Court File and Parties
Ontario Court of Justice
Date: May 19, 2015
Court File No.: Toronto Old City Hall 13-15001464
Between:
Her Majesty the Queen
— and —
Enis Egeli
Before: Justice Sarah Cleghorn
Heard on: March 2, 3 & 4, 2015
Reasons for Judgment released on: May 19, 2015
Counsel:
- Mike Michaud, for the Crown
- Harval Bassi, for the defendant Enis Egeli
Judgment
Cleghorn J.:
Overview
[1] The defendant, Enis Egeli is charged with two counts:
(a) operating a motor vehicle while his ability to do so was impaired by alcohol, contrary to section 253(1)(a) of the Criminal Code, and;
(b) operating a motor vehicle with a blood alcohol level in excess of the legal limit, contrary to section 253(1)(b) of the Criminal Code.
[2] A Charter application was brought by Mr. Egeli alleging two breaches, a section 8 (breath samples were the result of a warrantless search) and section 10(b) (the police did not implement/facilitate the right to counsel at the roadside). At the outset of the trial, the defence abandoned a number of other Charter claims that had been pleaded in the application filed.
[3] Given a number of concessions by the defence, there are essentially only two live issues in this case. First, whether or not the delay at the scene and at the police station were of such a nature that they led to a breach of the statutory requirement that breath samples for analysis by an approved instrument be taken "as soon as practicable". If this lawful precondition to the taking of the samples was not adhered to, then the samples were obtained unlawfully and in violation of the defendant's section 8 Charter right to be secure against unreasonable seizure. The second issue raised is whether the delay at the roadside resulted in a breach of Mr. Egeli's right to retain and consult counsel, which is guaranteed by section 10(b) of the Charter.
[4] What is not in dispute is the fact that the breath samples were not taken within the required 2 hours. Consequently, the Crown is not entitled to rely on the presumption of identity as set out in Section 258(1)(c) of the Code, and a toxicologist was called to give expert opinion evidence relating the breath readings obtained back to the time of driving and to also address whether or not Mr. Egeli's ability to operate a motor vehicle would have been impaired given those readings.
Trial Evidence
Giancarlo Desantis
[5] Giancarlo Desantis is 44 years of age and employed as a cameraman for City TV. On December 22, 2013 Mr. Desantis began his shift, leaving from his home. Just prior to 4:00am, while travelling eastbound on the Gardiner Expressway, and just prior to the Dufferin bridge, Mr. Desantis noticed a vehicle (which he described as a dark, possibly black sport utility vehicle, hereinafter referred to as "SUV") "bounce" off of the curb and then swerve between the lanes. The brake lights were employed. Mr. Desantis next observed the vehicle to continue travelling eastbound, swerving from lane to lane, eventually pulling over on a small indent on the Gardiner. As he drove by the vehicle (deciding it was not safe for him to pull over behind the vehicle on the Gardiner) he saw that the airbags were deployed and both front tires were flat. As this caused Mr. Desantis concern, he contacted the police and then circled around to see if the driver of the SUV required assistance. On his return, the SUV was no longer pulled over where Mr. Desantis had last observed it to be.
[6] Mr. Desantis then observed the SUV on a second occasion on Spadina, where it was once again pulled over, with the hazard lights engaged. Mr. Desantis proceeded to pull over and approach the driver to see if any assistance was needed. When he approached the vehicle, the window was opened slightly and the driver was on his cell phone. Mr. Desantis described the driver as having a slow speech when he responded to his questions, and his impression was that the driver was either impaired or tired. Mr. Desantis contacted the police on a second occasion and waited at the scene until the police arrived. He eventually provided his contact information to a police officer that attended before continuing on his way.
Sergeant Strangways and Constable Mauceri
[7] Constable Mauceri has been employed as a police officer with the City of Toronto for the past 8 years. He is assigned to Traffic Services. He responded to the 911 call at 4:03am. He arrived at the scene at 4:17am.
[8] There was damage noted to the SUV that included damage to the left side of the vehicle, the rims, the left front tire was blown out and both of the airbags were deployed.
