Court File and Parties

Court File No.: Brampton 12-13413 Date: November 14, 2013 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Ryan Kearsley

Before: Justice Richard H.K. Schwarzl

Heard on: June 18 and October 18, 2013

Reasons released on: November 14, 2013

Counsel:

• Ms. Zailin Lakhoo for the Crown
• Mr. William Thompson for the Accused

SCHWARZL, J.:

1.0: INTRODUCTION

[1] During the early evening of October 12, 2012 Mr. Ryan Kearsley was driving his car in Mississauga. After being stopped by the police he failed an alcohol screening test. He provided breath samples into an approved instrument, the results of which both exceeded the legal limit. He was charged with a single count of Driving with Excess Blood alcohol contrary to section 253(1)(b) of the Criminal Code.

[2] A trial was held that focussed on two issues. One issue is whether or not the prosecution has proven beyond a reasonable doubt that the breath tests were obtained as soon as practicable as required by section 258(1)(c)(ii) of the Criminal Code. The other issue is whether the police violated Mr. Kearsley's rights to counsel. If there was a breach of Mr. Kearsley's rights under section 10(b) of the Canadian Charter of Rights and Freedoms, he asks that the breath test results be excluded from the evidence.

2.0: EVIDENCE

2.1: P.C. Dameon Okposio

[3] Dameon Okposio is a very experienced police officer, having served the Peel Regional Police for over a dozen years. He is also a qualified technician.

[4] On October 12, 2012 P.C. Okposio was on patrol in Mississauga. Around 6:35 p.m. he saw a car driven by Mr. Kearsley in front of him on Hurontario Street changing lanes without signaling and weaving through traffic. After following the car through traffic and lights, P.C. Okposio pulled Mr. Kearsley over at 6:43 p.m. at the westbound ramp of Highway 403.

[5] Mr. Kearsley was alone in the car. When speaking with him, P.C. Okposio noticed that his eyes were watery and his breath smelled of alcohol. Mr. Kearsley admitted to last consuming alcohol about forty-five minutes earlier. P.C. Okposio formed the reasonable suspicion that Mr. Kearsley was driving with alcohol in his body.

[6] Mr. Kearsley complied with screening demand made by P.C. Okposio at 6:44 p.m. Mr. Kearsley failed the test at 6:49 p.m. and was arrested for the offence at bar.

[7] At 6:50 p.m. P.C. Okposio searched Mr. Kearsley and read him his rights to counsel.

[8] P.C. Okposio testified as follows with respect to the recitation of rights to counsel:

Okposio: It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand?

Kearsley: Yes.

Okposio: You have the right to telephone any lawyer you wish. Do you understand?

Kearsley: Yes.

Okposio: You also have the right to free advice from a Legal Aid lawyer. Do you understand?

Kearsley: Yes.

Okposio: 1-800-265-0451 is a toll-free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now. Do you understand?

Kearsley: Yes.

Okposio: Do you wish to call a lawyer now?

Kearsley: No, not right now. I want to speak to my father.

Okposio: Do you want to get legal advice from your father?

Kearsley: No, I just want to speak with him. My father is a Toronto firefighter. I don't have a regular lawyer that I use.

Okposio: You can change your mind about speaking to a lawyer at any time.

Kearsley: What is the procedure?

[9] In cross-examination, the officer explained that when Mr. Kearsley said, "Not right now" P.C. Okposio told him he could change his mind and speak with a lawyer at any time because Mr. Kearsley might want to speak with a lawyer later at the station.

[10] P.C. Okposio understood at the time that he has a duty to permit detainees to contact third parties to get a lawyer, or to get a referral to a lawyer. The officer testified that when Mr. Kearsley said he wanted to speak with his father, he understood that Mr. Kearsley simply wanted to talk to him but not to retain a lawyer. P.C. Okposio agreed that he did not tell Mr. Kearsley that he could speak to his father for the purpose of retaining counsel.

[11] P.C. Okposio testified that Mr. Kearsley never asked to call his parents in order to get hold of a lawyer. The officer stated that if Mr. Kearsley had done so, he would have called his home to get information about counsel of choice and would then have called that lawyer.

