Court File and Parties

Ontario Court of Justice

Date: 2015-03-10

Court File No.: Toronto 4817 998 12-70018128-00

Between:

Her Majesty the Queen

— and —

Jennie Irene McCann

Before: Justice W. Horkins

Heard on: February 20, 2015

Reasons for Judgment released on: March 10, 2015

Counsel:

• Ms. Sabrina Fiacco, counsel for the Crown
• The accused, Ms. Jennie Irene McCann, on her own behalf

Judgment

HORKINS W., J.:

Facts and Initial Detention

[1] On May 24, 2012, Jennie McCann was charged with refusing a roadside screening demand. She was tried before me on February 20, 2015.

[2] The significant issue in this case is whether this accused's refusal to provide a roadside sample was a complete and unequivocal refusal. A concern arises on the particular facts of this case because of this accused's obvious confusion at the roadside; her obvious misunderstanding of the law, coupled with her repeated requests to speak to counsel; and, with the benefit of hindsight, an actual ability to access counsel forthwith, which was not facilitated or permitted.

[3] The "Rights to Counsel," guaranteed by s. 10 of the Canadian Charter of Rights and Freedoms, are permissively violated (or in effect suspended) for a motorist detained on suspicion of drinking and driving, and subject to a roadside screening demand. This case isn't about that issue.

[4] This case is about mens rea and reasonable doubt. It is about a confused young woman, at 1:30 in the morning, obviously operating under a mistaken understanding of her legal rights and obligations. She is clearly about to make a bad decision that would lead to committing a criminal offence and was repeatedly asking for the chance to obtain legal advice to assist her in making a decision. Legal advice was available that would have undoubtedly steered her in the right direction. I am satisfied that she would not have continued to balk had she been instructed by counsel that she was legally obliged to provide a roadside screening sample.

Evidence at Trial

[5] Ms. McCann was unrepresented at trial. The Crown called one witness, the arresting officer, P.C. Baksh, an experienced member of the Toronto Police Service. There are no serious issues of fact or credibility in these proceedings. Most of the Crown evidence is confirmed by the video from the officer's onboard vehicle camera.

[6] The officer and the accused were both driving eastbound on Danforth Avenue; a four lane main arterial road in central east Toronto. At about 1:30 a.m., P.C. Baksh's attention was drawn to the McCann vehicle because of its slightly excessive speed and by a number of apparently unnecessary lane changes. He followed and watched. His onboard camera was activated a few minutes after his initial observation; in time to record the McCann vehicle suddenly changing lanes, from the left to the right lane, cutting too closely across the path of a motorcyclist, and then making a right turn into a side street. The officer followed and pulled McCann over for investigation. It was now 1:35 a.m.

[7] The video recording continues and captures the ensuing interaction between Ms. McCann and Officer Baksh. The officer approached the driver's side window and detected the odour of alcohol coming from the interior of the vehicle. There were other occupants in the car, so he had Ms. McCann step out of the vehicle for the express purpose of isolating her and determining whether the smell of alcohol was coming from her as opposed to, generally, from the interior of the car.

[8] Once out of the car, P.C. Baksh had Ms. McCann breathe directly into his face. This confirmed his suspicion that she had alcohol on her breath and therefore in her system. I have no hesitation in finding that, at this point, (1) the accused was "detained;" (2) the officer had a sufficiently reasonable suspicion as a lawful basis to make an approved screening demand; and (3) that he made a lawful demand in a timely and satisfactory manner. Ms. McCann was therefore legally obliged to comply with the demand or face a charge of refusing.

The Accused's Response

[9] Ms. McCann made it clear that she did not want to provide a breath sample. She indicated that she had not been drinking and that she believed that she did not have to provide a sample. She wanted to speak to a lawyer to obtain legal advice.

[10] Ms. McCann was clearly operating under a misunderstanding of the law. She was warned that she would "probably" be charged if she continued to refuse. She continued to ask to speak to a lawyer. At 1:46 a.m., seven minutes after the initial demand, Ms. McCann was arrested and charged with refusing the roadside screening demand. She was read her rights to counsel and in response, again, says she wants to speak to a lawyer. She is then released from the roadside on a Promise to Appear.

[11] Ms. McCann never did have a chance to get legal advice about her mistaken belief that she was entitled to refuse and the consequences of doing so.

