Court File and Parties

Date: October 24, 2014

Court File No.: 13-8960

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Desmond Lobo

Before: Justice Paul F. Monahan

Heard on: October 2 and 3, 2014

Released on: October 24, 2014

Counsel:

Mr. P. Quilty for the Crown

Ms. O. Balanga-Santos for the defendant Desmond Lobo

MONAHAN J.:

OVERVIEW

[1] Mr. Desmond Lobo is charged that on or about June 29, 2013 he had care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol contrary to section 253(1)(a) of the Criminal Code of Canada (the "Code"). In addition, he is also charged with having care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Code.

[2] The facts of the case arise out of a single motor vehicle accident. Mr. Lobo was found outside of the vehicle, very close to the driver's side door. Breath samples taken a few hours later showed that Mr. Lobo's blood-alcohol level was somewhere between 140 to 160 mg of alcohol in 100 ml of blood. Further, certain statements Mr. Lobo made to police indicate, among other things, that he was the driver of the vehicle.

[3] For the reasons set out below, I find that the Crown has proven beyond a reasonable doubt that Mr. Lobo committed the offences of care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol contrary to section 253(1)(a) of the Code; and having care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Code.

POSITIONS OF THE PARTIES

[4] It is the position of the defence that the breath samples given by Mr. Lobo and the statements made by him were obtained in violation of section 8 and section 10(b) of the Canadian Charter of Rights and Freedoms (the "Charter"). Concerning the section 8 argument, the defence submits that the police did not have reasonable and probable grounds to arrest Mr. Lobo and to demand the breath samples from him. Concerning the section 10(b) argument, the defence submits that Mr. Lobo did not understand his right to counsel and that it was incumbent on the police to ensure that he did. The defence submits that a breach of either section 8 or section 10(b) should lead the Court to exclude the breath samples and all of the statements under section 24 of the Charter.

[5] The defence also submits that even if the breath samples and statements were admissible, they do not prove Mr. Lobo committed the offences with which he is charged because, among other things, the defence submits that they do not prove that he was the driver of the vehicle.

[6] It is the Crown's position that the police had reasonable and probable grounds to arrest Mr. Lobo and demand breath samples from him and that there was no violation of Mr. Lobo's section 8 or 10(b) rights. In the alternative, the Crown also submits that even if there was a breach of section 8 or 10(b), the evidence of the breath samples and the statements ought not to be excluded under section 24 of the Charter. The Crown's position is that if the breath samples are admitted the Crown has proven its case on both charges beyond a reasonable doubt. Further, the Crown submits that if the statements are also admitted, the evidence of guilt is overwhelming.

ISSUES

[7] There are five issues in this case as follows:

1. Has the Crown established that the police had reasonable and probable grounds to arrest and demand breath samples from Mr. Lobo?

2. Has Mr. Lobo established that his right to retain and instruct counsel without delay and to be informed of that right as required by section 10(b) of the Charter was violated?

3. If there has been a Charter violation, either under section 8 or section 10(b), should the evidence of the breath samples and the statements be excluded under section 24 of the Charter?

4. Once it is determined what evidence is admissible, has the Crown proven beyond a reasonable doubt that Mr. Lobo had care or control of a motor vehicle when his blood-alcohol level was more than 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Code?

5. Once it is determined what evidence is admissible, has the Crown proven beyond a reasonable doubt that Mr. Lobo had care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol contrary to section 253(1)(a) of the Code?

PROCEDURE

[8] The defence brought an application under section 24 of the Charter to exclude the admission of all evidence obtained from Mr. Lobo in violation of his Charter rights. This evidence falls into two categories: (i) the breath samples taken from Mr. Lobo after his arrest; and, (ii) the various statements that Mr. Lobo made after his arrest.

[9] On consent, all of the evidence was heard on the basis that I would rule at the time of judgment on the admissibility of the breath samples and the statements by Mr. Lobo. Accordingly, the voir dire with respect to the statements, the Charter application to exclude the breath samples and the statements, and the evidence on the trial proper were all done on a "blended" basis.

[10] The breath sample evidence and the statements to police after his arrest are included in the recitation of the facts below for convenience only. It is understood that before this evidence can potentially form part of the facts, I will first have to determine the admissibility of the breath samples and the statements to police post arrest. Only then will I be in a position to determine whether the facts support a finding of guilt on the charges.

[11] The key issues in dispute between the parties were those of the admissibility of the statements to police and the breath samples, and the facts themselves were largely not in dispute.

THE FACTS

Introduction

[12] The recitation of the facts below is based on the evidence of Sasha Poshni (a member of the public who came upon the accident scene), Javier Gonzalez Sanchez (a paramedic who assisted Mr. Lobo), Constables Breston and Stevens, Police Cadet Walter and Dr. Corbett (an expert witness). I accept their evidence as facts unless noted otherwise. In the case of disputed facts, I have determined them as set out below.

[13] The facts are as follows:

The Accident Scene

[14] Mr. Sacha Poshni was a passenger in a motor vehicle traveling with his family on June 29, 2013. He was driving to Chicago. Mr. Poshni thought it was around 2 a.m. They were on Britannia Road West, east of Winston Churchill in Brampton when they came upon a single motor vehicle which had hit a light post. The light post had fallen on the vehicle from front to back down the middle of the vehicle. There was a man lying on the ground, holding his head and groaning. The man was later identified as Mr. Lobo. Mr. Poshni said the man was "right next to" the driver's side door. The car was smoking and Mr. Poshni thought it might explode. The car's lights were on.

