Court File and Parties

Court File No.: 115319 Date: 2013-05-31 Ontario Court of Justice

Between: Her Majesty the Queen — and — Celine Dumont

Before: Justice D. DiGiuseppe

Heard on: July 19, August 15, September 7, 2012

Oral Reasons for Judgment delivered on: September 7, 2012

Written Reasons for Judgment released on: May 31, 2013

Counsel:

• Robert Kozak, for the Crown
• Ronald Poirier, for the accused

DIGIUSEPPE J.: (orally)

A. OVERVIEW

[1] Celine Dumont is charged with operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood.

[2] The defence brought an application pursuant to sections 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms alleging a breach of Ms. Dumont's rights to counsel, and to be secure against unreasonable search and seizure and arbitrary detention. The defence sought to exclude the breath results.

[3] At trial, the defence advanced only the following:

1. that Ms. Dumont's Section 10(b) rights to counsel were breached in that she was not advised of her right to consult French speaking duty counsel, and;

2. that the samples of her breath were not taken as soon as practicable.

[4] A blended trial and voir dire was conducted with the consent of the Crown and defence to address the Charter application. The evidence adduced during the voir dire would, subject to my ruling on admissibility, be admitted to the trial proper.

[5] The trial commenced on August 15th, 2012, and concluded on September 17th, 2012. The matter was adjourned to today's date for judgment.

B. THE EVIDENCE

[6] Constable St-Amour testified. He is a member of the Ontario Provincial Police stationed at the Greenstone Detachment. He has been a police officer for four years. He is fluently bilingual in both the French and English languages.

[7] On December 11th, 2011, Constable St-Amour was on general patrol operating a RIDE program in the Town of Longlac. At approximately 12:11 a.m. Ms. Dumont was operating a motor vehicle that was stopped by police. When asked by Constable St-Amour if she had consumed any alcohol, she said she had two to three glasses of wine. Constable St-Amour noted an odour of alcohol on her breath and glossy eyes.

[8] At 12:18 a.m., Constable St-Amour made a demand that Ms. Dumont provide a breath sample into a roadside screening device. The demand was made in the French language. She was asked if she preferred English or French. She said it did not matter. The conversation between Ms. Dumont and Constable St-Amour reverted between English and French. Ms. Dumont appeared to understand the demand and both languages. Constable St-Amour has dealt with Ms. Dumont in the past (she is the manager of the L.C.B.O.) and has spoken with her in both English and French. She always appeared to understand.

[9] Ms. Dumont complied with the demand and registered a fail. At 12:22 a.m. Ms. Dumont was arrested for operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood. At 12:26 a.m. she was cautioned and given her rights to counsel in the French language. The rights to counsel included information regarding duty counsel. Ms. Dumont said she understood and would be content with speaking to duty counsel. At 12:28 a.m. a breath demand was read. Ms. Dumont said she understood.

[10] Constable St-Amour and Ms. Dumont left the scene at 12:36 a.m. and arrived at the O.P.P. Detachment in the Town of Geraldton, 30 kilometres away, at 12:59 a.m. At 1:16 a.m., Constable St-Amour called duty counsel and at 1:26 a.m. Ms. Dumont was given an opportunity to speak with a lawyer in private. Constable St-Amour said he asked for an English-speaking duty counsel because of Ms. Dumont's facility with the English language, the fact that she said she had no language preference when they were speaking and because securing English-speaking duty counsel would be quicker in his experience than locating a French-speaking duty counsel.

[11] After this consultation, Constable St-Amour turned Ms. Dumont over to a qualified breathalyser technician. Tests were conducted at 1:54 a.m. and 2:14 a.m., resulting in readings of 90 milligrams of alcohol in 100 millilitres of blood. Filed as exhibit one is the Certificate of the Breathalyser Technician.

