Ontario Court of Justice

Date: 2014-01-17

Court File No.: Regional Municipality of Durham 998 12 14040

Between:

Her Majesty the Queen

— AND —

Alexandra Gougoulias

Before: Justice J. De Filippis

Heard on: 4 December 2013

Reasons for Judgment released on: 17 January 2014

Counsel:

• Mr. M. Malleson — counsel for the Crown
• Mr. D. Lenzin — counsel for the defendant

Reasons for Judgment

De Filippis, J.:

[1] The defendant was charged with having care and control of a motor vehicle while her ability to do so was impaired by alcohol ("impaired") and at a time her blood alcohol level exceeded the legal limit ("over 80"). In addition to these two Criminal Code offences, the defendant is charged under the Highway Traffic Act with exceeding the speed limit by more than 50 km/hr ("stunt racing"). The Defence position is that the impaired and racing charges have not been proven and that the evidence supporting the over 80 charge should be excluded because it was obtained in violation of section 10(b) of the Charter of Rights and Freedoms. There are two standards of proof in this matter: The Crown must prove guilt beyond a reasonable doubt. The Defence must establish the Charter claim on a balance of probabilities.

[2] On 4 September 2012, Cst. Bastien was on duty in a rural area in north Pickering. At 9:05 PM he observed a motor vehicle travelling northbound on Brock Rd. The posted speed limit on this road is 60 km/hr. With the aid of a radar device, the officer determined the motor vehicle was travelling at a speed of 116 km/hr. He soon learned that the defendant was the driver and sole occupant of the car.

[3] Cst. Bastien testified that he signalled the defendant to stop by activating his emergency lights and siren and followed her for one kilometre ("from concession 7 to concession 8"). He stated there was no apparent reason for this delay and added that when the defendant finally pulled over, her car "meandered back and forth on the shoulder for 100 metres". According to the officer, the defendant appeared confused by his demand for production of licence, ownership and insurance. He observed that she had bloodshot glassy eyes and seemed to have trouble focussing. He also detected the odour of alcohol and noted that on exiting the car the defendant was "off balance". At 9:12 PM, the officer arrested her for impaired driving. He advised her of the right to counsel using the standard wording set out in the back of his notebook. The officer declined to answer the defendant's question about what she should do and asked if she wished to call counsel. The latter said "sure" and explained she did not know a lawyer to call but that a business acquaintance, Lesly Kirsch, might help her find one. The officer stated that she could call Mr. Kirsch at the police station. They arrived there 9:49 PM, after waiting 25 minutes at the scene for a tow truck to arrive and remove the defendant's vehicle from the side of the road.

[4] Cst. Bastien testified that he had to ensure the defendant's car was towed away as it presented a safety hazard to other motorists. He explained that he did not allow the defendant to use her phone at the scene to call Mr. Kirsch for security reasons: He was a lone male officer with a lone handcuffed female in a dark rural area. In these circumstances, he did not consider it prudent to search the defendant or remove her handcuffs so she could use her phone.

[5] After the defendant appeared before the booking sergeant, she used her phone to send text messages to Mr. Kirsch and, according to Cst. Bastien, provided him with "the play by play as she sent and received the messages". Eventually, the defendant received a communication suggesting she contact "Gary Stortini" at a particular number. At 10:05 PM, Cst. Bastien dialled that number and left a message with the answering service about the defendant's arrest and desire to speak to counsel. After waiting 30 minutes for Mr. Stortini to respond the defendant obtained the name and telephone number of another lawyer from Mr. Kirsch - "Andy Sahadeo". Cst. Bastien contacted that person and left a similar message with the answering service. After another 30 minutes went by, the defendant became anxious that neither lawyer had called back. Cst. Bastien asked if she would like to find a lawyer in the telephone book or speak with duty counsel. The defendant asked the officer what she should do and he, again, declined to give such advice. The defendant stated she wished to speak to duty counsel and this was arranged. After a private conversation with duty counsel, the defendant provided two suitable samples of her breath into an approved instrument operated by a qualified person. The truncated readings are 160 and 140 – well over the legal limit.

[6] Cst. Bastien denied taking control of the defendant's cell phone and insisted the defendant told him the content of the text messages as she sent and received them. He conceded he made no attempt to ascertain an alternate telephone number for Mr. Stortini or Mr. Sahadeo and simply left a message with the office answering service. The officer rejected the suggestion he had pressured the defendant to speak to duty counsel and noted that he spent over one hour waiting for counsel of choice to respond to the messages left for them. In any event, when the defendant was released from the station almost two hours later, the lawyers in question had still not responded to the messages left with them at their answering services. [1]

[7] The defendant is a 43 year old businesswoman without a prior criminal record. She testified that on the day in question she had consumed wine at two meetings before going home. At about 8 PM, she left home to visit a seriously ill friend in Uxbridge. She does not know her exact speed but disputes that it was 56 km/hr over the limit; moreover, she insisted that Cst. Bastien told her at the time that the radar revealed she was at 113 km/hr [i.e. 53 km/hr over the limit].

