Court File and Parties

Court File No.: Halton Region, Central West 08-3863

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Diego Vizzari

Before: Justice Alan D. Cooper

Heard on: January 21, 2011 & January 23, 2012

Reasons for Judgment released on: June 19, 2012

Counsel:

• Agata Tasson for the Crown
• Jaime L. Stephenson for the accused Diego Vizzari

Case History

[1] Diego Vizzari was charged on December 4, 2008, in the City of Burlington, with operating a motor vehicle after having consumed alcohol in excess of the legal limit.

[2] The defence has brought an application under sections 8, 9, 10(b) of the Charter, and requested relief in the form of an order for an exclusion of evidence under section 24(2) of the Charter. The Crown and defence agreed to proceed with a voir dire which blended the Charter application with the trial proper. During the trial, defence counsel further particularized the 10(b) application based on evidence heard from the arresting police officer.

[3] On December 4, 2008, Halton Regional police officer Mark Urie was in uniform and driving a marked cruiser at 1:50am in Burlington, when he saw a car leaving a bar parking lot. Officer Urie thought it was possible the driver had consumed alcohol and stopped the vehicle at 1:51am. The odour of alcohol on the driver's breath and his admission of consumption, led to a screening device test. After failing the test, the driver, the defendant, was arrested for the "over 80" offence and taken to the police station in Burlington, where he provided two samples of his breath into an Intoxilizer machine, which resulted in readings of 120 and 100 milligrams of alcohol in 100 millilitres of blood.

[4] The sole issue in this case is the implementation of the right to counsel, and whether Constable Urie provided the defendant with a reasonable opportunity to consult his counsel of choice.

Evidence for the Crown

[5] After Mr. Vizzari's arrest at the scene at 2:07am, he was given his right to counsel information, and said he would like to speak to a lawyer. At the police station at 2:30am, he said he wished to speak to Hamilton lawyer Jack Restivo. Officer Urie immediately called the office of Mr. Restivo and left a message. In his evidence in chief, officer Urie stated that Mr. Vizzari then said he wanted to speak to duty counsel, and a call was made at 2:32am, and returned at 2:45am. The conversation between the defendant and duty counsel ended at 2:55am, and at 3am Mr. Vizzari was turned over to constable Moore, the qualified breath technician, for breath testing.

[6] Officer Urie testified that he told the defendant he had left a message at Mr. Restivo's office and that the lawyer may call back, but in the event that he did not, would he like to speak to duty counsel. After Mr. Vizzari said he would, the call to duty counsel was placed two minutes after the message had been left with Mr. Restivo.

[7] In cross-examination, officer Urie agreed that he never told the defendant he could wait to see if his lawyer of choice called back. Instead, the officer asked if there was any other specific lawyer of his choice he would like to call, or if duty counsel was called, would he speak to this lawyer. Mr. Vizzari then said he wanted duty counsel called.

[8] At this point in the cross-examination, the following exchange took place:

Q- Okay. Was he ever – did you ever advise Mr. Vizzari that the test would be taken – that he would be taking part in the test whether or not he spoke to Mr. Restivo or not?

A- I don't recall if I specifically told him that. I'm – it's possible that I may have because we don't have to wait to do the breath tests until he specifically talks to Mr. Restivo.

Q- Okay. And why wouldn't you wait a reasonable amount of time? I mean, this – there's only two minutes that has passed, it's not a situation where you're getting close to – I acknowledge that of course you have to take the test within a certain amount of time but two minutes only has passed, so there's no time that you've given him that you will wait. Is that …

A- Well actually, there was – we called and left a message for Mr. Restivo and it wasn't until 2:45 that duty counsel called back and spoke to the accused. If Mr. Restivo called back before duty counsel, the accused would have certainly talked to Mr. Restivo.

Q- Right. But just getting back to the fact that he really only had two minutes to decide whether or not he wanted to continue to wait for Mr. Restivo or whether he would call duty counsel as he didn't indicate he wanted to call any other specific lawyer.

A- Sorry, are you asking me about the times or the reasoning?

Q- I'm asking about the reasoning. The times seem to be set out …

A- We called and …

Q- …fairly specifically.

A- …left a message for Mr. Restivo…

Q- Right.

A- …I then asked if there was another lawyer that he would like to call or if we should call duty counsel for him to – so that he did speak to a lawyer before conducting the tests.

Q- Right.

A- He indicated to me that he wished to speak to duty counsel.

Q- Okay. And you don't recall whether or not you may have said to him something to the effect of that the test was going to be taken whether Mr. Restivo called back or not?

A- I don't recall if I said that. It's possible that I did, it's probable that I did because that's what would have happened. He would have been required to provide his samples whether he talked to Mr. Restivo or not.

[9] In re-examination by the Crown, officer Urie said Mr. Vizzari never indicated he wasn't satisfied with speaking to duty counsel. The officer also gave evidence that he did not write down everything that was said by him and the defendant during the investigation.