[15] There was no one else around and no other vehicles in the vicinity. Someone in Mr. Poshni's party called 911 and they waited for the ambulance to arrive.

[16] Shortly after Mr. Poshni's party stopped and called 911, other vehicles stopped as well.

[17] The ambulance arrived about 15 minutes after it had been called. One of the paramedics, Javier Gonzalez Sanchez, testified at trial. Mr. Sanchez attended to Mr. Lobo, who Mr. Sanchez said was lying in the grass beside the driver's side door of the vehicle. He knelt down beside Mr. Lobo and spoke to him. Mr. Lobo told him he was okay and that he wanted to go home. Mr. Lobo later complained about pain in his right buttocks.

[18] The paramedics placed Mr. Lobo on a long board and then a stretcher and put him in the back of the ambulance. Mr. Sanchez did a full body assessment on Mr. Lobo. Mr. Lobo's airways were clear and his breathing, pulse and blood pressure were all fine. Mr. Sanchez noted the smell of alcohol on Mr. Lobo's breath and Mr. Lobo indicated to him that he had been at a party where he drank some beer. Mr. Sanchez testified that Mr. Lobo had slurred speech and he was in emotional distress.

[19] Mr. Sanchez confirmed that the light pole had fallen down the center of the car and was very close to the driver's side headrest. He said he thought that there was no damage to the driver's side door such that one could get in and out of it. Mr. Sanchez thought, based on his full body assessment of Mr. Lobo, that Mr. Lobo would have been able to get out of the car but he did not actually see him do so.

[20] Mr. Sanchez testified that he could not find any medical reason which would explain why Mr. Lobo had slurred speech. He could not say whether Mr. Lobo had a concussion.

The Involvement of Constable Breston

[21] Constable Ryan Breston of Peel Regional Police testified. He had 5 ½ years' experience as a police officer at the time of the events in question. He got a radio call at 2:12 a.m. on June 29 indicating that there was a single motor vehicle accident, in which the vehicle had struck a light post, and that there was a person lying on the ground.

[22] Constable Breston arrived at the scene at 2:19 a.m. The scene was on Britannia Road West in the City of Mississauga about 200 metres east of Winston Churchill Blvd.

[23] Constable Breston observed that there was a blue Chrysler Intrepid vehicle on the grassy area on the north side of Britannia. A large cement light post was lying on top of the car in the middle from the front to the back of the car. The car was demolished and the officer observed Mr. Lobo on the ground. He said Mr. Lobo was about 5 feet away from the driver's side door of the car.

[24] Constable Breston testified in cross-examination that he thought the driver's side door and the back seat door behind the driver's door could both be exited. He also testified that while he did not think Mr. Lobo was completely mobile, he thought he could move.

[25] Constable Breston saw the paramedics attending to Mr. Lobo and saw them place Mr. Lobo in the back of the ambulance.

[26] When asked in cross-examination if he had seen car keys when Mr. Lobo was lying on the ground, Constable Breston said he did not remember and that he did not make a note about car keys.

[27] Constable Breston joined the paramedics and Mr. Lobo in the back of the ambulance. He spoke to Mr. Lobo and detected the odour of alcohol on his breath. His speech was slurred and he was difficult to understand and his eyes were watery.

[28] At 2:25 a.m. Constable Breston arrested Mr. Lobo for being in care or control of a motor vehicle while impaired by alcohol.

[29] The factors that Constable Breston used to determine that Mr. Lobo was in care or control of the vehicle while impaired were as follows:

a) the information he received from the dispatch that there was a single motor vehicle accident;

b) the alcohol odour on Mr. Lobo's breath, his slurred speech and his watery eyes and the fact that he was difficult to understand;

c) the proximity of Mr. Lobo to the driver's side door;

d) no one else was in the immediate area and when he spoke to Mr. Lobo before he arrested him, he expressed no concern for anyone else that might have been in the vehicle;

e) the fact that there had been an accident;

f) there was not much traffic in the area and it was late at night; and

g) the paramedics were assessing Mr. Lobo for injuries, apparently sustained in the accident.

[30] At 2:26 a.m., after Constable Breston had placed Mr. Lobo under arrest, he advised him of his right to counsel. The following conversation occurred as recorded in Constable Breston's notes (with "CB" referring to Constable Breston and "L" referring to Mr. Lobo.):

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

L. Why.

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

L. No lawyers.

CB. You have the right to free legal advice from a Legal aid lawyer. Do you understand?

L. My wife is a lawyer.

CB. (At 2:28 a.m.) If you are charged with an offence you may apply to the Ontario Legal Aid plan for assistance. Do you understand?

L. I have been driving for 30 years and never before has this happened.

CB. 1-800 265-0451 is a toll free that will put you contact with a Legal Aid duty counsel lawyer for free legal advice right now.

L. Has this happened.

CB. Do you wish to call a lawyer now?

L. I feel so stupid I have been driving for 30 years.

CB. Do you have a specific lawyer you would like to contact?

L. No.

[31] At 2:30 a.m. Constable Breston read Mr. Lobo the following caution and Mr. Lobo made the following statements:

CB. You are charged with care and control of a motor vehicle while impaired. You are not obligated to say anything unless you wish to do so but whatever you say may be given in evidence. Do you understand?

