Court File and Parties

Court File No.: Brampton – 14-4132

Date: 2015-05-08

Ontario Court of Justice (Central West Region)

Between:

Her Majesty the Queen Counsel: P. Quilty and S. Anderson

- and -

James Stewart Counsel: D. Lent

Heard: December 23, 2014, March 9, 2015

Reasons for Judgment

Justice P.A. Schreck:

I. EVIDENCE

A. The Arrest

[1] James Stewart is charged with operating a motor vehicle while his ability to do so was impaired by alcohol (Count 1) and while the concentration of alcohol in his blood exceeded the legal limit (Count 2). With respect to Count 1, he takes the position that the Crown has failed to prove that his ability to operate a motor vehicle was impaired at the relevant time. With respect to Count 2, he has applied, pursuant to ss. 8, 9, 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms, to exclude from evidence the results of an analysis of his breath which the Crown relies upon to prove the charge.

[2] At around 8:00 a.m. on April 5, 2014, Cst. Michael Deston, who at the time had been a police officer for about a year and a half, was parked in a church parking lot near the intersection of Avondale Drive and Balmoral Drive in Brampton in order to watch for cars disobeying the stop signs at the intersection. He observed a vehicle driving eastbound on Balmoral Drive go through the intersection without making any attempt to stop for the stop sign. Cst. Deston pulled up behind the vehicle and activated his emergency lights. The driver of the vehicle showed no sign of noticing this and continued driving at a normal speed. Cst. Deston turned his sirens on and off in a further attempt to draw the driver's attention to him. The car turned northbound on Cloverdale Road, at which point the driver apparently noticed the police car and pulled over. Other than running through the stop sign, there were no signs of improper driving.

[3] Cst. Deston approached the driver, who was later identified as Mr. Stewart, and asked for his licence and registration. Mr. Stewart told Cst. Deston that he had not seen him behind his vehicle and that he was on his way to his home, which was close by. Mr. Stewart did not have his driver's licence with him. He said that his registration and insurance documents were in the vehicle, although he could not locate them. He identified himself verbally.

[4] Cst. Deston returned to his police cruiser to check the information he had been provided. Satisfied that Mr. Stewart was who he claimed to be, Cst. Deston returned to Mr. Stewart's vehicle. Mr. Stewart rolled down the window and Cst. Deston smelled alcohol emanating from the vehicle. He had apparently not noticed this earlier. He asked Mr. Stewart whether he had had anything to drink and Mr. Stewart replied that he had had a beer about an hour earlier, at 7:00 a.m. Cst. Deston also noticed that Mr. Stewart's eyes were red-rimmed. Based on this and the admission of consumption, Cst. Deston formed a reasonable suspicion that Mr. Stewart had alcohol in his body. Accordingly, at 8:24 a.m. he made a demand that Mr. Stewart provide a breath sample into an approved screening device ("ASD").

[5] At Cst. Deston's direction, Mr. Stewart exited his vehicle and walked to the police cruiser. Cst. Deston noticed that he had no shoes on and was dressed in only a bathrobe and a winter coat. According to him, Mr. Stewart was very unbalanced on his feet and swayed back and forth. Cst. Deston disagreed with the suggestion put to him in cross-examination that this could have been the result of Mr. Stewart walking on the cold ground in bare feet. When Mr. Stewart entered the police cruiser, Cst. Deston noted a very strong odour of alcohol. He testified that Mr. Stewart's speech was slurred. He had noticed this earlier but had been unsure whether it was the result of fatigue.

[6] At this point, Cst. Deston decided that he had reasonable and probable grounds to believe that Mr. Stewart was impaired and consequently arrested him for impaired driving at 8:29 a.m. Cst. Deston testified that although he had noted the slurred speech and red-rimmed eyes earlier, the addition of the observations of swaying and the detection of the odour of alcohol created in his mind grounds for arrest. He advised Mr. Stewart of his right to counsel and Mr. Stewart indicated that he wished to speak to a lawyer. When advised of the availability of duty counsel, Mr. Stewart indicated that he would like to speak to one.

