Court File and Parties

COURT FILE NO.: CR-17-05860-00AP DATE: 20210210 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – VANESSA PORCHETTA Defendant/Appellant

Counsel: David Parke, for the Crown Peter Lindsay, for the Defendant/Appellant

HEARD: January 29, 2021

REASONS FOR JUDGMENT

CAMERON J.:

A. Overview:

[1] Vanessa Porchetta was charged with driving her motor vehicle with a concentration of over 80 mg of alcohol per 100 ml of blood contrary to s. 253(1)(b) of the Criminal Code of Canada. She was convicted after a trial in the Ontario Court of Justice on April 18, 2019 and sentenced on August 26, 2019 to 30 days in custody, followed by two years of probation and a two-year driving prohibition. She appeals from that conviction and asks that a new trial be ordered.

[2] The main issues at trial were whether the Appellant’s s. 10(b) Charter rights were breached by failing to provide her with a sufficient opportunity to contact counsel of choice and if so whether or not the breath readings ought to have been excluded pursuant to s. 24(2) of the Charter.

[3] The Appellant raises four grounds of appeal. They are summarized as follows:

1. The trial judge, having found two separate breaches of the Appellant’s s. 10(b) rights, erred in failing to exclude evidence of the breath results thereafter obtained pursuant to s. 24(2) of the Charter;
2. The trial judge erred in law in concluding that the two separate breaches of the right to counsel of choice were “technical” and “not serious”;
3. The trial judge erred in law in finding that the impact on the Appellant’s Charter-protected interests was minimal; and
4. The trial judge erred in finding that the Crown could rely on the new Presumption of Accuracy (s. 320.31(1)); more specifically that he erred in finding that the Crown was entitled to rely on the Qualified Breath Technician’s evidence regarding the Certificate of an Analyst and the target value of the alcohol standard solution because it was hearsay.

[4] Essentially the first three grounds of appeal relate to the trial judge’s consideration of the first two factors to be considered in a s. 24(2) analysis pursuant to the Supreme Court of Canada’s decision in R. v. Grant, 2009 SCC 32. After hearing oral argument on January 29, 2021, I reserved judgment. These are my Reasons for Judgment.

B. Summary of Relevant Facts:

[5] On June 29, 2017 at approximately 2:00 a.m., Constable Ouyang of the York Regional Police Service was dispatched to investigate a possible impaired driver in the area of Major MacKenzie Dr. and McCowan Dr. in Markham, Ontario. In doing so, he encountered the Appellant who was driving slowly in the curb lane of Major MacKenzie Dr. Constable Ouyang activated his emergency lights and pulled over the Appellant’s vehicle at 2:01 a.m. The officer testified that he immediately detected a strong odour of alcohol on the Appellant’s breath. He formed a suspicion that the Appellant had consumed alcohol and asked her to exit the vehicle for the purpose of administering a roadside screening test. The Appellant registered a “fail” on the approved screening device at 2:12 a.m.

[6] At 2:16 a.m. the officer read the Appellant her rights to counsel. She immediately indicated that she wanted to speak to her counsel of choice, Mr. David Gomes. She stated that his number was in her cell phone. In total, while at the roadside, the Appellant expressed her request to contact her lawyer 12 times. At 2:24 a.m., the Appellant was taken to a mobile RIDE truck with facilities for conducting a breath test. Sgt. Mahon was the qualified breath technician designated to conduct breath tests that morning. The Appellant once again asked to speak to Mr. Gomes. Despite the fact that the Appellant said she had a number for Mr. Gomes on her cell phone, Constable Ouyang looked for Mr. Gomes’s number on the Law Society of Ontario website. There he located a number for Mr. Gomes. The first attempt to contact Mr. Gomes took place at 2:41 a.m. After the call was placed and a message left for Mr. Gomes, Constable Ouyang said to the Appellant, “if he gets the message in time, he will call this and if it rings you can talk to him. But right now, in the meantime, do you want to contact the free lawyer …” In response, the Appellant said, “just get my lawyer on the phone.” Approximately one minute later, Constable Ouyang asked the Appellant if she wanted to speak to Duty Counsel. She replied, “I guess so, right.” At 2:44 a.m. the officer left a message for Duty Counsel. At 2:49 a.m. the Appellant spoke to Duty Counsel privately.

