli could reasonably have been viewed as genuine.

[38] In the aftermath of the consistent position that the Accused had volubly maintained for more than 15 minutes and the sustained, repeated and emphatic refusals he had articulated, I do not find that this was a sincere or meaningful offer on the part of the Accused to provide a sample of his breath following his arrest.

[39] While the realization of his eventual arrest may have come as a shock to Mr. Xhialli, it is clear to me that he was determined not to provide a breath sample and I am satisfied that PC Ng was more than entitled to reach a similar conclusion. The officer exhibited considerable patience towards the Accused throughout their dealings and it was clear to me that the officer did not believe Mr. Xhialli would provide a sample after his arrest when he made his solitary and muted “I can do it comment.”

[40] I find that the Accused’s refusal to provide a breath sample was determined and unambiguous and had clearly crystallized at the point of his arrest and significantly nothing he said post-arrest impacted that with any air of reality.

Issue Two - 10 (b) Breach and Waiver of rights to Counsel

[41] Defence counsel submits that PC Ng effectively circumvented the Accused’s rights to counsel following arrest and although the informational component of those rights was provided, by not facilitating their implementation the officer breached the Accused 10(b) Charter rights. Ms. Spence cites R. v. Pino, [2016] O.J. No 2656, 2016 ONCA 389 as authority for the proposition that a breach of the Accused 10(b) rights under these circumstances with the accompanying temporal connection would permit exclusion of the refuse evidence under a 24(2) analysis.

[42] Defence counsel also provided me with three other cases relating to 10(b) issues, R. v. Davis, 2021 ONSC 3305, R. v. Doobay, [2019] O.J. No. 6387 and R. v. Maciel, 2016 ONCJ 563, [2016] O.J. No. 4789. While relevant to issues of 10 (b), I found these case of limited assistance on the particular facts of this case.

[43] The Crown submits that the officer did not breach the Accused 10(b) rights and that there was a clear waiver of them post-arrest on his part pending his release at the scene.

[44] As in this case, a person detained pursuant to an ASD demand does have the right to obtain legal advice and the suspension of that rights is a reasonable limit because of the required immediacy of the sample being provided and a police officer is under no obligation to advise a motorist of his section 10(b) Charter rights prior to making an ASD demand. R. v. Orbanski, R. v. Elias, R. v. Paterson, R. v. Misai, R. v. Thomsen

[45] Although the Accused made a number of requests to speak to “his” lawyer as the officer was making the final ASD demand, and immediately beforehand, the officer was entitled to complete that process without affording the Accused the chance to speak to a lawyer.

[46] The issue raised in this case is whether, following his arrest, the Accused’s 10(b) rights were violated by PC Ng.

[47] Immediately following his arrest for refusing to provide a breath sample, Mr. Xhialli was given his rights to counsel and indicated that he understood them. He was also cautioned and indicated that he understood that too.

[48] The in-car footage shows that following arrest and prior to his release from the scene the officer did not seek to elicit any evidence from the Accused and that periodic and courteous conversation generally occurred between the two of them while the officer was processing the accused with the clear focus of the officer being on completing the numerous and varied administrative steps to process and release Mr. Xhialli.

[49] The accused was detained by the officer following his arrest and pending his release from the scene for approximately 35 minutes. The obligation to release a person from custody is set out in sections 497 and 498 of the Criminal Code. Section 498 requires the officer to release a person in custody as soon as reasonably practicable except in accordance with section 498 (1.1).

[50] It is clear from the evidence before me, including the in-car video, that following the Accused’s arrest, without compromising the Accused’s 10(b) rights, PC Ng sought to process and release the Accused as expeditiously as possible. Mr. Xhialli was clearly in favour of this course of action.

[51] At 15:06 hours, the officer asks the Accused if he wants to call a lawyer and the Accused nods yes. When asked whether he has his own lawyer, the Accused the tells PC Ng he does not. The officer then advises the Accused that he can contact a duty counsel lawyer for him if he wishes.

[52] The officer then tells the Accused also at 15:06 hours that, although he is in custody at moment, he may be able to be released from the scene once the officer has conducted some checks. The Accused indicates that he understands.

[53] The officer advises the Accused that he may need to be transported to the station and processed in which case he will be put in contact with lawyer there or he may be processed at the scene in which “those arrangements would be also made.”

[54] The video then shows the officer securing and putting away the ASD and performing various licence checks while processing the paperwork for the Accused and his first court date.

[55] At 15:14 hours, PC Ng asks the Accused whether he will attend court if he is released from the scene on a Form 9 and at 15:15 hours, the officer advises a colleague and the Accused that Mr. Xhialli is being released on a Form 9.

[56] At 15:20 hours, the officer asks the Accused whether he wants to speak to a lawyer or whether he wishes to speak with one afterwards. Although the response by the Accused at 15:21 hours is inaudible because of transmissions on the officer’s radio, it is clear from the officer’s comments and actions and those of Mr. Xhialli that that the Accused indicated that his preference was to be released from the scene and to speak with a lawyer afterwards.

[57] The officer then continues to process the extensive paperwork in order to release the Accused, arranged a tow of the car and spent some time trying to find the Accused cell phone in his car for him prior to it being towed.

