Court File and Parties

Ontario Court of Justice

Date: 2014-07-16

Court File No.: Regional Municipality of Durham 998 13 A 10527

Between:

Her Majesty the Queen

— and —

Jimmy Papanastasiou

Before: Justice J. De Filippis

Heard on: 24 March & 5 June 2014

Reasons for Judgment released on: 16 July 2014

Counsel:

• Ms. D. Bronowicki — counsel for the Crown
• Mr. A. Risen — counsel for the Defendant

Reasons for Judgment

De Filippis J.:

Introduction

[1] The defendant was tried on an Information alleging that, having been involved in an accident, he failed to stop to give his name and address or offer assistance if needed. The Information also alleges he was in care or control of a motor vehicle while impaired and at a time that his blood alcohol level was over 80 mgs of alcohol per 100 millilitres of blood. The offence provisions are set out in sections 252 and 253 of the Criminal Code.

[2] There is no doubt that on the evening in question the defendant was in care and control of a motor vehicle and that he left the scene after colliding with a parked car. The damage to the latter vehicle is agreed to be $1,250.17. The collision occurred on Simcoe Street in the City of Oshawa. The defendant was stopped a short distance away, on Athol Street. The defendant claims that the police lacked the grounds to demand samples of his breath and violated his right to counsel. He seeks to exclude evidence of the breath test results and statements made by him after arrest. In any event, it is argued that the breath samples were not taken as soon as practicable. Moreover, the defendant denies he was impaired and that he failed to stop as required by law.

Facts

[3] On 27 January 2013, P.C. Horner was on general patrol. Shortly before 3 AM, his attention was drawn to a "loud scraping noise". He observed a red Buick motor vehicle travelling slowly eastbound on Athol Street, "dragging pieces of itself" along the road. The car stopped at a red light. The officer approached the driver's door. The defendant was the driver and sole occupant of the Buick. In response to questions, the latter stated that he had been involved in a collision and admitted consuming "four beers". The officer noted that the defendant's eyes were glossy and "slightly" bloodshot. When asked to exit the motor vehicle, the defendant "took several quick steps forward as if he was starting to lose his balance".

[4] P.C. Douglas arrived on scene almost immediately. He testified that the front passenger side of the defendant's motor vehicle was "severely damaged" and that it made a loud "dragging noise" while being driven. The officer detected an odour of alcohol from the defendant's breath and observed that his eyes were glassy and bloodshot and his speech was slurred. He concluded the defendant was impaired.

[5] P.C. Douglas received information from the defendant and went to find the vehicle struck by him on Simcoe Street. He located it one minute later, about 500 metres away. He described the damage to this car as "moderate". He confirmed the vehicle was not occupied and that the registered owner was not in the area.

[6] At 3:01 AM, P.C. Horner arrested the defendant for the impaired and fail to stop charges. The officer conceded he did not ask the defendant how the collision occurred and whether there was anybody present to whom he could provide his identification or offer of assistance. P.C. Horner stated he arrested the defendant for failure to stop because "of the time of night" and the fact he was "driving away [from the collision] in his own damaged vehicle".

[7] P.C. Horner advised the defendant of the right to counsel and demanded that he provide samples of his breath. At 3:10 AM, he was taken to 18 Division for this purpose, arriving at 3:18 AM. The defendant was paraded before Sgt. Bell. This is captured on video. The defendant stumbled as he stepped back over a yellow line and moved to regain his balance. He was again advised of his right to counsel. He spoke to duty counsel from 3:40 to 3:53 AM.

[8] After speaking to duty counsel, the defendant was turned over to P.C. Wannop, a qualified intoxilyzer technician. The proceedings in the breath room are also captured on video. The officer confirmed the defendant had had legal advice and conducted the breath tests. The defendant provided two suitable samples into an approved instrument at 4:04 and 4:26 AM that resulted in blood alcohol readings of 137 and 132 – above the legal limit. When asked why he had left the scene of the accident, the following exchange occurred:

Defendant: "I was told to go…(inaudible)…my friend showed up and said just drive and I said OK"

P.C. Wannop: "You didn't stop?"

Defendant: "No".

[9] P.C. Wannop observed that the defendant had slurred speech and that his eyes were "normal". He did not detect the odour of alcohol but noted the "heavy odour of cologne". At 4:27 AM, after completing the relevant paperwork, P.C. Horner drove the defendant to his home.