[7] Mr. Stewart was transported to the police station, arriving there at 8:56 a.m. Because he was dressed in a bathrobe, he was given a paper "bunny suit" to wear.

B. Right to Counsel

(i) Cst. Deston's Testimony

[8] At the police station, Mr. Stewart re-iterated that he wished to speak to counsel. According to Cst. Deston, Mr. Stewart said that he wanted to speak to "Mr. Mark", whose first name he did not know, and that Mr. Mark's telephone number was 905-727-4286. Cst. Deston telephoned this number and heard a voicemail message that led him to conclude that it was not the number to a lawyer's office. According to Cst. Deston, at this point Mr. Stewart advised him that the last digit may have been 5, not 6 as he had stated earlier. Cst. Deston initially denied using any type of resource to obtain Mr. Mark's number and could not recall any other officer assisting in determining the correct number. He later testified that he could not recall whether any other resource was used.

[9] Cst. Deston testified that he left a voicemail message at the correct number at 9:07 a.m. This time, the voicemail message indicated that the number did in fact belong to Mr. Mark. Cst. Deston testified that he "would have" told Mr. Stewart that he did not know when Mr. Mark would call back and again offered to put him in touch with duty counsel. Mr. Stewart indicated that he was satisfied with accepting duty counsel. However, Cst. Deston had no notes of this conversation with Mr. Stewart.

[10] Cst. Deston placed a call to duty counsel at 9:19 a.m. When the call was not returned, he placed a second call to duty counsel at 9:49 a.m. Duty counsel finally called back at 10:14 a.m. By this point, Mr. Stewart was already in the breath testing room. Mr. Mark did not call back, nor did Cst. Deston make any further attempts to contact Mr. Mark.

(ii) Cst. Darcy's Testimony

[11] Cst. Tyrus Darcy, the qualified breath technician, testified that when Mr. Stewart arrived in the booking area, he stated that he wished to speak to a lawyer named Lonny Mark, who practiced in Aurora. Cst. Darcy then consulted the lawyer's directory and obtained the number 905-727-4285. According to him, Cst. Deston called the number and then advised that there was continuous ringing without any response or voicemail message. Because the directory was from 2004, Cst. Darcy left the room to look up Mr. Mark's number on the internet. He checked Mr. Mark's website, which had the same telephone number and which indicated that there was 24-hour service. According to Cst. Darcy, Cst. Deston told him that he tried the number again at 9:19 p.m. and, having no response, offered to contact duty counsel, which offer was accepted by Mr. Stewart. At some point, Cst. Deston told Cst. Darcy that he had left a message for Mr. Mark.

(iii) The Booking Video

[12] A video of the booking area was tendered as an exhibit at trial. It shows that at 9:05 p.m., Cst. Deston briefly picks up the telephone and then puts it down again without dialing. Cst. Darcy, the breath technician, is then seen looking in a book which Cst. Deston agrees was a lawyer's directory. Following this, Cst. Deston picks up the telephone at 9:07 p.m. and remained on the phone until 9:09 p.m. After being shown the video, Cst. Deston was asked when the call to the wrong number was placed. He suggested that he had perhaps called both the wrong number and the correct number between 9:07 p.m. and 9:09 p.m. without replacing the receiver.

(iv) Mr. Stewart's Testimony

[13] Mr. Stewart testified on the voir dire that he had advised the police officers that he wished to speak to a lawyer named Lonny Mark. However, since he had had no contact with Mr. Mark for 25 or 30 years, he could provide the police only with his name and the fact that his office was in Aurora. Mr. Stewart recalled seeing Cst. Darcy consult the lawyer's directory. Following this, he was informed that a message had been left for Mr. Mark and that he would be allowed a "reasonable time" to wait for Mr. Mark to call back. It was not explained to him how long "reasonable" was, so when he was offered a chance to speak to duty counsel, he agreed to do so. Mr. Stewart testified that he would have preferred to speak to Mr. Mark. Mr. Stewart agreed that he had been satisfied with the advice duty counsel had given him.

