Court Information

Ontario Court of Justice

Date: 2017-05-18

Court File No.: Toronto

Parties

Between:

Her Majesty the Queen

— and —

Emma Schatochin

Judicial Officer and Counsel

Before: Justice J.M. Ritchie

Heard on: November 22, 2016, March 21, 2017 and May 18, 2017

Reasons for Judgment released on: May 18, 2017

Counsel:

• C. Power, counsel for the Crown
• P.S. Dotsikas, counsel for the defendant Emma Schatochin

Decision

RITCHIE J.:

Charge and Overview

[1] Emma Schatochin is accused that, on October 31, 2015 in Toronto, she operated a motor vehicle while her blood-alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[2] The trial continued over two days, beginning November 22, 2016 and ending on March 21, 2017. I heard from three Crown witnesses and two defence witnesses, including Ms. Schatochin (who testified only on the Charter motion). I reserved judgment, and defence counsel requested May 18, 2017 as the return date.

[3] Briefly, the fact situation was as follows. Shawn McConnell stopped his vehicle at a red traffic light in Toronto on October 31, 2015, and Ms. Schatochin's vehicle collided with the rear-end of his vehicle. The collision took place after 7:00 p.m. on John Street in the Entertainment District. Mr. McConnell is a Toronto police officer, but he was off-duty at the time and in his private vehicle. Officer McConnell detected the odour of an alcoholic beverage on Ms. Schatochin's breath. At 7:14 p.m., he reported the accident to Toronto Police dispatch and advised that an approved screening device would be required.

[4] It was a Saturday night and also Halloween night, and the Toronto Police were very busy. At 7:36 p.m., Sergeant Blain Young arrived on the scene. He conducted a brief investigation and made a formal demand pursuant to subsection 254(2) of the Criminal Code. Officer Timothy Grace arrived with an approved screening device at about 7:40 p.m.

[5] Officer McConnell's official role ended when Sergeant Young arrived. The Sergeant investigated Ms. Schatochin's possible impairment by alcohol, and Officer Grace investigated the motor vehicle collision.

[6] Sergeant Young breath tested Ms. Schatochin on the approved screening device, and the device registered a "fail" reading at 7:43 p.m. The Sergeant arrested her for "over 80 milligrams operation". At the police station, Ms. Schatochin provided breath samples into an Intoxilyzer 8000C, and her readings were 110 milligrams and 116 milligrams of alcohol in 100 millilitres of blood. Since the first test was believed to have been taken just beyond the two-hour limit, the Crown tendered a toxicologist's report that "read back" the Intoxilyzer results. It was the expert opinion of the toxicologist that between approximately 6:50 p.m. and 7:20 p.m. the projected blood alcohol concentration would be "110 to 155 milligrams of alcohol in 100 millilitres of blood".

Main Issues

[7] There are two main issues in this case. The first issue is whether Ms. Schatochin's rights under section 10(b) of the Canadian Charter of Rights and Freedoms were infringed and, as a result, whether all evidence related to the breath testing of Ms. Schatochin should be excluded under subsection 24(2) of the Charter.

[8] The second issue is with respect to whether the breath testing on an approved screening device was conducted "forthwith" as required by subsection 254(2) of the Criminal Code.

Acknowledgment of Counsel

[9] I want to thank Mr. Dotsikas (for the defence) and Mr. Power (for the Crown) for their co-operative, reasonable, expeditious and professional approach to this case. They are both a credit to the legal profession.

[10] Counsel provided me with very helpful case law, in particular, R. v. Quansah, 2012 ONCA 123, R. v. Woods, 2005 SCC 42 and R. v. Grant. I have considered all of the case law carefully. The case law gave useful guidance with respect to applicable principles of law. In the final analysis, of course, each case turns on its own facts. I also had available a transcript setting out the testimony of the three main witnesses. Needless to say, I have also considered carefully the evidence at trial and the submissions of Counsel.

Section 10(b) Rights to Counsel

[11] Ms. Schatochin testified that she knew (from what Officer McConnell had told her after the collision) that she had to do a breath test and that she couldn't leave the scene. According to Ms. Schatochin, the officer told her she could call anyone she wanted on her cell phone, but he didn't specifically say that she could call a lawyer. The defence submitted that Ms. Schatochin should have been informed of her right to counsel because of the delay in bringing an approved screening device. The defence further submitted that her section 10(b) Charter rights were thereby breached.