[7] At 2:53 a.m., the Appellant was taken to the breath room to provide her first breath sample. Sgt. Mahon, the Qualified Breath Technician, became aware that the Appellant had a different number for Mr. Gomes then was retrieved from the Law Society website. The Appellant was permitted access to this number and made a second call to Mr. Gomes. She once again left him a message. Twenty-two minutes later (twenty-eight minutes after the first call) having not received a call back, Ms. Gomes provided the first sample of her breath.

[8] Constable Ouyang testified at trial. He indicated that per his training, he should have obtained the number from the Appellant’s cell phone before looking for that number on the Law Society website. Constable Ouyang admitted that he did not inform the Appellant that she had the right to wait for Mr. Gomes to call back or to explore other options to contact him or another counsel of choice before being put on the phone with Duty Counsel. The officer also testified that the Appellant told him she was satisfied with her call to Duty Counsel. This is clear from a video recording of these interactions.

[9] Sgt. Mahon also testified on behalf of the Crown. Sgt. Mahon indicated that after learning of the first call to Mr. Gomes, he told Constable Ouyang that they should give Mr. Gomes some time to call back. At 2:53 a.m., after confirming that the first call was at 2:41 a.m., Sgt. Mahon indicated that they waited another 10 minutes.

[10] Sgt. Mahon testified that he told the Appellant that they were waiting for her lawyer of choice to call back even though she had spoken to Duty Counsel. While Sgt. Mahon was explaining this to the Appellant, she interjected by saying “he probably won’t” meaning call back. Sgt. Mahon agreed saying “he probably won’t, but we’ll give it some time.” He then said to her “other than that, if you have any questions, let me know.” She didn’t.

[11] After learning that they could access the Appellant’s cell phone for Mr. Gomes’s number, Sgt. Mahon suggested that she try to call him again on that number. At 3:00 a.m. Constable Ouyang called the second number and allowed the Appellant to leave a message after the call went to voicemail. Sgt. Mahon testified that he spoke to the Appellant again. He confirmed with her that it had been half an hour since the first message and then ten minutes since the second message. He confirmed with her that she was satisfied with the call to Duty Counsel.

[12] Sgt. Mahon testified that he ran various quality checks on the Intoxilyzer 8000C prior to his contact with the Appellant and just prior to her breath samples. These checks included a diagnostics check at 1:12 a.m.; two calibration checks with results of 99 mgs and 100 mgs at 3:19 a.m. and 3:42 a.m.; and a self-breath test with a result of 0 at 1:22 a.m.

[13] Sgt. Mahon changed the alcohol standard solution at 1:17 a.m. on the night of the Appellant’s arrest. The alcohol standard solution is designed to determine whether the instrument is capable of accurately measuring the amount of alcohol in a breath sample. Sgt. Mahon testified that the target value for that solution was 100 and he knew that because he observed this on the outside of the bottle. He testified that he knew the alcohol standard solution had been certified by an analyst because a certificate to that effect was posted in the RIDE truck.

[14] The Appellant testified on the Charter motion at trial. It was her evidence that she would have preferred to speak with Mr. Gomes over Duty Counsel because she knew him and was comfortable with him. In terms of her agreement to speak to Duty Counsel when asked by the officer immediately after the first call to Mr. Gomes, the Appellant indicated that she did not think she had any other option and that she was not sure if Mr. Gomes would answer his phone at that time of morning.

C. The Reasons for Judgment:

[15] The trial judge delivered Reasons for Judgment on April 18, 2019. After a thorough review of all the evidence the trial judge found that the Crown had established each element of the offence in law. Although he found two breaches of the Appellant’s s. 10(b) rights, he declined to exclude the evidence of her breath readings.