C. The Breath Tests

[14] After Mr. Stewart spoke to duty counsel, he returned to the breath testing room and provided two breath samples at 10:24 a.m. and 10:48 a.m., both resulting in readings of 170 milligrams of alcohol per 100 millilitres of blood.

II. ANALYSIS

A. The Charter Applications

(i) Section 10(b) of the Charter

[15] Mr. Stewart takes no issue with the reliability of the breath test results but has applied to have those results excluded pursuant to s. 24(2) of the Charter on the basis of violations of ss. 8, 9 and 10(b). With respect to the latter, he submits that Cst. Deston did not take sufficient steps to procure him access to his counsel of choice, in violation of s. 10(b) rights.

[16] The general principles respecting the scope of s. 10(b) of the Charter are well settled. Section 10(b) imposes on the police an informational duty to advise detainees of their right to consult a lawyer. If a detainee expresses a wish to exercise the right, then s. 10(b) imposes on the police an additional implementational duty to facilitate contact with counsel, as well as a duty to refrain from eliciting evidence until such contact has taken place. The implementational duty includes the obligation to facilitate contact with counsel of choice where the detainee expresses a wish to consult a particular lawyer: R. v. Kumarasamy (2002), 22 M.V.R. (4th) 234 (Ont. S.C.J.), at para. 25. Although the defendant bears the onus of establishing a Charter violation, where he or she has asserted a wish to consult counsel, the Crown bears the persuasive burden of establishing that the police fulfilled their implementational duties.

[17] In this case, Mr. Stewart asserted a wish to consult a specific lawyer, Mr. Mark. In attempting to establish that the state fulfilled its obligation of attempting to facilitate contact with counsel of choice, the Crown relies on the evidence of Cst. Deston, who testified that he left a message for Mr. Mark. However, there are significant concerns about Cst. Deston's reliability on this point. I draw this conclusion for several reasons.

[18] First, Cst. Deston gave a detailed account of having Mr. Mark's telephone number provided to him by Mr. Stewart, first incorrectly and then correctly. I do not accept that this happened. I accept Mr. Stewart's evidence that he did not know Mr. Mark's number, having not spoken to him for 25 or 30 years. Mr. Stewart's account is confirmed by Cst. Darcy, who described looking up Mr. Mark's number in the lawyer's directory and then on the internet. Cst. Deston initially denied consulting any resource to discover Mr. Mark's number, but then suggested that Cst. Darcy may have "confirmed" the number in the directory. However, Cst. Darcy's testimony does not support this.

[19] As well, Cst. Deston testified that he called the wrong number and reached a voicemail message that did not belong to a lawyer. He then obtained the correct number from Mr. Stewart, called that number, and left a message for Mr. Mark. However, the booking room video does not support this account. It shows Cst. Deston picking up the telephone briefly at 9:05 a.m. and then replacing the receiver without dialing. He then picks up the telephone again at 9:07 p.m. and remains on it until 9:09 a.m. Upon being shown this video, Cst. Deston suggested that he may have dialed the wrong number at 9:07 a.m. and then hung up and called the right number but without replacing the receiver. However, he does not appear to be speaking to Mr. Stewart at all during this period, so it is unlikely that he would be obtaining the correct number. As well, by then Cst. Darcy had already checked the directory so Cst. Deston would have already had the correct number. Moreover, he is not seen dialing twice in the video.

[20] I fully appreciate that police officers investigate a great many matters and are often called upon to testify about them long after the events have taken place. It would not be at all surprising that a police officer may not have a full recollection of everything that happened. However, Cst. Deston never suggested that he did not remember the steps he took to contact Mr. Mark. He claims to remember them clearly. His account, unfortunately, is completely inaccurate. In these circumstances, I cannot be satisfied that Cst. Deston ever reached Mr. Mark's voicemail or left a message for him.