[12] In cross-examination Constable St-Amour stated that:

1. Ms. Dumont had a discernable accent when she spoke English;

2. she seemed comfortable in both languages;

3. he cannot recall if he asked Ms. Dumont if she wished to speak to a French-speaking duty counsel;

4. he does recall asking her several times which language she wished to communicate in, although this is not recorded in his notes.

[13] Celine Dumont testified. She is a resident of Longlac and has managed the local L.C.B.O. outlet since 1998. She can communicate in French and English and is able to complete forms associated with her employment in the English language. She was educated in and most familiar with the French language.

[14] When she was stopped by police on the date in question, she understood what the RIDE program was about and would have asked for a translation if she had any problems understanding. With respect to these court proceedings, Ms. Dumont said she was able to answer counsel's questions, although with some difficulty at times, particularly with legal terminology.

[15] With regard to the evening in question, Ms. Dumont testified as follows:

1. Constable St-Amour read her rights to counsel in French.

2. Police asked her if she wanted them to contact duty counsel. She replied yes. Police did not ask her which language she wished to speak to duty counsel in.

3. She acknowledged that she did not ask to speak to a French-speaking duty counsel, although she presumed that she would speak with a French-speaking lawyer given that police were speaking to her in French.

4. She did speak with duty counsel in English but communicated with some difficulty. There were some things that she did not understand.

5. She did not tell police that she had difficulty understanding the legal advice from duty counsel.

6. The breathalyser technician, Constable Camirand, spoke to her in English. He demonstrated how to provide a breath sample and explained it to her. She understood his direction.

7. Ms. Dumont waited between 8 and 9 minutes from the end of the conversation with duty counsel to when she was asked to provide a breath sample.

8. When she provided her first sample, the instrument did not accept it. Constable Camirand explained the process again. Her subsequent attempt was successful.

9. She was not aware she could have asked for a French-speaking lawyer. She would have preferred speaking to a French-speaking duty counsel as she believes she would have understood some of the legal or technical terms better.

10. She was aware of the bilingual nature of Canada and her right to access services in French and English.

C. ISSUES

[16] Two issues arose during the course of this trial and voir dire:

1. The defence argued that Ms. Dumont's right to counsel was breached, particularly her right to consult a French-speaking duty counsel.

2. The defence also argued that the breath tests were not taken as soon as practicable. As such, the Crown is not then entitled to rely on the presumption under Section 258 of the Criminal Code relating those breath readings back to the time of driving.

D. ANALYSIS

1. Charter Argument

[17] The scope of an accused's rights under Section 10(b) of the Charter and the resultant duties on police were delineated in the Supreme Court of Canada decision of Regina v. Bartle [1994] 3 S.C.R. 193. Those rights and duties can be summarized as follows:

1. Detainees must be informed of their rights and obligations under the law and to obtain advice in that regard.

2. Police must inform detainees of these rights without delay, including the availability of duty counsel, to provide a reasonable opportunity to consult counsel and refrain from eliciting evidence until the detainee has had a reasonable opportunity to speak with counsel.

3. This right is not absolute. A detainee must invoke it and be reasonably diligent in exercising it.

4. Rights to counsel may be waived. Section 10(b) imposes informational (advising of the right to counsel) and implementational (providing a reasonable opportunity to consult counsel) duties on police.

[18] A detained person has the right to be informed of his or her right to counsel in a meaningful and comprehensible manner. As such, this information must be delivered to a detainee in a language that he or she understands and police must be satisfied that he or she understood the information.

[19] It stands to reason then, when considering the implementation duty required of police, that a detainee be able to communicate with counsel in a meaningful way so that he or she may obtain advice with respect to his or her legal rights and obligations.

[20] When determining whether or not a Charter breach has been established in these circumstances, I note the following from the evidence:

1. Ms. Dumont was advised of her rights to counsel in the French language. She understood.

2. The conversation between Constable St-Amour and Ms. Dumont moved between the French and English languages relatively seamlessly. It is clear that Ms. Dumont understood both languages and when asked by Constable St-Amour which language she preferred she said it did not matter.