[9] As Constable Mauceri approached the SUV, he observed that Sergeant Strangways was standing by the driver's side door (Sergeant Strangways having arrived first at the scene at 4:14am). The window was open a couple of inches and the driver was on his cell phone. He overheard Sergeant Strangways request the driver to complete his telephone call and then went and stood behind the SUV. It was at this point that Constable Mauceri stated to the driver to put the cell phone down and step out of the vehicle. The driver was the defendant before the court, Enis Egeli. As he exited the vehicle, Mr. Egeli said that he works at "13th" (a division of the Toronto Police Service).
[10] While Mr. Egeli was being directed to the sidewalk, it was observed that he was chewing gum. Sergeant Strangways requested that Mr. Egeli spit out his gum. It was at this time that both Constable Mauceri and Sergeant Strangways could smell an odour of alcohol emanating from Mr. Egeli. Sergeant Strangways directed Constable Mauceri to retrieve the approved screening device (ASD) from his police cruiser. At 4:25am Sergeant Strangways made a roadside demand, approximately 2 minutes after the gum was removed. The test on the ASD occurred at 4:30am and Mr. Egeli registered a "fail".
[11] Upon Mr. Egeli registering a fail, Sergeant Strangways placed Mr. Egeli under arrest and read him his rights to counsel and caution. Mr. Egeli responded that he understood and indicated that he wished to contact a lawyer. He stated he had nothing further to say.
[12] He was then placed in the back of Constable Mauceri's police cruiser at 4:34am. Sergeant Strangways instructed Constable Mauceri to contact duty counsel.
[13] In cross-examination, Constable Mauceri was questioned as to why efforts were not made to contact duty counsel while at the scene. Constable Mauceri explained that there were a variety of reasons for not facilitating a telephone call at the scene; the fact that Mr. Egeli did not make this request; it is an officer safety issue (specifically he was not prepared to provide an accused individual with his cell phone); there is no privacy as the video is recording in the police cruiser; and it would delay breath testing to allow a call at the roadside.
[14] Mr. Egeli was placed under arrest at 4:30am. Constable Mauceri eventually left the scene with Mr. Egeli at 5:15am.
[15] Between 4:30am and 5:15am, it is the evidence of Constable Mauceri that he inventoried the SUV, completed the tow card and then completed the "arrest screen". The arrest screen was a new program that was recently implemented by the Toronto Police Service. This was the first occasion that Constable Mauceri had to use this new program to input data. He testified that this information had to be "front loaded" and that a person who has been arrested cannot go to the station until the appropriate data has been entered into the system. Constable Mauceri inputted the information and then for unexplained reasons it was sent to another division. As a result, he had to do the process a second time, resulting in further delay in leaving the scene.
[16] Constable Mauceri arrived at Traffic Services (testing area) at 5:22am and contacted duty counsel at 5:37am and left a message. This took until 5:39am. He had no further contact with Mr. Egeli.
[17] It is the evidence of Sergeant Strangways that after Mr. Egeli was arrested, handcuffed and placed in the back of the police cruiser of Constable Mauceri, that he did an inventory of the SUV and filled out the tow truck card. He remained at the scene until the SUV was impounded at 5:15am. He then followed Constable Mauceri to Traffic Services, arriving there at 5:22am.
Constable Clifford
[18] Constable Clifford has been employed with the Toronto Police Service since 2005. At the time of the trial, he was a qualified breath technician and has held this qualification since August of 2011.
[19] Mr. Egeli's first breath sample was taken at 6:11am. The results were 133mg of alcohol in 100ml of blood. The results are displayed on a digital readout. It is the general practice of Constable Clifford to manually record the results as displayed. After the first sample was taken, Constable Clifford was in the process of completing a second test on another individual (this testing being completed between 6:34am and 6:38am).
