Court File and Parties
Court File No.: Toronto Date: 2016-02-18 Ontario Court of Justice
Between: Her Majesty the Queen — and — Douglas Ramirez-Mata
Before: Justice Fergus O'Donnell
Counsel:
- Mr. Imran Shaikh for the Crown
- Mr. Paul Mergler for the defendant, Douglas Ramirez-Mata
Reasons for Judgment on Charter Application
Overview
[1] Douglas Ramirez-Mata was charged with operating a motor vehicle with excess blood alcohol. At trial there were ultimately no submissions on whether or not the Crown had proved the elements of the offence beyond a reasonable doubt. The focus of the trial was on whether or not the results of Mr. Ramirez-Mata's breath testing by the police should be excluded as a result of an alleged breach of Mr. Ramirez-Mata's constitutional rights.
[2] I dismissed Mr. Ramirez-Mata's application to have the evidence excluded. These are my reasons.
The Traffic Stop
[3] On 9 November, 2013 Toronto Police Constables Megan Grier and David Green were working in uniform, on general patrol, in a marked car. At 3:07 a.m. they saw Mr. Ramirez-Mata's motor vehicle reversing southbound towards Eglinton Avenue West on a one-way northbound street. Mr. Ramirez-Mata's Jeep had no lights functioning at either the front or the rear. After reversing onto Eglinton Avenue West, Mr. Ramirez-Mata's Jeep accelerated very quickly and headed westward.
[4] As he approached Dufferin Street, Mr. Ramirez-Mata's Jeep signaled for a left turn, but took a short-cut through a gas-station on the corner, proceeded through the lot and then turned south out of the gas-station onto Dufferin. As with the intersection of Eglinton and Dufferin, turning left to go south out of the gas station is a prohibited left turn. The turn prohibition is clearly marked.
[5] At 3:08 a.m. Constables Grier and Green pulled Mr. Ramirez-Mata's Jeep over, asked for his documents and told him the reason for the stop. Mr. Ramirez-Mata was the sole occupant of the Jeep. He handed over his registration and insurance papers and tried unsuccessfully to get his wallet out of his rear pants pocket, whereupon he struggled for about twenty seconds to unbuckle his seatbelt: "he really was fumbling with it, he wasn't able to press the button and pull the seatbelt out at the same time." Once he got the belt off, he was still unable to reach his wallet without opening the car door. Mr. Ramirez-Mata was a big man, said Constable Grier so that could have contributed to his difficulty but he did seem to be "struggling with fine motor skills". When he did retrieve his wallet, he had trouble removing his licence from it. It also took him longer than one would expect to demonstrate that the car's lights actually were functional.
[6] Constable Grier noticed that Mr. Ramirez-Mata's eyes were glossy and red and concluded at that point that Mr. Ramirez-Mata might have been drinking. Mr. Ramirez-Mata told her that he had had several drinks earlier in the evening, but Constable Grier, who had a bad cold could not smell alcohol from him. In cross-examination, she admitted that even without smelling his breath, by this point she had a reasonable suspicion that Mr. Ramirez-Mata had alcohol in his system. She had that suspicion "shortly after" her interaction with him. She went back to her car to conduct checks on his licence and Constable Grier asked Constable Green to confirm Mr. Ramirez-Mata's address, which showed as being in Niagara Falls. Mr. Ramirez-Mata had some difficulty explaining his address to Constable Green. When Constable Green returned to the scout car just before 3:15 a.m., he told Constable Grier that he could smell a strong odour of alcohol on Mr. Ramirez-Mata's breath.
[7] Constable Grier then broadcast a request for an officer to attend with an approved screening device ("ASD"), on the basis that she believed that Mr. Ramirez-Mata was driving with a blood alcohol concentration "over 100 milligrams". She then said that the device would show if he was driving with over 80 milligrams and that she thought Mr. Ramirez-Mata would blow a warn, not a fail. With that expectation, she did not arrest Mr. Ramirez-Mata immediately for driving while impaired.