3. Ms. Dumont has been a manager at the L.C.B.O. store in Longlac, has completed forms with respect to this position in English and has a familiarity with the English language sufficient to discharge these employment duties.

4. She understood the breath demand at the roadside and at the police station. The demand at the police station was made in English only by Constable Camirand. She testified that she would have asked for a translation if she had a problem understanding.

5. Ms. Dumont made no specific request to speak with a French speaking lawyer.

6. After speaking with duty counsel, Ms. Dumont did not voice any concerns with understanding duty counsel during her consultation. This point is particularly noteworthy in that Ms. Dumont testified that she would have asked for a translation in her dealings with police if she had a problem understanding.

7. Ms. Dumont exhibited and acknowledged some fluency in the English language, but testified that because she was Francophone and was educated in the French language, she was more familiar with the French language.

[21] When one views the whole of the evidence, particularly the factors I have identified, I am satisfied that:

1. Ms. Dumont clearly understood her rights to counsel.

2. There is nothing in the evidence that persuades me that the police were aware that Ms. Dumont may not have understood her right to counsel. She was comfortable speaking and understanding both French and English and indicated no preference.

3. Ms. Dumont stated she would have asked for a translation if she had not understand what was being said to her or what she was being asked to do.

4. She understood the direction and instructions given to her in the English language by Constable Camirand.

5. She gave no indication to police that she did not understand duty counsel.

[22] The fact that Ms. Dumont spoke with duty counsel and did not voice her concerns with respect to a language preference is not necessarily dispositive of that issue. However, when I consider these factors in conjunction with and in the context of all of the other factors I have identified, particularly Ms. Dumont's understanding of the process as it unfolded in both English and French, I cannot conclude that her failure to speak with French-speaking duty counsel amounted to a breach of her right to counsel. There was nothing else for police to do to ensure Ms. Dumont's section 10(b) Charter rights were protected.

[23] I find that police have satisfied both the informational and implementational components of the right to counsel, and accordingly I find no Charter breach. The evidence from the voir dire will be admitted on the trial proper.

2. Exclusion of Evidence – s. 24(2) of the Charter

[24] Even if I were to find a breach of Ms. Dumont's rights to counsel, an analysis would still be required, as mandated by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, to assess and balance the effect of admitting the evidence on society's confidence in the justice system, having regard to the seriousness of the state's conduct, the impact of the breach on the accused Charter rights and society's interest in the adjudication of the case on its merits.

[25] In this case, even if the evidence were to establish a breach, I find the breach minimal and the conduct of St-Amour not egregious. There is no evidence of a cavalier attitude by police or any high-handed conduct. The decision to contact English-speaking duty counsel was an effort to ensure Ms. Dumont spoke with counsel promptly so that the restriction on her liberty would be minimized. This, in conjunction with Ms. Dumont's comment that she did not have a language preference, suggest that the police conduct was not unreasonable.

[26] The impact of any breach upon Ms. Dumont would have been minimal, particularly given her evidence that she understood the proceedings, complied with the lawful demands and indicated an awareness that she could have asked for a translation if she did not understand something and did not do so. In my view, these factors weigh in favour of inclusion of the evidence.

[27] With respect to the final factor in the Grant analysis, the court must not only consider the impact on the administration of justice of admitting evidence, but also the impact of failing to admit the evidence. The reliability of the evidence and the importance of such evidence on the prosecution's case are factors to consider. If a breach were to undermine the reliability of the evidence, for example a statement from the accused under compulsion, this would tend towards the exclusion of that evidence. However, exclusion of relevant and reliable evidence, which would effectively end the prosecution, may undermine the truth seeking function of the justice system and render a trial unfair. This could then bring the administration of justice into disrepute.

[28] In this case, the evidence seized, that is to say the breath samples, is highly reliable, and any reliability issues that may arise would not be related to the Charter breach. Further, there is a significant public interest in adjudicating cases of this nature, drinking and driving, on their merits. One only need recall comment in many appellate court decisions of the dangers of drinking and driving. In my view, these considerations weigh in favour of admission of the evidence.