[20] Upon his return to complete the second test for Mr. Egeli, Constable Clifford explained that there is a particular button that must be pressed to bring up the results from test 1. In this particular instance, the machine was showing that there were no prior tests. In response to this situation, Constable Clifford spoke with Constable Savoia who explained that a download from the machines had occurred thus resulting in the results from the first test (test 1) no longer being available. Constable Savoia informed him that since it was only a partial test the results from test 1 were not stored; those results were no longer available and could not be retrieved. This was the first time that Constable Clifford had ever experienced a download of data while testing was in progress. He found it highly unusual. He was not advised at any point that the downloading of data was going to occur. Despite this, Constable Clifford testified that this development did not cause him any concerns regarding the reliability of the results with respect test 1.
[21] As the first test had essentially vanished, Constable Clifford was required to input information for test 2 into the machine, as if it was test 1. The second test was completed at 6:45am and resulted in 122 mg of alcohol in 100ml of blood. A printout was not an option, as the machine requires that there be 2 tests completed. As a result, after test 2 (for the machine test 1), it was entered as aborted and no print out was generated.
[22] The total amount of time between test 1 and test 2 was 34 minutes. Constable Clifford was satisfied that both tests were suitable samples. He concedes that based on the timing of the first test, the second test could have occurred earlier, but for the delay caused by the download and the fact that another individual was also in the process of being tested.
Constable Savoia
[23] The Toronto Police Service has employed Constable Savoia since June of 1988. He has held the position of Traffic Services Breath and Alcohol Testing Coordinator since November of 2009.
[24] Part of his job responsibility is to download the data from the breath samples on a weekly basis, which he currently does every Monday. On December 22, 2013 Constable Savoia began his shift at 6:00am. The station duty operator told him that testing was occurring as an arrest had been made at 4:00am for impaired operation of a motor vehicle.
[25] His normal procedure prior to the commencement of the download of data is to make inquiries if there are any breath tests in progress. Constable Savoia ordinarily calls to specifically inquire as to whether any tests are taking place before downloading the data. For some unknown reason, on December 22, 2013 Constable Savoia did not follow his usual procedure. Rather, he presumed that the testing that was occurring (and brought to his attention at the commencement of his shift) was complete. Constable Savoia acknowledged that on that morning he went against his usual practice.
[26] Constable Savoia was aware of the consequences of what occurs to data if a download is commenced while testing is in process. There has been one prior occasion (which occurred in April of 2010) where he completed a download while testing was in progress. Remarkably, out of an estimated 10,000 downloads this was only the second occasion when Constable Savoia has made this error. The first time he made this mistake he learned of the consequences of interrupting a test with a data download; the loss of the first test result. It was as a result of that experience and knowledge that Constable Savoia implemented what has become his general practice of calling to ensure that no tests are in progress before initiating a data download.
Dr. Daryl Mayers
[27] Dr. Daryl Mayers is a toxicologist employed at the Centre of Forensic Sciences since 1992. On consent, he was qualified as an expert as stated in his affidavit in the following areas, "in the absorption, distribution and elimination of alcohol in the human body, the effects of alcohol and the operation of Breathalyzer and Intoxilyzer instruments and the Approved Screening Device".
[28] Dr. Mayers was provided with the two breath sample results, the first being 133mg/100ml of blood at 6:11am and the second result being 122mg/100ml of blood at 6:45am. The time of driving was noted as 4:03am. The conclusion of Dr. Mayers is that at the time of driving Mr. Egeli's blood alcohol concentration would have been between, "125 to 175 milligrams of alcohol in 100 millilitres of blood".
[29] Given this blood alcohol concentration at the time of testing, Dr. Mayers' was of the opinion that Mr. Egeli's ability to operate a motor vehicle at the time of driving would have been impaired by alcohol.
Position of the Defence
The defence submissions on the various issues raised are summarized below:
a) Issue 1: Were the breath samples taken as soon as practicable?
[30] The legislation requires that breath samples for analysis by an approved instrument be taken "as soon as practicable". The delay occasioned at both the scene and at Traffic Services was unreasonable and a direct result of the negligent actions of both Constable Mauceri and Sergeant Strangways.