[8] Constable Grier did not ask specifically when the approved screening device would arrive but had asked if the traffic officer was tied up on another call, in which case she would have looked elsewhere for an ASD. Constable Green testified that the officer with the ASD was within the police division, which is normally no more than ten minutes' travelling time from end to end. At no time between the stop and the arrival of the ASD did the officers mention access to counsel to Mr. Ramirez-Mata and they did not ask him if he had a mobile phone with him. He did.
[9] The approved screening device arrived at 3:22 a.m. Upon its arrival Constable Grier went to Mr. Ramirez-Mata and read him the approved screening device demand on the sidewalk at 3:24 a.m. Despite his first language being Spanish, Mr. Ramirez-Mata said that he understood. Constable Dominelli, who had brought the device, conducted the test and Mr. Ramirez-Mata registered a "fail" at 3:25 a.m., whereupon he was arrested "for operating a motor vehicle over 80 milligrams". Mr. Ramirez-Mata said that he spoke Spanish, Italian and Portuguese but that if Constable Grier read his rights in English slowly, he would understand. He confirmed that he had understood, that he had a lawyer of his own, that his lawyer's card was in his wallet and that he would like to call that lawyer. Constable Grier testified that the only phone number on the business card was the office number and that she thought it was not the actual lawyer's business card but rather another card with the lawyer's name and office number written on it.
[10] Mr. Ramirez-Mata did not testify as to the nature of the business card in his wallet. There was no other evidence on whether it was the lawyer's actual business card or, if it was in fact the lawyer's card, whether or not the lawyer's home number was also on it. It was an agreed fact that Mr. Ramirez-Mata was in possession of a fully operational smart-phone at the time of his detention and arrest. There was no evidence as to what relevant phone numbers, if any, were stored on that device. In particular, there was no evidence as to there being a non-office telephone number for Mr. Mergler stored on that mobile phone. (Mr. Mergler advised me that, for many years, much to his wife's occasional late-night chagrin, his business cards have contained both his office and home numbers.)
The Efforts To Provide Mr. Ramirez-Mata With Access To Counsel
[11] Mr. Ramirez-Mata was taken to 32 Division and was paraded, albeit after some delay arising from brand-new booking software. The booking process took a little longer than normal because of the use of an interpreter by telephone.
[12] Once Mr. Ramirez-Mata was paraded, Constable Green put out calls to both Mr. Mergler and to duty counsel given how late it was and given the concern that Mr. Ramirez-Mata's own lawyer might not get the call (the parade had taken place at 4:19 a.m.). The officers made several attempts to contact Mr. Ramirez-Mata's own lawyer and asked Mr. Ramirez-Mata if any of his family or friends might have an alternate number for the lawyer, but Mr. Ramirez-Mata said he could think of nobody who would. There being no word back from defence counsel, Mr. Ramirez-Mata spoke with Spanish-speaking duty counsel at around 5:11 a.m. and at 5:21 a.m. Mr. Ramirez-Mata was taken to the breath room, where he provided two samples of his breath into the approved instrument. (By this time, Mr. Ramirez-Mata was being assisted by a Spanish-speaking officer, a Portuguese speaking officer having advised in the interim that Mr. Ramirez-Mata's English was far superior to his Portuguese.)
[13] Mr. Ramirez-Mata gave a breath sample of 233 mg of alcohol/100 ml of blood by 5:31 a.m. and was taken back to the holding room. He asked if his lawyer had called back, but he had not. The officers offered for him to speak again with duty counsel if he wished, but Mr. Ramirez-Mata declined. At 5:51 Mr. Ramirez-Mata provided another breath sample with a reading of 238 mg of alcohol/100 ml of blood.
[14] I have to decide this case on the evidence before me. The evidence of the police officers is that Mr. Ramirez-Mata had only Mr. Mergler's office number. There is no contrary evidence at all and I have no reason, either from the way they gave their evidence or from any material conflict in their evidence, to doubt the testimony on this point by Constables Grier and Green. (I accept as the approximate equivalent of holy writ Mr. Mergler's assertion that his business cards have long had his home number on it, but cannot go further with that assertion and be satisfied that the business card Mr. Ramirez-Mata had that day was Mr. Mergler's actual card as opposed to another card on which the office number was written). There was no evidence that Mr. Ramirez-Mata had Mr. Mergler's home or mobile number stored in his smart phone.