[12] Watching the roadside video it is very apparent that Ms. McCann is confused, rather than defiant, concerning her obligations to comply with the demand and wants some legal advice.

Analysis of Confusion vs. Defiance

[13] Legally, the prima facie violation of her right to access counsel immediately upon her initial detention at 1:35 is constitutionally excused. In effect, her right to counsel is temporarily suspended during the roadside screening process. This is fair enough in order to facilitate a summary screening process in the context of the danger and prevalence of impaired driving. However, is it fair to criminalize a confused mistake of law that could have (and I find as a fact would have) been remedied by proper legal advice? Access to such advice was a phone call away.

[14] I have a healthy reasonable doubt that her refusal was unambiguous, unequivocal or final.

[15] In light of all the information that I now have, in my opinion, charging the accused was premature. It is not my intention to criticize the officer. I imagine that his experience and training is that there is no access to counsel when conducting a roadside test; and that once someone says "no," the refusal offence is complete. That understanding is of course generally correct. However, I now have the benefit of both hindsight and the evidence of the accused and I find that Ms. McCann did not unequivocally refuse to provide a screening sample. She was prepared to provide a sample if she was given independent advice to do so.

[16] Ms. McCann wasn't asked at the time, but it came out at trial that her cell phone was in the car and that she knew of a lawyer to call. Even if her lawyer was not available, the officer had the 1-800 duty counsel hot line number for her and he could have provided sufficient privacy for her to obtain the legal advice necessary for her to understand her position. Her evidence at trial (and I accept it as true) is that if a lawyer had told her she had to do the screening test, she would have done it.

[17] The video contains no gross signs of alcohol impairment and the officer's evidence was that he felt McCann might well be over 80 but that he had no basis for feeling she was impaired.

THE LAW

[18] The law is well-settled that the abridgement of the s. 10(b) right to counsel during the roadside screening process is a reasonable limit under s. 1 of the Charter.

[19] The reason that the right to counsel is suspended during the roadside screening procedure is based on a matter of practicality; it would tend to defeat the "forthwith" or summary nature of the screening process. The process itself provides no admissible inculpatory evidence but rather is simply a minimally intrusive investigative screening process that may or may not provide the foundation for further investigative steps.

[20] Ms. McCann was operating under a mistake of law that she had a right to refuse the roadside breath demand. A mistake of law is no defence. However, it is apparent that this accused was both mistaken and confused but at no time defiant or uncooperative. Ms. McCann was very diligent in seeking access to advice and asked several times for the opportunity to speak to a lawyer to obtain legal advice.

[21] I have no hesitation in concluding that if she had received legal advice that she was obliged to provide the roadside test she would have done so. That was her evidence and I accept it as true.

Application of R. v. Mandryk

[22] My decision in this case is very much influenced by Mr. Justice Code's finding in the case of R. v. Mandryk, [2012] O.J. 3349. Mandryk appealed his conviction for refusing an approved instrument demand. The accused had been pulled over having just left a bar. He exhibited the standard indicia of impairment: glossy eyes, red nose, red cheeks and an admission of having consumed three glasses of wine. He also complied with and failed a screening test and was arrested. During the arrest process he made comments which were interpreted as an unambiguous refusal to accompany the police to the station for the approved instrument breath testing. As a result he was charged with refusing to comply with that demand and released at the roadside. He never spoke with counsel and the police made no attempt to obtain breath samples.

[23] Justice Code found that once the detainee invoked his right to counsel, police could, and should, take the accused to the station in order to facilitate access to counsel. Justice Code found that, on the facts before him, the actus reus of the offence had not been sufficiently made out. He concluded that this initial refusal was tentative and when combined with a clear request for access to counsel, was not so clearly unequivocal to amount to criminal conduct.

[24] I appreciate that there is a significant distinguishing feature in the Mandryk case, in that Mandryk had provided the roadside screening sample and his rights to counsel were therefore back in operation at the time of his refusal to accompany the police for an approved instrument test. However, I think that much of the commentary from Justice Code from paragraph 53 onwards is instructive as to the fairness on the facts of the situation before me.

[25] Justice Code characterized the refusal in the case before him as deferring a decision pending the requested opportunity to consult with a lawyer. The same can be said here. At paragraph 62 he refers to the Jumaga case in the Supreme Court in which there is language characterizing an initial refusal as merely "deferring a decision" until legal advice is obtained.