[12] P.C. Okposio understood Mr. Kearsley's question "What is the procedure?" to mean that the Accused was asking what was going to happen to him from that point forward regarding breath testing.

[13] At 6:51 p.m. P.C. Okposio radioed for assistance with Mr. Kearsley's car.

[14] At 6:53 p.m. P.C. Okposio read a caution to Mr. Kearsley, which was understood by him. At that same time, P.C. Kolback arrived on scene.

[15] At 6:54 p.m. P.C. Okposio read a breath demand to Mr. Kearsley, which he also understood.

[16] After reading the breath demand P.C. Okposio spoke briefly with P.C. Kolback to bring her up to date and asked her to help him with searching and seizing Mr. Kearsley's motor vehicle. The two officers went to the car to remove any of Mr. Kearsley's valuables and medication that might be in the car. Although Mr. Kearsley had not mentioned or requested any medication, the officer searched for medication as a matter of routine because some arrestees require medication while in police custody and some don't mention that they have or need it.

[17] During the search P.C. Okposio located an open can of Coke and examined it for the presence of alcohol. The result of the examination was negative. P.C. Okposio agreed in cross-examination that he could have allowed P.C. Kolback to deal with the car on her own but one of the reasons he participated in the search of the car was to look for clues or evidence in support of his investigation. The search concluded at approximately 7:14 p.m. P.C. Okposio said it took so long because the search included the investigation of the soft drink, the identification and notation of property, and the seizure and securing of property. He also made notes before leaving the scene.

[18] After searching the vehicle, P.C. Okposio made list of what he found which included some clothing, a case of beer, and a GPS device. The officer seized the beer and put the GPS in a property bag for Mr. Kearsley. P.C. Kolback's responsibility was to seize and tow the car while P.C. Okposio took care of Mr. Kearsley's property.

[19] At around 7:14 p.m. P.C. Okposio left the scene with Mr. Kearsley. In cross-examination, P.C. Okposio agreed he could have left the scene as early as 6:54 p.m. when P.C. Kolback arrived but he wished to stay to search Mr. Kearsley's car and make notes.

[20] On arriving at the police station at 7:26 p.m., P.C. Okposio was unable to enter the station's secure sally port because the ramp was already occupied by another police car and prisoner. There was nothing he could do but wait. Ten minutes later, the officer was able to take Mr. Kearsley into the station's secure area at 7:36 p.m.

[21] Once inside the station, P.C. Okposio turned Mr. Kearsley over to the booking officers. The officer removed the handcuffs from Mr. Kearsley and provided the necessary information to the booking officers. P.C. Okposio went to the breath room while Mr. Kearsley was being booked.

[22] At 7:42 p.m. P.C. Okposio, who was also the qualified technician in this case, checked the Intoxilyzer 8000C approved instrument to ensure it and the simulator were turned on, which they were.

[23] After the booking procedure was completed, P.C. Okposio brought Mr. Kearsley into the breath room at 7:48 p.m. to conduct breath tests.

[24] At 7:51 p.m. P.C. Okposio asked Mr. Kearsley if he wanted to speak with a lawyer as he had not yet done so. P.C. Okposio was alive to his duties to make sure detainees understand their constitutional rights and to make sure that any waiver of those rights is unequivocal. Because Mr. Kearsley had declined at the roadside to speak with a lawyer, P.C. Okposio made sure at the station that Mr. Kearsley understood that he could speak with a lawyer, including duty counsel, at any time. On video, the following exchange took place:

Okposio: If you want to speak with a lawyer now, including duty counsel – I won't force you to speak with one – but I won't deny you the right to speak with any lawyer you want to. Do you want to speak with a lawyer at this time?

Kearsley: No.

Okposio: Again, if you want to speak with one at any time, just let me know.

Kearsley: (No response).

[25] Mr. Kearsley never asked at any time to speak with a lawyer, nor did he ask to speak with any third party in order to get a lawyer.

[26] P.C. Okposio At 7:51 p.m. P.C. Okposio read the primary caution again; at 7:52 p.m. he read a secondary caution; and at 7:53 p.m. he made another breath demand. P.C. Okposio said he did these things out of habit as a qualified technician.