L. I feel so stupid.

The officer then read a breath sample demand as follows

CB. I demand that you provide suitable samples of your breath into an approved instrument to enable an analysis to be made to determine the concentration, if any, of alcohol in your blood and that you accompany me now for this purpose.

L. I don't go to parties ever. Just a couple of beers.

CB. How much did you have to drink?

L. A couple of beers at a party.

[32] While in transit to hospital in the ambulance and while Mr. Lobo was being assessed by paramedics, Mr. Lobo made various unsolicited statements which Constable Breston heard, namely "I don't ever drink and drive - been driving thirty years - first time in my life." He also said "thirty years I am driving - never happened". He stated further "I feel so stupid" and "my neck hurts". The foregoing statements were statements by Mr. Lobo which were not in response to any questioning from Constable Breston.

[33] Constable Breston said he thought Mr. Lobo understood the questions and answers and the advice that Constable Breston gave him regarding his right to counsel. He said that Mr. Lobo was talking throughout the time that he was with him and his statements such as "I feel so stupid" were "consistent" with the circumstances that Mr. Lobo found himself in. In addition, Mr. Lobo's statement referring to "no lawyers" and the fact that he said his wife was a lawyer made it clear to Constable Breston that Mr. Lobo understood that he was being advised of his right to counsel.

[34] At 2:35 a.m. the ambulance left for the hospital and it arrived at the hospital at 2:46 a.m.

[35] After they arrived at the hospital, Mr. Lobo was treated by various health care professionals, initially in the emergency department. He was visited by Dr. Huminski at 3:18 a.m. As further detailed below, it was not until 4:55 a.m. that Dr. Huminski said that as far as the doctor was concerned, the police could proceed to obtain breath samples from Mr. Lobo.

[36] At 3:52 a.m. Mr. Lobo was transported for x-rays and he made the statement to Officer Breston that "I am so embarrassed I can't tell you". This was not in response to any inquiry from Constable Breston or anyone else.

[37] At 4:18 a.m., Mr. Lobo was moved to a room for a CT scan which was completed by 4:31 a.m.

[38] At 3:50 a.m., Constable Breston met with Constable Stevens who was the qualified breath technician and Constable Breston told him the grounds for the arrest.

[39] Constable Breston testified that he thought the accident must have occurred close to the time of the 911 call. He said that the location in City of Mississauga where the accident occurred is fairly busy although it was not busy that night. He thought that someone would see the accident and report it. He was asked if it was possible that an hour could have passed from the time of the accident to the 911 call. He said he thought that an hour would be too long. In his experience, he did not think an hour could go by on that road without someone reporting the accident. When asked if it could have been as much as 10 to 15 minutes from the time of the accident to the 911 call he said he could not say.

The Observations of Police Cadet Walter

[40] Constable Melanie Walter of Peel Regional Police also testified. She was a police cadet on the evening in question and was accompanying Constable Breston. Her evidence was largely consistent with the evidence of Constable Breston and Mr. Sanchez. She added three facts which I accept. First, she said that the car was about 1.5 metres off the road. Second, she said that from her perspective, Mr. Lobo's position on the ground was such that it was as if he had stepped out of the driver's seat and lay down on the ground. Third, after they were at the hospital, she heard Mr. Lobo state, to no one in particular and not in response to anyone, words to the effect that "I am sorry – I messed up".

The Involvement of the Breath Technician, Constable Stevens

[41] Constable Christopher Stevens, a qualified breath technician, also testified. He spoke to the arresting officer, Constable Breston, and he conveyed his grounds for the arrest to Constable Stevens. That was the basis upon which Constable Stevens initially formed the view that Mr. Lobo had been operating a vehicle while impaired by alcohol. When he saw Mr. Lobo himself, Mr. Lobo still had a strong odour of alcohol on his breath, watery eyes and he had a white pasty mouth which Constable Stevens recognized as a sign of drinking. These additional factors, which he saw for himself, supported his belief that Mr. Lobo had been impaired while in care or control of a motor vehicle.

[42] Constable Stevens ("CS" in the passage below) advised Mr. Lobo ("L" in the passage below) of his right to counsel and noted the following statements from Mr. Lobo:

CS. It is my duty to inform you that you have the right to retain and instruct counsel without delay.

L. okay

CS. You have the right to telephone any lawyer you wish and have a conversation in private with that lawyer. Do you understand?

L. okay.

CS. You also have the right to free advice from a legal aid lawyer and have a conversation in private with that lawyer. Do you understand?

L. hmmm

CS. If you are charged with an offence you may apply to the Ontario legal aid plan for assistance. Do you understand?

L. Yaa

CS. 1 800 2650451 is a toll-free number that will put you in touch with a free legal aid lawyer right now. Do you understand?

L. Yaa

[43] Constable Stevens then asked Mr. Lobo if he wished to call a lawyer at that time to which Mr. Lobo responded that his wife was a lawyer and that she was already at the hospital and he gave her name to Constable Stevens. Constable Stevens then sent a colleague to go and get Mr. Lobo's wife so that Mr. Lobo could speak to her privately.

[44] Constable Stevens told Mr. Lobo that he was charged with impaired operation of a motor vehicle and cautioned him as follows:

CS. Do you wish to say anything to answer the charge. You are not obliged to say anything unless you wish to do so but whatever you say may be given in evidence. CS asked him if he understood.

L. Hmmm.

CS. If you have spoken a police officer or to anyone with authority or if any such person has spoken to you in connection with this case, I want it clearly understood that I do not want that to influence you in making any statements. Do you understand?