[10] The defendant is a 49 year old, divorced, father of two children, and employed by the Canada Post. He testified that on the night in question he was driving his girlfriend's car from a bar located near the scene of his arrest. He said he had consumed four bottles of beer over four hours and felt sober. He blamed the collision on the fact that he was momentarily distracted when his hat fell off his head to the floor of his car and he bent down to retrieve it. After he "veered into a parked car" he stopped "for about five minutes" and realized the car owner was not inside it or in the area. Since he did not have a cell phone with him, he decided to go to his girlfriend's home and call police from there. The defendant explained that he was a "ten to fifteen minute drive" away from that residence and believed he could "get there safely by driving slowly".

[11] The defendant testified he did not leave a note on the parked car because he lacked pen and paper. Similarly, he did not record the plate number or make and model of the car his struck. He agreed such information would have been useful when he later reported the collision to police. The defendant stated that when he told P.C. Wannop he had not stopped at the scene of the accident, he meant that he had "not stopped and stayed".

[12] The defendant testified that he stumbled while being paraded at the station because his cowboy boots had been removed and the style of jeans worn with such pants are long. The defendant claimed that if given the option he would have selected a private lawyer with whom to consult before providing his breath samples because "a private lawyer works for me and duty counsel works for the state". He conceded he did have a lawyer of his own and did not complain about having to consult with duty counsel or about the advice received. He explained that he did not know he had any other options and only learned this when he retained counsel for this trial.

[13] As indicated at the outset, the background facts of this case are not in question. Moreover, credibility and reliability are not significant factors with respect to the right to counsel and over 80 issues. That evidence is clear; the legal consequences are in dispute. The Defence confronted the police with respect to the grounds for arrest and the Crown challenged the defendant about whether he was impaired and intended to report the accident. For the reasons that follow, I accept the Crown evidence and reject that of the defendant.

Reasonable and Probable Grounds

[14] Section 8 of the Charter provides that "Everyone has the right to be secure against unreasonable search or seizure". This right means that the police must have reasonable and probable grounds to arrest and/or search a person. I am satisfied that this standard is met in this case.

[15] Reasonable and probable grounds to arrest and/or search has both a subjective and an objective component. The subjective component requires that the officer honestly believe the suspect committed an offence. The objective component means that the officer's opinion must be supported by objective facts: Storrey v. The Queen, 53 C.C.C. (3d) 316. Judicial scrutiny of this standard must recognize the context within which the police officer's obligation operates. It must not be inflated to the context of testing trial evidence. Neither is it to be so diluted as to threaten individual freedom: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.). In other words, there must be enough to justify police interference with individual liberty, but this does not mean a prima facie case or proof beyond a reasonable doubt.

[16] Having regard to the time, place, and circumstances, it was reasonable for P.C. Horner to believe that the defendant was impaired and had failed to stop at an accident scene. The defendant continued to drive after colliding with another vehicle such that he was noisily dragging his severely damaged car in downtown Oshawa in the early hours of the morning. This action, in itself, is suspicious. The defendant admitted consuming alcohol, his speech was slightly slurred, his eyes were glossy and slightly red, and he was off balance when stepping out of his vehicle. This indicium of intoxication, along with the odour of alcohol on the defendant's breath, was also observed by other officers. Taken together, these factors amply justified the arrest and breath demand.

Right to Counsel

[17] Section 10(b) of the Charter provides that, "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right". This has been interpreted to impose three duties on the police when a person is arrested or detained: (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.

[18] P.C. Horner informed the defendant of his right to counsel by reading the following standard recitation from the police notebook:

It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance. 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?

[19] After the defendant replied that he understood, this exchange occurred:

P.C. Horner: Would you like a lawyer?

Defendant: Yes

P.C. Horner: Do you have your own lawyer?

Defendant: No.

P.C. Horner: In that case, do you want to speak to duty counsel?

Defendant: Yes

[20] This exchange was repeated almost verbatim with the booking sergeant when the defendant was paraded at the station. This subject was raised again by intoxilyzer technician. Just before the breath tests were taken, the officer asked the defendant if he had "spoken to a lawyer" and the latter replied that he had. P.C. Horner conceded that he did not "give other options, like 'do you want to look for a lawyer in the yellow pages'".

[21] The defendant claims that he was presented with a "Hobson's Choice – take duty counsel or do without legal advice". It is argued that after the defendant advised that he did not have a lawyer and before offering duty counsel, the police should have said something like, "Would you like to look for a private lawyer in the phone book"? I reject this submission. The police told the defendant he could "telephone any lawyer" he wished and also had the right to the free services of duty counsel. The defendant said he understood. He accepted duty counsel. He did not ask any questions or make any complaint. In these circumstances, the police properly discharged their duties.

