Court File and Parties

Court File No.: 12-6979 Location: London, ON Date: March 19, 2013

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Lisa Karina Sahadeo

Reasons for Decision

Counsel:

• G. Christakos for L. Sahadeo
• T. Zuber for Crown

Before: George J.

Charges / Statement of Issues

[1] Lisa Sahadeo is charged that on March 22nd, 2012 she, while impaired, had the care and control of a motor vehicle contrary to section 253(1)(a), and that at the same time, the concentration of alcohol in 100 millilitres of her blood exceeded 80 milligrams, contrary to section 253(1)(b) of the Criminal Code of Canada.

[2] There are three issues. First, has the Crown established beyond a reasonable doubt that Ms. Sahadeo's ability to operate a motor vehicle was impaired? Second, and relative to the over .80 count, were Ms. Sahadeo's Charter rights violated. Third, if they were, should the breath test results be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms?

Facts

[3] In the early morning hours of March 22nd, truck driver Derek Morlock was in the area of Fanshawe Park Rd., and Clarke Rd. At some point between 1:30 and 2:00 a.m. he observed what he described as a 'disabled' car in the ditch on Clarke Rd., at an s-curve just past Fanshawe Park. Mr. Morlock described the road as a 'two-way', with one lane going in each direction. He further described the area as dark, and that at the time there was next to no traffic. He didn't recall the condition of the road. He believed the vehicle was facing 'nose out', meaning the car was in the ditch with the front closest to and pointing towards the road.

[4] Upon observing this he stopped his truck, but did not get out. Mr. Morlock recalled speaking with a female who we now know was Ms. Sahadeo. He was seated in his truck, and she was standing outside. The focus of this conversation was on whether he could tow her truck out of the ditch, or alternatively whether he knew anyone else who could assist. He advised her that he could not assist and that he knew no one else who could. He described her condition as being intoxicated, and that she was stumbling. He believed she was crying.

[5] Mr. Morlock testified that upon his arrival he observed an OPP police vehicle parked close by. He remembered very little of Ms. Sahadeo's attire, and when specifically questioned about her footwear he oddly indicated that she was wearing "socks, high heeled shoes, or was barefoot". On cross examination, he conceded he couldn't really remember if she was crying; that he had no idea what she was wearing on her feet, if anything; that he didn't remember much of the conversation he had with her; and that the stumble he saw could very well have been as a result of her being in shock from the accident, and that he observed only one such stumble. Further on cross, he indicated he couldn't remember what position the car was in in the ditch; that he could not smell alcohol; and that even though he indicated in his testimony that Ms. Sahadeo's speech was slurred he offered no such description to the police officer who took his statement, notwithstanding the fact he was specifically asked about her condition.

[6] The best I can take from this evidence is Mr. Morlock saw a vehicle in the ditch and at some point spoke to Ms. Sahadeo. It was otherwise useless.

[7] Constable Terrence Mockler of the London Police Service gave evidence. He testified that at about 2:22 a.m. on March 22nd he was dispatched to a motor vehicle accident. He was alone, uniformed, and operating a clearly marked police cruiser. He arrived at the area of Fanshawe Park Rd. and Clarke Rd. at about 2:31 a.m. He recalled the road conditions being clear, dry, and noted that it was warm with little to no traffic present. Upon arrival, he observed a silver Nissan Altima in the ditch on Clarke Rd., facing east. He believed an OPP officer was already on the scene, and that their cruiser was parked just north of his location. I don't believe he at any point spoke to the OPP officer, nor did I hear evidence from an OPP representative. Constable Mockler shone a spotlight on the vehicle and then approached it. He indicated that the car was running and the lights were on.

[8] Constable Mockler did not observe any tracks or marks leading from the road into the ditch. As he arrived at the driver's side window, he testified that the window was down and that Ms. Sahadeo was holding a lit cigarette. He then put his head inside the window, noticing that she had no shoes on, at which point he instructed her to put the cigarette out. He described her eyes as being blood shot – something he could determine as he says he was shining his light into her face. He described her as being unresponsive to his instruction to extinguish the cigarette. He testified that there was an odour of an alcoholic beverage emanating from her "face area".

[9] According to the officer, Ms. Sahadeo was unable to provide her driver's license but did locate and provide the ownership and proof of insurance. He described her speech as being "slow and slightly slurred" and indicated that at this point she asked if she could put her cigarette out, which he thought odd given he had just instructed her to do so. In any event, at 2:34 a.m. Constable Mockler formed the opinion that her ability to have the care and control of a motor vehicle was impaired. He arrested Ms. Sahadeo at 2:35 a.m. After arrest, she was placed in the rear of the cruiser, at which point he searched her vehicle to attempt to locate her license. Upon his return to the vehicle he completed some of his notes.