[26] Bearing in mind that Justice Code is writing about an Approved Instrument Refusal, as opposed to a Screening Device Refusal, the language at paragraph 60 through 68 is nevertheless still instructive:

60 In Jumaga, the Supreme Court of Canada construed the statutory requirement - "refuses to comply" - in a way that was harmonious with the accused's right to counsel by liberally treating the initial refusal as a mere "deferring of a decision", prior to conferring with counsel. The Court held that a "definite refusal" only emerged after the phone call to counsel was facilitated. I would take the same approach in the case at bar. It was unrealistic, and inconsistent with the right to counsel, to treat the four minute discussion with the police as a "refusal" within the meaning of s. 254(5). The discussion occurred immediately after the accused had asked to speak to counsel and the discussion began with an expression of uncertainty as to what course was legally advisable. In my opinion, the Crown never proved a "refusal" on these facts because the police never facilitated the request for access to counsel and never repeated the demand and obtained a "definite refusal" after Mandryk had spoken to counsel.

[27] Justice Code then discusses the judgement in R. v. MacKinnon:

61 …. in R. v. MacKinnon (1985), 21 C.C.C. (3d) 264 at 271 (P.E.I.S.C. - A.D.). The Court did not cite Jumaga but its reasoning is consistent with Jumaga. Mitchell J. gave the judgment of the Court and stated:

Nothing requires an officer to accept a response as final, which is given prior to his advising the accused of his right to retain and instruct counsel without delay. Presumably, one of the main reasons for informing an accused of his right to retain and instruct counsel without delay in the first place is so that the accused will be aware that he can have access to counsel to assist him in making a decision that has significant legal consequences for him. It, therefore, follows that any response the accused makes prior to being advised of his right to retain and instruct counsel without delay should not be considered as binding or irrevocable.

Nothing in the law prevents a police officer from giving a person a reasonable opportunity to consult counsel before deciding whether to comply or not. Nothing in law states that the samples have to be taken immediately after the demand. Section 235 of the Code provides that the sample can be provided "as soon as practicable" after the demand. This tolerance would allow for a reasonable opportunity for the recipient of the demand to consult counsel before deciding whether or not to comply. ... It might well be that a person whose initial inclination was to refuse would decide to comply if he had an opportunity to obtain the advice of counsel before making his decision. [Emphasis added].

[28] This second point in MacKinnon of course doesn't necessarily apply to the roadside screening situation which is to be undertaken "forthwith." However, shouldn't the same considerations apply where, as here, there was in fact an unfulfilled opportunity to access counsel from the roadside, which would have precipitated compliance "forthwith"?

[29] Justice Code continues with a discussion of three cases, which he cites as consistent with the above approach of treating a refusal, coupled with a request for legal advice as merely a "conditional refusal"; R. v. McKeen (2001), 2001 NSCA 14, 151 C.C.C. (3d) 449 (N.S.C.A.), R. v. Brotton (1983), 24 M.V.R. 76 (Sask. C.A.), and R. v. Sullivan (1991), 65 C.C.C. (3d) 541 (B.C.C.A.). He then continues at paragraph 65 as follows:

65 The above line of authority has consistently interpreted the actus reus of the offence enacted in s. 254(5) in a flexible and fair manner, such that the element "fails or refuses to comply" is not applied in a way that would be inconsistent with the accused's right to counsel. These cases hold that where the accused seeks access to counsel's advice, either shortly before or shortly after an initial refusal to comply with the s. 254(3) demand, then the initial indication of the accused's intentions is treated as provisional. It is only after access to counsel that the initial provisional indication becomes final. This is simply a matter of reasonable and fair construction of the statutory terms, consistent with the Charter of Rights and with the Bill of Rights, since the accused is detained and is required to make a decision with significant legal consequences and is seeking access to counsel's advice. An important factual issue in all these cases is whether the request to speak to counsel, and the initial refusal to comply with the demand, are really part of one ongoing conversation, as in Jumaga, Brotton and Sullivan. When there is a clear break in the transaction, and the accused subsequently changes his mind as in McKeen and McGauley, then the offence of refusal to comply is already complete and cannot be undone.

