Court File and Parties

Date: 2016-01-20

Court File No.: Brampton 14-13621

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Brandon Mazzuchin

Before: Justice P.A. Schreck

Heard on: December 8-9, 2015

Reasons for Judgment

Counsel:

• C. Waite, for the Crown
• T. Chan, for the defendant, Brandon Mazzuchin

SCHRECK J.:

[1]

Brandon Mazzuchin is charged with operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit. He alleges violations of his ss. 8 and 10(b) Charter rights and seeks, as a remedy, the exclusion of the breath test results. He also submits that his s. 9 Charter rights were violated because the police unjustifiably continued to detain him at the police station after the breath samples were taken. For this breach, he seeks as a remedy a stay of proceedings or, in the alternative, the exclusion of the breath samples.

[2]

For the reasons that follow, I am not persuaded that there have been breaches of ss. 8 or 10(b) of the Charter. While I find that Mr. Mazzuchin's s. 9 rights were violated, the violation does not warrant a stay of proceedings and there is an insufficient nexus between the breach and the evidence to engage s. 24(2) of the Charter. As a result, the evidence is admitted and Mr. Mazzuchin is found guilty. He is, however, entitled to a reduction of sentence as a remedy for the s. 9 breach.

I. EVIDENCE

[3]

At 11:45 p.m. on October 23, 2014, Cst. Michael Lacy of the Peel Regional Police was in his marked cruiser stopped at a red light. Through his rear view mirror, he saw a vehicle approaching very quickly from the rear. The vehicle braked abruptly in order to come to a stop at the red light. When the light turned green, it accelerated quickly, surpassing the posted speed limit of 60 km/hr. Cst. Lacy pulled up behind the car and activated the lights of his cruiser. When the driver did not respond, he "chirped" his siren. The driver still did not respond and continued to drive in excess of the speed limit. Cst. Lacy turned on the siren, but there was still no response. After travelling 450 to 500 metres, the vehicle turned right and finally came to a stop.

[4]

Cst. Lacy approached the driver of the vehicle, the defendant Brandon Mazzuchin, who told him that he had not stopped earlier because he had not believed it would have been safe to do so, an assessment with which Cst. Lacy did not agree. While speaking to Mr. Mazzuchin, Cst. Lacy noticed that his eyes were red-rimmed, bloodshot and watery and that his speech was slightly slurred. Mr. Mazzuchin admitted that he had consumed two beers. Cst. Lacy formed a suspicion that Mr. Mazzuchin had alcohol in his body and at 11:47 p.m., made a demand that he provide a breath sample into an approved screening device ("ASD"). Mr. Mazzuchin provided a sample, which registered a "fail".

[5]

At 11:50 p.m., Cst. Lacy arrested Mr. Mazzuchin for driving with an excessive amount of alcohol in his blood. He handcuffed him, placed him in the rear of the cruiser and advised him of his right to counsel. When asked whether he wished to contact a specific lawyer, Mr. Mazzuchin replied that he wished to speak to Rick Sloan, who was employed by "COPS Ltd." He did not know Mr. Sloan's telephone number.

[6]

After Mr. Mazzuchin was cautioned and a breath demand was read, he and Cst. Lacy left the scene. Cst. Lacy could not recall when they left, but they arrived at 12 Division at 12:24 a.m. Upon arriving, Cst. Lacy consulted a directory of lawyers but was unable to find an entry for Rick Sloan. He then conducted an internet search and discovered that COPS Ltd. was a "traffic agent" company. Cst. Lacy concluded that Mr. Sloan was not in fact a lawyer. He explained this to Mr. Mazzuchin and suggested that he contact duty counsel. Mr. Mazzuchin agreed, so Cst. Lacy contacted duty counsel at 12:34 a.m.

[7]

After Mr. Mazzuchin spoke to duty counsel, he was turned over to Cst. Simmonds, a qualified technician, at 12:48 a.m. Cst. Simmonds re-advised Mr. Mazzuchin of his right to counsel and again told him that he could call any lawyer he wished. He confirmed that Mr. Mazzuchin had spoken to duty counsel and was satisfied with the advice he had received.

[8]

Mr. Mazzuchin provided two samples of his breath into an approved instrument, resulting in readings of 130 and 120 mg of alcohol per 100 ml of blood. There is no issue with respect to the operation of the approved instrument or the timing of the tests.