[10] At 2:50 a.m. the officer read to Ms. Sahadeo her right to counsel. The evidence was he read it verbatim from the language affixed inside his duty book, which contained a reference to her ability to access free legal advice from the Ontario legal aid plan. The phone number was communicated to her at this time as well. After this, and in response to the question "do you understand", Ms. Sahadeo replied "no". In response to the question "do you wish to call a lawyer now", she replied "no, I don't know what's going on". Constable Mockler said nothing further about counsel. At 2:54 a.m. she was cautioned respecting any statements or utterances she might make. There were no issues in this respect and she indicated she understood. Upon being questioned about her alcohol consumption Ms. Sahadeo indicated to the officer that she drank "not even a full bottle of beer three hours ago".

[11] At 2:58 a.m., Ms. Sahadeo was read a breath demand. She indicated that she understood. At 3:01 a.m. they departed the accident scene, arriving at the detention cell bay at the London Police headquarters at 3:20 a.m.

[12] The booking-in area at the London Police headquarters is video and audio recorded. At 3:26 a.m. Ms. Sahadeo was booked in by the cell sergeant, and even though this officer did not testify the video was played and filed as an Exhibit. It captures Ms. Sahadeo entering the area with no shoes on and clearly shows her interaction with the officers. I noticed nothing unusual in the manner in which she walked. She was appropriately responding to the officer's questions, and was throughout this interaction standing still at a designated spot. In response to direct questions, she provided her address, date of birth, and phone number. She was able to describe her employment, at one point indicating that "business was not very good right now".

[13] The sergeant spoke to Ms. Sahadeo about a lawyer, at no point reading from a standard form. He did not reference legal aid or duty counsel, nor did he provide any phone numbers. The most notable part of this exchange was in response to the question "do you want to speak to a lawyer"; Ms. Sahadeo said "at this moment I don't know what's going on so no". This went on further, and in response to the statement "you have the right to speak to a lawyer….you don't have to speak to a lawyer but if you change your mind just let one of us know" she said "if I don't call a lawyer will you put me in a jail cell". This is unanswered by the officer, and there is no further mention of counsel.

[14] As I reviewed the video recording, I did not notice any slurring of speech, nor did I see any unsteadiness.

[15] Constable Mockler was present throughout this exchange and accompanied Ms. Sahadeo to her meeting with the qualified breath technician, Constable Oorendorf. Constable Oorendorf did not testify but on consent certain portions of his statement were read into the record, which confirmed that he was present during the booking-in process, and that between the two breath tests, Ms. Sahadeo told him she had some cognitive difficulties as a result of a closed head injury. Two samples of Ms. Sahadeo's breath were obtained. The tests yielded results of 220/100 and 200/100 respectively.

[16] On cross examination Constable Mockler conceded that he did not elaborate upon her right to contact a lawyer, even after her indication that she didn't understand. He believed she simply was unable to understand because of her level of intoxication, essentially arguing there was no point in explaining further. This is to be contrasted with his evidence respecting issues other than counsel, wherein he spoke of his belief she understood them without difficulty. Constable Mockler was clear in that if he knew she had cognitive difficulties he would have taken more time to explain what her right to counsel meant. His evidence was he didn't take that time as he knew of no disability, at least not until later.

[17] As stated earlier, Constable Mockler was present during the exchange between the sergeant and Ms. Sahadeo. He acknowledged that nothing was said respecting legal aid, duty counsel, her right to access those services, or how she could do that. He further acknowledged that he did not interject at any point to offer that information. He agreed that at the time he formed his opinion Ms. Sahadeo was not crying, but that she may have been earlier. He conceded that in terms of what was captured in the booking-in video, there was nothing remarkable relative to the issue of impairment, explaining that it was very different from the observations he made at the accident scene, which was approximately a half hour earlier. He agreed he was unable to draw any conclusions as to what caused the accident; that he at no point observed the manner of driving; that there were no problems with swaying or unsteadiness; and that she at all times followed directions and responded to questions appropriately.