[21] As well, I accept Mr. Stewart's evidence that while he was told that he could wait a "reasonable time" for Mr. Mark to call back, he was never told how much time that was. As a result, he concluded that if he did not speak to duty counsel, he risked not having an opportunity to obtain any legal advice. The first call to duty counsel was placed at 9:19 a.m., only 12 minutes after when Cst. Deston said he left a message for Mr. Mark. A "reasonable time" in the circumstances was longer than 12 minutes: R. v. Singh, [2011] O.J. No. 6682 (C.J.) at para. 8. Mr. Stewart should have been told that although he had the opportunity to contact duty counsel, he also had the right to continue to wait for Mr. Mark to call back.

[22] Based on the foregoing, I find that there was a violation of Mr. Stewart's s. 10(b) Charter rights.

(ii) Sections 8 and 9 of the Charter

[23] It is well-established that the taking of breath samples is a warrantless search. As such, it is presumptively unreasonable unless the Crown can establish otherwise on a balance of probabilities: R. v. Haas (2005), O.R. (3d) 737 (C.A.); R. v. Bush (2010), 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.) at para. 13. The Crown attempts to do so here by demonstrating that the officer had reasonable and probable grounds to believe that Mr. Stewart had committed an offence contrary to s. 253 of the Criminal Code such that the breath demands were authorized by s. 253(3). Similarly, the arrest of Mr. Stewart was not arbitrary if the officer had reasonable and probable grounds to believe that he had committed the offence of impaired driving. In the context of a breath demand, the reasonable and probable grounds standard is not an onerous one. There need only be grounds to believe that the defendant's ability to operate a motor vehicle was at least slightly impaired: R. v. Bush, supra at paras. 46-48.

[24] In this case, to establish the existence of reasonable and probable grounds, the Crown relies on the testimony of Cst. Deston. For the reasons outlined earlier, I have concerns about the reliability of this officer's testimony and feel that I must approach it with some caution. That said, some aspects of his testimony respecting his grounds for arrest were not challenged. It has not been suggested that Mr. Stewart did not drive through a stop sign or fail to notice the officer's attempts to get him to stop. Nor was it suggested that he was not unsteady on his feet, only that the unsteadiness may have been caused by the cold ground on Mr. Stewart's bare feet. Other aspects are confirmed by other evidence. For example, in my observation of Mr. Stewart on the breath room video, his speech does seem to be somewhat slurred.

[25] Having considered the evidence as a whole, and notwithstanding my concerns about Cst. Deston's reliability, I conclude that Cst. Deston had the requisite grounds to arrest Mr. Stewart and to make a lawful breath demand. The application based on ss. 8 and 9 of the Charter is accordingly dismissed.

(iii) Section 24(2) of the Charter

(a) The Seriousness of the Breach

[26] The determination of whether evidence ought to be excluded pursuant to s. 24(2) of the Charter requires a consideration of the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the first of which is the seriousness of the violation. In this line of inquiry, the court must consider the nature of the police conduct and locate it on a continuum that runs between minor and technical breaches and those that result from a blatant and flagrant disregard for the Charter. The more severe the violation, the greater the need for the court to disassociate itself from the police conduct in order to maintain confidence in the administration of justice.

[27] In this case, the police did not appear to take Mr. Stewart's right to consult counsel of choice seriously. For the reasons stated earlier, I am not satisfied that Cst. Deston ever left a message for Mr. Mark. Moreover, although the police made repeated efforts to reach duty counsel after duty counsel did not return their call, they made no further effort to contact Mr. Mark. In circumstances such as this, duty counsel is an acceptable but not the preferable option. By agreeing to speak to duty counsel, Mr. Stewart was being diligent in exercising his right to counsel but had not waived his right to consult counsel of choice. When duty counsel did not call back and further calls had to be made, the police should have tried to reach counsel of choice again. In these circumstances, I view the violation as moderately serious.

(b) The Impact of the Breach

[28] Under this line of inquiry, the court must determine the extent to which the breach undermined the interests protected by the right that was infringed. In this case, while Mr. Stewart was denied his right to counsel of choice, he was not deprived of legal advice altogether as he did have an opportunity to speak to duty counsel. As a result, the impact of the Charter breach is not as significant as in cases where an accused gets no legal advice whatsoever.

