Court File and Parties

Court File No.: Regional Municipality of Durham: 998 12 10173 Date: 2013-05-08 Ontario Court of Justice

Between: Her Majesty the Queen — and — Andrew Muir

Before: Justice J. De Filippis

Heard on: February 7 and March 13, 2013

Reasons for Judgment released on: May 8, 2013

Counsel:

• Ms L. Bandini for the Crown
• Mr. D. Brown for the Defendant

Judgment

De Filippis J.:

[1] The defendant was charged with committing two offences; having care and control of a motor vehicle at a time that his ability to do so was impaired by alcohol and refusing to comply with a lawful demand to provide samples of his breath. The parties agreed on certain evidence. In addition, I heard from two prosecution witnesses and viewed a videotape of the events leading to the second charge. There is no question that at the time of his arrest the defendant was intoxicated. He claims there is insufficient evidence he had been in care and control of a motor vehicle. I agree. The defendant also argues that he had a reasonable excuse for not providing a breath sample and that the evidence of the refusal to comply should be excluded from this trial. I reject these arguments.

Facts

[2] On 26 December 2011, Cst. Kane was on routine patrol in the City of Pickering when he was directed, by the dispatcher, to investigate a single motor vehicle collision at Dixie and Glennana Roads. This is a residential neighbourhood. The officer went directly there and arrived, soon after, at 6:05 AM. Firefighters, paramedics, and several civilians were on scene. Cst. Kane saw that a pickup truck had struck a tree in front of a home at the intersection. There was nobody inside that vehicle. Based on tire marks on the road and grass, the officer concluded the driver of the truck had made a turn that was too wide and had lost control. He observed blood on the steering wheel and the inside handle of the driver's door. There was no blood anywhere else in the vehicle.

[3] Cst. Kane noticed drops of blood on the ground and followed these from the damaged motor vehicle to a residence a short distance away. He testified that the front door was opened by the defendant, just as he was about to knock on it. The defendant had an injury to one eye and it was "weeping blood". According to the officer, the defendant "appeared highly intoxicated", with an "obvious odour of alcohol" on his breath, slurred speech, and an inability to stand without swaying. At 6:17 AM, he arrested the defendant for the impaired charge, advised him of his right to counsel, cautioned him, and demanded he provide a sample of his breath into an approved instrument. He also seized "truck keys" from the defendant. The officer conceded that he did not confirm that the keys were from the truck in question, or any motor vehicle for that matter. Cst. Kane testified the paramedics on scene may have told him the defendant could have a concussion but could not recall them stating that he could have brain trauma and should go to the hospital. He testified that "if he needed to go, he would have".

[4] The defendant was transported to the nearest police station with a qualified intoxilyzer technician on duty, arriving at 7:02 AM. During this trip, the defendant was upset and talked to his mother on a cellular phone. Cst. Kane confirmed that the defendant stated he wished to speak to a lawyer. Since the defendant did not provide the name of a lawyer, the officer arranged for him to speak to duty counsel. It is not known what duty counsel told the defendant but it appears the latter was not impressed; after the conversation concluded, the defendant told Cst. Kane that duty counsel was a "fucking Russian". At 7:39 AM, the defendant was turned over to Cst. Siebert for the breath tests to be conducted. At 7:53 AM, the latter reported that the defendant had refused to provide a breath sample and Cst. Kane arrested him for this added charge.

[5] The evidence of the paramedics was stipulated by agreement of the parties: At 6:20 AM, after his arrest, the defendant was examined and his facial injuries dressed. The paramedics advised Cst. Kane that the defendant needed to have stitches and to be assessed at hospital as there was a risk of brain trauma and possibility of concussion. The officer replied that he used to be a paramedic and knew what to look for.

[6] It is also agreed that the following conversation occurred when the defendant was brought before the "booking sergeant" when he arrived at the police station:

Sgt: Have you been given your right to counsel?

Defendant: Sure

S: Do you want to call a lawyer of choice or duty counsel?

D: [no answer]

S: Do you want to call a lawyer of choice or duty counsel?

D: I need a Kleenex

S: Yeah, you have a little blood. Do you understand?

D: I don't give a fuck.

[7] Cst. Siebert is a qualified intoxilyzer technician. The officer testified that the defendant emitted a strong odour of alcohol, had watery eyes and slurred speech. The proceedings in the breath room were captured on video and played to the court. It is obvious that the defendant is intoxicated. The officer produced a new mouthpiece for use on the approved instrument and the defendant blew into it to confirm it was not obstructed. In the following 14 minutes, he repeatedly asserted he had not driven a motor vehicle. When asked to provide a sample of his breath into the approved instrument, he replied that he needed stitches and was "not blowing…[pause]…for medical reasons". He also said he would not provide a sample until he had spoken to a lawyer. Cst. Siebert cautioned the defendant about the consequences of failure to comply with the breath demand. The defendant stated he did not understand. After the officer repeated the caution, the defendant said, "Say that again". This happened several times; that is, the officer kept reading the caution and the defendant kept responding, "Say that again". During this exchange, as he did on another occasion in the breath room, the defendant giggled. He ultimately refused to comply with the demand with the complaint that, "I have been dragged here when my eye is fucked".