[31] It is the position of the defence that the delay warrants a finding that Mr. Egeli's section 8 Charter right to be secure against unreasonable seizure was breached. As the legislative preconditions were not met, the taking of the breath samples was unlawful and therefore unreasonable. In terms of remedy, the defence seeks the exclusion of the results of the breath testing pursuant to section 24(2) of the Charter.
b) Issue 2: Did the police fail to implement Mr. Egeli's right to counsel?
[32] While still at the scene and after his arrest no attempts were made by either officer to facilitate Mr. Egeli's constitutional right to retain and instruct counsel without delay. Although it is acknowledged that Mr. Egeli was informed of his right to counsel, the defence submits that Mr. Egeli's section 10(b) rights were violated when the police made no attempts to facilitate contact with counsel after he expressly asserted his desire to speak with a lawyer. The defense contends that the delay in transporting Mr. Egeli's back to the police division required that the right be respected and that Mr. Egeli be afforded a chance to call a lawyer while he waited to be transported.
c) What is the appropriate remedy under Section 24(2) of the Charter?
[33] There was a blatant disregard of Mr. Egeli's Charter rights, resulting in multiple breaches. While the evidence may not establish that the police were acting in bad faith, the defence contends that the police were either negligent or wilfully blind with respect to their constitutional obligations. As a result of the breaches, the appropriate remedy is exclusion of the breath samples. If the breath testing results are excluded the Crown will be unable to prove its case with respect to the Over 80 charge under s. 253(1)(b) and the dismissal of that charge will follow.
d) Has the Crown proven beyond a reasonable doubt the essential elements for impairment?
[34] There is insufficient evidence to establish the charge of impaired operation of a motor vehicle pursuant to section 253(1)(a). In total, 4 officers testified and other than an odour of alcohol no other indicia of impairment were noted.
[35] Should I exclude the results of the breath samples, the Crown is not in a position to prove the offence of impaired driving beyond a reasonable doubt.
Position of the Crown
a) Issue 1: Were the breath samples taken as soon as practicable?
[36] It is the Crown's position that the requirement to take the breath samples, "as soon as practicable" is not applicable. The Crown takes this position because it is not relying on the presumption of identity set out in the Code. Therefore the Crown submits that the delay at both the scene and Traffic Services is irrelevant from a constitutional standpoint and does not occasion any section 8 Charter violation.
[37] Alternatively, should I find that the "soon as practicable" requirement applies irrespective of whether the presumption is relied upon or not, it is the position of the Crown that the actions of the police, and any concerns about delay (both at the scene and at Traffic Services) can be explained by the reasonable behavior/actions of the police taken on the day in question. As a result, the evidence regarding the results of the breath testing should be admitted.
[38] In response to the argument regarding the delay in administering the breath testing the Crown submits that the police provided reasonable explanations for the time periods that elapsed before the breath samples were taken. The Crown contends that the time taken at the roadside, in order to secure the vehicle, arrange the tow truck and enter data into the police computer system, related to necessary tasks and therefore did not occasion any unreasonable delay.
[39] Once Mr. Egeli arrived at Traffic Services, the Crown submits that there was no delay. The first sample was taken at 6:11am with the second sample taken at 6:45am. In between the first and second sample, another accused was providing a breath sample (between 6:34am 6:38am). The download of the data by Constable Savoia, whether his actions are viewed as reasonable or not, resulted in an inconsequential delay of only 3 minutes in the administration of the second breath test.
[40] On the issue of the alleged violation of Mr. Egeli's right to be secure against unreasonable seizure, guaranteed by section 8 of the Charter, the Crown submits that there was simply no breach. Alternatively, should I conclude otherwise, the Crown submits that the impact of any breach is so negligible as to favour admission of the results of the breath testing.
b) Issue 2: Did the police fail to implement Mr. Egeli's right to counsel?
[41] The Crown submits that there is no obligation on the police to facilitate contact with counsel at the roadside. Rather, the Crown argues that it was in Mr. Egeli's best interests to speak with a lawyer at the police station, where he could be ensured privacy during his consultation with counsel. Given this, there was simply no breach in these circumstances as police made the necessary arrangements to contact duty counsel upon arrival at Traffic Services.
c) What is the appropriate remedy under Section 24(2) of the Charter?