[27] At 7:54 p.m. P.C. Okposio explained to Mr. Kearsley the consequences of failing to provide suitable breath samples.

[28] The officer then made the approved instrument ready for use, such steps being completed by around 8:00 p.m. Between 8:01 and 8:02 p.m. P.C. Okposio demonstrated to Mr. Kearsley how to provide a suitable sample of breath into the approved instrument.

[29] Between 8:06 and 8:08 p.m. Mr. Kearsley used the washroom.

[30] At 8:12 p.m. Mr. Kearsley provided the first of two suitable samples of his breath directly into the approved instrument, registering a blood alcohol concentration of 131 milligrams of alcohol per one hundred millilitres of blood.

[31] Twenty-two minutes after the first test at 8:34 p.m. Mr. Kearsley provided his second breath sample breath directly into the approved instrument, registering on this occasion a blood alcohol concentration of 125 milligrams of alcohol per one hundred millilitres of blood.

[32] Between the first and second breath tests, P.C. Okposio interviewed Mr. Kearsley.

[33] After conducting the breath tests, P.C. Okposio telephoned Mr. Kearsley's father, Richard Kearsley at 8:55 p.m. to arrange a ride home. The officer then prepared and served the Certificate of Qualified Technician and the Notice of Intention to Produce the Certificate upon Mr. Kearsley, who was released from the station at 10:32 p.m. when his father came to pick him up.

2.2: Ryan Kearsley

[34] Mr. Kearsley testified on the Charter voir dire only.

[35] Mr. Kearsley was driving home from a restaurant when he was stopped by P.C. Okposio. After failing the screening test, Mr. Kearsley was arrested. He had never been arrested before.

[36] When P.C. Okposio gave him his rights to counsel, Mr. Kearsley recalled being asked if he wanted to speak with a lawyer right away. When he told the officer "Not right now", he testified that he meant that he did not have a lawyer as he had never needed one before. Mr. Kearsley did not explain this to P.C. Okposio.

[37] When Mr. Kearsley told the officer that he wanted to speak with his father, he meant he wanted to speak with his father so that he could help him find and contact a lawyer. Mr. Kearsley did not explain this to P.C. Okposio.

[38] Mr. Kearsley's mother used to work for lawyers, including criminal lawyers. However Mr. Kearsley said he wanted to talk to his father because he felt his father could either get a lawyer or could call his mother to get one. Mr. Kearsley did not tell P.C. Okposio about his mother's connections to lawyers.

[39] When the officer asked if he wanted to speak with his father to get legal advice from him, Mr. Kearsley said "no" because his father is a firefighter, not a lawyer. Mr. Kearsley believed that the officer was asking if he intended to receive legal instruction from his father, as opposed to asking his father to facilitate contacting one on his behalf. Mr. Kearsley said his belief was only an assumption as the officer never told him he could not speak to his father at all.

[40] Mr. Kearsley said that given the officer's comments about his father, he figured that was the end of trying to contact a lawyer, either directly or through a third party. Mr. Kearsley said "no" at the station when asked if he wanted to speak with a lawyer because he had no way of contacting one and had given up any hope of calling one even though that is what he really wanted to do.

[41] At the station when P.C. Okposio told him he could speak with a lawyer, Mr. Kearsley thought the officer meant exclusively duty counsel, with whom Mr. Kearsley did not wish to speak. Again, he said that his belief was an assumption and he agreed he did not ask the officer any clarifying questions. He did not explain why he did not wish to speak with duty counsel other than to say that he was too overwhelmed, embarrassed, and ashamed.

[42] Mr. Kearsley agreed that P.C. Okposio told him at the station that he could change his mind and speak with a lawyer at any time.

[43] Mr. Kearsley only wanted a private lawyer. Once that option was ruled out in his mind, he was more interested in getting things over with than getting any legal advice, even from the lawyer he knew was both free and immediate.

3.0: ISSUES

3.1: Were the breath tests taken as soon as practicable?