L. Hmmm

[45] At 4:37 a.m., a breath demand was made of Mr. Lobo by Constable Stevens and he asked Mr. Lobo if he understood, to which his response was "sure".

[46] Just after the breath demand was made, Mr. Lobo's wife came in. Constable Stevens understood that she was Mr. Lobo's lawyer of choice and he gave them an opportunity to speak privately.

[47] As indicated above, at 4:55 a.m., after Mr. Lobo had met with his wife/lawyer, Dr. Huminski gave Constable Stevens the okay to proceed to seek to obtain a breath sample from Mr. Lobo.

[48] Mr. Lobo was cooperative in giving two breath samples. The first sample was taken at 5:13 a.m. and it registered 164 mg of alcohol in 100 ml of blood.

[49] Between the first and second breath samples Constable Stevens asked a number of questions of Mr. Lobo and Mr. Lobo provided certain answers as follows:

Constable Stevens asked Mr. Lobo about his injuries and Mr. Lobo said he appeared to have a dislocated hip.

Constable Stevens asked Mr. Lobo if he had bumped his head and Mr. Lobo said no.

Constable Stevens asked Mr. Lobo if he was operating a motor vehicle at the time of the accident and Mr. Lobo said yes.

Constable Stevens asked Mr. Lobo what time the accident happened and Mr. Lobo said 12 in a questioning tone and then he said he was not sure.

Constable Stevens asked him how long after the accident the first officer attended and Mr. Lobo said he could not remember.

Constable Stevens asked him if he had any passengers in the car and Mr. Lobo said no.

Constable Stevens asked him where he started from and where he was going. He said he started out from Streetsville and was heading home.

Constable Stevens asked him if he had been drinking and Mr. Lobo said he had drank a couple of pints.

When asked where he had been drinking, Mr Lobo said he had been drinking at a bar with a funny name that Mr. Lobo could not remember.

Mr. Lobo was asked when he had started and stopped drinking and he advised that he started drinking around 8:40 PM and stopped drinking around 11:30 PM. Mr. Lobo said it took him 45 minutes to consume his last drink which was a beer. He also confirmed to Constable Stevens that he had not had any alcohol since the accident.

[50] Constable Stevens testified that from his perspective Mr. Lobo understood the right to counsel advice he was given and the questions and answers as outlined above.

[51] A second breath sample was obtained at 5:37 a.m. which indicated 144 mg of alcohol in 100 ml of blood.

Toxicology Evidence

[52] On the facts of this case, the Crown could not avail itself of the presumption of identity as the first breath sample was taken outside of the two-hour time period required by section 258(1)(c) of the Code. In the circumstances, the Crown called Dr. Michael Corbett, a toxicologist who was qualified and gave evidence as an expert witness. Dr. Corbett's qualifications to testify as an expert were not questioned and his evidence as whole was entirely unchallenged. He was qualified to give expert evidence in the following four areas: (i) the absorption/distribution and elimination of alcohol and drugs in the human body; (ii) the maintenance and use of approved instruments and approved screening devices; (iii) measurements of alcohol and drugs in biological samples; and (iv) the effects of alcohol and drugs in the human body.

[53] Dr. Corbett made a number of assumptions and they are more specifically set out in Dr. Corbett's report, which was marked as an exhibit at trial. Simply stated, Dr. Corbett assumed that there was no "bolus" drinking prior to the accident; no alcohol was consumed after the accident; an assumed rate of elimination of alcohol from the blood of 10 to 20 mg of alcohol per 100 ml of blood per hour; and that a person's blood alcohol content will remain at a relatively constant plateau for approximately two hours after drinking.

[54] Dr. Corbett opined that between 2:15 and 2:30 a.m., Mr. Lobo's blood alcohol levels would have been between 152 and 207 mg of alcohol per 100 ml of blood. Dr. Corbett explained that as one considers earlier times (before 2:15 a.m.), the blood alcohol levels would have been higher since over time, the body eliminates 10 to 20 mg of alcohol per 100 ml of blood per hour. Accordingly, Dr. Corbett's opinion was that if one has readings of between 144 and 164 mg of alcohol per 100 ml of blood at 5:13 a.m. to 5:37 a.m., the alcohol content will be higher at earlier times subject to the same assumptions applying. Dr. Corbett opined that at midnight and subject to the same assumptions, Mr. Lobo's blood alcohol would have been between 176 and 252 mg of alcohol per 100 ml of blood.

[55] Dr. Corbett also testified that each person has different tolerance for alcohol and that a person's ability to operate a motor vehicle, with the blood alcohol readings noted in this case, would likely be impaired; but this ultimately would depend on the person and they might not be.

[56] The Crown, on consent, tendered two documents from the Ministry of Transportation which were marked as exhibits at trial and those documents established that on June 29, 2013, Mr. Lobo was the owner of the vehicle found at the accident scene.

Factual Issues for Determination

[57] On the evidence, there are really only two contested facts to be determined by me. The first is what time the accident occurred. The second is whether Mr. Lobo was driving the vehicle at the time of the accident.

[58] I will deal with the issue of the time of the accident at this stage in my reasons and consider whether it has been proved beyond a reasonable doubt that Mr. Lobo was driving the vehicle at the time of the accident after I have determined the admissibility of his statements.