Evidence for the Defence

[10] Mr. Vizzari was the sole witness for the defence. He was 34 years old and employed as a baker at a food store, and had no criminal record. At the police station, when asked by officer Urie if he wanted to speak to a lawyer, he asked for Mr. Restivo. A couple of minutes later, officer Urie came back and said he would have to take the test anyway. The defendant testified that he said to the officer "I guess I don't have a choice?", to which the officer replied "No."

[11] When cross-examined, he said he felt he had no choice to talk to anyone other than duty counsel. He said he told officer Urie that Mr. Restivo would call him back and that Urie replied that "One way or the other, we're going to take the test." Mr. Vizzari replied that "I guess I don't have a choice", and officer Urie said "No, you don't." Then, Vizzari said he told the officer "Okay, then call duty counsel for me."

[12] Mr. Vizzari said that the message coming across from constable Urie was that he had no choice. He was not sure how lawyers worked, and so did not think that Mr. Restivo would not call back. Mr. Restivo was his business lawyer, and he had never dealt with a criminal lawyer before. After he spoke with duty counsel he never asked if he could speak to Mr. Restivo.

[13] Mr. Vizzari said he would have preferred to speak to his own lawyer and was not happy with speaking to duty counsel. He felt that if one pays for a lawyer, then one could expect to get better advice than from a free duty counsel. He gave evidence that "You get what you pay for, as in any service industry." He said he felt pressured into talking to someone he did not want to talk to.

[14] In re-examination, Mr. Vizzari testified that he thought Mr. Restivo would call him back because he had been his lawyer for a long time.

Analysis

(a) Onus

[15] Apart from Charter issues, the onus is on the defence to prove the guilt of the defendant beyond a reasonable doubt. On a Charter application, the onus is on the applicant to establish a breach on a balance of probabilities. If the remedy of exclusion is sought under section 24(2), as is the case here, the onus is again on the applicant.

(b) Right to Counsel

[16] Schwarzl J. in R. v. Baxter, [2012] O.J. No. 796 (O.C.J.) succinctly set out the applicable principles concerning the right to counsel:

50 The police must give rights to counsel to a detained or arrested person before acquiring and testing breath samples and they must provide the person a reasonable opportunity to exercise those rights; R. v. Brydges (1990), 53 C.C.C. (3d) 330 (S.C.C.). What constitutes a reasonable opportunity will depend on all the surrounding circumstances: R. v. Prosper, (1994), 92 C.C.C. (3d) 353 (S.C.C.), p. 375.

51 Where the police assist the Accused in exercising his rights to counsel, the police must be reasonably diligent: R. v. Wilding, [2006] O.J. No. 4784 (S.C.J.), aff'd 2007 ONCA 853, [2007] O.J. No. 4776 (C.A.). While police must be reasonably diligent in assisting the Accused in exercising his right to counsel, they are not required to exhaust all reasonable means for a detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288, [2010] O.J. No. 952 (S.C.J.) para 46 - 67. Police are not required to provide the detainee with a phone book: R. v. Sharma, [2004] O.J. No. 2991 (S.C.J.) at para 9.

52 Where the police make good faith efforts, the detainee cannot prove a breach of s. 10(b) by simply identifying some feasible act the police failed to take in order to contact counsel of choice: R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.). The test is not whether the police could have done more, but whether the police provided the accused with the necessary information and assistance to allow the accused a reasonable opportunity to exercise his rights: R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.) at para 24.

53 A detainee is required to be reasonably diligent in the pursuit of his rights. The detainee has the right to choose his own counsel and it is only if the lawyer chosen cannot be available after a reasonable delay that the detainee should be expected to exercise his right to counsel by calling another lawyer, including Duty Counsel: R. v. Leclair and Ross (1989), 46 C.C.C. (3d) 129 (S.C.C.) at page 135; R. v. Littleford, [2001] O.J. No. 2437 (C.A.); R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Van Binnendyk, [2007] O.J. No. 2899 (C.A.); R. v. Brown, 2009 NBCA 27, [2009] N.B.J. No. 143 (C.A.) at para 20 - 27; R. v. Willier (2010), 2010 SCC 37, 259 C.C.C. (3d) 536 (S.C.C.).

[17] In R. v. Littleford [supra], a telephone message was left in the early morning hours for a specific lawyer requested by the defendant. The police officer then immediately left a message for duty counsel, even though not requested by Mr. Littleford. When duty counsel called back the defendant spoke to him and made no further request to speak to his counsel of choice and did not complain after speaking to duty counsel. The Court of Appeal found there was no breach of section 10(b) of the Charter.

[18] In R. v. Melfi, [2001] O.J. No. 4863 (S.C.J.–Durno J.), the police left a message at 3:06am at the home of the lawyer requested by Mr. Melfi. At 3:09am a call was placed to duty counsel and at 3:15am, duty counsel called back and the defendant spoke to her. Mr. Melfi never complained about the advice received from duty counsel and never said he wanted to wait for his own lawyer to call back. The acquittal was set aside and a new trial ordered.