The Sixteen-Minute Countdown
[15] It was argued before me that the time frame involved here was sufficient for Mr. Ramirez-Mata to have contacted and consulted with counsel in the time before the administration of the ASD. As in most of these cases, the actual time-line, as well as the time of day and other circumstances, can be highly relevant. The time frame referred to in Mr. Ramirez-Mata's factum is a period of sixteen minutes. I accept that there is a sixteen minute period (more or less, since nobody is timing these things by the second and no two time-keeping devices give identical times) between when Mr. Ramirez-Mata was pulled over and when the demand was made to him, but those sixteen minutes were not all available to him for the purpose of locating and consulting with counsel. The record is not surgically precise on this, but it is realistic to expect that a few minutes would be taken for the usual niceties involved in a routine traffic stop, including in this case the twenty seconds for Mr. Ramirez-Mata to undo his seat belt, the unusually long time for him to demonstrate that he did actually have functioning lights, a "hands-up" gesture on his part that puzzled Constable Green when Mr. Ramirez-Mata was talking to Constable Grier and the various questions that form part of any such interaction. At some point, probably a "few" minutes after 3:08 a.m. but certainly before 3:15 a.m. when Constable Green confirmed the smell of alcohol on Mr. Ramirez-Mata's breath, Constable Grier personally became aware that she had formulated the grounds to require an ASD sample (i.e. alcohol in his body while operating a motor vehicle) and at that point she should have told him what was going to happen. Even the process of telling Mr. Ramirez-Mata that he was going to be required to provide an ASD sample and giving him his rights to counsel, including the duty counsel and 1-800 components, takes a bit of time out of the available "sixteen minutes". At the opposite end of that encounter, in order to be read the demand at 3:24 a.m. Mr. Ramirez-Mata would have to be taken out of his car and to an appropriate place for the safe administration of the test. This, again, would be a short period, but the various bits and pieces add up. Suffice to say that the amount of time Mr. Ramirez-Mata had to locate, contact and consult with counsel was something less than sixteen minutes.
The Mythical 24/7 Defence Counsel
[16] The time of day is also relevant because it sheds light on the realistic likelihood of being able to reach counsel. Every case will be fact-specific and has to be decided on the specific evidence put before the court. Trying to reach counsel at 1:15 p.m. during the court's lunch recess on a weekday might have decent odds of success if a detainee had the lawyer's mobile phone number or had a fairly speedy means of obtaining it. Calling the same lawyer at 10:15 a.m. on the same day might be more problematic if the lawyer were a busy litigator and on her feet in court at that time. The amount of time reasonably necessary to get a call-back and to consult with duty counsel can vary depending on specific call volumes and on how the duty counsel system triages its incoming calls. The duty counsel model means there will not be instantaneous access to counsel since it is based on a call-back system, although, here again, the facts and evidence on each case will be central to the determination of whether or not there was a violation of the detainee's right to counsel. The need for a Spanish-speaking duty counsel further adds to the time requirements. In this case, for example, Constable Green made a call to duty counsel, waited an unspecified period for a call back, spoke to that duty counsel and got the number for a Spanish-speaker and spoke to that lawyer four minutes later.
[17] I accept in this case that with the information Constable Grier had, she formed a reasonable suspicion that Mr. Ramirez-Mata had alcohol in his body by the time she returned to her cruiser and consulted with Constable Green. That reasonable suspicion triggered her entitlement to require Mr. Ramirez-Mata to provide an ASD sample and was not dependent on Constable Green (who did not have a cold) going to the car and confirming the smell of alcohol on Mr. Ramirez-Mata's breath. What would likely have happened in this case, then, if Constable Grier had told Mr. Ramirez-Mata about his right to contact counsel, including duty counsel, immediately after forming that reasonable suspicion? We know that Mr. Ramirez-Mata had a mobile phone on him. I am prepared to give him the benefit of the doubt and assume that he had internet access on the phone. He also had Mr. Mergler's office number in some form in his wallet.