[29] That said, the impact of a denial of the right to counsel of choice is still significant. The importance of the right to choose one's counsel was described in R. v. McCallen (1999), 43 O.R. (3d) 46 (C.A.) (at paras. 35-36):

. . . [T]he relationship of counsel and client requires clients, typically untrained in the law and lacking the skills of advocates, to entrust the management and conduct of their cases to the counsel who act on their behalf. There should be no room for doubt about counsel's loyalty and dedication to the client's case. It is human nature that the trust and confidence that are essential for the relationship to be effective will be promoted and more readily realized if clients have not only the right to retain counsel but to retain counsel of their choice.

The reasons why clients may choose one lawyer rather than another may vary widely and will often turn on personal preferences or other factors that do not lend themselves to objective measurement. Professional reputation and competence will no doubt be important factors in the choice of counsel, but it would understate the full nature of the relationship to suggest that the choice be limited to those considerations. The very nature of the right is that the subjective choice of the client must be respected and protected.

[30] To an accused in custody at a police station, duty counsel is a faceless individual whom he or she has never met and likely never will meet. Obtaining advice from duty counsel, while sufficient to meet minimal constitutional standards, is no substitute for obtaining advice from a lawyer one knows and trusts. In my view, the impact of the breach in this case was significant.

(c) Society's Interest in an Adjudication of the Case on its Merits

[31] This line of inquiry requires the court to determine whether the truth-seeking function of the trial process would be better served by the admission or the exclusion of the evidence. This branch clearly favours admission of the evidence. The breath sample results are reliable and conclusive evidence of the offence and indispensable to the Crown's case.

(d) Balancing

[32] Having carefully considered the factors discussed above, I have concluded that the long-term repute of the administration of justice would be best served by the exclusion of the evidence. While I recognize the need to effectively prosecute drinking and driving offences, the importance of the right to counsel of choice is such that the Court must disassociate itself from the police conduct in this case. The breath test results are therefore excluded.

B. Count 1: Impaired Driving

[33] The Crown bears the onus of establishing that Mr. Stewart's ability to operate a motor vehicle was impaired at the relevant time. Impairment is generally understood as meaning that an individual's judgment is altered and his or her physical abilities, such as coordination or reaction time, are reduced. Evidence which establishes any degree of impairment from slight to great is sufficient to establish this element of the offence: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd , [1994] 2 S.C.R. 478.

[34] In my view, the evidence establishes beyond a reasonable doubt that Mr. Stewart's ability to operate a motor vehicle was impaired. In so concluding, I note the following:

• Mr. Stewart drove through a stop sign without making any attempt to stop.
• Cst. Deston was unable to get Mr. Stewart's attention for some time despite sounding his siren and activating the lights of his cruiser.
• Although it was winter time, Mr. Stewart was driving around wearing only a bathrobe and a coat and without shoes, which in my view is an indication that his judgment was impaired.
• Mr. Stewart was unsteady on his feet at the time of his arrest.
• Cst. Deston noted that Mr. Stewart's speech was slurred, an observation confirmed by the breath room video.
• Cst. Deston detected an odour of alcohol emanating from Mr. Stewart's breath. I am cognizant that this evidence confirms the consumption of alcohol but is not probative of the amount of alcohol consumed or the degree of impairment that results from it: R. v. Tavone (2007), 54 M.V.R. (5th) 278 (Ont. S.C.J.).

[35] I am aware that Cst. Deston did not observe any unusual driving while following Mr. Stewart prior to stopping him. However, the cumulative effect of the evidence outlined above satisfies me beyond a reasonable doubt that Mr. Stewart's ability to operate a motor vehicle was impaired to at least a slight degree.

C. Count 2: Driving With Excess Blood Alcohol

[36] The results of the breath test having been excluded, there is no evidence that the concentration of alcohol in Mr. Stewart's blood exceeded the legal limit.

III. DISPOSITION

[37] Mr. Stewart is found guilty on Count 1. Count 2 is dismissed.

Released: May 8, 2015

Justice P.A. Schreck