Court File and Parties
Court File No.: Central East - Newmarket 13-07261
Date: 2015-04-27
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Nasrullah Popal
Before: Justice P.N. Bourque
Counsel:
- J. Lee for the Crown
- S. Boutzouvis for the accused, Nasrullah Popal
Heard: In Writing
Ruling on Charter Application
Released on April 27, 2015
Overview
[1] The defendant was stopped by a police officer late at night on September 14, 2013, to check for sobriety. He has been charged with the offence of driving with excess alcohol, contrary to section 253(1)(b) of the Criminal Code of Canada.
[2] He has brought an application under the Charter of Rights and Freedoms and has alleged that he was not provided his rights to counsel in a timely manner and not able to consult with his counsel of choice.
[3] As an initial matter, the Crown wished to proceed with the Charter application separately from the trial proper. Other than an 11(b) application, I believe I have always proceeded with drinking and driving offences and Charter applications in a blended fashion. Upon review of this matter, there did not appear to be any savings in time in proceeding separately, and the Crown indicated that their main reason for the request was so she could cross-examine the police officers and the defendant could not (as it was his application). I did not feel that was a sufficient reason to depart from the normal procedure of dealing with all issues in a blended fashion. I also noted in this case that the defendant was making several significant factual admissions which allowed the matter to proceed expeditiously.
Evidence: Greg Dawe
[4] Greg Dawe is a York Regional Police officer, who was on patrol with a civilian person observing in his police cruiser at 22:18. He followed the defendant after he came out of a bar and went over a curb. While the rest of the driving of the defendant was unremarkable, at 22:20 hours he stopped the defendant to check for sobriety.
[5] He went up to the vehicle and got his licence but not any other documents. He helped him search for his documents. He noticed a smell of alcohol coming from the mouth of the defendant. At 22:31 he read the ASD demand. The defendant subsequently registered a fail at 22:35 and was arrested for driving with excess alcohol. The officer then brought the defendant to the cruiser. He searched him and placed his belongings in a property bag, which took some five minutes. He also went back to the defendant's car, searched it and turned it off. He then returned to the cruiser and read the rights to counsel, caution and the breath demand.
[6] There was much examination, cross-examination and re-examination about when he read the rights to counsel. There are two places in his notes where he puts the time. To any casual observer of his notes, the times are the same; namely, 22:49. In his evidence, he insisted that the digit "9" was actually a "4". I cannot accede to his assertion. I note several other digits which are clearly "4" and they are quite distinct from this rendition. It looks like a "9" so I will treat it as a "9".
[7] With regard to the rights to counsel, the officer stated that when he asked him if he wanted to speak to a lawyer, the defendant gave him a name. The officer cannot say that at that time, or at any other time he asked the defendant how to spell the name. He simply wrote down the following entry "Sam Boustavis".
[8] They left for the station at 22:54 and arrived at 23:03.
[9] After booking the defendant, the officer did a search on the Law Society of Upper Canada website, and could not find the name of the defendant's lawyer. He also said that he did a search on a search engine called "Google". He said he used a combination of the last and first name and he believes that he also used another spelling, namely "Boutsavis". He could not find any results.
[10] He stated that he got the phone number of the defendant's wife to call and inform her of the tow, and he spoke to her in a brief conversation. He had no notes of the conversation but he stated that he asked her about a phone number for her husband's lawyer. It could not be provided. He stated that he went back to the defendant and said he could not find his lawyer's phone number and then offered him the services of duty counsel. He made no note of that conversation but he stated that if the defendant had not wanted to speak to duty counsel, he would have made a note of it. He called and spoke to the duty counsel office at 00:05 hours on the 15th. He believes that he told the duty counsel that he said that he could not locate the defendant's counsel of choice but he has no note of it and has no memory of it.
[11] The duty counsel called back at 00:15, the officer put the defendant on the line and the call was finished at 00:25. The officer again said he probably informed the duty counsel of the name of the defendant's lawyer, but he has no notes and no memory of actually doing so.