3.1.1: Positions of the Parties

[44] The defence submits that the breath tests in this case were not taken as soon as practicable. They submit that there were forty-two minutes of police activity or inactivity that resulted in P.C. Okposio not acting expeditiously overall. These forty-two minutes were broken down into three phases. The first phase was at the roadside in which the defence submits P.C. Okposio took twenty minutes to leave the scene after backup arrived, which the defence submits was wasteful given that the backup officer could have done on her own what P.C. Okposio chose to do. The second phase was the ten minutes idling in the sally port at the station. The defence submits that there was no satisfactory explanation why the police department could not receive more than one prisoner at a time. The third and final phase was the twelve minutes taken to book Mr. Kearsley, which the defence submits revealed a lackadaisical attitude by the police.

[45] The Crown submits when considering all of the circumstances of the case, the breath tests were taken as soon as practicable. The Crown submits that the police conduct was reasonably prompt throughout and the officers were never diverted from focussing their attention on Mr. Kearsley and his case.

3.1.2: Applicable Legal Principles

[46] The phrase "as soon as practicable" in the context of an "Over 80" charge means that the breath tests must be taken within a reasonably prompt time given the particular circumstances of the case. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably promptly in all of the circumstances: R. v. Vanderbruggen.

[47] Taking time to make notes while the matters are freshest in the officer's memory is a justifiable delay in bringing a subject to a qualified technician: R. v. Thibert, [2003] O.J. No. 1510 (S.C.J.) at para. 31; R. v. Papa, [2006] O.J. No. 1497 (S.C.J.).

3.1.3: Analysis

[48] When taking all of the circumstances into account, I find that the breath tests were taken as soon as practicable.

[49] With respect to the time taken to search Mr. Kearsley's car and make notes at the scene, it is true that P.C. Okposio could have left the scene to take Mr. Kearsley to the station right after bringing P.C. Kolback up to speed. However, I find that he was acting both reasonably and expeditiously when he, as the primary investigator, elected to search Mr. Kearsley's car for potential evidence and for personal property including medication.

[50] Furthermore, P.C. Okposio took time to write out notes of what had transpired up to the time of departure. It was reasonable for the officer to take the time to make accurate notes at the earliest opportunity. No doubt had the officer not made his notes forthwith, he may well have been criticized at trial for not having done so.

[51] While the search of the car was itself brief, the sequelae including sorting out property, making lists, and writing notes helped add up the total time to about twenty minutes. I find that the time spent at the scene after the arrival of the backing officer was not spent in a dilatory manner.

[52] As for the time spent waiting at the sally port, in an ideal world there would be sufficient space and facilities in each police station to accommodate the simultaneous arrival of multiple detainees. Nevertheless, in the circumstances of this case, P.C. Okposio was not wasting time: he was delayed by forces beyond his control and had to wait until clearance was received to bring Mr. Kearsley into the secure parking area of the station.

[53] I do not find that that was any unreasonable delay in the booking procedure. All bookings will take some time. There was nothing extraordinary about the time it took to book Mr. Kearsley. During that time, P.C. Okposio was not idle but went to the breath room to examine the approved instrument and to ensure that it was turned on.

[54] The total time between the arrest of Mr. Kearsley and the last breath test was one hour and forty-five minutes. Upon evaluating all of the circumstances of this particular case, I find that the breath tests were taken as soon as practicable.

3.2: Were Mr. Kearsley's section 10(b) Charter rights violated?

3.2.1: Positions of the Parties

[55] Mr. Kearsley submits that his right to counsel was breached by P.C. Okposio when the officer did not permit the Accused to speak with his father. In the alternative, it was argued that P.C. Okposio breached Mr. Kearsley's rights to counsel by not exploring why Mr. Kearsley wished to speak with his father because the officer had a duty to clarify Mr. Kearsley's request to speak to his father. The defence submits that P.C. Okposio, who was a very experienced officer, was performing his duties by rote, without due care and attention or sensitivity to Mr. Kearsley's statements to him.

[56] The defence submits that by failing to inform Mr. Kearsley that he could call a third party to access legal advice, Mr. Kearsley's waiver was not fully informed and thus invalid.