[18] Based on what happened at the station, it is reasonable to conclude that Mr. Ramirez-Mata would first have called Mr. Mergler's office. Mr. Ramirez-Mata was so keen to speak with Mr. Mergler personally that he even asked if Mr. Mergler had called back during the gap between the first and second breath samples at the station, i.e. after he had already given one sample. There is no reason to think that the result of the phone call and message left at Mr. Mergler's office by the police, around 4 a.m., would have had any different result if it had been done an hour earlier while Mr. Ramirez-Mata was by the side of the road. Mr. Ramirez-Mata had told the police he did not think his friends or family would have other numbers for Mr. Mergler. He might have then resorted to the internet to try to find Mr. Mergler's home number, although the evidence of Mr. Ramirez-Mata's difficulty getting his wallet out of his back pocket suggests that his fine motor skills may not have served him well in that endeavour, even assuming the required information was to be found on the world-wide web. If he failed in that effort, he would then have had to call the duty counsel number and waited for a call back and then would have had to call the Spanish-speaking duty counsel. Throughout all of this, the clock would have been ticking inexorably towards Constable Dominelli's arrival with the ASD.
[19] There is nothing in the evidence before me, and precious little in the general pattern of these cases, to demonstrate that it was at all plausible that Mr. Ramirez-Mata could have gotten a hold of counsel, either private counsel or duty counsel, and had consultation with him or her as to his options during the time between when Constable Grier should have told him that he would be subject to an ASD test once the device arrived and when it did in fact arrive.
Was There A Charter Breach?
[20] On the evidence before me, it seems clear that Constable Grier had a reasonable suspicion that Mr. Ramirez-Mata had alcohol in his body several minutes before Constable Dominelli arrived and the ASD demand should have been made at that time. If there was some doubt in her mind about the reasonableness of her belief, then a brief delay for Constable Green to have gone and provided his input would not be offensive. In certain situations such a further inquiry might result in a motorist being allowed to depart without providing a sample as a legitimate exercise of the officers' discretion. At the very latest, the ASD demand should have been made by that point. I believe that these conclusions are inescapable in light of the robust body of authority leading up to the decision of the Court of Appeal for Ontario in R. v. Quansah, 2012 ONCA 123.
[21] I suppose that one might quibble about what the "perfect" officer should do in circumstances where she has grounds to make the demand for an ASD sample but does not have an ASD with her. There are various factual scenarios that could present in such a situation, varying with the time of day, whether the location is rural or urban, how busy other officers are and so on, so it would be imprudent to pronounce any "one size fits all" position, but it seems to me that it would make sense for the officer in that situation to make the demand promptly upon forming the suspicion, notify the motorist that the device has to be called for and notify the motorist of his s. 10(b) rights. Thus armed, with both the reason for his ongoing detention and with the tools necessary for him to make an informed decision about trying to exercise his right to counsel, the motorist is left in the driver's seat in relation to whether or not to take advantage of his constitutional rights. It is difficult to take advantage of a right one does not know of or to call a 1-800 number one does not know about. Realistically, in the vast majority of such cases, the odds of the motorist succeeding in contacting and consulting with counsel before the ASD arrives are likely poor to nil, but giving the motorist the information he needs would, if nothing else, avoid a huge amount of argument about the issue after the fact and would, no small matter that, conform to constitutional obligation.
[22] Considering the factors set out by the Court of Appeal in Quansah, supra, (summarized at paragraphs 45-49 of that decision), I am of the view that Constable Green failed in her Charter s. 10(a) duty to inform Mr. Ramirez-Mata of the reason for his continued detention (i.e. that it was no longer about an unlawful turn, but now about a drink-driving investigation and waiting for the ASD to arrive). She also failed in her s. 10(b) informational duty to tell Mr. Ramirez-Mata of his right to seek to consult with counsel, duty counsel, 1-800 and so on. On the facts of this case, however, there was no breach of the s. 10(b) implementation of Mr. Ramirez-Mata's right to counsel because on the evidence before me there is simply no realistic likelihood that Mr. Ramirez-Mata could have consulted with counsel in anything close to the time between when Mr. Ramirez-Mata should have been read his s. 10(a) and s. 10(b) rights and the time of Constable Dominelli's arrival with the ASD.
Has Mr. Ramirez-Mata Satisfied The Burden For Exclusion of The Breath Results?