[59] The evidence clearly establishes beyond a reasonable doubt that the accident took place at approximately 2 a.m. on June 29, 2013. I rely on the following evidence for this conclusion: (i) the 911 call was made at 2:12 a.m.; (ii) when Mr. Poshni arrived on scene there was no one else other than Mr. Lobo at the scene but shortly thereafter others stopped their vehicles as well; (iii) the accident occurred approximately 200 metres from a major intersection in the City of Mississauga (Britannia Road and Winston Churchill Blvd.) and the accident was clearly visible to others passing on the roadway. It is highly unlikely that any significant period of time could have passed (more than approximately 10 minutes) with no one else passing by and calling 911. The fact that after Mr. Poshni stopped, others stopped as well confirms what one would expect: namely that passersby would see the accident and stop and seek to assist including by calling for emergency assistance.

ANALYSIS OF THE ISSUES

Issue 1. Has the Crown established that the police had reasonable and probable grounds to arrest and demand breath samples from Mr. Lobo?

[60] The defence submits that Constable Breston did not have reasonable and probable grounds to arrest Mr. Lobo and to make the breath demand and that Constable Stevens was in the same position. The defence submits that Constable Breston had nothing more than a "reasonable suspicion" to arrest Mr. Lobo and to make the breath sample demand. The defence brought an application to exclude the breath samples and all statements made by Mr. Lobo subsequent to his arrest on the basis that the breath samples taken were an unreasonable search and seizure contrary to section 8 of the Charter and that the statements were obtained in violation of Mr. Lobo's right to counsel under section 10(b) of the Charter.

[61] Generally speaking, the accused bears the burden on a balance of probabilities of persuading the Court that a Charter breach or infringement has occurred. However, where there is a warrantless search or seizure, the Crown has the burden of establishing, on a balance of probabilities, that the search or seizure was a reasonable one.

[62] In order to establish that a search or seizure was reasonable, the Crown must show that the police had reasonable and probable grounds to conduct the search or seizure. In the case of alleged drinking and driving, this will relate to the demand and subsequent obtaining of the breath samples. In this regard, I note the statements of the Supreme Court of Canada in R. v. Shepherd as follows:

The central issue on this appeal is whether the officer had reasonable and probable grounds to demand breath samples from Mr. Shepherd. Section 254(3) of the Criminal Code, R.S.C. 1985, c. C-46, requires that an officer have reasonable grounds to believe that the suspect has committed an offence under s. 253 of the Code (impaired driving or over 80) before making a breathalyzer demand. As this Court explained in R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51: "The requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms."

Mr. Shepherd argues that the officer lacked the requisite grounds to make a breathalyzer demand and that as such, his breath samples were obtained in violation of ss. 8 and 9 of the Charter. The courts below did not refer explicitly to s. 9 and, in our view, based on the facts of this case, nothing would be added by an analysis under s. 9. Accordingly, our analysis will proceed solely under s. 8.

As this Court explained in Collins, where evidence is obtained as a result of a warrantless search or seizure, the onus is on the Crown to show that the search or seizure was reasonable. A search will be reasonable if it is authorized by law, the law itself is reasonable, and the manner in which the search was carried out is reasonable (Collins, at p. 278). (emphasis in bold added)

[63] In the circumstances of this case, the following principles apply:

a) In the case of a warrantless search or seizure, in order to justify the arrest made and breath sample demand under 254(3), the Crown must establish on a balance of probabilities that the officer had reasonable and probable grounds to believe that Mr. Lobo was committing, or anytime within the preceding three hours had committed, the offence of impaired operation or driving over 80.

b) Reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case for conviction.

c) Reasonable and probable grounds have both a subjective and objective component. The subjective component requires the officer to have an honest belief that the suspect committed a crime. In addition, the officer's belief must be supported by objective facts. The objective part of the test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol.

d) The Ontario Court of Appeal in R. v. Bush specifically commented on the relationship that an unexplained accident may play in giving rise to reasonable and probable grounds. In particular, the Court stated as follows:

"Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all of the circumstances of the case. The totality of the circumstances must be considered… Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case. " (emphasis added)

e) The Ontario Court of Appeal stated further in Bush that there is no minimum time nor mandatory questioning that must occur before the officer can have reasonable and probable grounds. The officer is required to assess the situation and competently conduct an investigation he or she feels is appropriate to determine if reasonable and probable grounds exist.

f) Finally, the Ontario Court of Appeal in Bush also noted that the issue is not whether the officer could have conducted a more thorough investigation. The question is whether when he or she made the breath demand he or she "subjectively and objectively had reasonable and probable grounds to do so…that an opinion of impairment of the ability to operate a motor vehicle can be made in under a minute is neither surprising or unusual."

[64] I accept that Constable Breston subjectively believed that he had reasonable and probable grounds to believe that Mr. Lobo had committed the offence of impaired care or control of a motor vehicle contrary to section 253(1)(a) of the Code. He was entirely honest, straightforward and fair in his testimony and the defence did not suggest otherwise. The main submission of the defence was that Constable Breston could have done a more thorough investigation. That, however, is not the test.

[65] The subjective facts, which were objectively reasonable in my view, which provided reasonable and probable grounds for Constable Breston to believe that Mr. Lobo had committed the offence of care or control of a motor vehicle while his ability to operate a motor vehicle was impaired by alcohol included the following:

• an unexplained single motor vehicle accident had occurred with a car leaving the roadway and hitting a light post with such force that the light post toppled over onto the car;

• Mr. Lobo was located right next to the driver's side door. No one else was in close proximity to the vehicle and Mr. Lobo was being treated right next to that vehicle by the paramedics for injuries apparently suffered in the accident;

• when Constable Breston spoke to Mr. Lobo before his arrest, Mr. Lobo expressed no concern for anyone that might have been in the car; and

• Mr. Lobo had alcohol on his breath, watery eyes and slurred speech.