[12] I believe that while an officer is not tied just to the evidence, which is reflected in his notes, I have some difficulty of accepting those portions of his evidence for which there is no notation and for which the officer does not have a present memory. I therefore find the following:
- (i) the officer arrested the defendant at 22:35 on the 14th;
- (ii) the officer then placed handcuffs on the defendant, searched him and placed his belongings into a property bag. I accept his evidence that this took about 5 minutes;
- (iii) the officer then went back to the defendant's car and turned it off, and did a search of the area of the car which was within reaching distance of the person sitting in the driver's seat. The officer did not put a specific time on this;
- (iv) the officer then returned to the police vehicle and began to read the rights to counsel at 22:49;
- (v) it was a total of 14 minutes between the arrest and the provision of the rights to counsel.
Evidence: Dovlin Hawthorne
[13] Dovlin Hawthorne is a York Regional Police officer and was the breath technician. Filed as Exhibit 3 was the breath test record which showed readings of 164 and 160. Also filed was a report from a toxicologist, which indicated that at the time of driving, the defendant's breath results were between 160 and 210 milligrams of alcohol in 100 millilitres of blood.
[14] He also indicated that when he received the defendant from the arresting officer the arresting officer had filled out page 2 of the Alcohol Influence Report.
[15] In that report were several checked boxes which indicated that the defendant had requested counsel of choice but had not spoken to counsel of choice but had spoken to duty counsel. The page also contained under the heading "counsel of choice" is the following: "provided name of counsel and could not find in LSUC page, wife of accused couldn't".
[16] The officer indicated that he was satisfied that the defendant had spoken to duty counsel and he proceeded with the test. The defendant never raised any issues of counsel with him. The officer stated generally that even if he had requested a further attempt to get his own counsel, the officer would have proceeded as he had spoken to duty counsel.
Has the 10(b) Rights of the Defendant Been Breached Because of a Failure to Provide His Rights to Counsel Without Delay Upon His Arrest?
[17] In R. v. Suberu, the court held that the words "without delay" mean "immediately" upon his arrest. The concerns about self-incrimination and the interference with liberty that section 10(b) seeks to address as present as soon as a detention is affected. The words, while not capable of being stretched to "within a reasonable time", are not totally without some qualification. Immediately is subject to concerns for officer safety or safety of the public.
[18] In our case, he searched and cuffed the defendant and put him in the back of the cruiser. He then went to turn off the defendant's car and did a quick search while he was there, returned to the car and then proceeded with the rights to counsel. It is clear that the cuffing, searching and placing the defendant in the back of the cruiser was a reasonable thing to do for officer safety and the officer expressed it as such. He said that this took about five minutes. The act of going to turn off the car was not expressed by the officer in terms of safety but on its face, I can see how it would be important not to leave an automobile running on the side of the road. That would have only taken a minute or two. On the assumption that it was about 14 minutes from arrest to providing rights to counsel and that five minutes could reasonably be taken up by the search, the cuffing and placing the defendant in the cruiser and another two or three minutes to turn off the defendant's car, we are really left with a delay of some seven minutes, where he was searching the car. This could have been left to later and in any event could have been left to another officer. Having said that, this is not a case where the officer's time is spent doing something which is not part of the case and it is not time that is not unexplained.
[19] If this is a breach, it is in my opinion a very technical one, and while it is a close run thing, I do find a breach and perform a 24(2) analysis. I must assess the seriousness of the Charter infringing state conduct, the impact of the breach upon the Charter-protected interests of the accused and society's interest in the adjudication of the case on its merits.
[20] I find the seriousness of the Charter infringing state conduct very low. The officer was performing a task he thought was important, but it should not have trumped the speedy delivery of the defendant's rights to counsel. An assessment of this ground would favour admission of the evidence.
