Court Information
Ontario Court of Justice
Date: 2017-04-18
Court File No.: Peterborough
Parties
Between:
Her Majesty the Queen
— And —
Michele Fabris
Before the Court
Justice: B.M. Green
Heard: April 11, 2017
Reasons for Judgment Released: April 18, 2017
Counsel
For the Crown: Mr. Doyle
For the Defendant: Mr. Hendricks
Judgment
GREEN J.:
A. Introduction
[1] Mr. Fabris is charged with operating a motor vehicle while his ability to do so was impaired by alcohol and that he was operating a motor vehicle while his blood alcohol readings exceeded 80 milligrams of alcohol in 100 millilitres of blood.
[2] Counsel for Mr. Fabris fairly and professionally made a series of admissions at the outset of the trial to focus this hearing on the disputed issues. The date, jurisdiction and identity of Mr. Fabris as the driver of the motor vehicle were all admitted. In addition, the qualifications of the Intoxilyzer technician were admitted and there were no issues raised with respect to the operation or functioning of the Intoxilyzer or that it was an approved instrument.
[3] With the consent of both parties, the trial proceeded by way of a blended voir dire. There are two distinct issues to be decided by this Court:
i. Whether the Defendant has established that his rights to counsel as protected by section 10(b) of the Charter were violated and if so, whether the evidence of the statements that he made to the Intoxilyzer technician and the breath readings ought to be excluded pursuant to 24(2); and
ii. Whether the Crown has proven both of the charges against Mr. Fabris beyond a reasonable doubt.
B. Evidence
PC McNab
[4] The first witness called by the Crown was PC McNab. He has been an O.P.P. Officer for 30 years. He has also been a qualified breath technician for over two decades and he is a trained crisis negotiator. He advised the Court that he stopped counting how many impaired driving investigations he has been involved in at 500 cases. He presented as a seasoned, well-informed and professional police officer.
[5] PC McNab was working on patrol alone, in uniform and in a fully marked police vehicle on July 31st, 2015. Around 1:00 a.m., he was stationary and operating a tested and properly functioning radar unit off of Highway 115 in Peterborough. Highway 115 is a divided highway with two lanes running in each direction. At 1:57 a.m., he noticed a vehicle heading in his direction at a very high rate of speed and locked the radar device on the vehicle. The speed of the vehicle registered at 148 km an hour in a posted 100 km an hour zone. There was no other traffic in the area and the weather conditions were clear and hot so there was nothing to interfere with the radar device results.
[6] The Officer pulled on to the highway and paced the vehicle using his speedometer at 145 km an hour. As he was following the vehicle, he noted significantly erratic driving in addition to the high speed. Initially, the vehicle was travelling in the left lane and it slowly drifted over almost entirely into the right lane without signalling. The Officer advised that the lane dividers are clearly visible in this area of the highway. The vehicle then weaved back into the left lane all the way over to the edge of the left shoulder, crossing the fog lines and the wheels reached the gravel area. The Officer described the car as a black Dodge charger with a marker of BJYE 213.
[7] As a result of the speeding and poor driving, the Officer engaged his emergency lights to alert the driver to pull over. Instead of pulling over onto the shoulder, the driver stopped completely in a live lane of traffic on the highway. The Officer stopped immediately behind the car. He paused briefly in "disbelief" and partly because he was hoping that the driver would pull onto the shoulder. PC McNab was very concerned that they may be struck by other vehicles because there was oncoming traffic. He had a rear light activated at the back of his cruiser to divert the traffic around his vehicle and, fortunately, the oncoming vehicles moved over to the next lane.
[8] Once the traffic passed his location, the Officer exited the cruiser and ran over to the car. He asked the driver, the Defendant, why he had stopped in a live lane on the highway. Mr. Fabris was unresponsive, had a blank look on his face, appeared confused and was shaking his head. He did not give any reason for his conduct and it did not appear to the Officer that he was aware of what had happened. The Officer instructed him to pull over onto the shoulder. Mr. Fabris followed the Officer's directions and the Officer pulled in behind him.