[66] As the Ontario Court of Appeal stated in Bush "[c]onsumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case". In this case, there is more than consumption plus an unexplained accident. The watery eyes and slurred speech, in addition to the alcohol on Mr. Lobo's breath, provide additional evidence of impairment.

[67] In my view, the subjective and objective facts well exceed the requirement of reasonable and probable grounds in this case. I conclude that Constable Breston had reasonable and probable grounds to believe that Mr. Lobo had, within the previous three hours, committed the offence of care or control of a motor while his ability to operate the motor vehicle was impaired by alcohol.

Issue 2. Has Mr. Lobo established that his right to retain and instruct counsel without delay and to be informed of that right as required by section 10(b) of the Charter was violated?

[68] The submission of the defence is that Mr. Lobo did not understand his right to counsel when advised by Constable Breston and that Constable Breston had an obligation to ensure that he heard and understood his right to counsel. Defence counsel conceded in argument that the right to counsel advice later given by Constable Stevens was proper and that there was no section 10(b) violation relating solely to it. She nevertheless argued that the alleged deficiencies in the right to counsel advice given by Constable Breston tainted the entire matter and that the breath samples and statements made by Mr. Lobo after the right to counsel advice of Constable Stevens, and his Mr. Lobo's consultation with counsel, should be excluded in any event.

[69] The Crown's position is that Mr. Lobo was advised of his right to counsel immediately upon arrest and that there was no obligation on the police to ensure that he understood his right to counsel absent special circumstances indicating to police that the accused did not understand his rights.

[70] In R. v. Bartle, the Supreme Court of Canada stated that "[a]bsent special circumstances indicating that the detainee may not understand the section 10(b) caution, such as language difficulties or a known or obvious mental disability, the police are not required to assure themselves that a detainee fully understands the section 10(b) caution."

[71] I note as well that the Supreme Court in Bartle stated, in part, that "if a detainee has indicated a desire to exercise [the right to counsel, the police must] provide the detainee with a reasonable opportunity to exercise the right." The point here is that the detainee must indicate a desire to exercise the right to counsel.

[72] In the case of R v. Evans, the Supreme Court of Canada found a violation of section 10(b) when the police officers were aware that the person detained had a mental deficiency. When the police read him his rights and asked if he understood his rights he stated "no".

[73] In R. v. Anderson, the Ontario Court of Appeal held that "[a]bsent proof of circumstances indicating the accused did not understand his right to retain counsel when he was informed of it, the onus has to be on him to prove that he asked for the right but it was denied or he was denied any opportunity to even ask for it."

[74] Mr. Lobo called no evidence on his Charter application and instead chose to rely on the evidence of Constable Breston, which, on its face, defence counsel submitted established that Mr. Lobo did not understand his right to counsel. I am not satisfied that Mr. Lobo has proven on a balance of probabilities that his right to counsel was violated.

[75] In reviewing the statements made by Constable Breston and Mr. Lobo's responses, it is clear that Mr. Lobo understood that he was being advised that he had had been charged with an offence and that he had the right to consult a lawyer. It is true that some of his statements may be viewed as seemingly disconnected from some of the matters he was being advised. For example, when he was told that he had the right to obtain and instruct counsel he stated "why". In addition, when he was told about the phone number that he could use to contact a duty counsel lawyer for free advice he stated "has this happened".

[76] While these statements could indicate a lack of understanding they are equally capable of other interpretations which do not involve a lack of understanding. Further, the statements of Mr. Lobo must be considered in the context of the exchange as a whole wherein he expressed regret and was upset at having been in an accident; he stated he wanted "no lawyers"; when told that anything he said could be used against him he said "I feel so stupid". He also indicated that his wife was a lawyer and when asked if he had a specific lawyer he would like to contact he clearly said "no".

[77] Accordingly, I am not satisfied that Mr. Lobo has established that there were special circumstances making it incumbent on the police to ensure that he understood his right to counsel or that his right to counsel was violated.

Issue 3. If there has been a Charter violation either under section 8 or section 10(b), should the evidence of the breath samples and the statements be excluded under section 24 of the Charter?

[78] I have found no violation of either section 8 or section 10(b). However, I will consider the implications if I am wrong on either of these determinations.

(a) Reasonable and Probable Grounds

[79] I have concluded that Constable Breston had reasonable and probable grounds to believe that Mr. Lobo had, within the previous three hours, committed the offence of care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol.

[80] Even if I am wrong, and Constable Breston did not have reasonable and probable grounds to arrest Mr. Lobo, I would nevertheless have admitted both the breath samples and statements made to Constables Breston and Stevens on a section 24(2) R. v. Grant analysis. The Grant test requires an evaluation of three issues: (i) the seriousness of the Charter infringing state conduct; (ii) the impact on the Charter protected interests of the accused; and (iii) society's interest in adjudication on the merits.