[21] The impact of the breach upon the Charter-protected interests of the accused again are not great. He was in cuffs in the back of a police cruiser for seven or so minutes longer than he should have been. This case is not one where an immediate rights to counsel would have led to immediate advice. That in any event would await the return to the station.
[22] As stated in so many cases, drinking and driving offences are serious and the results of breath tests are very reliable evidence. This ground would favour admission. Taking all these factors into account, it is my opinion that the evidence should be admitted, notwithstanding this charter breach.
Has the 10(b) Rights of the Defendant Been Breached Because of a Failure to Provide Him His Counsel of Choice?
[23] The law in this matter has, in my opinion, been correctly set out by Schwarzl J. in R. v. Hurdle:
[57] The police must give a detainee his rights to counsel before breath samples are provided and must give the person both (a) sufficient information and (b) a reasonable opportunity to exercise those rights: R. v. Brydges, 53 C.C.C. (3d) 330 (S.C.C.).
[58] Where the police assist the Accused in exercising his rights to counsel, the police must be reasonably diligent: R. v. Wilding. While the police must be reasonably diligent in assisting the Accused in exercising his rights to counsel, they are not required to exhaust all reasonable means for the detainee to speak with a lawyer: R. v. Winterfield, R. v. Sharma.
[59] The test is not whether the police could have done more, but rather did the police provide the accused with the necessary information and assistance to allow the accused to exercise his rights: R. v. Gentile, R. v. Blackett, R. v. Antoninas.
[61] The detainee is required to be reasonably diligent in the pursuit of his rights: R. v. Leclair and Ross, R. v. Richfield, R. v. Clarke, R. v. Van Binnendyk.
[62] Where a detainee wants to call a specific lawyer or a third party to access counsel, he has a duty to tell the police who he wants to call and why: R. v. Williams.
[63] The police are only able to respond to information provided by the detainee and cannot be held to a standard of clairvoyance: R. v. Eakin, R. v. Littleford.
[64] The police must generally permit the detainee to contact a third party, such as a spouse, parent, neighbour, or paralegal, etc. to facilitate contact with counsel. It may be reasonable for the police to make those contacts on behalf of the detainee: R. v. Tremblay, R. v. Crossman, R. v. Kumarasamy, R. v. Barran.
[66] The police have no obligation under s. 10(b) to monitor the quality of the legal advice received by a detainee from duty counsel: R. v. Willier, R. v. Beierl. To require the police to do so would undermine the right to confidentiality and privacy a detainee enjoys with his lawyer.
[24] In R. v. Blackett, the court set out analytical framework for the discussion as follows:
(a) Did the police fulfil their duty to act diligently in facilitating the right of the accused to consult counsel of choice? If the trial judge finds they fulfilled their duty then there is no breach of section 10(b);
(b) If the police did not fulfill their duty then there are two possibilities:
(i) If the police breached their duty because they took no step to facilitate the right to counsel, then a breach of section 10(b) is established: Kumarasamy;
(ii) If the police breached their duty because they made some effort but it is found not to constitute "reasonable diligence", the trial judge must next decide whether the accused fulfilled his or her duty to act diligently to exercise the right to counsel. If the answer is yes, then a section 10(b) breach is made out. If the answer is no, then this trumps the breach of duty by the police and there is no breach of section 10(b): Brydges; Richfield.
(c) If a breach of section 10(b) is established the court must then go on to consider whether or not to exclude the consequent evidence under section 24(2). The conduct of the accused is a factor which the court can consider: Tremblay; Richfield. The court in Richfield suggested that the threshold for exclusion is higher in breathalizer cases: at para. 18.
[25] The issue here centers around whether the officer was "reasonably diligent" in the steps he took to facilitate the defendant speaking to his own counsel. In his testimony, I believe that the officer was sympathetic to the defendant's wish to call his own lawyer and understood the importance of providing his assistance in trying to speak to his own lawyer. Where I was somewhat surprised was the failure of the officer to engage with the defendant in trying to get the correct spelling of the lawyer's name. While I agree that an officer cannot be a mind reader or have some sort of clairvoyance in this regard, it should also not be expected that a person who is arrested off the street at night would have all of this information at hand.