[42] Should I find that Mr. Egeli's constitutional rights were breached, an analysis under section 24(2) supports admission of the breath testing results.
[43] Under the first prong of the test in R. v. Grant, the Crown submits that any delay (both at the scene and at Traffic Services) did not result in a serious breach of Mr. Egeli's section 8 Charter right. There is no evidence to suggest that that the violation of Mr. Egeli section 8 rights was serious, the breach was not abusive or flagrant and there is no evidence to suggest any systemic problem contributing to the violation. Given all of this, the Crown contends that this factor, at most, only minimally favours exclusion. Under the second prong of the test, the Crown contends that the impact of the breach is negligible. There was no further evidence obtained at the scene, Mr. Egeli did not make any incriminating statements and police did not perform any further investigatory tasks. Mr. Egeli was required to remain in the back of the police cruiser. As a result of the minimal and arguably even non-existent impact on his Charter protected interests, the second prong of Grant also favours admission of the evidence.
[44] Under the final prong, society clearly has an interest in adjudicating drinking and driving offences on their merits. The exclusion of the breath samples would prove fatal to the Crown's case, leading to the loss of extremely reliable and probative evidence. Therefore, this prong of the analysis also favours admission.
d) Has the Crown proven beyond a reasonable doubt the essential elements for impaired driving?
[45] In order to prove beyond a reasonable doubt the elements of the offence charged under section 253(1)(a), the results of the breath samples are essential. Dr. Mayers testified that an individual may not display gross signs of impairment but can nonetheless be impaired. The evidence of Mr. Desantis is that he observed the SUV move from lane to lane and bounce off of a curb. When Mr. Egeli spoke to Mr. Desantis, he appeared to be, "either tired or impaired".
[46] Should I find that the breath samples should be admitted into evidence, then the Crown has proven the elements of impaired driving beyond a reasonable doubt.
Analysis
a) Issue 1: Were the breath samples taken as soon as practicable?
[47] Section 254(2) of the Code sets out the requirements for the seizure of breath samples for analysis by means of an approved screening device. The taking of breath samples constitutes a warrantless seizure. Therefore, in order to discharge its burden of establishing that the warrantless seizure was reasonable, the Crown must establish that the lawful preconditions for the taking of the samples were satisfied. Under s. 254(2)(b), the officer must have reasonable grounds to suspect that an individual has alcohol in his body and was either operating or had care or control of a motor vehicle within the preceding three hours.
[48] Sergeant Strangways formed a reasonable suspicion that Mr. Egeli had been consuming alcohol when he smelled an odour of alcohol emanating from him at the time of the request for Mr. Egeli to remove his gum from his mouth. The combination of the 911 call reporting the erratic driving, the condition of the SUV upon arrival at the scene, combined with the odour of alcohol from Mr. Egeli establishes that Sergeant Strangways had the required reasonable grounds to suspect that Mr. Egeli had alcohol in his body and had been operating a motor vehicle within the preceding three hours. Therefore, the approved screening device demand and the collection of Mr. Egeli's breath sample pursuant to that demand, was both lawful and Charter compliant.
[49] Mr. Egeli registered a "fail" on the approved screening device. That failure furnished Sergeant Strangways with the required reasonable and probable grounds to make an approved instrument demand under section 254(3)(a). However, that subsection also requires that the demand be made "as soon as practicable" and that the samples be collected "as soon as practicable".
[50] The issue before me is whether the delay at both the scene and Traffic Services resulted in a failure to meet the soon as practicable requirement as set out in the Code.
[51] In my view, the Crown's submission that the "as soon as practicable" requirement need not be complied with when the presumption of identity is not relied upon is incorrect.
[52] Subsection 253(3)(a) clearly establishes the lawful pre-conditions for the seizure of breath samples for analysis by an approved instrument. There are two temporal requirements: the demand must be made as soon as practicable after the officer forms the required grounds AND the samples must also be taken as soon as practicable. This legislative requirement has no connection to the presumption of identity as set out in the Code.