[8] The defendant testified that she saw the "flashing lights" behind her and pulled over to let the cruiser pass as she did not realize she was the target. She said she continued for a distance on the shoulder to find a safe spot to stop. Having exited the car, she found it difficult to walk with her high heel shoes on the gravel and held out her hands to maintain balance.

[9] The defendant testified that she did not know a criminal lawyer or what to do about her arrest. She generally agreed with the testimony of Cst. Bastien about the efforts made at the station to find counsel with the assistance of Mr. Kirsch. However, she insisted that the officer took control of her cell phone during this process and did not allow her to use its browser to search the internet for an alternate telephone number for Mr. Stortini and Mr. Sahadeo. The defendant testified she spoke to duty counsel because there was no other option but she wanted one of the lawyers a close friend had represented as trustworthy people.

[10] The proceedings in which the defendant provided breath samples was videotaped and tendered at this trial: The defendant was calm, coherent, and compliant. She did not mention anything about her efforts to contact counsel of choice or her discussion with duty counsel. She told the intoxilyzer technician that she had not consumed alcohol and did not know she had been arrested for impaired driving. At trial the defendant testified that she did not raise the counsel of choice issue because she had already done so with Cst. Bastien. She could not explain why she lied about having consumed alcohol. The defendant testified she thought she had been arrested for speeding and gave a vague answer when asked if and when that belief changed.

[11] Mr. Lenzin in his usual capable fashion set out the reasons why I should acquit his client of all charges. He submitted that the defendant provided an innocent explanation for some of the indicia of impairment described by the officer and added that the video record does not support impairment. I agree with these submissions and, accordingly, have a reasonable doubt about the defendant's guilt with respect to that charge. However, I am not persuaded by the Charter argument because I do not accept the defendant's foundational evidence. This means the breath test results are admissible as evidence and the defendant must be found guilty of the over 80 charge; it is not otherwise disputed that the Crown has met its burden of proof.

Charter Analysis

[12] Section 10(b) of the Charter 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. See: R v Richfield, [2003] O.J. No. 3230 (Ont. C.A.).

[13] The defendant claims that her right to counsel was violated because she was denied the use of her cell phone to access the internet and find an alternate means of contacting counsel of choice. It is also asserted that Cst. Bastien made no real effort to assist in this search. This testimony conflicts with the non-controversial actions of Cst. Bastien; as requested by the defendant, he left messages with the answering service of two lawyers and waited with her for one hour for a response. Following this he confirmed the defendant would speak to duty counsel and made those arrangements. I find that the defendant relied on her friend to advise her about a lawyer and simply relayed that information to the officer, without reference to alternate telephone numbers. This is consistent with the unfamiliar situation she faced. The defendant's trial testimony to the contrary amounts to posturing. In this regard, it is similar to her denial of drinking and professed ignorance about being arrested for impaired driving. It is incredible that a woman of her maturity and background would believe she had been taken to a police station and compelled to provide breath samples because of a speeding infraction.

[14] It must be assumed that if a lawyer's answering service invites a message but does not reference other means of communication that he/she does not wish to be contacted at home or other place. In any event, in these circumstances, absent a specific request by the defendant, there is no duty on the police to search for other methods of contact; it is sufficient to leave a message as instructed and wait a reasonable time for the lawyer to respond. This is especially so where duty counsel is made available to a defendant. In such circumstances, a good faith perfunctory effort by the police to locate counsel of choice is sufficient; see R v Blackett [2006] O.J. No. 2999 (Ont. SCJ) at paragraph 25.

Stunt Racing Charge

[15] The evidence with respect to the racing charge is relatively brief: Cst. Bastien testified that with the use of a radar device he determined the defendant was driving 56 km/hr over the posted limit. The defendant acknowledges speeding but not to this extent and testified that the officer told her he had measured her speed at 53 km/hr over the limit. This difference is important because Cst. Bastien testified the radar has an error rate of plus/minus 3 km/hr. He was also challenged about how he had ascertained the reliability of the radar device. The officer's unequivocal evidence was not undermined and I accept that the target motor vehicle was recorded at a speed of 116 km/hr. Having regard to the defendant's confusion at the time she was stopped and her subsequent posturing, I reject her testimony that the officer initially reported a different rate of speed.

Verdict

[16] The defendant is guilty of over 80 and stunt racing. She is not guilty of impaired driving.

Released: January 17, 2014

Signed: Justice De Filippis

Footnote

[1] It should be pointed out that the delay caused by the wait for the tow truck, the defendant's attempt to reach counsel of choice, and the arrangements for her to speak with duty counsel resulted in breath samples being taken outside the statutory time limit. Accordingly, the Crown was obliged to obtain a toxicologist report to explain the significance of the test readings.