[81] Concerning the seriousness of the Charter infringing state conduct the question is whether the admission of the evidence would bring the administration of justice into disrepute by suggesting that the courts will condone breaches of the Charter and the need for the courts to dissociate themselves from unlawful conduct. In this case, even if Constable Breston did not have reasonable and probable grounds, he nevertheless acted entirely in good faith and there is no suggestion from the defence otherwise. He was faced with dealing with a serious accident at approximately 2:25 a.m. and was speaking to the accused in the back of an ambulance (and, before that, when he was on the ground). He genuinely believed that he had reasonable and probable grounds to arrest Mr. Lobo. I have found that he did have such reasonable and probable grounds but, if I am wrong, I would have said that the breach was a minor one relating to a judgement call made in good faith.

[82] The impact on the Charter-protected interests of Mr. Lobo would be low to moderate concerning the breath samples and the statements made to Constables Breston and Stevens. The breath samples are relatively non-intrusive. The statements made in response to questioning are more intrusive but still only moderately. Society's interest in adjudication on the merits would favour the admission of the breath samples and statements in this case.

(b) Right to Counsel

[83] Section 24(2) of the Charter only requires the exclusion of evidence where the accused has demonstrated, on a balance of probabilities, an infringement or denial of his Charter right or freedom and that the evidence proposed for admission was "obtained in a manner" that infringed or denied the accused's Charter right or freedom. The "obtained in a manner" requirement requires that there be a nexus between the infringement and the evidence proposed to be excluded. Further, it must be found that the admission of the evidence would bring the administration of justice into disrepute.

[84] In order for there to be a nexus between a Charter breach and evidence obtained relating thereto, there must be a temporal, contextual or causal connection (or the three in combination) between the breach and the evidence. Subsequent evidence will be tainted if the breach and the evidence can be said to be part of the same transaction or course of conduct. Remote or tenuous connections will fall short.

[85] Even if there was a right to counsel breach as a result of the right to counsel exchange with Constable Breston (and I have found there was not), the issue becomes whether there is a nexus between the allegedly deficient right to counsel advice of Constable Breston and the breath samples given to, and statements made to Constable Stevens. As indicated above, defence counsel took no issue with the nature of the right to counsel advice given by Constable Stevens and the fact that Mr. Lobo was permitted to consult with his wife/lawyer. Defence counsel's argument was that the allegedly deficient right to counsel advice given by Constable Breston could not be cured by anything Constable Stevens did. I reject this submission. I am satisfied that even if there was some deficiency with Constable Breston's right to counsel advice to Mr. Lobo, the right to counsel advice and caution by Constable Stevens amounted to a "fresh start".

[86] There is no nexus between on the one hand the breath samples given and statements made to Constable Stevens, and any deficiency in the right to counsel advice of Constable Breston on the other hand. The right to counsel advice of Constable Breston was separated from the breath samples and statements given to Constable Stevens by two hours.

[87] What happened between the two events is important to determine if there is a nexus, including a temporal one. Here, there is a clear separation between the right to counsel advice given by Constable Breston and the statements and breath samples given to Constable Stevens. These two events were not part of the same transaction or course of conduct. Nothing Mr. Lobo said or did after the allegedly deficient first right to counsel was used to prompt an inculpatory statement after the second right to counsel or to prompt the giving of the breath samples. Most importantly, the alleged infringement and the breath samples and statements were separated by Mr. Lobo exercising his right to counsel by meeting privately with his wife/lawyer.

[88] I have concluded that there is no nexus between any alleged deficiency in the right to counsel advice of Constable Breston and the breath samples given and later statements made to Constable Stevens. Any error in the right to counsel advice given by Constable Breston cannot be fairly said to have a nexus to the breath samples and statements made after Mr. Lobo's right to counsel had been fully exercised.

Issue 4 – Once it is determined what evidence is admissible, has the Crown proven beyond a reasonable doubt that Mr. Lobo had care or control of a motor vehicle when his blood-alcohol level was more than 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Code?

General

[89] For the reasons outlined above, I have dismissed Mr. Lobo's Charter applications to exclude the breath samples and statements made to police post arrest.

[90] Before turning to the determination of this issue, I should add that defence counsel also suggested that, apart from Charter issues, the statements of Mr. Lobo may not have been voluntary. The submission was not pressed in final argument but I do wish to make it clear that I find that the Crown has established beyond a reasonable doubt that all of the statements by Mr. Lobo were made voluntarily.

[91] The question then arises as to whether the Crown has proved beyond a reasonable doubt that Mr. Lobo was in care or control of a motor vehicle when his blood-alcohol level was more than 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Code. In my view, the evidence proves beyond a reasonable doubt that Mr. Lobo is guilty of this offence.

[92] I have found that the accident occurred at approximately 2:00 a.m. on June 29, 2013. Mr. Lobo's various statements to police clearly indicate that he was the driver of the motor vehicle at the time of the accident. In particular, I note that when Constable Stevens asked Mr. Lobo if he was operating a motor vehicle at the time of the accident, Mr. Lobo said "yes".

[93] The fact that Mr. Lobo was driving the vehicle at the time of the accident is also confirmed by strong circumstantial evidence, including Mr. Lobo's close proximity to the driver's door at the accident scene and the fact that nobody else was around the vehicle.

[94] As indicated above, because the first breath sample was taken outside of the two-hour time frame required for a first sample under section 258(1)(c), the Crown cannot rely upon the presumption of identity. Accordingly, the Crown called Dr. Corbett, a toxicologist expert. A brief consideration of his evidence is in order.