[16] The trial judge found that Constable Ouyang made a proper effort to put the Appellant in touch with her lawyer of choice by calling the number he found on the Law Society of Ontario website but that this effort was “incomplete” because Constable Ouyang knew that the Appellant had a number for Mr. Gomes on her cell phone and initially did not try to access it. Further, Constable Ouyang did not advise the Appellant that she had the right to wait for Mr. Gomes to call back and the right to explore other options to reach him or another counsel of choice before putting her on the phone with Duty Counsel. Therefore, her s. 10(b) rights were breached.

[17] With respect to his analysis under s. 24(2) of the Charter, the trial judge found the breaches to be technical in nature. The officers made two separate calls to the Appellant’s counsel of choice. Constable Ouyang did research to find one of the numbers. The second call was made after the Appellant spoke with Duty Counsel which evidenced good faith on the part of the officers in wanting to provide the Appellant with an opportunity to speak with her counsel of choice. The officers waited a sufficient length of time before requiring the Appellant to provide her first breath sample.

[18] In all of the circumstances, the trial judge found that the breach was not serious and that the first branch of the test in Grant, supra, favoured admissibility of the evidence. The trial judge also found that the effect on the Appellant’s Charter-protected interests was minimal. She had legal advice from Duty Counsel before providing the breath samples. The trial judge found that having reviewed all of the evidence including the video surveillance of the Appellant’s actions that morning, the Appellant was not pressured by the officers. The trial judge found that the Appellant asserted her wishes and thoughts to Constable Ouyang without hesitation throughout all of her interactions with him. As such, it was the finding of the trial judge that the second branch of the Grant, supra, analysis also favoured admission of the evidence.

[19] The trial judge determined that the public has a strong interest in a trial of this case on its merits. The breath readings were reliable evidence without which the case could not proceed. The trial judge noted that drinking and driving is a serious problem in York Region. Therefore, the third Grant, supra, factor also favoured admission of the evidence.

[20] In response to the argument raised by the Appellant’s trial counsel that the Crown had not proven the standard solution was certified without a certificate per s. 320.32 of the Criminal Code or through viva voce evidence from the analyst who tested the standard solution, the trial judge determined that proof that the standard solution was certified by an analyst was proven by the viva voce evidence from Sgt. Mahon. He held that since a Qualified Breath Technician can testify about their designation as such; what he or she sees when they perform calibration checks; and what the breath tests are when completed; a Qualified Breath Technician can testify about the fact that they know from training that the target value for the alcohol standard solution he used was 100 mg of alcohol in 100 ml of blood and that they know the alcohol standard solution was certified by an Analyst because he viewed the certificate.

D. The Law and Analysis:

[21] It is well established that the standard of review on questions of fact is one of deference. Findings of fact, including findings of credibility and reliability of witnesses and inferences to be drawn from the evidence are subject to deference on appeal. On appeal, the test is whether factual findings made by the trial judge could have been reasonably reached on the evidence. See R. v. McConaghie, 2017 ONCA 306, [2017] O.J. No. 1862, at para. 13.

[22] A trial judge is in the best position to make findings with respect to the credibility and reliability of a witness. He or she has the overwhelming advantage of observing a witness and hearing the witness testify first-hand. Therefore, absent a “palpable and overriding error” their findings of fact and assessments of credibility and reliability are entitled to deference. See R. v. R.W. [2003] O.J. No. 3086, at para. 9 and R. v. Gagnon, 2006 SCC 17, [2006] S.C.J. No. 17, at paras. 10-12, 19-20.

[23] Deference on findings of fact is only displaced where the trial judge has misapprehended evidence that is: relevant to the issue; material to the trial judge’s reasoning; and plays a central part in conviction. See R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at paras. 2, 4. An appellate court may not conduct a trial de novo and substitute its own assessment of the evidence for that of the trial judge even if it would have come to a different conclusion. See Gagnon, supra, at para. 20.