[12] Based on that evidence alone, I would be hard pressed to find a Charter breach. Officer McConnell was off-duty when Ms. Schatochin's vehicle collided with his vehicle. However, the officer assumed a policing role. As he put it in his testimony, "I was acting in my duty as a police officer just as if I saw an assault at the side of the road" (at page 13 of the transcript). It is common ground that the officer identified himself and detained Ms. Schatochin. He testified that he had a "reasonable suspicion that she was operating with alcohol in her blood" (at page 7 of the transcript). As a result, he told her that "I am going to get you to blow into an approved screening device" (at page 11 of the transcript). I agree with Counsel that an informal demand was made pursuant to subsection 254(2) of the Criminal Code. Officer McConnell was not in a position to read the formal subsection 254(2) demand or the formal right to counsel, because he did not have his police books, papers and equipment with him. In my view, the officer was mindful of Ms. Schatochin's rights and acted reasonably. If Officer McConnell had simply told Ms. Schatochin that she could call anyone (as she asserted), it would be my view that there was sufficient compliance with section 10(b), given the unusual circumstances.

[13] However, there was more evidence on this issue. Officer McConnell also testified that "I have learned this through this court, that you have to ask them if they want to call a lawyer if you are waiting for an ASD" (at page 14 of the transcript). Officer McConnell had written in his notebook that he told Ms. Schatochin she "could call anyone". In his "will say" statement and in his testimony, the officer expanded on his note – he said that he had told Ms. Schatochin she could call "anyone, a lawyer, a friend, a parent". The officer testified that that was his common practice after reading the full and formal rights to counsel, and that he did so on this occasion.

[14] I accept Officer McConnell's testimony on this issue. It was a credible expansion on his notes, his testimony was straightforward and he was not shaken on cross-examination. Ms. Schatochin's reply to the officer is highly significant – she said "No, please don't call my Dad. Please don't call my Dad." (at page 8 of the transcript). That detail strongly supports, in my view, the officer's testimony regarding what he said to Ms. Schatochin about who she could call.

[15] Further, I do not regard Officer McConnell's notes as being inadequate or inconsistent with his testimony. A police officer's notes are an aide memoire. They assist an officer's memory when the officer is testifying in court. There is no requirement for a police officer to write a lengthy treatise that covers every detail. The officer's testimony is evidence, and his notes are not.

[16] The defence submitted that Officer McConnell was an evasive and shifty witness, whose evidence was maybe a complete fabrication. I do not agree. The only issue of substance in his testimony is whether the officer said "call anyone" to Ms. Schatochin or went on to say "lawyer, friend, parent". I have already dealt with that issue. I would add that Officer McConnell has been on the job for eight years and does not appear to have testified in court a lot. He struggled at times in the face of a vigorous cross-examination by a highly skilled and experienced senior member of the Bar (Mr. Dotsikas). However, it is my opinion that the officer was truthful and sincerely tried to explain things as best he could. Further, he did his job well and cannot be criticized for his handling of the situation at the roadside.

[17] I do not accept Ms. Schatochin's assertion that she was simply told she could call "anyone". Although she appeared to be an entirely honest witness, I found her testimony to be unreliable. For example, she readily admitted that she did not remember Sergeant Young reading her full rights to counsel to her following her arrest; however, she said that the Sergeant obviously did, since it was recorded and played in court (Exhibit 1). Also on that video, I noted that Ms. Schatochin was talking and not listening and Sergeant Young had to tell her to "stop talking while I'm explaining things". Further, Ms. Schatochin was at times angry, upset and crying during the course of her dealings with the police.

[18] I note also that Ms. Schatochin answered Officer McConnell, saying "I don't want to talk to anyone". Ms. Schatochin also declined to speak with counsel after Sergeant Young arrested her and read her her full rights to counsel. Further, I note that the police were subsequently concerned that Ms. Schatochin might not be fully comprehending her rights to counsel, and they suggested to Ms. Schatochin's father that he speak to her about consulting with Duty Counsel. As it turned out, Ms. Schatochin changed her mind and spoke with Duty Counsel before the Intoxilyzer testing took place.

[19] There are three other matters I wish to mention. First, it is clear from the evidence that Officer McConnell did not know what his role would be when a police officer and an approved screening device arrived on scene. Presumably, he would follow orders. As it happened, Sergeant Young came to the scene and took over the investigation. Officer McConnell's official role ended then.