[23] The question then becomes whether or not I should exclude the evidence of the Intoxilyzer results that flowed from Mr. Ramirez-Mata's arrest for driving with excess blood alcohol, which in turn stemmed from the ASD result. Under s. 24(2) of the Charter, the onus is on Mr. Ramirez-Mata to demonstrate that the admission of those Intoxilyzer results would bring the administration of justice into disrepute. In order to decide that issue, I have to consider the seriousness of the state conduct that infringed the Charter, the impact on Mr. Ramirez-Mata's Charter-protected interests and society's interest in an adjudication on the merits, as directed by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32. This is an objective, or "reasonable person" test, presuming always that the reasonable person is fully apprised of all the relevant circumstances.
[24] With respect to the seriousness of the state conduct, I would place that somewhere in the lower-middle of the scale. As one who has myself come to the sometimes perplexing world of drink-driving jurisprudence somewhat late in life, I admit to a certain empathy for Constable Grier who expressed the view that such cases can be more complicated than homicides. Yet with ten years of service, Constable Grier is not a novice officer, even if she has, surprisingly, only been involved in three or four drink-driving cases in her career. I am not particularly inclined to fault her for the delay occasioned by her getting a "second opinion" from Constable Green, since that reflects a cautious approach in exercising her police authority and considering that it occasioned a delay of perhaps a couple of minutes, but once she had decided to call for the ASD, by that time at the latest she should have notified Mr. Ramirez-Mata of the reason for his continued detention and of his rights to try to access counsel. The informational component of constitutional rights matters because a detainee is entitled to know that he is not being held arbitrarily and because a detainee who has been told what options are open to him (call his lawyer, call duty counsel, do nothing) gets to make his own choices rather than sitting and waiting in ignorance, his options effectively circumscribed by the officer's failure to inform him of them. Giving that information up front can matter more in some cases than in others; for example if it had taken substantially longer for Constable Dominelli to arrive, Mr. Ramirez-Mata might have chosen to speak with duty counsel and might actually have gotten through in time.
[25] I should note that, to the extent that multiple breaches of Charter rights can take on an exponential character in terms of the seriousness of the state conduct, I think it would be artificial to treat Constable Grier's failings in two very closely related informational obligations, i.e. the informational component of ss. 10(a) and 10(b) as aggravating the breach materially. Ultimately this was low-level carelessness and inexperience in drink-driving cases rather than anything at all odious. That neither excuses nor justifies it, but does place it in its proper context. All things considered, I would say that the seriousness of the state conduct is sufficiently minor that at most it is a neutral consideration in relation to the exclusion of the evidence.
[26] I cannot rank the actual impact on Mr. Ramirez-Mata's Charter-protected rights anywhere above slight or low. I have no evidence from him about the impact on him from not being given the informational component of s. 10(a) or s. 10(b) of the Charter. The time-line is such that there is simply no realistic possibility that he could have reached out to and consulted with counsel during the time from the earliest moment when Constable Grier could lawfully have read him the ASD demand and 3:24 a.m. when the demand was actually read. There was a much longer time available to contact counsel at the police division before Mr. Ramirez-Mata eventually spoke with duty counsel and he never did get to speak to his counsel of choice. Even then the time to get duty counsel was substantially longer than the time spent at the roadside. All things considered, on these facts the taking of an Intoxilyzer sample from Mr. Ramirez-Mata at the police division was inevitable. The duration of his unlawful detention between the formation of reasonable suspicion and the arrival of the ASD was very brief. In one sense, no unlawful detention should be characterized as trivial, but in another sense under s. 24(2) every Charter breach must be ascribed a place on the continuum and the impact of this breach on Mr. Ramirez-Mata was slight. This factor favours admission.
[27] I believe that society's interest in an adjudication on the merits is a significant consideration. In Grant, supra, at paragraph 81, the Supreme Court of Canada notes that it is not only the admission of evidence that can bring the administration of justice into disrepute in certain circumstances. Rather, in many cases, to the extent that excluding reliable evidence that is relevant to a controversy before the court could undermine the court's function to determine the truth (not a court's sole function, but surely a significant one), that exclusion of evidence could cause a reasonable and informed public observer to see the trial as unfair and thus disreputable.
[28] In this case, the evidence sought to be excluded is breath results, which are scientific evidence of demonstrated reliability. It is evidence without which the Crown's case would necessarily founder. It is evidence in relation to a category of offences that has consistently been recognized as causing the most death and societal disruption of any criminal offence in Canada. The seriousness of the offence cannot be determinative, of course, but ignoring the seriousness of the offence would also be error.
[29] When I consider the impact of exclusion on society's interest in a determination on the merits, this factor strongly favours admission.
[30] When I proceed to balance the considerations, I am faced with evidence of tremendous value to the Crown's case, obtained in an investigation during which Mr. Ramirez-Mata was briefly kept in the dark about the reason for his detention for a period of perhaps eight or ten minutes as a result of a lack of attention to detail by an officer who struck me as otherwise being fair and balanced and in no way wilfully disrespectful of Mr. Ramirez-Mata's Charter rights. All things considered, Mr. Ramirez-Mata falls far short of satisfying the standard for exclusion of the breath results.
Conclusion
[31] I note in closing that the field of drink-driving cases appears to be one to which Supreme Court of Canada guidance on the admissibility of breath sample evidence goes to wither and die with peculiar frequency under the unforgiving scrutiny and seeming wilful disregard of many, many trial courts. This is an issue I addressed in R. v. Hamzehi, 2015 ONCJ 95, which was released during the course of Mr. Ramirez-Mata's trial. That observation on my part, i.e. that the application of the s. 24(2) test set out by the Supreme Court of Canada in Grant, supra, frequently bears little resemblance to the words of the Supreme Court, has since been considered by K. Campbell, J. in R. v. Rehill, 2015 ONSC 6025. Justice Campbell reaches a conclusion similar to mine, albeit in different language:
[46] At the same time, there are empirical statistical studies concerning the admissibility of evidence under s. 24(2) of the Charter following the Supreme Court of Canada decision in Grant which suggest that breath sample evidence is still being excluded at a "striking" and "remarkably" high rate – perhaps at "too high" a rate. See Mike Madden, "Empirical Data on Section 24(2) under R. v. Grant" (2010), 78 C.R. (6th) 278, at p. 281; Mike Madden, "Marshaling the Data: An Empirical Analysis of Canada's Section 24(2) Case Law in the Wake of R. v. Grant" (2011), 15 Can. Crim. L. Rev. 229, at pp. 242-243; Ariane Asselin, "Trends for Exclusion of Evidence in 2012" (2013), 1 C.R. (7th) 74, at p. 88; R. v. Hamzehi, 2015 ONCJ 95.
[47] While there may well be a variety of explanations for such trending figures over any given period of time, the existence of such puzzling statistics suggests that it may be important to recall that, in R. v. Grant:
The Supreme Court lamented the "anomalous result" that under the previous Stillman regime, "breath sample evidence tendered on impaired driving charges" had "often suffered the fate of automatic exclusion even where the breach in question was minor and would not realistically bring the administration of justice into disrepute" [at para. 106];
The Supreme Court expressly rejected the prior Stillman regime in relation to the admissibility of "bodily evidence," concluding that the former approach, which asked simply "whether the evidence was conscripted," should "be replaced by a flexible test based on all the circumstances, as the wording of s. 24(2) requires" [at para. 107];
The Supreme Court stated that the third prong of the s. 24(2) inquiry "will usually favour admission in cases involving bodily samples" as such evidence "is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission" [at para. 110]; and
The Supreme Court observed that where the Charter violation is "less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted," which "will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive" [at para. 111].
[48] These important directions from the Supreme Court of Canada, like all aspects of the governing Grant/Harrison analysis, must be carefully considered by any court determining the admissibility of the results of breath sample evidence under s. 24(2) of the Charter. The trial judge in the present case erred in failing to consider these directions, and erred in failing to undertake the required analysis. The days when such breath sample evidence was routinely and near-automatically excluded under s. 24(2) of the Charter are over.
It is for these reasons that I dismissed Mr. Ramirez-Mata's application to have the breath results excluded.
Released: 18 February, 2016 Fergus O'Donnell, J.