[53] In order to make a determination of whether the tests were taken as soon as practicable, it is necessary to assess if the police conduct resulting in any delay in collecting the breath samples was reasonable, under the specific circumstances in each case.
[54] From the time of the arrest until the time that Constable Mauceri left the scene, a total of 45 minutes elapsed. The explanation of Constable Mauceri for the delay consists of his inexperience in inputting data as required by the new system, incorrectly sending the data to the wrong recipient, completing an inventory of SUV's contents and completing the tow truck card. In my view, the forty-five minute delay at the roadside occasioned by attending to these various administrative tasks was unreasonable. I think it especially problematic that much of the time at the roadside resulted from Constable Mauceri lack of familiarity with a new system for inputting information regarding those arrested, a task that Toronto Police Service policy apparently required him to complete before transporting Mr. Egeli to a police division for breath testing. Such a policy would appear to be at odds with Parliament's clear direction that breath samples be taken "as soon as practicable".
[55] In my view, it is incumbent on a police to ensure that officers are properly trained and ready to implement any new procedural changes it chooses to put in place, keeping at the forefront what is required by the legislation when a police officer is exercising his/her duties.
[56] Not only did Constable Mauceri testify that he was slow in imputing his data in the system, he then sent the information to the incorrect recipient. He was not sufficiently trained on the new system and should not have been placed in a position where he would be required to perform duties he was not yet adequately equipped with the needed skills to complete.
[57] Sergeant Strangways remained on the scene and left only when Constable Mauceri left. Both officers gave evidence that they completed the tow truck cards as an explanation for why they remained at the scene for the length of time that they did. Based on their evidence, I am unable to infer which of the two officers actually completed the tow card.
[58] Of far greater concern is the lack of any explanation as to why one of the two officers on the scene could not have left much earlier in order to transport Mr. Egeli to Traffic Services and thereby ensure that his breath samples were collected as soon as practicable. Sergeant Strangways' explanation was that he was not prepared to leave a constable in charge of another constable. Mr. Egeli should not have been treated any differently in the process than any other citizen arrested under similar circumstances. In my view, postponing Mr. Egeli's transportation to the Traffic Services and thereby delaying the administration of the breath testing was not reasonable. It would have been a relatively easy matter for one of the officers to transport Mr. Egeli back to Traffic Services while the other remained at the scene to complete any necessary administrative tasks. The failure to do so needlessly delayed the administration of the breath tests and was unreasonable in the circumstances.
[59] The second delay in collecting the breath samples occurred at Traffic Services. The first sample was taken at 6:11am with the second sample being taken at 6:45am. A total of 34 minutes elapsed between test 1 and test 2.
[60] Constable Savoia contributed to the delay by approximately 3 minutes. His decision to download data without following his general practice can be viewed as nothing other than unreasonable in the circumstances. Constable Savoia is an experienced officer who was fully aware of the consequences of downloading data while testing was in progress. He was aware of the consequences because he had made this same error on a prior occasion. As a result of his first error, he established a downloading protocol. Constable Savoia's explanation for why he did not follow his own protocol is that he "assumed" the tests would all have been completed at the time of the download. While his decision to not follow his protocol can only be viewed as negligent, I do not find that the 3-minute delay is significant enough to compromise the legality of breath sample collection.
[61] Constable Clifford, the intoxilyzer technician, was in the midst of performing breath testing on two different individuals, on Mr. Egeli and second individual. The first test was taken at 6:11am. The earliest the second test could have been taken was 6:28am. The second individual had a test performed between 6:34am and 6:38am. This resulted in Mr. Egeli's second test being performed at 6:45am. I must take into consideration the error of Constable Savoia and the delay it occasioned for Constable Clifford. Constable Clifford had to input all of the general information for Mr. Egeli prior to the machine allowing him to administer test 2. I must further take into consideration that there were 2 individuals who were in the process of having tests administered. I find that Constable Clifford provided a clear explanation as to why the taking of breath sample 2 was delayed. I have already determined that the delay occasioned by the error of Constable Savoia was not significant.
[62] Given that there was a second individual who was having a test performed, under these circumstances, I find that the actions Constable Clifford were reasonable.