[18] Lisa Sahadeo testified. She described her condition - a cognitive disability - resulting from a serious motor vehicle accident in 2010. According to her, this manifests itself in several ways, including difficulties in focusing and understanding instructions and in expressing herself. On March 22nd, she says she worked throughout the day and consumed no alcohol. At some point during the evening she attended at a friend's house to watch a movie. While there she testified that she drank most of one bottle of beer. She says she sipped this one beer throughout the entire evening. Ms. Sahadeo indicated that she left her friend's house at 1:30 a.m. According to her, on the way home an animal ran in front of her car which is what caused her to leave the roadway. She says this happened at about 1:37 a.m. and was adamant that alcohol played no part in the accident. No one else witnessed this.

[19] Her evidence was that she did not have a cell phone with her and that she initially began walking home. She was scared and confused, and according to her she had a change of heart and did not feel comfortable leaving her car in the ditch. She says she returned to the car, and put the lights on so hopefully someone would notice her and offer assistance. She recalled her interaction with the truck driver, indicating that it did upset her that this gentleman was going to just leave her on the side of the road, offering no help. She testified that she did start to cry, offering this as an explanation for her bloodshot, red eyes. She further testified that she was shaken up by the accident and believes she was still dazed at the point she first spoke with Constable Mockler. I believe she was upset as well over the fact an OPP officer arrived, before Constable Mockler, and offered no assistance.

[20] Relative to the counsel issue, she vividly remembers speaking to Constable Mockler after arrest. She maintained throughout her evidence that she did not understand what the officer was reading and did not fully understand her right to counsel. She described it as being too technical, and confirmed that the officer made no subsequent attempt to break it down or better explain it to her.

[21] Upon their arrival at the police station, Ms. Sahadeo recalls advising all three officers of her recently sustained brain injury and resultant cognitive troubles. She testified she told the officers that some care would need to be taken in explaining things to her. This was not captured on the dvd recording I viewed. Consistent with what I did view and hear on the video, Ms. Sahadeo did have considerable difficulty understanding the sergeant explain her rights to counsel. She insisted that if she had known and understood her rights she would have taken the opportunity to speak to counsel.

[22] The focus of the Crown's cross examination was to explore the assertion that she didn't understand her right to counsel, but could everything else, including the more technical aspects of a breath demand. The Crown as well focused on the words that were used, for instance the indication to Ms. Sahadeo that if at any point she wanted to speak to a lawyer she just needed to tell the officers and they would allow it. Ms. Sahadeo acknowledged that she understands these words and terms now, but got to this point only after some reflection and after a plain language explanation by her current counsel. Her evidence on this point was essentially that at the time it wasn't so clear, which she attributes to the accident and her cognitive limitations.

[23] Filed and marked as an exhibit was a neuropsychological examination report prepared by Dr. Amena Syed. It confirmed the existence of a cognitive difficulty, opining that this condition significantly impacted her day to day functioning and level of understanding.

Law / Assessment

As Soon as Practicable

[24] Before addressing what I see as the key points, I can quickly dispose of one issue raised by the defence. It was argued that the breath demand was not made as soon as practicable as is required by section 254(3) of the Criminal Code of Canada. To this, I disagree. Having regard to the timing as its detailed in the evidence and the chronology as it was set out by Constable Mockler, which was not disputed by the defence, the demand was read, in the circumstances, as soon as practicable. Notwithstanding any delay, which seems to be attributable to the search of the car and the completion of some notes, on these facts the demand was made within a reasonably prompt time.

Right to Counsel

[25] Section 10(b) of the Canadian Charter of Rights and Freedoms states that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. This is, in my view, one of the hallmarks of our system and a most important right which should never be intruded upon. When it is violated, the remedy must in a real way address the breach.

[26] At the relevant time, Ms. Sahadeo was under arrest. There is no dispute that upon arrest the officer read to her the right as its set out in the standard card affixed to the officer's notebook. This reading contained a reference to her right; how it could be exercised; and mentioned legal aid Ontario and her ability to access counsel at no cost to her. It is clear on the evidence that once at the police station the booking-in sergeant spoke to Ms. Sahadeo about her possibly contacting a lawyer. This was done in the presence of two other officers; was not read from a standard form and at no point was reference made to the Ontario legal aid plan or duty counsel. I point this out to provide context, recognizing that higher courts have consistently held that there is no magic in the precise words used, rather one must have regard to what a detainee could reasonably be taken to understand, in the circumstances. The question is, whether what Ms. Sahadeo was told permitted her to make a reasonable decision as to whether she should submit to the arrest and subsequently exercise her right to contact counsel of her choice, or avail herself of the services of duty counsel.