[24] As noted by the Ontario Court of Appeal in R. v. Rivera, 2011 ONCA 225, at para. 32, a summary conviction at trial should be set aside where: it cannot be supported by the evidence; it is clearly wrong in law; it is clearly unreasonable; or there has been a miscarriage of justice. To set aside a conviction based on the misapprehension of evidence an appellant must meet the stringent test of whether the trial judge erred in his or her appreciation of the evidence in a manner that could have affected the outcome. R. v. Cloutier, 2011 ONCA 484, at para. 60.

[25] The applicable standard of review for findings of law is that of correctness. The application of a legal standard to the facts of a case is a question of law. See Housen v. Nikolaisen, 2002 SCC 33, 2002 S.C.C. 33, at para. 36 and R. v. Shepherd, 2009 SCC 35, 2009 S.C.C. 35, at para. 20.

[26] The Appellant raises four grounds of appeal. The first three grounds of appeal relate to the trial judge’s analysis and findings under s. 24(2) of the Charter. The admissibility of evidence under s. 24(2) of the Charter is a question of law and therefore reviewable on a standard of correctness. See R. v. Ferose, 2019 ONSC 1052, at para. 27 and R. v. Manchulenko, 2013 ONCA 543, at para. 43. However, much of the evaluation in a s. 24(2) analysis is dependent on the findings of fact made by the trial judge. Where a trial judge has not overlooked or disregarded relevant factors under a Grant, supra, analysis and not made any unreasonable findings, the decision is owed considerable deference. See R. v. Cole, 2012 SCC 52, at para. 82; R. v. Cote, 2011 SCC 46, at para. 44 and R. v. Marchionne, 2013 ONSC 569, [2013] O.J. No. 431 (S.C.J.), at para. 12.

[27] The first ground of appeal relates to a finding of fact made by the trial judge that the Appellant claims is unreasonable. The Appellant asserts that the trial judge’s conclusion that Constable Ouyang was motivated to ensure that the Appellant was put in touch with counsel of choice was unreasonable because it is contradicted by his other findings of fact. Specifically, findings that the officer did not make reasonable efforts to contact Mr. Gomes; the officer’s interest in calling Duty Counsel was set when he discussed with the Appellant what would happen if Mr. Gomes did not answer the phone; and the police should have told the Appellant she could try to contact another lawyer of choice.

[28] I do not accept this position. The trial judge’s conclusions that the officer was motivated to ensure the Appellant was given ample opportunity to reach Mr. Gomes when viewed in light of all of the evidence is not unreasonable despite his other factual findings. The police did attempt to call two separate numbers for Mr. Gomes, including the number retrieved from the Appellant’s phone, before she provided her first breath sample. Therefore, the first ground of appeal is dismissed.

[29] The second ground of appeal is that the trial judge erred in law in concluding that the two separate breaches of the right to counsel of choice were “technical” and “not serious”. In furtherance of that argument, the Appellant asserts that the trial judge failed to consider the principle that “ignorance of Charter standards must not be rewarded or encouraged and negligence or willful blindness cannot be equated with good faith.” See Grant, supra, at para. 75. The Appellant claims that the trial judge did not give effect to the evidence that Constable Ouyang ignored his training in not following up with the Appellant about the phone number for Mr. Gomes in her phone and his evidence that he has acted in this manner before. Further, the Appellant submits that the officer did not wait a reasonable time after calling Mr. Gomes the first time to put the call through to Duty Counsel. Finally, the Appellant asserts that the trial judge did not give sufficient consideration to the fact that the officer acknowledged he should have left a message for counsel with more specific detail as to why the Appellant was calling rather than leave it up to her.

[30] I do not accept this position. It was open to the trial judge to find that the breaches were not serious given the totality of the circumstances and his decision is entitled to deference. Despite the fact that the officer had not followed his training in looking into the phone number in the possession of the Appellant, he researched a number on his own and the reality is that before the Appellant was asked to provide a breath sample, she did call the number for Mr. Gomes stored in her phone. This is not a breach that could be described as flagrant or systemic such that the court must distance itself from the conduct. A court must consider the subsequent Charter-compliant conduct by the police when it demonstrates good faith and mitigates the seriousness of any previous breach as it does here. See Manchulenko, supra, at para. 98. Therefore, the second ground of appeal is dismissed.