[26] I accept the officer's evidence of the steps he took. I believe that he made an honest effort to find the lawyer's name and phone number so an attempt could be made to call him. His attempts are confirmed in the notes that he made on the Alcohol Influence Report. The breath technician noted that the defendant could not speak to his counsel of choice but noted he had spoken to duty counsel.
[27] The defendant did not testify. I have no information that he knew the proper spelling of his lawyer's name, and could have provided it if he was asked. The officer did not say that the defendant ever provided a spelling of the name and I accept that the defendant never did so. The evidence appears to show that this issue was a live one from the time he had booked the defendant into the cells until he spoke to the defendant a second time after speaking to the defendant's wife. That is a time of around half-an-hour. It was after speaking to the defendant's wife, and obtaining no new information that he spoke to the defendant about duty counsel, and it was another half-an-hour or so before he actually called duty counsel. That is a significant period of time. That does not indicate that the defendant was being rushed and it certainly does not indicate that the defendant was being "funneled into speaking with duty counsel". It would have been better if the officer had made some detailed notes about these conversations, but I have not evidence to contradict his assertions as to the steps he took and perhaps more importantly, I have no evidence to contradict the evidence of the defendant's actions and reactions.
[28] The evidence submitted by the defence indicates that if the officer had put in the proper name, he would have found a name on the Law Society of Upper Canada website and indeed in Canada 411, he would have found the name with a home phone number.
[29] Obviously, if the officer had gotten the proper spelling of the lawyer's name or spent more time entering a greater variety of names (hitting on the real one in the process) he would have been successful in his quest. The fact that he was not successful or indeed could have done more is not determinative of the question as to whether he acted diligently. I believe that the efforts of the officer were diligent. He went to the Law Society of Upper Canada website and Google. He spoke to the defendant after his failed search and that is when he got the defendant's wife's name and called her. After getting no information from the wife, he went back to the defendant. It was only then that he raised the issue of duty counsel. He did not attempt to hurry the defendant.
[30] Even if I am incorrect in my determination of this first issue, and the efforts of the officer don't constitute reasonable diligence, would I then be satisfied (on a balance of probabilities) that the defendant acted diligently to exercise his rights to counsel? He gave a name and indicated his wished at the outset. After the officer's efforts were unsuccessful, did he have an obligation to do more? I think he probably should have. After being told of the officer's lack of success, he could have asked for further efforts and perhaps suggested spellings, or at the least indicated how important counsel of choice was to him. This is tempered by the fact that he probably did not know the officer's spelling error, but he did know that the officer was having difficulty. I think he should have done something more to assert his rights. I therefore do not find on a balance of probabilities that the defendant's 10(b) rights have been infringed.
[31] Even if I am wrong in my analysis and this defendant's rights to counsel were infringed, is this a situation where, in applying the analysis in R. v. Grant, would I exclude the evidence of the breath test. I do not think that I would. I believe that the charter protected interests of the defendant suffered a minimal breach as he did obtain legal advice. I also note the inherent reliability of breath results and the high readings in this case (just under the aggravating factor). I believe that the officer acted in good faith. He addressed his mind to the issues and was engaging the defendant. He tried speaking to the defendant's wife. While I have found that he could have done more, I would not be able to say that this was serious state infringing conduct.
Conclusion
[32] The defendant admits but for the application under the Charter to exclude the breath test evidence, the Crown's case is made out. I have found one Charter breach but I would not exclude the evidence based on the facts of that breach. Even if I had found the second breach, I would not have excluded the evidence.
[33] I therefore dismiss the applications of the defendant and having found that to exclude the results of the breath tests would bring the administration of justice into disrepute, I find the defendant guilty of the charge of driving with excess alcohol.
Signed: "Justice P.N. Bourque"
Released: April 27, 2015