[27] Ms. Sahadeo has to establish a Charter breach on a balance of probabilities. She testified, which although an accused need not testify and no negative inference can be drawn from the fact they don't, it was necessary here I believe as the defence position was the breach was established by virtue of her inability to understand her rights, coupled with the officers' recognition of her inability to understand and their lack of effort in ensuring comprehension and in ensuring an informed waiver.

[28] The Supreme Court of Canada in R. v. Bartle, [1994] 3 S.C.R. 173, drawing upon its own conclusions in earlier decisions (see R. v. Brydges (1990), 53 C.C.C. (3d) 330), determined that the right to retain and instruct counsel means more than simply the right to retain a lawyer privately. It encompasses the notion that one can access counsel free of charge, assuming certain financial criteria is met, and perhaps more importantly on these facts, that this be clearly communicated to an accused. The defence argues that Ms. Sahadeo was incapable of first, understanding her right, and second of properly waiving it. That is, even if she did waive her right, it was not informed.

[29] I struggled with this issue for the following reasons. I can't say that I necessarily believed Ms. Sahadeo. I found her to present as an intelligent woman, who clearly and without difficulty understood everything about this court process, and without any trouble or hesitation was able to respond to all of the questions put to her in court. Based on that alone, notwithstanding the doctor's report which detailed her brain injury, I have trouble accepting she couldn't understand her Charter rights as they were explained to her on the night in question. Furthermore, upon my assessment of the dvd recording, Ms. Sahadeo's account of what occurred, and Constable Mockler's testimony about his observations of Ms. Sahadeo, I'm not sure I clearly understand why it was she couldn't digest and comprehend what was said to her. It's one thing to say I don't understand something because of its complexities or as a result of its technical features. There is nothing all that technical about one's right to call a lawyer. This was explained to her twice, in two very different ways, recognizing that on the latter occasion there was no mention of the Ontario legal aid plan. She was able to understand the arrest process, the breath demand, and the caution that was read to her. She concedes this, arguing these were not as technical and that, at least respecting the caution which was read, was something she was generally familiar with having watched television. This made little sense to me for two reasons. First, the breath demand is clearly a more complicated and complex subject area than one's ability and right to call a lawyer. Second, even if I were to believe that the caution was understandable as a result of the frequency with which it is shown in mainstream television programming, surely that would as well include the detailing of one's right to contact a lawyer. These are my general impressions.

[30] However, I must assess Ms. Sahadeo's evidence through the appropriate lens. She maintained throughout a very effective cross-examination that she did not understand her right; that she did not understand what it meant to waive her right to counsel, and that if she did properly understand she would have exercised it. Notwithstanding my characterization of her ability to understand things that were going on around her, and other things said to her that night, the evidence of the officer and what is captured on the dvd recording, indeed portray someone who did not understand what it meant to contact lawyer and how she could do that. She indicated to officer Mockler that she did not understand. It was clear in what she was advising him. His reason for not elaborating or explaining further is not sufficient. The idea that she was simply too drunk to understand therefore there was no need to even try and explain further, is contrary to the state of the law in this area. To condone this approach by a police officer would be inappropriate, not to mention the fact such a finding would be inconsistent with her demonstrated ability to communicate with the officer, and the civilian truck driver, in all other respects. A mere recitation of the right as read from a standard form will rarely suffice, in particular when there is an expressed difficulty in comprehending what was said.

[31] This doesn't end the matter. To what extent does Ms. Sahadeo's exchange with the sergeant impact the analysis? The Crown argues that everything taken together amounts to a valid communication to Ms. Sahadeo of her rights. To accept this, I would need to conclude that the information conveyed by the sergeant was sufficient and that it was unnecessary to advise of the availability of duty counsel, because of what Constable Mockler had done earlier. If the two conversations had occurred closer in time, I may have concluded as such. There was a passage of at least a half hour. Had the apparent confusion existed only at the end of the first exchange, I may have been persuaded that no further inquiries or elaboration was required. Neither is the case, which even if it was, I still need to be satisfied that Ms. Sahadeo's waiver of her right to consult counsel was informed. That is, was it clear, and can I be satisfied that she had a true appreciation of the consequences of the waiver? (see R. v. Clarkson (1986), 25 C.C.C. (3d) 207).

[32] The court in Bartle concludes that the standard for a waiver of a Charter right is high. A waiver cannot derive, to my mind, from one's conduct. It must inevitably be verbalized and done so unequivocally. Relevant to this fact scenario, and given the absence of a reference to duty counsel by the sergeant, I must be mindful of the Court of Appeal's comments in R. v. Devries, 2009 ONCA 477, [2009] O.J. No. 2421 where the following is stated:

The right (to counsel) would be hollow for those unaware of how they might obtain immediate legal assistance if they were given no information by the authorities as to how to access legal counsel.