[57] The defence submits that Mr. Kearsley was reasonably diligent in pursuing his rights to counsel given the unduly restricted menu of choices offered by P.C. Okposio.

[58] The defence submits that upon finding a Charter breach, the breath test results ought to be excluded as a balancing of the various Grant factors militates in favour of exclusion of the evidence.

[59] The Crown submits P.C. Okposio fulfilled all of the informational and implementational aspects of his duties regarding rights to counsel in this case. They further submit that by refusing to speak with duty counsel and by deciding that he just wanted to get things over with, Mr. Kearsley was not reasonably diligent in pursuing his rights to counsel.

[60] The Crown submits that even if there was a violation of Mr. Kearsley's constitutional rights in this case, the evidence ought not be excluded.

3.2.2: Applicable Legal Principles

[61] The burden is on the Accused to establish on a balance of probabilities that his right to counsel was violated and that a remedy under section 24 of the Charter should be granted.

[62] The police must give rights to counsel before breath samples are provided and must give the detainee (a) sufficient information concerning rights to counsel and (b) a reasonable opportunity to exercise those rights: R. v. Brydges.

[63] Where the police assist the Accused in exercising his rights to counsel, the police must be reasonably diligent: R. v. Wilding, 2007 ONCA 853. While police must be reasonably diligent in assisting the Accused in exercising his rights 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; R. v. Sharma, [2004] O.J. No. 2991 (S.C.J.).

[64] The detainee is required to be reasonably diligent in the pursuit of his rights: R. v. Tremblay; R. v. Leclair and Ross; R. v. Littleford; R. v. Richfield; R. v. Van Binnendyk, [2007] O.J. No. 2899 (C.A.); R. v. Brown, 2009 NBCA 27.

[65] Where the detainee asks to speak with a third party to facilitate speaking with legal counsel, the police must generally permit the accused to contact such a third party: R. v. Tremblay; R. v. LaPlante; R. v. McNeilly, [1988] Y.J. No. 71 (Y.T.S.C.); R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.).

[66] Absent special circumstances to inquire, the police have no duty to contact a third party unless the detainee first informs the police that the purpose of such contact is to retain counsel: R. v. Adams and Walsh; R. v. K.W.J., [2012] N.W.T.J. No. 14 (C.A.).

[67] The test is not whether the police could have done more, but rather did the police provide the accused with the necessary information and assistance to allow the accused to exercise his rights: R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.); R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.).

[68] In Blackett, supra, at paragraph 29 the Summary Conviction Appeal Court set out a three-stage analysis of rights to counsel situations involving counsel of choice:

(a) Did the police fulfil their duty to act diligently in facilitating the right of the accused to consult counsel of choice? If the trial judge finds they fulfilled their duty then there is no breach of s. 10(b).

(b) If the police did not fulfill their duty then there are two possibilities:

(i) If the police breached their duty because they took no step to facilitate the right to counsel, then a breach of s. 10(b) is established: Kumarasamy.

(ii) If the police breached their duty because they made some effort but it is found not to constitute "reasonable diligence", the trial judge must next decide whether the accused fulfilled his or her duty to act diligently to exercise the right to counsel. If the answer is yes, then a s. 10(b) breach is made out. If the answer is no, then this trumps the breach of duty by the police and there is no breach of s. 10(b): Brydges; Richfield.

(c) If a breach of s. 10(b) is established the court must then go on to consider whether or not to exclude the consequent evidence under s. 24(2)….

[69] Where a constitutional right has been breached, the Court may, after balancing three factors, exclude evidence derived from the breach where the applicant has shown that exclusion is necessary to protect and maintain the good repute of the judicial system: R. v. Grant, 2009 SCC 32.

3.2.3: Analysis

[70] P.C. Okposio acted diligently in dealing with rights to counsel in this case. When Mr. Kearsley asked to speak with his father, the officer appropriately asked if it was to get legal advice. While it may have been preferable for the officer to simply ask Mr. Kearsley why he wanted to speak with his father, the officer's response was fair and direct. Furthermore, when Mr. Kearsley said to the officer "No, I just want to speak to him" this did not create a special circumstance that required further clarification by the officer. Mr. Kearsley is an intelligent man with no apparent mental or physical limitations. Nor was there anything in the exchange between police officer and detainee that should have prompted P.C. Okposio to make further inquiries at the time.