[20] Second, the defence suggested that Officer McConnell should have called the police station on his private cell phone and arranged to have the formal wording of the right to counsel conveyed to him. The officer said that he did not think of that. To my mind, that is counselling perfection. It was impractical in the circumstances and, I believe, unnecessary. Officer McConnell told Ms. Schatochin that she could call a lawyer. That was sufficient compliance with the section 10(b) requirement in the unusual circumstances of this case.

[21] Third, I note that both Counsel proceeded on the assumption that Officer McConnell was required to convey the right to counsel to Ms. Schatochin. The leading case on the "realistic opportunity to consult with counsel" issue appears to be the decision of the Ontario Court of Appeal in R. v. George. In that case, the police officer knew that there would be a 15 to 20 minute delay before the approved screening device would arrive. In the present case, there was nothing in the evidence about an anticipated delay in the arrival of the approved screening device. Hindsight tells us that it took 26 minutes, but Officer McConnell could not know that at the time. He was simply waiting for an officer to arrive and that could as well be two minutes. In any event, this issue was not directly addressed at trial, and I will treat it as a moot point in the context of my decision.

[22] Based on the evidence and my above analysis of it, I conclude that there was no breach of Ms. Schatochin's section 10(b) Charter rights. The Charter motion is dismissed.

[23] It is not necessary to address the submissions respecting subsection 24(2) of the Charter of Rights. However, if I were required to do so, it will be obvious from my analysis that I would not take the view that the defendant's Charter-protected interests were significantly infringed by Officer McConnell or that any evidence should be excluded. Most notably, at the roadside Ms. Schatochin declined Sergeant Young's offer to consult with counsel, and at the police station she agreed to consult with counsel only after the police suggested to her father that she should be encouraged to do so.

The "Forthwith" Requirement for Breath Testing

[24] The defence submitted that the breath testing of Ms. Schatochin on an approved screening device was not conducted "forthwith".

[25] The circumstances are obviously important. It was a Saturday and Halloween night, and members of the Toronto Police were very busy in that part of town. It took 22 minutes for Sergeant Young to get the assignment and reach the scene. The Sergeant conducted a brief investigation, made the formal demand for breath testing, explained and demonstrated the use of the device and conducted the test, all within seven minutes of his arrival on the scene.

[26] The applicable law can be found in the leading decision of the Ontario Court of Appeal in R. v. Quansah (supra). The Court stated:

"The analysis of the forthwith or immediacy requirement must always be done contextually … 'Forthwith' connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given … The immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available." (at paragraphs 45, 47 and 48).

[27] The defence submitted that the breath test was not conducted forthwith because the time started to run at 7:14 p.m. and 29 minutes elapsed before the breath test was conducted at 7:43 p.m. I do not agree with that conclusion. The heavy pressure on limited police resources that night was explained at trial. It afforded a reasonable explanation for the time taken, in my opinion. Also, very significantly, there was a need from the outset to bring an approved screening device to the scene, because Officer McConnell was off duty when Ms. Schatochin struck his vehicle, and he had no policing paraphernalia with him. As I have mentioned, the circumstances of the case were unusual and must be taken into account.

[28] From the time Sergeant Young arrived on scene (7:36 p.m.), things moved expeditiously and flawlessly, as I explained above. The 29 minutes in question was consumed by the performance of important and legitimate policing duties and was reasonably necessary in the circumstances. I am satisfied that the police acted throughout with as much dispatch as was possible.

[29] In my opinion, the "forthwith" requirement of the Criminal Code was respected by the police officers and was complied with.

Conclusions

[30] I considered Ms. Schatochin's testimony in the context of the evidence on the voir dire as a whole, in accordance with the second step of the ruling in R. v. W.D. The defendant's testimony does not leave me with a reasonable doubt respecting the issues on the Charter motion.

[31] The onus in a criminal prosecution never shifts to the defendant under any circumstances. At all times, the burden rests solely on the Crown to prove all elements of the offences beyond a reasonable doubt. If a reasonable doubt exists at any time, the defendant must be acquitted.

[32] As I have indicated, I considered carefully the totality of the evidence, the submissions of Counsel and the case law that was provided to me. I am satisfied that the Crown has discharged the burden upon it. There will be a finding of guilty.

Released: May 18, 2017

Signed: Justice J.M. Ritchie