[9] The Officer engaged Mr. Fabris in a conversation at the roadside. Mr. Fabris told PC McNab that he was lost and looking for Peterborough. The Officer asked him if he had been drinking, he initially replied "no". The Officer then asked him when he had consumed his last drink, he advised that it was "not for 3 hours". The Officer noted the following further indicia of impairment:
i. Using a flashlight that was not pointed directly at Mr. Fabris but illuminated the interior of the vehicle, he had glassy bloodshot eyes;
ii. His speech was slurred slightly at times and other points it was good; and
iii. He had an obvious odour of alcohol coming from his breath.
[10] At 2:00 a.m., PC McNab formed a reasonable suspicion that Mr. Fabris was operating a motor vehicle with alcohol in his body so he made a demand that the Defendant accompany him to his cruiser for the purpose of providing a breath sample into a roadside screening device. The Officer had a readily available, properly functioning and recently calibrated approved instrument in his police vehicle. Mr. Fabris provided a breath sample and it registered a fail at 2:05 a.m. As a result, he arrested Mr. Fabris for operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood. He engaged in a pat down search of the Defendant, handcuffed him and placed him in the rear of the police vehicle.
[11] Once inside the cruiser, at 2:08 a.m., Mr. Fabris was read the standard issued rights to counsel. He was asked if he understood his rights and he replied "yeah". PC McNab asked him if he wished to call a lawyer now and he replied "Frank Crew". During cross-examination counsel pointed out that PC McNab spelled Crew two different ways in his notes. While at the roadside he spelled it Crew and later spelled it Crewe at the station.
[12] At 2:09 a.m., PC McNab read the standard caution and asked Mr. Fabris if he understood and he replied "yeah". When asked if he had anything to say in answer to the charge, he replied "no". At 2:10 a.m., the Officer also read him a breath demand.
[13] PC McNab made radio inquiries about the availability of a technician. He was advised that the technician on duty was busy and he was too far away to be of assistance. As a result, he decided to act as the technician and made arrangements for other officers to come to the scene to tow Mr. Fabris' vehicle to an impound lot and assist the female passenger.
[14] After PC McNab made the initial demand for a roadside breath sample and before he left the scene, he made additional observations of Mr. Fabris' deportment:
i. He was unsteady on his feet and swaying when he walked between the two vehicles despite wearing new athletic shoes and standing on a level, flat surface with no ruts or obstructions that would have affected his gait;
ii. The slur in his speech became more obvious; and
iii. While they were inside the police vehicle, he repeatedly asked the same questions about towing his car, how long it would be impounded and other matters related to his vehicle. The Officer repeated some of the answers 2 or 3 times. The Officer advised that he was speaking in a loud clear voice and the radio was not interfering with their conversation, rather, Mr. Fabris didn't seem to be processing the responses.
[15] During cross-examination, Counsel challenged the Officer about these initial indicia and suggested that his client was stumbling and swaying because he was handcuffed. PC McNab explained that he could not have been handcuffed prior to being arrested because he was still investigating and Mr. Fabris had to have both hands free to manipulate the mouth piece for the ASD.
[16] As a result of these additional observations, the Officer advised Mr. Fabris that he was now also under arrest for impaired driving as well as the initial charge of operating a motor vehicle with over 80 mg of alcohol in a 100 ml of blood. Mr. Fabris was clearly advised of his jeopardy for two charges before he spoke with counsel.
[17] Once other officers arrived on scene, PC McNab departed and followed the most direct route to the nearest station to continue the investigation. On the way back to the station, he asked Mr. Fabris for any additional information that may assist with contacting his counsel. Mr. Fabris told the Officer that he did not know the lawyer's number or address only that he was Counsel in Toronto. Cst. McNab advised that it is his standard practice to advise detainees at the scene or on the way to the detachment that they have 4 options in terms of exercising their rights to counsel:
i. They can contact a lawyer of their choosing;
ii. Alternatively, they can contact duty counsel who are available 24 hours a day;
iii. If they don't know a particular lawyer, they will be provided with a phone book with lawyers names and numbers or choose from a list of local lawyers; or
iv. They can make a phone call to anyone, a friend or family member, to assist with making a choice of counsel.
[18] He was sure that he provided Mr. Fabris with these 4 options since he personally considers it to be an "important step" in his investigations. He believed that he told Mr. Fabris about his 4 options while they were still at the scene or within minutes of leaving during transport. He agreed that he did not have a note of providing the options but he said that he was able to recall that he did provide these options to Mr. Fabris. He said that, if he had missed doing it prior to arriving at the station, he would have given Mr. Fabris these 4 options at the station.