The Toxicology Evidence

[95] It is common in impaired driving cases for the Crown to call a toxicologist as an expert witness as it did here. Based on the results of breath testing, a properly qualified toxicologist can extrapolate blood alcohol levels at specific times. In this case and subject to the certain assumptions, Dr. Corbett indicated that Mr. Lobo's blood alcohol content substantially exceeded the legal limit continuously from at least midnight through to the time that the breath samples were taken shortly at 5:13 and 5:37 a.m. when the results were 164 and 144 mg of alcohol per 100 ml of blood respectively. Dr. Corbett opined that at midnight, Mr. Lobo's blood alcohol would have been 176 to 252 mg of alcohol per 100 ml of blood. He also opined that at 2:15 to 2:30 a.m., Mr. Lobo's blood alcohol levels would have been between 152 to 207 mg of alcohol per 100 ml of blood. I find, based on the evidence, that a 2 a.m. Mr. Lobo's blood alcohol levels were 152 to 207 mg of alcohol per 100 ml of blood or slightly higher.

[96] Dr. Corbett said that each person has a different tolerance for alcohol, and that a person with the blood alcohol readings noted in this case might or might not be impaired to operate a motor vehicle.

[97] Dr. Corbett, like any expert, made certain assumptions and these assumptions are common to other expert toxicology evidence in other drinking and driving cases. Defence counsel did not suggest that any part of Dr. Corbett's evidence should be rejected or that his assumptions were unreasonable.

[98] Nevertheless, the Crown must prove the reasonableness of an expert's assumptions and the facts underlying his or her evidence. The assumptions that Dr. Corbett made with respect to his evidence given in the case at bar are outlined in the facts section of these reasons. They are the same four assumptions that were considered by the Ontario Court of Appeal in R. v. Paszczenko and Lima. The Court of Appeal in that case indicated that a court hearing an impaired driving case could, in the absence of a challenge to the expert, take judicial notice of the plateau and elimination rate assumptions. I accept this point and, accordingly, I also accept Dr. Corbett's evidence that the assumptions of the plateau rate and elimination rate are reasonable and in fact are conservative in the sense that they tend to provide lower blood alcohol rates and thereby benefit the accused.

[99] The no bolus drinking and no post incident drinking assumptions require case specific proof.

[100] In the case of Mr. Lobo, it appears clear that there was no post incident drinking. There is simply no evidence to support any such drinking and he was variously in the care of the ambulance, police and the hospital from 2:19 a.m. onwards until the breath samples were taken.

[101] As noted in the R v. Paszczenko and Lima case, concerning the no bolus drinking, it is difficult for the Crown to prove a negative. However, the Court hearing the case must apply common sense and recognize that people do not normally ingest large amounts of alcohol just prior to or while driving. While there is no onus on the accused to prove anything, in order for the no bolus assumption to be undermined, there must be some evidentiary basis in the record to which the accused can point. In this case, there was no evidence of any alcohol in the vehicle and simply nothing to suggest that there had been any bolus drinking. In any event, as mentioned above, no issue was taken by defence counsel with respect to any of Dr. Corbett's assumptions.

[102] In the circumstances, I accept that the Crown has proven the reasonableness of the assumptions and facts underlying Dr. Corbett's report and that his opinions are fair and appropriate in the circumstances. I accept Dr. Corbett's evidence that Mr. Lobo had blood alcohol levels well in excess of the legal limit from midnight to after 5 a.m. and certainly at the time of the accident which I have determined to be 2:00 a.m.

[103] Accordingly, I find Mr. Lobo guilty of having care or control of a motor vehicle when his blood-alcohol level was more than 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Code.

Issue 5 - Once it is determined what evidence is admissible, has the Crown proven beyond a reasonable doubt that Mr. Lobo had care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol contrary to section 253(1)(a) of the Code?

[104] The following test for proof of impaired care or control of a motor vehicle was stated by Labrosse J.A. for the Ontario Court of Appeal and approved of by the Supreme Court of Canada:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

[105] I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Lobo had care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol contrary to section 253(1)(a) of the Code.

[106] In arriving at this conclusion I have considered and rely upon the totality of the evidence with particular reliance on the following facts (understanding that no one fact alone is proof of impairment):

• the accident occurred at 2 a.m. when Mr. Lobo's blood alcohol levels were at 152 to 207 mg of alcohol per 100 ml of blood or slightly higher;

• shortly after the accident, Mr. Lobo's eyes were watery, his speech was slurred and he had alcohol on his breath;

• the accident involved Mr. Lobo's car leaving the road and hitting a light post with such force that the light post toppled onto the car. Such driving is a significant departure from what one would expect of a normal driver; and

• Mr. Lobo's various utterances suggest that he believed there was connection between his consumption of alcohol and his ability to drive. For example his statements that (i) "I don't ever drink and drive- been driving thirty years - first time in my life"; (ii) "I am sorry – I messed up" and (iii) "I am so embarrassed I can't tell you" taken together and understood in context indicate that Mr. Lobo connected the drinking and driving to the accident and provide support for my conclusion that he was impaired by alcohol at the time.

CONCLUSION

[107] In conclusion, I find that the Crown has proven beyond a reasonable doubt that Mr. Lobo committed the offences of being in care or control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol contrary to section 253(1)(a) of the Code; and having care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Code.

[108] I have found Mr. Lobo guilty of both offences but given the rule against multiple convictions for the same act, I will hear from the parties as to whether one of charges should be stayed.

Released: October 24, 2014

Justice Paul F. Monahan