[9]

During the breath tests, Cst. Simmonds asked Mr. Mazzuchin if there was anybody the police could call to pick him up. He replied that there was not. Cst. Simmonds told Mr. Mazzuchin that the police may have to hold him to "get his levels down".

[10]

At 1:45 a.m., Cst. Lacy served Mr. Mazzuchin with the Certificate of Analysis and other documentation. He had no further contact with him and played no role in the decision to release him. Ultimately, Mr. Mazzuchin was not released until 4:05 a.m.

[11]

Mr. Mazzuchin testified. At the time of trial, he was 23 years old and resided with his father. He was trained as an auto mechanic and employed at the Oakville Chrysler plant.

[12]

Earlier in the evening on October 23, 2014, he had attended an "employee appreciation night" at a bar, where he had consumed alcohol. After leaving the bar, he was stopped and eventually arrested by Cst. Lacy. After being advised of his right to counsel, he told Cst. Lacy that he wished to speak to Rick Sloan from COPS Ltd. Mr. Mazzuchin had spoken to Mr. Sloan on the telephone in the past but had never met him. He believed that Mr. Sloan was a lawyer.

[13]

After arriving at the police station, Mazzuchin was told that Mr. Sloan had not "passed the bar" and was not a lawyer. He could not recall whether it was Cst. Lacy or another officer who told him this. He was then told that he could speak to duty counsel, which he agreed to do because he was not able to speak to Mr. Sloan. Mr. Mazzuchin testified that he wanted to speak to Mr. Sloan even after discovering that he was not a lawyer because he believed that Mr. Sloan knew some lawyers. However, he did not say this to the police as it was his belief that he would not be permitted to speak to Mr. Sloan.

[14]

Mr. Mazzuchin testified that when asked whether there was anybody who could come to pick him up after the breath tests, he said no because he did not wish to wake his father. He was placed in a holding cell together with four other people who appeared to be under the influence of a significant amount of alcohol. He did not know when he would be released until he was asked to sign an undertaking at 4:05 a.m. At that point, he was told by a police officer that he could leave the police station if he called a taxi, but would not be permitted to walk home for safety reasons because the police did not want to be sued by his parents.

II. ANALYSIS

A. Section 8 of the Charter

[15]

Counsel submitted that there was some delay in taking Mr. Mazzuchin to the police station after the breath demand was made such that the samples were not taken "as soon as practicable" as required by s. 258(1)(c)(ii) of the Criminal Code. As I understand the argument, the applicant is not submitting that the statutory requirements for the admission of the certificate have not been met, but rather that the delay resulted in a s. 8 Charter violation. To be fair, counsel did not press the submission and conceded that even if there was a breach, it would not warrant a remedy. At most, it could be considered in determining the appropriate remedy if another breach were found.

[16]

Cst. Lacy made the breath demand at 11:51 p.m. and arrived at the police station at 12:24 a.m. He explained that after the demand was made, he had to await instructions as to which police division he was to go to. In my view, there was no unreasonable delay and no s. 8 breach.

B. Section 10(b) of the Charter

[17]

There is no dispute that Mr. Sloan was not in fact a lawyer and that Mr. Mazzuchin had no right to contact him to obtain legal advice. However, counsel for Mr. Mazzuchin submits that he did have the right to contact Mr. Sloan to obtain contact information for lawyers Mr. Sloan knew. He submits that the police should not have simply offered him duty counsel at that point without inquiring why he wished to speak to Mr. Sloan, and, as a result, there was a violation of s. 10(b) of the Charter.

[18]

Counsel relies on R. v. Panigas, 2014 ONCJ 797, which he submits is factually very similar to the case at bar. In that case, after being advised of his right to counsel the accused indicated that he wished to speak to an individual named Paul Martin. The arresting officer then made what were held to be inadequate efforts to obtain the contact information for Paul Martin, following which he paged duty counsel. The breath technician did have contact information for Paul Martin, who was actually a paralegal, and left a message for him. However, when Mr. Martin did not call back after a short period of time, the accused spoke to duty counsel, after which the breath tests were administered. The court found that in the circumstances of that case, the police effectively "channeled" the accused towards accepting duty counsel rather than a consultation with his counsel of choice.