[63] In contrast, the delay at the roadside, which postponed the administration of the breath tests by forty-five minutes, was not reasonable. Due to the actions of Constable Mauceri and Sergeant Strangways, Mr. Egeli's breath samples were not taken "as soon as practicable" as required by subsection 254(3)(a). The failure to adhere to the as soon as practicable requirement means that the samples that were ultimately taken were not lawfully seized. Consequently, the seizure of those samples violated Mr. Egeli's section 8 Charter right.
b) Issue 2: Did the police fail to implement Mr. Egeli's right to counsel?
[64] Section 10(b) of the Charter imposes two obligations upon the police. The first requires that police apprise those detained or arrested of their right to retain and instruct counsel. This must be done without delay. The second requirement is that where a detained or arrested person asserts their right to counsel by asking to speak with a lawyer, the police must take steps to implement that right without delay.
[65] There is no issue that Mr. Egeli was properly apprised of his right to counsel following his arrest at the roadside. The issue before me is whether the police, once Mr. Egeli expressed his desire to speak with a lawyer, should have taken steps to facilitate his contact with counsel while still at the roadside.
[66] Upon arrival at the Traffic Services, Constable Mauceri took immediate steps to ensure that Mr. Egeli was able to contact duty counsel. There is no issue that upon arrival at Traffic Services, the police took adequate steps to facilitate contact with counsel.
[67] Mr. Egeli was at the scene for 45 minutes after he was arrested. The delay at the scene provided more than ample time to allow Mr. Egeli a real opportunity to consult with counsel. He had a cell phone on him at the time of the arrest. He was placed in the back of the police cruiser while the officers secured the scene. Constable Mauceri acknowledged that the audio and video equipment in his police cruiser could have been turned off. This would have afforded Mr. Egeli the privacy needed for him to consult counsel. Neither Constable Mauceri nor Sergeant Strangways gave any evidence that there were specific concerns regarding their safety related to Mr. Egeli. There was no suggestion that he was behaving in an erratic or aggressive manner. Although objectively grounded concerns about officer safety can justify a delay in either administering or implementing the right to counsel, such delays must be objectively justified in the circumstances. Unsubstantiated concerns about officer safety will simply not suffice.
[68] Section 10(b) requires that those who are detained or arrested have a right to retain and instruct counsel without delay. There is no reasonable explanation from either officer at the scene as to why no efforts were made to facilitate Mr. Egeli's contact with counsel during the forty-five minute delay at the roadside. As a result, I find that Mr. Egeli's section 10(b) Charter right to retain and instruct counsel without delay was violated.
c) What is the appropriate remedy under Section 24(2) of the Charter?
[69] Having found violations of Mr. Egeli's section 8 and section 10(b) Charter rights, I must now address whether the breath testing results should be excluded or admitted under section 24(2) of the Charter. The question raised is whether, in all of the circumstances, the admission or the exclusion of the evidence would bring the administration of justice into disrepute.
[70] The Supreme Court of Canada in R. v. Grant established the relevant considerations. The factors identified by the Court will provide the framework for my analysis.
i) Seriousness of the breach
[71] The section 8 Charter breach occasioned by the 45-minute delay at the scene was serious. Mr. Egeli was handcuffed and held in the back of the police cruiser throughout that period. This was an avoidable error on the part of the police. The police are required to ensure that their conduct is Charter compliant. The explanation of a new computer system and inadequately trained officers cannot justify the police defeating legislative intent. Further, no reasonable explanation was provided for why one of the two officers did not leave the scene with Mr. Egeli in order to meet the statutory preconditions for the taking of breath samples.
[72] Section 10(b) of the Charter ensures that detained individuals are aware of their rights to counsel and have the ability to consult counsel forthwith. This is of fundamental importance as a detained person is in a position where they are deprived of their liberty.
[73] The police made no efforts to implement the rights to counsel. Their conduct was not Charter compliant. The police were either negligent or wilfully blind of the Charter rights of Mr. Egeli.