[58] At about 15:41 hours, the Accused is released from the scene and confirms with officer that he will speak to his lawyer when he gets home. Officer explains the paperwork and the Accused indicates he understands. At no point after the officer has canvassed the Accused preferences with respect to contacting a lawyer does the Accused make any requests of the officer in respect of speaking to a lawyer.

[59] Although the Accused did not give evidence, as is his right, the in-car footage shows that the officer clearly provided the Accused with his rights to counsel upon arrest and the opportunity to exercise them if he wished. Despite his earlier comments regarding a wish to speak to “my lawyer”, the Accused indicated he did not have his own lawyer and as such the officer made it clear that duty counsel would be available if he so wished.

[60] After conducting the necessary checks, the officer advised the Accused 9 minutes after his arrest that he would released from the scene. At no point was any further evidence elicited from the Accused, nor did the Accused make any further requests of the officer regarding access to counsel or a third party.

[61] I also do not find that the 35 minutes and the circumstances of his detention in the scout car amount to arbitrary detention and I do not find that either Mr. Xhialli’s 10 (b) or s. 9 Charter rights were breached following his arrest and prior to his release.

[62] On my assessment of the in-car footage, it is clear to me that once the Accused is aware that he may well be releasable from the scene his understandable and natural response was to have that occur as swiftly as possible. The officer made it clear that access to a lawyer at the station or at the scene was available to the Accused if he wished and I am satisfied that the Accused voluntarily waived his right to speak with counsel pending his release and was content to contact a lawyer after being processed and leaving the scene.

[63] Ms. Spence submits that the officer prioritized administration over the Accused’s rights to counsel. I disagree. It is clear that PC Ng sought to process and release Mr. Xhialli as swiftly as possible but while doing so made it clear throughout that the Accused was able to speak with counsel if he wished. The Accused made an informed and practical decision not to do so.

[64] I do not find no breach of 10 (b). However, if I am wrong I would not exclude the evidence pursuant to a 24(2) analysis pursuant to R. v. Grant.

Section 24(2) - Grant analysis

Seriousness of Breach

[65] If there was a breach of the Accused 10(b) Charter rights, I find that the context in this case places its seriousness very much at lower end of scale. Following arrest, the Accused was given his rights to counsel and was cautioned and understood these rights. For a period of 9 minutes after the arrest, the officer is processing the Accused and determining his releasability. He advised the Accused what he is doing throughout and at no point foreclosed the option for the Accused to speak with counsel at the scene or at the division or prior to release from the scene.

The Impact of the Breach on the Charter-protected Interests of the Accused

[66] Mr. Xhialli’s rights to counsel were clearly explained to him and understood by him. His liberty interests were infringed over a relatively brief period of time, however, this was solely as a result of the officer processing release paperwork and explaining it to him along with the related steps.

[67] In my view of the facts before me, any breach is also significantly mitigated by the fact that the actus reus of the offence had been completed prior to arrest and all evidential matters were effectively concluded. Given the arrest for refusing to provide a breath sample, no further processes, even those as minimally intrusive as breath samples were required.

[68] The Accused made no request to speak with counsel once he was aware that he may be released from the scene and nor was any request made after the officer advised the Accused that he was going to be released from the scene. All evidence related to the offence had been completed prior to arrest and nothing was solicited from the Accused post-arrest.

[69] I conclude that, if any breach occurred in this case, it had a minimal impact on the Accused’s Charter-protected interests.

Society’s Interest in the Adjudication of the Case on its Merits

[70] The Supreme Court in Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at paras. 33 and 34, deals with this factor as follows and the court considers factors such as the reliability of the evidence and its importance to the Crown’s case.

[71] The evidence obtained was highly reliable and amounted to the words and actions of the Accused captured on video in repeatedly refusing to provide a lawfully demanded breath sample.

[72] It is critical evidence, virtually conclusive of guilt of the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. Drink driving continues to take a considerable toll on the lives and safety of road users in Canada.

[73] The third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public's interest in having the case adjudicated on its merits.

Balancing the three Grant Factors

[74] The Supreme Court in Harrison, supra, at para. 36 explains the proper approach to balancing the three Grant factors.

[75] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. “The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.” R. v. Koralov

[76] I find that if there was a breach of Mr. Xhialli’s 10(b) Charter rights any such breach was fleeting and trivial and had a minimal impact on his rights. I do not find any basis to conclude that the admission of the refusal to provide a breath sample in this case would bring the administration of justice into disrepute nor is there any conduct on the part of the police from which the court should seek to disassociate itself.

Conclusion

[77] The burden of proof in a criminal trial always rests with the Crown. The burden of proof is a heavy one. It is proof beyond a reasonable doubt in relation to each of the offence’s essential elements. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence. See: R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.).

[78] To be clear, it is not sufficient that, on the whole of the evidence that I am satisfied that Mr. Xhialli is probably guilty.

[79] Having considered all of the evidence, I find that the Crown has proven beyond a reasonable doubt that Mr. Xhialli committed the offence of refusing or failing to provide a breath sample without reasonable excuse.

Dated: July 13, 2023

Justice Michael Waby