[19]

It is unclear from the judgment in Panigas why the accused wished to speak to the paralegal. Insofar as the decision treats consultation with a paralegal as the equivalent of consultation with counsel for the purposes of s. 10(b), I must respectfully disagree with it. In my view, a paralegal is not "counsel" for the purposes of s. 10(b). As a result, a detainee has no right to speak to a paralegal in order to obtain legal advice: R. v. Gownden, [2008] O.J. No. 5495 at para. 45. A detainee may have the right to speak to a paralegal, or any other person, in order to obtain assistance in contacting counsel, an issue I will discuss later in these reasons. As well, a detainee who speaks to a paralegal does not thereby waive his right to counsel unless he makes a fully informed and voluntary decision in this regard: R. v. Vukasovic, [2010] O.J. No. 5862 at para. 34.

[20]

In this case, Mr. Mazzuchin was twice told by both Cst. Lacy and Cst. Simmonds that he could call any lawyer he wished. He apparently understood this, as he immediately expressed a wish to call Mr. Sloan. When it was discovered that Mr. Sloan was not a lawyer, Mr. Mazzuchin said nothing to suggest that he wanted to speak to another lawyer and there was no obligation on the police to remind him of his right to counsel of choice before telling him that he could speak to duty counsel: R. v. Willier, 2010 SCC 37 at paras. 37-39. In any event, after Mr. Mazzuchin spoke to duty counsel, Cst. Simmonds again told him that he could speak to any lawyer he wished and Mr. Mazzuchin said nothing to indicate that he had any wish to consult another lawyer. Rather, he told Cst. Simmonds that he was satisfied with the advice he had obtained from duty counsel. While I accept that Mr. Mazzuchin may have wanted to speak to Mr. Sloan to obtain his assistance in finding a lawyer, he never told this to the police. There was no obligation on the police to make further inquiries of Mr. Mazzuchin as to why he wanted to contact Mr. Sloan.

[21]

In my view, the police in this case fully complied with their implementational duties and nothing Mr. Mazzuchin said or did gave rise for the police to do anything further. Mr. Mazzuchin spoke to counsel and was satisfied with the advice he received. There was no s. 10(b) violation.

C. Section 9 of the Charter

[22]

After the breath tests were completed, Mr. Mazzuchin was served with the Certificate of Analysis and Notice of Intent at 1:45 a.m. He was not released from the station until 4:05 a.m. While Crown counsel indicated that the Staff Sergeant in charge of the station at the time may be called as a witness, this ultimately did not happen and there has been no explanation as to why Mr. Mazzuchin was held.

[23]

While it is open to the police to hold an accused following breath tests, the decision to do so must be a reasonable one based on relevant factors: R. v. Price, 2010 ONSC 1898 at para. 93. In this case, while Cst. Lacy and Cst. Simmonds testified as to their understanding as to how release decisions were made, neither played any role in the decision to hold Mr. Mazzuchin. Mr. Mazzuchin was not arrested for impaired driving, showed no sign of being unable to understand what was happening, and showed no significant indicia of impairment. This is not a case where I can draw inferences about why he was held, nor have I heard any evidence justifying the decision to continue to detain him. In these circumstances, I find that the continued detention was arbitrary and a violation of Mr. Mazzuchin's s. 9 Charter rights: R. v. Iseler at para. 25; R. v. Price, supra at para. 83.

D. Remedy

(i) Stay of Proceedings

[24]

While it was suggested that a stay of proceedings is the appropriate remedy in this case, counsel did not press this submission during argument. He was correct not to do so. A stay of proceedings is a "drastic remedy" to be invoked only in the "clearest of cases": R. v. Babos, 2014 SCC 16 at para. 30. The jurisprudence does not support a stay for a breach of this nature: R. v. Iseler, supra at paras. 29-32; R. v. Price, supra at paras. 52-98; R. v. Mangat at paras. 11-17; R. v. Hernandez, 2013 ONSC 4760 at paras. 23-31; R. v. Waisanen, [2015] O.J. No. 4835 at paras. 29-34; R. v. Coyle, 2013 ONSC 6925 at paras. 52-61; R. v. Morgan, 2014 ONSC 6235 at paras. 64-65; R. v. Sapusak, [1998] O.J. No. 3299, aff'd [1998] O.J. No. 4148 (C.A.); R. v. Prentice, 2009 ONCJ 708 at paras. 52-61; R. v. O'Neill, 2013 ONCJ 216; R. v. Sytsma, 2015 ONCJ 462 at paras. 26-36; R. v. Sukraj, 2015 ONCJ 260 at para. 90.