68 I am satisfied that the trial judge erred in law in finding that the actus reus of the offence had been made out on the admitted facts of this case. Applying the reasoning in the Jumaga line of authority, the Crown never proved the element of a "refusal to comply", given that Mandryk's initial refusal was tentative and was combined with a request for access to counsel. This statutory provision must be interpreted and applied, in light of the Charter, in a way that is consistent with the right to counsel.

Application of R. v. Delarm

[30] While there is no right to access counsel before taking a roadside screening test, an accused's request to speak to counsel in that context may raise a reasonable doubt that the accused has a settled intention to refuse. In R. v. Delarm, [2013] O.J. 763 (S.C.J), the acquittal of the accused was upheld on appeal. The accused was found to lack the mens rea for the roadside refusal offence in a situation much like the case before me. Delarm responded to the roadside screening demand to the effect that, "I won't be blowing in it without speaking to an attorney." The Crown appealed, fearing that the case might be seen as a precedent for the proposition that an accused has a presumptive right to access to counsel prior to deciding whether or not to provide a roadside breath sample. In rejecting the Crown's concerns, the Court said this:

12 It is now the year 2013: it is trite law that once a valid demand has been made, a suspect in the circumstances described above is not entitled to consult with counsel prior to deciding whether or not to provide a roadside sample. See: R. v. Thomsen, [1988] 1 S.C.R. 640.

13 Justice Brunet was not suggesting that an accused person found in Mr. Delarm's circumstances was entitled to delay his response to a valid demand for a breath sample by first consulting counsel. Having reviewed Justice Brunet's decision, I respectfully disagree that this case stands for the proposition that the Crown thinks it does.

14 Justice Brunet's decision indicates that he was fully aware of the law that applied in the area of a charge pursuant to ss. 254(2) and (5) of the Code. He was also aware of the law related to the assessment of credibility, as outlined in the seminal Supreme Court of Canada decision of R. v. W.(D.), [1991] 1 S.C.R. 742.

15 More specifically, Justice Brunet's decision is not one that requires a "condition precedent to complying with the valid breath demand equals an equivocal refusal and therefore a valid defence." On the contrary, and with the greatest of respect, the Crown is over analyzing Justice Brunet's decision.

16 The ratio for Justice Brunet's decision is found on page 14, lines 10 through to 16 of the trial transcript:

In other words, it is not that the accused had, or did not have, a right to speak to counsel at the roadside that is of concern; rather, it is that he states that this was in his mind and that he did not intend to "produce the refusal" to avert to the elements of the offence.

17 Further, if this court had any doubt as to the veracity of its opinion, I note Justice Brunet's last paragraph on page 14 of the transcript, lines 17 through to 24, wherein he states:

Therefore, it is in these narrow circumstances, and pursuant to R. v. W. (D.) that I find that the Crown has not proven beyond a reasonable doubt that the accused had the required mens rea on the refusal charge before the court. Mr. Delarm is therefore acquitted.

18 In conclusion, I see no reason to interfere with the finding of the learned trial judge and trust that any confusion that may have resulted from this decision, at least from the Crown's point of view, is now resolved.

Conclusion

[31] My decision to dismiss the charge against Ms. McCann is similarly grounded on the concerns that lead to the acquittal of Mr. Delarm. I have a reasonable doubt on the particular facts of this case that Ms. McCann had formed a final intent to unequivocally refuse the roadside demand. I accept her evidence that had she been given the benefit of independent advice as to her obligation to provide a sample forthwith, she would have complied.

[32] I also find as a fact that she was inadvertently deprived of the opportunity to access counsel. I say 'inadvertently' because although she had a cell phone and a lawyer to call, she didn't tell the officer this and he didn't ask. The roadside investigation of a suspected drinking and driving offence is a dynamic process. The officer in this case understandably was of the view that she had no present right to access counsel and so made no inquiries or exploration about facilitating access.

[33] Therefore, on the particular facts of this case, I have a reasonable doubt with respect to the essential elements of the offence having been made out. The charge is dismissed.

Released: March 10, 2015

Signed: "Justice W. Horkins"

Footnotes

[1] This case was sent back for retrial following a successful Crown appeal concerning issues upon which there is no contest in the trial before me. See R. v. McCann [2014] O.J. 4592.

[2] R. v. Thomsen, [1988] 1 S.C.R. 640.

[3] My own emphasis added.