Analysis

Care and Control

[8] It is reasonable to conclude that the defendant was the driver of the pickup truck that collided with the tree. Blood was found in the area of the driver's seat and a blood trail was followed to a nearby home. The defendant emerged from the front door of that home with blood weeping from his eye and blood on his hands. He was intoxicated. It is also reasonable to conclude the collision had just occurred. It was about 6 AM in a residential area with emergency personnel and civilians on scene. Since this was a single motor vehicle accident, it is safe to assume the civilians were neighbourhood residents. It is most unlikely, especially at this time of day, that emergency personnel and neighbours would be standing around for long. However, these are not the only reasonable inferences that can be drawn from the evidence. I accept the Defence submission that there is no clear and conclusive evidence about how and when the single motor vehicle collision occurred and who the driver was. It follows from the aforementioned observations that notwithstanding my doubt about the defendant's guilt on the impaired charge, I find that Cst. Kane had the requisite reasonable and probable grounds to demand a sample of the defendant's breath.

Refusal to Comply with Breath Demand

[9] The Defence argues that the count of refusal to comply with a breath demand should be dismissed because the defendant's injuries excused him from doing so and the violation of his right to counsel should result in exclusion of evidence. The difficulty counsel has is that these arguments are completely undermined by his client's conduct in the breath room as captured on video. Moreover, with respect to the Charter issue, I find that the remedy sought is not available.

Medical Excuse

[10] The evidence from the paramedics is that there was a risk of brain trauma and possibility of concussion. All that is certain is that the defendant had a laceration under one eye. This was obviously painful when he applied a wet tissue to the wound but that quickly passed and afterwards his condition is properly described as one of discomfort. There is no other evidence about the nature of the defendant's injuries and what, if anything, was subsequently done to address them. In these circumstances, it cannot be said that participating in a breath test was extremely difficult or posed a substantial risk to his health: See R v Malicia [2004] O.J. No. 6016. In fact, the evidence is to the contrary as the defendant blew into the mouthpiece without difficulty when it was initially tested. I reject the suggestion that the defendant's medical condition provided a reasonable excuse not to comply with the breath demand.

Charter Right to Counsel

[11] Section 10(b) of the Canadian Charter of Rights and Freedoms imposes three obligations on the police with respect to a person under arrest or detention; (1) inform the person of the right to counsel, (2) provide a reasonable opportunity to exercise this right if counsel is desired, and (3) curtail questioning and compulsion to make a decision or participate in a process that could ultimately have an adverse effect at an eventual trial, until that reasonable opportunity has been exercised. The person detained or arrested must be reasonably diligent in exercising his/her right to counsel: R v Richfield, [2003] O.J. No. 3230 (Ont. C.A.).

[12] The Defence argues that the police should have done more to facilitate contact with a lawyer, especially after the defendant made disparaging remarks about duty counsel. I find that the defendant was not reasonably diligent in exercising his right to counsel. He was an angry drunk who occasionally treated the investigative proceedings as a joke: When the station Sergeant raised the issue of counsel, the defendant stated he "didn't give a fuck". This attitude continued in the breath room when he was told to comply with the demand. Having watched the defendant on video I am confident his refusal to provide a sample had nothing to do with his medical condition or his desire to speak to a lawyer but is merely the posturing of a belligerent man. In any event, I am of the view that I cannot exclude evidence of a refusal to comply because of a violation of 10(b). I acknowledge that the law is somewhat confusing on this point but I accept and follow the recent decision of my colleague, Justice Schwarzl, in R v Sidhu 2013 ONCJ 131.

[13] In Sidhu, the defendant initially declined to speak to counsel but changed his mind upon being informed that the police intended to demand a blood sample. A police officer left a message for counsel of choice, but neglected to inform the defendant of this fact. Three minutes later, the police made a formal blood demand and offered the defendant the opportunity to speak with duty counsel. The defendant declined this offer and refused to provide a blood sample. Justice Schwarzl held that the approach taken by the police in this case was unacceptably casual and hasty but he declined to exclude the evidence of the refusal, holding that s. 10(b) protection does not extend to crimes not already committed.

Verdict

[14] I have a reasonable doubt about whether the defendant is guilty of the impaired charge. I have no such doubt about the second count. The defendant was subject to a lawful demand to provide a sample of his breath. His refusal to comply was without reasonable excuse and this evidence is admissible, even assuming a violation of his right to counsel. Accordingly, he is found guilty of this charge.

Released: May 8, 2013

Signed: Justice J. De Filippis