[33] This information was not passed along at the police station, and was not done so in any meaningful way at the scene of the arrest. This, alone, could amount to a breach, which fails to mention the comprehension issues raised, which even though I am sceptical, I cannot reject. Ms. Sahadeo testified she didn't understand and at no point that evening understood her right to counsel and how she might exercise it. She testified about her cognitive difficulties as a result of a closed head injury. She testified about the feeling of shock and confusion from the accident she was just in. Also, Constable Mockler concedes that he didn't think she understood, but for an unacceptable reason didn't feel the need to explain further.

[34] In the result, I must conclude that a breach has been established.

Section 24(2) Analysis - Exclusion of Evidence

[35] The Supreme Court of Canada in both the Grant and Harrison decisions has modified the test on a section 24(2) analysis, abandoning the conscriptive/non-conscriptive consideration in favour of the three-part balancing approach. The three factors are:

1. The seriousness of the Charter-infringing conduct,
2. The impact on the Charter-protected interests of the accused, and
3. Society's interest in adjudication on the merits.

[36] The Crown quite rightly points to the passage in Grant which characterizes the collection of breath sample evidence as being relatively non-intrusive and 'less egregious'. In the normal course, this makes perfect sense. If for instance an officer, in good faith, bypasses one of the statutory short cuts created in the criminal code, or if for example an officer made a breath demand when the grounds more properly supported first the administering of a roadside test, in many cases, subject to other factors and considerations, the evidence would still be admitted notwithstanding a breach. Here, however, it is not only necessary that this one factor be considered along with the other two, but the court must be mindful of the crucial importance of the right to counsel and its inviolable nature. It must be prioritized in this way and it would not be wrong to say it is of higher importance than other rights. I agree with Justice Martin's comments in R. v. McKane, 35 C.C.C. (3d) 481 at page 487 where he states:

The right to counsel enshrined in section 10(b) of the Charter is of such superordinate importance that a violation of section 10(b) will usually result in the exclusion of the evidence subsequently emanating from the accused.

[37] This notion is still relevant, even in a post-Grant context (see R. v. Guyett, [2010] O.J. No. 3524 (Ont S.C.J.)). The evidence obtained from Ms. Sahadeo, in these circumstances, would bring the administration of justice into disrepute, and as such the breath samples obtained are excluded. Count two is therefore dismissed.

Impairment

[38] The Crown must establish beyond a reasonable doubt that Ms. Sahadeo's ability to operate a motor vehicle was impaired by alcohol. The ability to operate the motor vehicle need only be slightly impaired to support a finding of guilt.

[39] I would agree with the Crown's submission that it would be an error to look at indicia in isolation and simply apply innocent explanations to each. All evidence relevant to impairment must be considered in its totality, and if that amounts to even a slight impairment of one's ability to operate a motor vehicle, then a finding of guilt must follow.

[40] In assessing these facts in the context of Stellato, I must be mindful of several things. First, alcohol in one's system doesn't necessarily mean there is slight impairment. Second, slight symptoms of impairment do not necessarily amount to a slight degree of impairment. Third, an unexplained accident may provide grounds for a roadside test or breath demand, but alone is insufficient to prove impairment. Fourth, when, as in this case, an accused testifies and offers explanations for each of the symptoms observed, I must assess it and go through the steps as they're set out in R. v. W(D).

[41] Ms. Sahadeo provided an explanation as to why her shoes were off, and explained that she had consumed less than one beer over the course of several hours. She testified that if anyone had concluded she was impaired on account of her appearing confused or upset, that they were mistaken as to the cause. She was adamant, and unshaken, in that she was crying for two reasons - first because she had just been in an accident and second because she felt abandoned by the truck driver who stopped but refused to assist her. The most significant piece of evidence on this point however is the doctor's report which confirms Ms. Sahadeo's brain injury and describes the limitations caused by it. In addition, there is no evidence as to the manner of driving, and the dvd recording of the booking-in process reveals nothing unusual.

Conclusion

[42] Although I have my reservations and to some extent I doubt Ms. Sahadeo's truthfulness, I cannot reject her account. Even though she may well have been impaired, this fact has not been proven beyond a reasonable doubt. Count one is dismissed.

March 19, 2013

Justice Jonathon George