[74] The breaches are serious in nature and cannot be condoned by the Court. The seriousness of both of the breaches favours exclusion of the evidence.
ii) The impact of the breach on the Charter protected interests of Mr. Egeli
[75] In addressing the impact of the breaches on Mr. Egeli, a key aspect is the discoverability of the evidence.
[76] During the delay at the scene, there was no further evidence obtained by the police (i.e. the police did not question Mr. Egeli). The impact on Mr. Egeli was minimal. The breath samples would have been taken irrespective of the breaches; therefore, the evidence would have been lawfully discovered.
[77] Case law has established that the taking of a breath sample is viewed as minimally intrusive.
[78] The section 10(b) breach resulted in a delay of Mr. Egeli's ability to consult with counsel. Mr. Egeli was clear that he wanted to exercise his rights to counsel. As a result neither officer on the scene interrogated or questioned Mr. Egeli. There was no evidence obtained as a result of the section 10(b) breach.
[79] The degree to which the violations impacted Mr. Egeli's Charter rights is on the very low end of the spectrum. The breath samples were lawfully discoverable despite the breaches.
iii) Society's interest in the adjudication of the case on its merits
[80] It is well established that the adjudication of impaired driving cases is of upmost importance to society, given the real tragedies occasioned by this offence. It is a serious offence.
[81] I must take into consideration the reliability of the evidence and the importance of the evidence to the Crown's case. The breath testing results, as interpreted by the toxicologist, is extremely reliable and probative evidence. The defence did not meaningfully challenge this evidence. This evidence is critical to the Crown's case. Without it, the Crown could not prove either charge beyond a reasonable doubt.
[82] The impact of adjudicating the matter on its merits favours admission of the evidence.
[83] In balancing the seriousness of the breach and the impact on Mr. Egeli's Charter protected interests (nominal), I find that maintaining the integrity of the repute of the administration of justice favours the admission of the evidence in this case.
d) Has the Crown proven the offences charged beyond a reasonable doubt?
[84] Mr. Egeli is charged with two offences, impaired operation of a motor vehicle (contrary to s. 253(1)(a)) and operating a motor vehicle with a blood alcohol concentration in excess of the legal limit, contrary to section 253(1)(b) of the Criminal Code. The two offences have different elements and I will address each in turn.
[85] The charge of impaired operation requires the Crown to prove that Mr. Egeli's was operating his vehicle while his ability to do so was impaired, in this case, by alcohol.
[86] In R. v. Stellato the Court of Appeal explained "If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out."
[87] Mr. Desantis is an independent witness who gave evidence of Mr. Egeli's driving, which included the SUV "bouncing off" of the guardrails and swerving from lane to lane. Further, when he did speak with the driver, Mr. Desantis evidence is that Mr. Egeli's speech was slow. As a result, Mr. Desantis concluded that Mr. Egeli might be impaired or tired. Both Constable Mauceri and Sergeant Strangways instantly noted an odour of alcohol emanating from Mr. Egeli's breath when he removed his gum from his mouth. Lastly, the expert opinion evidence of the toxicologist is that given Mr. Egeli's blood alcohol concentration, his ability to operate a motor vehicle would have been impaired by alcohol at the time of driving.
[88] Based on the combined effect of all of this evidence, I am satisfied beyond a reasonable doubt that Mr. Egeli's ability to operate a motor vehicle was impaired by alcohol.
[89] Further, the combined effect of the approved instrument breath results and the expert opinion evidence of the toxicologist, Dr. Daryl Mayers, establishes beyond a reasonable doubt that at the time of driving Mr. Egeli's blood alcohol concentration was well in excess of the legal limit. Accordingly, the Crown has also proven this charge.
Decision
[90] The Crown has established beyond a reasonable doubt that Mr. Egeli is guilty of both counts:
operating a motor vehicle while his ability to do so was impaired by alcohol, contrary to section 253(1)(a) of the Criminal Code, and;
operating a motor vehicle with a blood alcohol level in excess of the legal limit, contrary to section 253(1)(b) of the Criminal Code.
Released: May 19, 2015
Signed: Justice Sarah Cleghorn