[31] The third ground of appeal is that the trial judge erred in law in finding that the impact on the Appellant’s Charter-protected interests was minimal. Specifically, the trial judge failed to properly consider that after she spoke with Duty Counsel and expressed satisfaction with that call, she re-asserted her rights to counsel of choice when she pursued the option to contact Mr. Gomes again.

[32] It is the position of the Appellant that the trial judge did not consider whether the Appellant waived her right to speak to counsel of choice. When she agreed to speak with Duty Counsel it was only a minute after her first call to Mr. Gomes. The Appellant submits that she did not make an informed choice to speak with Duty Counsel because her right to wait for a call back and her right to attempt to contact another lawyer of choice was not explained to her. The Appellant relies on R. v. Vizzari, [2012] O.J. No. 2945, at para. 27 for the proposition that the right to have a reasonable time to consult counsel of choice should not be a “perfunctory ritual for officers to which only lip service is paid.”

[33] I also reject this argument. The finding of the trial judge that the impact on the Appellant’s Charter-protected interests was minimal because the Appellant indicated she was satisfied with the call to Duty Counsel has to be viewed in the context of all of the events that morning. Specifically, the Appellant did exercise her right to contact her counsel of choice twice. Despite the fact that the police called Duty Counsel shortly after the first call to Mr. Gomes, they still allowed her to call Mr. Gomes again and waited twenty-two minutes after that call before taking her first breath sample. The finding of the trial judge that the Appellant’s words and actions that morning demonstrated her satisfaction with the call to Duty Counsel is a reasonable finding of fact and is entitled to deference. Therefore, the third ground of appeal is dismissed.

[34] The final ground of appeal is that the trial judge erred in finding that the Crown was entitled to rely on the Sgt. Mahon’s evidence regarding the Certificate of an Analyst and the target value of the alcohol standard solution because it was hearsay. The Appellant did not abandon this ground of appeal but acknowledged its weaknesses.

[35] This argument has been litigated and resolved in favour of the Crown in a decision of this court, R. v. Bahman, 2020 ONSC 638 and in a summary conviction appeal decision from Alberta, R. v. Goldson, 2019 ABQB 609. Although I am not bound by these decisions, principles of judicial comity compel this Court to follow Bahman, supra unless it is “plainly wrong”. See R. v. Scarlett, 2013 ONSC 562, at para. 43 and R. v. Abdullahi, 2014 ONSC 3981, at paras. 34-39.

[36] The Appellant submits that the evidence given by the Qualified Breath Technician in this case regarding the alcohol standard solution is not evidence that falls within the scope of his knowledge and training. It is her position that the trial judge’s comparison of evidence about the Certificate to evidence provided by a Qualified Breath Technician about the Intoxilyzer being an approved instrument is flawed. The Appellant submits that the Qualified Breath Technician was not an expert in relation to the alcohol standard solution and therefore the only evidence regarding the alcohol standard solution came from the certificate he viewed and is therefore inadmissible hearsay.

[37] I disagree. As stated by Justice Duncan in R. v. Yip-Chuck, 2019 ONCJ 367, at para. 15:

It is recognized that there is an element of hearsay involved in most if not all knowledge gained from training or education. I suspect that only a small percentage of what one “knows” is gained from firsthand experience or personal verification. At some point any hearsay concern dissipates and a witness may testify as to learned knowledge.

[38] Sgt. Mahon testified that he knew the alcohol standard solution was certified by an Analyst because he viewed a certificate verifying same as he was trained to do. Much of what Sgt. Mahon is qualified to testify about involves information he has learned throughout his training. Although he did not do the actual testing on the solution himself, he ensured that a Certificate of an Analyst verifying that the testing had been done and the solution was as it was required to be. I find that the trial judge did not err in admitting this evidence. Therefore, this final ground of appeal is also dismissed.

E. Conclusion:

[39] For all of these reasons, the appeal is dismissed.

Justice J. Cameron

Released: February 10, 2021