(ii) Exclusion of Evidence

[25]

In the alternative, the applicant submits that it is open to me to exclude the breath readings pursuant to s. 24(2) of the Charter. Section 24(2) of the Charter empowers a trial court to exclude evidence as a remedy for a Charter breach provided that the evidence in question was "obtained in a manner that infringed" the Charter right. The courts have adopted a generous approach to this threshold issue, as was made clear by Doherty J.A., writing for the Court in R. v. Plaha (at para. 45):

The jurisprudence establishes a generous approach to the threshold issue. A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be "obtained in a manner" that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the three. The connection must be more than tenuous: R. v. Goldhart at 492-97 (S.C.C.).

See also R. v. Wittwer, 2008 SCC 33 at para. 21 and R. v. Mian, 2014 SCC 54 at para. 83.

[26]

In this case, the applicant submits that although the arbitrary detention took place after the taking of the samples, they were both part of one continuous transaction such that it could be said that the evidence was "obtained in a manner" that infringed Mr. Mazzuchin's Charter rights.

[27]

The applicant's position has some attraction. It may be that the primary reason why Mr. Mazzuchin was arrested and taken to the police station was to obtain samples of his breath. An arrest for a drinking and driving offence can be justified under s. 495(2)(d)(iii) of the Criminal Code as being necessary to prevent the continuation or repetition of the offence: R. v. Cayer. In most cases, however, this objective will be accomplished by the fact that the accused's car is towed. The detention is more easily justified under s. 254(3)(b) of the Code, which allows a police officer to require a person to accompany the officer for the purpose of providing breath samples: R. v. Therens at para. 52. If this is the justification for the detention, then once the samples are taken (and the necessary paperwork is prepared and served), the justification for the detention ceases to exist. It follows from this that the arbitrary detention begins as soon as the gathering of the evidence is complete. Thus, the gathering of the evidence and the Charter breach could be said to be temporally and contextually linked.

[28]

In this case, however, the basis for the initial detention was not explored. Despite my sympathy for the applicant's position, in the absence of some further evidence establishing a clear link between the breach and the gathering of the evidence, I feel compelled to follow binding authority holding that s. 24(2) is not engaged in cases of this nature. In R. v. Iseler, supra, the Court held (at para. 31):

While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant's s. 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness. As Morden A.C.J.O. said in Sapusak, "[t]here was no temporal or causal connection between the breach and the obtaining of the evidence".

To similar effect, in R. v. Price, supra, Durno J., sitting as a summary conviction appeal court justice, stated (at para. 94):

As the Court of Appeal did in Iseler, the trial judge properly considered that the breach occurred after the commission of the offence and the gathering of evidence. It was not related to the offence or evidence gathering.

[29]

Counsel for the applicant also relied on my own judgment in R. v. Provo, [2015] O.J. No. 2950. However, in that case the accused was told prior to taking the breath tests that he would be held for a bail hearing if the results of the test exceeded the legal limit. Thus, the decision to detain him was tentatively made in advance and crystallized at the time the evidence was obtained. In those circumstances, I concluded that there was a sufficient connection such that s. 24(2) was engaged: R. v. Provo, supra at para. 53. In this case, the connection between the breach and the obtaining of the evidence is far less clear.

[30]

For these reasons, I am not persuaded that s. 24(2) of the Charter is engaged and it is therefore not open to me to exclude the evidence.

(iii) Sentence Reduction

[31]

I am, however, of the view that some remedy is appropriate, particularly given that the number of "overholding" cases in this jurisdiction seems to suggest that the police fail to have sufficient regard for the importance of ensuring that individuals are not detained longer than necessary. There is authority suggesting that a penalty less than the statutory minimum is an available remedy for a breach of this nature: R. v. Price, supra at para. 96; R. v. Morgan, supra at para. 64; R. v. Sytsma, supra at para. 34; R. v. Sukraj, supra at paras. 90-91. I am prepared to grant such a remedy in this case and will hear submissions from counsel as to the appropriate penalty.

III. DISPOSITION

[32]

For the foregoing reasons, the applications for a stay of proceedings and the exclusion of evidence are dismissed, the Certificate of Qualified Breath Technician is admitted and Mr. Mazzuchin is found guilty. I will hear submissions from counsel as to the appropriate sentence given the findings outlined above.

Justice P.A. Schreck

Released: January 20, 2016