[22] Defence counsel relied upon a number of decisions, including these trial judgments: R. v. Singh, [2008] B.C.J. No. 2427 (B.C. Prov. Ct.), R. v. Sterling, [2001] O.J. No. 3342 (Ont. C.J.), and R. v. Kindness (unreported, August 30, 2002, Ont. C.J.). To the extent that these cases hold that, in the circumstances of the present case, the police were obligated to further clarify that the defendant could search for a private lawyer, I must respectfully decline to follow them. Instead, I agree with the Crown that the binding rulings of the Summary Conviction Appeal and Ontario Court of Appeal in R. v. Zoghaib, [2005] O.J. No. 5947 and [2006] O.J. No. 1023 (OCA) are fatal to the defendant's submission. In this regard, the Court of Appeal noted as follows:

We are in substantial agreement with the analysis of the Summary Conviction Appeal Court. The appellant was fully advised of her right to counsel at the roadside and understood those rights. On the finding of fact made by the trial judge, any subsequent misapprehension by the appellant of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought processes, none of which were conveyed to or known by the officer. The Summary Conviction Appeal Court correctly held that as a matter of law the appellant's unexpressed desire to speak to her own lawyer could not result in a breach of s. 10(b) of the Charter.

[23] I dismiss the Charter motions to exclude evidence and turn now to the trial proper.

Onus on the Crown

[24] The Crown faces a significant burden in a criminal trial; to support of finding of guilt, each element of the offence must be proven beyond a reasonable doubt. In a case where the Defence adduces evidence, that standard is not met if the evidence (i) is believed, or (ii) is not believed, but leaves the trier of fact in reasonable doubt, or (iii) does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond a reasonable doubt, that the defendant is guilty: R. v. W.D., 63 C.C.C. (3d) 397. This does not mean the Defence evidence is to be viewed in isolation; on the contrary, it is to be assessed in context of the entire case: F. v. R.D., [2004] O.J. 2086 (O.C.A).

Over 80

[25] Except for one remaining argument, the disposition of the Charter motions means there must be a finding of guilt with respect to the charge of being in care or control of a motor vehicle with a blood alcohol level that exceeds the legal limit. In the circumstances of this case, the breath test results are to be conclusive proof of the offence. However, the Defence argues the results are not admissible because the tests did not comply with the statutory requirement that they be taken "as soon as practicable". There is no merit to this submission.

[26] The defendant was arrested on Athol, near 17 Division. The submission rests on the fact that he was not taken there but, instead, was transported to 18 Division. It might reasonably be assumed that this was done in accordance with the location of the intoxilyzer technician but the issue was not explored at trial by either party. In any event, I am not troubled by the matter because it took only eight minutes to transport the defendant from the scene of arrest to 18 Division.

Fail to Stop

[27] Section 252 of the Criminal Code provides that where a person is involved in a motor vehicle accident, it is an offence, with intent to escape civil or criminal liability, to fail to stop, give his/her name and address and, where any person has been injured or appears to require assistance, offer assistance. In this case, there was nobody present who required assistance and with whom the defendant could have left his name and address. The defendant testified he intended to call the police, to report the accident, once he arrived at his girlfriend's home. If I accepted this, I would acquit the defendant. However, I have no doubt the defendant left the scene for the purpose of evading civil or criminal liability.

[28] The defendant's vehicle sustained significant damage in the collision. One or more pieces of his car dangled and dragged along the ground as he drove away from the scene. According to his evidence, he intended to continue driving in this fashion for the ten to fifteen minute drive that remained until he reached his destination. I do not believe this. Even assuming he did not have the means to leave a note or record particulars of the car he struck, the defendant's conduct is that of a man who wants to remove the evidence linking him to the collision. Although it was 3 AM, he was in downtown Oshawa and could have waited for the inevitable taxi to drive past. There was no pressing need to drive his damaged vehicle. Moreover, doing so risked further damage to it. Any doubt about his true intention is clarified by his videotaped statement to the intoxilyzer technician about whether he stopped at the scene of the accident: "I was told to go…(inaudible)…my friend showed up and said just drive and I said OK". All this undermines his trial testimony that he stopped but did not stay because he intended to telephone the police later.

Impaired

[29] I have explained why I find the police had ample grounds to arrest the defendant for the impaired charge. Those considerations, along with the additional evidence at trial, amounts to proof beyond a reasonable doubt with respect to that offence. The other relevant facts include those that inform my finding that the defendant is guilty of failure to stop. This likely means he that the accident was not caused by the distraction caused by his fallen hat, although such a finding is not necessary to these reasons. In addition, the poor judgement shown by the clumsy attempt to leave the accident undetected is another sign of intoxication. I am satisfied the defendant was impaired by alcohol consumed at the bar, struck another motor vehicle, and left the scene to avoid the consequences of his drinking and driving.

Conclusion

[30] The Crown has met its burden of proof. The defendant is guilty of all charges.

Released: July 16, 2014

Signed: "Justice De Filippis"