[29] When I consider all of these factors then, having conducted the Grant analysis, if there had been a breach, I conclude that excluding the evidence would bring the administration of justice into disrepute and would erode the integrity of and the public confidence in the justice system.

3. Were Samples Taken as Soon as Practicable

[30] I turn now to the issue of whether the samples of Ms. Dumont's breath were taken as soon as practicable.

[31] Section 258(1)(c) of the Criminal Code provides that the Crown is entitled to rely on the results of a breath sample as evidence of a blood alcohol concentration at the time of driving, provided certain statutory requirements are met. One of those prerequisites is that each sample of the accused's breath be taken as soon as practicable after the time the offence was alleged to have been committed. If the samples were not taken as soon as practicable, the Crown is not entitled to its presumption under 258(1)(c) of the Criminal Code and, absent expert evidence relating the readings back to the time of driving, the prosecution would fail.

[32] An analysis of this issue requires scrutiny of the time period from detention to the first breath test. Ms. Dumont was detained at 12:11 a.m. at the RIDE program in Longlac. A screening device demand was read at 12:18 a.m. At 12:20 a.m. she registered a fail. At 12:22 a.m. she was arrested for "over eighty". At 12:26 a.m. she was cautioned and read her rights to counsel. At 12:28 a.m. she was read a breath demand. At 12:36 a.m. she was escorted from the scene to the O.P.P. Detachment in Geraldton, approximately 30 kilometers away. There was no facility in Longlac to conduct the breath tests. At 12:59 a.m. she arrived at the detachment in Geraldton. At 1:16 a.m. a call was placed to duty counsel. At 1:26 a.m. duty counsel returned the call and spoke with Ms. Dumont. The first breath sample was commenced at 1:54 a.m. The only evidence of what occurred between 1:26 a.m. and 1:54 a.m. is from Ms. Dumont. She believes she spoke with duty counsel for approximately ten minutes. It took Constable Camirand three to five minutes to explain the breath test procedure. She waited a few minutes while he prepared the instrument, perhaps five to eight minutes. Her first sample could not be analysed and the procedure was explained to her again. This required some time.

[33] The Ontario Court of Appeal in R. v. Vanderbruggan sets out the test for determining whether or not breath samples were taken as soon as practicable. At paragraph 12 of that judgment: "as soon as practicable means nothing more than the tests were taken within a reasonably prompt time under the circumstances…there is no requirement that the test 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."

[34] The court went on to say that the as soon as practicable requirements ought to be applied with reason. While the Crown must establish that the samples were taken within a reasonably prompt time, there is no requirement that there be a detailed explanation of what occurred during every minute that the accused was detained.

[35] In these circumstances, I am satisfied that the police acted reasonably. From the time Ms. Dumont was detained until the first breath sample was taken, police acted with dispatch, mindful of the accused's rights and their obligations to her during the course of the investigation. The few minutes that elapsed during each part of the process was not unduly long and police conduct during that process was reasonable.

[36] There was an unbroken chain of events from detention to the first sample with virtually no delay that was not attributable to the statutory process or the normal and expected passage of time from one event to the next. Even the 18 minute delay identified by defence counsel from the time Ms. Dumont finished her conversation with duty counsel until she provided her first sample is accounted for in preparation of the instrument, explanation of the procedure, a failed attempt and Ms. Dumont's own approximation of time. She acknowledged that her time estimates were just that, estimates.

[37] Given these circumstances, I am satisfied that the police acted reasonably and that the samples taken were taken as soon as practicable. As such, the Crown is entitled to rely on the presumption under section 258(1)(c) of the Criminal Code.

E. CONCLUSION

[38] I am satisfied beyond a reasonable doubt that on the date and time in question Ms. Dumont operated a motor vehicle with a blood alcohol concentration that exceeded the legal limit. There will be a finding of guilt.

Signed: "Justice D. DiGiuseppe"