[19] A suspect may also waive the right to counsel, or the right to speak to counsel of choice: see R. v. Borden, [1994] 3 S.C.R. 145, and R. v. Wills (1992), 70 C.C.C. (3d) 529 (O.C.A.).

(c) Findings of Fact and Application of the Law

[20] I find as a fact that after placing the call to Mr. Restivo's office, Constable Urie did tell Mr. Vizzari that he would have to provide breath samples whether his lawyer called him back or not. Officer Urie did not specifically recollect saying this but was quite candid in saying it was "probable" that he did. The defendant also testified that this was said by officer Urie.

[21] As well, I accept that Mr. Vizzari said to the officer "I guess I don't have a choice?", and constable Urie replied "No, you don't." In my view, the defendant was credible when he gave his evidence, and officer Urie conceded that he did not make a note of all the conversation he had with the defendant.

[22] I also find as a fact that there was no waiver of Mr. Vizzari's right to speak to his counsel of choice. He gave evidence that based on what he had been told, it did not matter whether he spoke to Mr. Restivo or not. He believed he had no choice but to speak to duty counsel. Rather than being a waiver of his right to speak to counsel of choice, this was a capitulation based on a sense of hopelessness caused by what constable Urie had said to him.

[23] I am satisfied that the defendant, on the particular facts of this case, was not given a reasonable time to consult his counsel of choice, and that the defence has established a breach of section 10(b) of the Charter, on a balance of probabilities.

Whether to Exclude the Blood-Alcohol Readings Under Section 24(2) of the Charter

[24] Under section 24(2), once a breach of a Charter right has been found, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[25] In R. v. Beattie, [2009] O.J. No. 4121, Duncan J. has provided an interesting analysis of the test after the Stillman, Collins approach was replaced by the Supreme Court in what is referred to as the Grant, Suberu, Harrison trilogy { (2009), 2009 SCC 32, 66 C.R. (6th) 1, 245 C.C.C. (3d) 1; [2009], S.C.J. No. 33; [2009], S.C.J. No. 34 }. In paragraph 29, he says the following:

29 This question of exclusion in this case falls to be decided according to the revised approach to s. 24(2) directed in the recent Grant, Suberu, Harrison trilogy. I also have the benefit of Justice Hill's analysis and summary of the new approach in R. v. Fildan supra. It is redundant to quote large excerpts from any of these judgments since their content is readily accessible. At the risk of over-simplifying, I will summarize in point form what I consider to be the important points as applied to this case:

The new approach is more flexible than the Collins/Stillman approach. There are no presumptions of admission or exclusion.

The purpose is to maintain the good repute of the administration of justice by both maintaining the rule of law and upholding Charter rights.

The focus is both long term and prospective, not on the immediate reaction to admission or exclusion in a particular case.

The focus is also societal and systemic. It is not to punish the police or compensate the accused in any particular case but to further the long term interests of society and the justice system.

The court must consider all of the circumstances which involves an assessment and balancing of 1) the seriousness of the Charter-infringing state conduct, 2) the impact of the breach on the Charter-protected interests of the accused, and 3) the societal interest in adjudication on the merits.

The seriousness of Charter infringing conduct can be graded on a spectrum from trivial to blatant and flagrant.

The impact of the police conduct on the appellant's Charter-protected interests is examined from the perspective of the accused. The degree of intrusiveness of the unconstitutional action of government agents ranges from impact which might be described as fleeting, transient or technical to profoundly intrusive.

Society's interest in adjudication on the merits will almost always favour admission of the evidence. However the gravity of the charge should not be permitted to overwhelm the other factors.

[26] The right of a defendant to consult counsel is enshrined in the Charter. The right to consult one's counsel of choice is part of this protection, and an individual ought to be given a reasonable time in which to consult his or her lawyer. In my opinion, the breach was a serious one and the impact on the Charter-protected interests of Mr. Vizzari was serious as well. Of course, in most cases it is in society's interest to have cases decided on their merits, but constitutional considerations will occasionally outweigh this consideration. Mr. Vizzari's case is such an exception.

[27] It is vital to the administration of justice that the implementation of the right to counsel and the corollary right to have a reasonable time to consult counsel of choice do not become perfunctory rituals for investigating officers, to which only lip service is paid. It is important to convey to police officers the importance of these rights. In the case at bar, Mr. Vizzari was led to believe that the tests would be taken whether counsel of choice called back or not, and that he had no choice but to talk to duty counsel rather than be given a reasonable time to await a call back from his lawyer Mr. Restivo. Perhaps this was not the intent of constable Urie, but his words had that effect upon the defendant.

[28] Therefore, it is my view that the blood-alcohol readings ought to be excluded from the evidence. The defence has met the onus upon it to show that their admission in the proceedings would bring the administration of justice into disrepute.

Conclusion

[29] Mr. Vizzari is found not guilty of the offence before this court.

Released: June 19, 2012

Signed: "Justice Alan D. Cooper"