[71] Mr. Kearsley's request at the roadside to speak to his father, without more, did not give an inference to the officer or the court that the request was to talk to his father to access legal counsel. It is not unusual that a person who is detained, especially for the first time, will want to seek solace from a parent while in police custody.

[72] Mr. Kearsley was not diligent when he failed to tell the officer why he "just wanted to" speak to his father. I accept P.C. Okposio's evidence that in his mind there was no ambiguity about Mr. Kearsley's intention in calling his father; that is, it was clear to the officer that it was not to get a lawyer. P.C. Okposio repeated the rights to counsel at the station by telling Mr. Kearsley that the officer would not deny him the right to speak with any lawyer and that all Mr. Kearsley had to do was tell him that he wanted to speak to one.

[73] P.C. Okposio impressed upon Mr. Kearsley both at the roadside and at the station that he could speak with any lawyer he wanted, including the free duty counsel, whenever he wanted to. Mr. Kearsley made assumptions about what P.C. Okposio had meant. The police are not mind-readers with the power of clairvoyance. If Mr. Kearsley had any confusion or made assumptions, all he had to do was tell the officer. But he never did. Ever.

[74] Mr. Kearsley testified that he wanted to speak to a private lawyer, but he failed to tell P.C. Okposio this. He told the court that he was too embarrassed to speak with duty counsel, yet he never told this to P.C. Okposio who was always professional, fair, and clear in his dealings with the Accused. Had Mr. Kearsley said that he wanted to speak with a lawyer or a third party to get a lawyer, I have no doubt that P.C. Okposio would have immediately accommodated him.

[75] Mr. Kearsley was not diligent when he simply decided to get things over with despite the reminder of P.C. Okposio that he could speak with any lawyer at any time.

[76] Having considered all of the evidence, I find that P.C. Okposio was not on "autopilot" as suggested by the defence when it came to Mr. Kearsley's rights to counsel. P.C. Okposio was at all times sufficiently and appropriately tuned into his duties and to Mr. Kearsley's responses and rights.

[77] For these reasons, I find that the section 10(b) Charter rights of Mr. Kearsley were not breached by the police. If I am wrong that there was no breach, I still would not have excluded the evidence based on a consideration and balancing all of the factors set out by the Supreme Court in R. v. Grant, supra.

[78] If there was a breach, it was not serious. The officer never denied Mr. Kearsley the right to speak to anyone for the purpose of retaining counsel. He always allowed the Accused to call any lawyer at any time. If there was a breach it was inadvertent and understandable in light of Mr. Kearsley's actual words, as opposed to his unexpressed beliefs and understanding. P.C. Okposio acted in good faith throughout. However, given the nature of the right in question, if there was a breach, it was at most not higher than the middle of the scale and does not, on balance, favour exclusion in these circumstances.

[79] If there was a breach it did not significantly impact on Mr. Kearsley's Charter-protected interests. He was always told he could speak with any lawyer, but he chose not to for his own reasons which he failed to articulate to the officer at the time. Just because he was without prior police experience, this did not absolve Mr. Kearsley from expressing his desire to the police to speak with legal counsel or to speak with a third party to get legal counsel.

[80] If there was a breach, the truth-seeking function of the criminal trial process would be better served by admission of the evidence.

[81] For these reasons, Mr. Kearsley's Charter application is dismissed.

4.0: CONCLUSIONS

[82] The only issues in this case were whether the tests were taken as soon as practicable and whether Mr. Kearsley's right to counsel was breached. I have concluded that the tests were taken as soon as practicable. Furthermore, I have found that Mr. Kearsley's rights to counsel were not violated; and if they were, the breach was such that in the circumstances of this case, exclusion of the breath readings would not be an appropriate remedy.

[83] A verdict of guilty will be registered on the sole count on Information 12-13413.

Original signed by Justice R.H.K. Schwarzl

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice