Court File and Parties

Court File No.: Central East - Newmarket 16-04335 Date: 2017-03-23 Ontario Court of Justice

Between: Her Majesty the Queen — and — Kevin Singh

Before: Justice P.N. Bourque

Counsel:

• I. Denisov, for the Crown
• B. Starkman, for the defendant

Judgment

Released on March 23, 2017

Overview

[1] The defendant is charged with driving with excess alcohol as a result of an early morning stop on May 25, 2016. He is alleging several Charter breaches and is asking me to exclude the breath results.

[2] The principal issue to be decided in this case is the extent to which the police must go to satisfy a defendant's wish for counsel of choice, before offering duty counsel as an alternative.

Crown Evidence

Ryan Lynch

[3] ...is a York Regional Police officer with some 6 years' experience. His timeline of events is as follows:

Time	Event
01:30	He was alone in a marked police cruiser and was stopped outside a bar in York Region.
01:40	He sees two men come out of the bar and get into a car. The car is started and put into reverse and after 30 seconds the car drives away. The officer follows for several minutes.
01:44	The officer stops the car and goes up to the driver's side. The officer smells alcohol coming from the car. The defendant denies that he has been drinking. The officer asks him to step out of the car. The officer smells alcohol on the breath of the defendant. The officer decides to do a roadside test and walks the defendant to the sidewalk beside the police cruiser.
01:47	The officer makes the formal demand and investigates the issue of mouth alcohol. The officer tests the device (he had tested it as well at the beginning of his shift) and then puts on a new mouthpiece. The officer knew the serial number of the device but did not know the exact model of the device and thought it was an Alcotest 810. The defendant blew into the device and registered a fail.
01:49-01:50	The officer arrests the defendant, cuffs and puts him in the cruiser and gives him rights to counsel, primary and secondary cautions and the breath demand. The defendant states that he wishes to call his lawyer and provides the name Noah Okell. The officer and defendant have a conversation as they go to the detachment with the defendant asking and getting answers from the officer about his car and the consequences of refusing the breathalyzer test. The officer believes that as part of the discussion, the defendant indicated that if his counsel was not available, he would speak to duty counsel.
02:03	The officer arrives at the station and parades the defendant before the Duty Sergeant. There is a discussion about his counsel and the defendant said again that if his counsel could not be reached, he would speak to the duty counsel. The defendant is placed in the cells and the officer looks up the phone number of the defendant's lawyer on the LSUC web site.
02:21	The officer calls the number and gets an answering machine and left a voice mail for the lawyer to call him. The officer goes to the defendant and speaks to him in the cells. He informs him that the lawyer has not answered and asks the defendant if he has another number. The officer states that without further prompting by the officer that the defendant asked to speak to duty counsel.
02:24	The officer calls duty counsel.
02:26	The officer takes the defendant to speak to duty counsel and the call is finished at 02:29.
02:29	The officer takes the defendant to the breath room.

[4] The results of the breath tests were 110 and 120 milligrams of alcohol in 100 millilitres of blood (Exhibit 1). The defendant was released later from the station.

[5] In cross-examination, the officer indicated that he was not in the practice of attempting to look up a lawyer's home phone number as that was not how he was trained and it could result in calling one or more persons (late at night) who were not the lawyer. He did not indicate he was in the habit of looking at any other sources for a phone number and stated he would not "scour" other sources.

[6] He made the call to the office and was aware that it was unlikely that he would be there at that hour. He insisted that he did not "default to duty counsel" but spoke to the defendant first and asked him if he had another number for the lawyer, and the defendant told him that he would speak to the duty counsel.

Defence Evidence

Noah Okell

[7] ...the evidence of Noah Okell was given by way of Affidavit filed as Exhibit 2. He stated he was not a criminal lawyer but he had received a voicemail from the officer that morning. He stated that his home phone number was listed on the "Canadian White Pages Directory at 411". He indicated that there are two entries both are "N. Okell". None refer to the person as a lawyer but one is his home phone number and the other is an Alberta phone number. The affiant said that if he had been reached by the defendant he would have put him in touch with one of several criminal lawyers with whom he was personally acquainted. There is nothing in the affidavit that indicates that the affiant returned the phone call at any time.

Kevin Singh

[8] ...gave evidence upon the 10(b) Charter application. He stated that he is 31, is employed and has no criminal record. He stated that his lawyer is Noah Okell and that he was his father's lawyer, and had known him for 5 or 6 years. He stated that he had confidence in him.

[9] He stated that the officer spoke to him and told him that he had gotten a voice mail from his lawyer's phone number and asked him if he wanted to speak to duty counsel. The defendant said that he reluctantly said "yes" because he felt that he did not have a choice at that time. He got the advice and did not make any complaint. He believed that his lawyer would have given him the "best advice". The witness stated he had no more information to give to the officer about reaching his lawyer.

[10] He agreed that he had told the officer in the booking area that if he could not get a hold of Okell, then duty counsel would be an option. He agreed that at no point did the officer say that he had to speak to duty counsel. He agreed that the dealings with the officer were good and he felt free in the police cruiser to ask the officer any questions, although the defendant stated that he wished to be "obedient". He believed that speaking to duty counsel was an "option" that the officer had put to him and he reluctantly accepted. I accept that he was naturally "fearful" of the situation he was in but I do not find that it restrained his ability to speak freely with the officer about these and other issues.

[11] He did not agree that he volunteered to speak to duty counsel when the officer told him he had left a message but only after the officer gave him the option. When asked why he did not suggest to the officer to look for a home phone number he stated that "I did not think of it".

[12] He said on several occasions that if he could not speak to his lawyer that "I wanted some advice rather than no advice". At no time did he tell the officer that he was in any way reluctant to speak to duty counsel.

[13] He agreed that he got legal advice from duty counsel and did not make any complaint.

Charter Issues

I. The Description of the ASD (Section 8)

[14] The defendant argues that since the officer could not give the proper name of the ASD device, then the officer is deprived from relying on the result of the ASD test in forming his grounds for arrest. I believe that R. v. Gundy, 2008 ONCA 284 is a complete answer. The court stated:

[44] In determining whether the particular device was approved, the court must consider all the evidence, including any circumstantial evidence. The court is entitled to draw reasonable inferences from the evidence. Thus, in my view, if the officer in his or her testimony refers to the device as an "approved screening device", the trial judge is entitled to infer that the device was indeed an approved device. As such, the officer is entitled to rely upon the "fail" recorded by the device to find that there were reasonable and probable grounds to make the breath demand.

[45] The officer is not required to refer to the device by its particular brand and number such as "Alcotest 7410 GLC". Further, references to a part only of the identification such as "Alcotest" or "Alcotest GLC" do not rebut the reasonable inference from the officer's reference to the device as approved that it is indeed an approved screening device. The addition of the manufacturer's name, for example "Drager Alcotest 7410 GLC", is likewise not fatal: see R. v. Neziol (2001), 22 M.V.R. (4th) 299 (Ont. S.C.J.). Further, in my view, the context in which the officer refers to the device as approved is of no particular moment. Thus, if the officer testifies that he or she used an approved screening device, or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which the trial judge can rely: see e.g. R. v. Latulippe (2005), 26 M.V.R. (5th) 97 (Ont. S.C.J.).

[15] In our case, the officer gave a lot of circumstantial evidence that the device was an approved screening device and indeed saying that it was an approved device is direct evidence that it was indeed an approved device.

[16] The defence argues that the officer did not know which of the two possible ASD devices it was and it was not just a question of a misnaming of the device. I do not see how this really matters. He believed he had a functioning ASD device. He had tested it two times. It was York Regional Police issue. I believe R. v. Gundy still applies.

[17] I reject this submission.

II. Have the 10(b) Rights of the Defendant Been Infringed?

[18] The defence states that the officer could and should have taken further steps (i.e., look up a home number on the telephone white pages) in putting the defendant in contact with his counsel of choice, before simply offering the alternative of duty counsel. The defence quotes several cases in support but relies primarily upon the decision of R. v. Vernon, 2015 ONSC 3943.

[19] As an initial matter, I have reviewed the evidence of the officer and the defendant. I believe that both were attempting to give their evidence to the best of their ability. I am aware that the defendant is only involved in one police investigation (this one) and the officer has probably been involved in many investigations since these events. However, the officer was in a completely sober state (unlike the defendant even though he was showing little sign of impairment) and has his notes to assist in his recollection. He was not cross-examined about any discrepancies between his notes and his in-court testimony. I find that where there is a discrepancy between the evidence of the defendant and the officer, I accept the evidence of the officer as being more reliable.

[20] In coming to a decision in this matter, I find the following:

(i) The officer provided the defendant all of his informational rights and the defendant fully understood those rights;

(ii) The defendant expressed from the outset that he wished to consult with his lawyer Noah Okell;

(iii) There were at least three discussions between the officer and the defendant about that issue, in the police cruiser upon arrest, in the booking area, and when the defendant was in the cells, after the officer had left a message on Noah Okell's answering device.

[21] On each discussion, the matter of duty counsel was discussed:

(i) I do not find that the officer tried to "steer" the defendant to the duty counsel option;

(ii) I do find that the defendant did say to the officer that he would speak to duty counsel if his lawyer could not be reached, on at least one and perhaps two occasions;

(iii) I do find that when the officer returned to speak to the defendant after his unsuccessful attempt to contact the lawyer, he informed the defendant of that fact and did make a further inquiry as to whether the defendant had a number for his lawyer. I find that the defendant stated that he did not and further, that he would speak to duty counsel.

[22] The question is whether the defendant's right to counsel of choice was breached because of the efforts (or lack of effort) by the officer at first instance to locate a (home) number to contact the lawyer. I also ask whether it was incumbent on the officer to indicate to the defendant that he could wait a period of time to see if the call was returned and perhaps ask if there was any other means (calling a family member perhaps) to get a better number to contact the lawyer.

[23] Many cases speak of the need to advise the defendant that he could wait a period of time before assuming that the call will not be returned (at this late hour), (R v. Vernon) or allowing the defendant to make a call to a friend or relative (R. v. Kumarasamy, [2002] O.J. No. 303) but what is important is that in assessing whether the steps taken were sufficient compliance with the 10(b) rights is to realize that "each case must be decided on its own facts (see R. v. Kumarasamy).

[24] As I review the evidence and submissions of counsel, it is easy to review what other steps may have been taken to achieve contact between the defendant and his counsel. Certainly, doing a white page search and then calling one or more of the numbers may have achieved the result. While in this case, waiting would not have helped, that was only known in hindsight. As was held in R. v. Willier, 2010 SCC 37, even when a prisoner asks to wait, the police are allowed to inform the person that it is unlikely that the call would be returned.

[25] I believe that the particular facts of this case are such that by not doing anything further, the officer was not in breach of the 10(b) rights and that is that the defendant expressed his willingness, at the outset to speak to duty counsel, "if his lawyer could not be reached". While that in and of itself may not relieve the officer from making efforts to find a phone number and call the number and wait a reasonable time for a reply, the further conversation in the cells does confirm the defendant's choice. I note in Kumarasamy, it was noted that "there was no evidence the appellant agreed to speak to duty counsel, or asked to do so".

III. If I Had Found That the Defendant's 10(b) Rights Had Been Infringed, Would I Have Excluded the Evidence?

[26] If I am incorrect in my preceding analysis, if I had found a breach, should the evidence be excluded.

[27] I would apply the three part test in R. v. Grant as follows:

A. The Seriousness of the State Infringing Conduct

[28] The right to counsel of choice is an important one, and for a host of reasons it is important that the right not be treated in a cavalier fashion by the police. It is important that they know that their duties must be carried out with a view to facilitating the right to counsel of choice, not just making "pro forma" steps. While the officer seemed a little too doctrinaire in his rejection of looking on the white pages, I can understand his reluctance to do so. I don't think however that his mind was closed to taking other steps, and thus he asked the defendant whether he had another number. I have found that as the conversation continued he was not incorrect in accepting the defendant's wish to then speak to duty counsel as his counsel was not available on the first call. Perhaps he should have reviewed further options but I do not find his conduct as a serious infringement of the defendant's right to counsel of choice.

B. The Impact of the Breach Upon the Charter Protected Interests of the Defendant

[29] The right to counsel of choice is an important one and for a variety of reasons, I accept that any breach of this right would have a real and significant effect upon the interests of the defendant. It is ameliorated somewhat by the fact that he did, in fact, receive legal advice, I accept that on balance, this ground would not favour the admission of the breath results into evidence.

C. Society's Interest on the Adjudication of the Case on Its Merits

[30] Defence counsel has pointed out that the readings are not far over the legal limit and there were little or no signs of impairment. He also points out there was not injury or property damage. That may be so but the harm to be avoided is allowing drivers onto the road where the amount of alcohol in their system affects their ability to act and react to the uncertainties of operating a fast moving automobile. For the vast majority of drinking and driving cases, it is the potential for harm which the statistics tell us are very real and can be devastating.

[31] I find that this ground would favour the admission of the breath test evidence in this trial.

[32] Balancing all of these factors, I believe that admitting the breath results in evidence would not bring the administration of justice into disrepute.

Conclusion

[33] I have found that there was no breach of the defendant's Charter rights. The Certificate of Analysis will be admitted into evidence, and thus, I find that on May 25, 2016, the defendant was operating a motor vehicle with a blood alcohol level of 110 milligrams of alcohol in 100 millilitres of blood and is guilty of an offence under section 253(1)(b) of the Criminal Code.

Signed: "Justice P.N. Bourque"

Released: March 23, 2017