[19] Once they arrived at the station, PC McNab sought the assistance of another Officer, PC Mussington, to help Mr. Fabris with contacting counsel of choice because PC McNab had to prepare the Intoxilyzer to receive samples. He instructed PC Mussington to do his best to find Frank Crewe or to look after Mr. Fabris rights in another manner. He believed that PC Mussington was quite capable and would use resources like google searches or the phone book to locate the lawyer's contact information. He relinquished custody of Mr. Fabris to Officer Mussington at 2:28 a.m. and completed his duties as a qualified technician.
[20] At 2:48 a.m. PC McNab completed setting up the Intoxilyzer so he had the opportunity to witness some of the interactions between PC Mussington and Mr. Fabris with respect to contacting a lawyer. PC McNab learned from PC Mussington that Frank Crewe was no longer available because he had been appointed to the Bench in 2014. Of particular note, it was conceded that Mr. Crewe was in fact appointed and, as a Judge, he was no longer available to provide legal advice.
[21] Cst. McNab related that Mr. Fabris was told that Mr. Crewe was not available. Mr. Fabris did not appear to react negatively in any way to this news. He testified that PC Mussington provided Mr. Fabris with a number of options since his lawyer of choice was no longer available: there was a phone book specifically to assist with locating a lawyer, there was a readily available list of 12 to 15 local lawyers and there was Duty Counsel. Mr. Fabris chose a name from the list of local lawyers, David O'Neil. PC McNab's recollection was that he felt that PC Mussington was doing a good job of presenting Mr. Fabris with his options once he discovered that his counsel of choice was not available.
[22] Cst. McNab assured the Court that neither he nor Officer Mussington did anything to influence Mr. Fabris to choose any particular source directory or any particular lawyer. He emphasized that he felt that it was important that they did not take a role in his choice of counsel, direct him or lead him in any way to choose someone. He was aware of the importance of Mr. Fabris making a choice himself and neither of them offered him any guidance other than providing him with the various available options. Mr. Fabris was provided with the opportunity to contact any lawyer that he wished to consult other than Mr. Crewe who was not available.
[23] Cst. Mussington assisted Mr. Fabris with calling Mr. O'Neil and consulting with him in a privacy booth. The conversation lasted from approximately 2:49 a.m. to 2:55 a.m.
[24] After Mr. Fabris finished speaking with counsel in private, Cst. McNab asked him if he was satisfied with the advice he received and he replied "yeah sure". He also asked him if he needed to make any other calls for legal advice and he replied "no, I am good".
[25] PC McNab testified that he was of the firm belief that Mr. Fabris exercised his rights to counsel and that he was satisfied with the quality of that advice prior to proceeding further with his investigation. Upon receiving custody of Mr. Fabris, PC McNab went through the best testing process with him. Mr. Fabris provided the first sample of his breath directly into an approved instrument at 2:58 a.m. and registered a reading of 108 mg of alcohol in 100 ml of blood. He provided a second sample of his breath at 3:21 a.m. and it registered a reading of 102 mg of alcohol in 100 millilitres of blood.
[26] In between the two tests, PC McNab engaged Mr. Fabris in the standard interview questions on the alcohol influence report. The Officer re-read the caution to him and explained that he did not have to answer any questions. He advised him that he could choose to answer some, none or all of the questions and he would write down his responses. He assured him that he would not be offended if he did not answer the questions. Mr. Fabris chose not to answer most questions but he did answer a few:
i. When asked if he was operating a motor vehicle, he responded "no" at first but then changed his answer to "no answer";
ii. When asked if he was sick, he said "no";
iii. He was asked if he had consumed any drugs, he said "no";
iv. He was asked if he had diabetes or used insulin and he replied "no" to both questions;
v. He was asked if he had any injuries, physical handicaps or bumped his head and he replied "no";
vi. He was asked how much sleep he had in the past 24 hours and he replied, "10 hours".
[27] During his dealings with Mr. Fabris at the station, the Officer noted that there was a strong smell of alcohol coming from his breath, his face was flushed, his eyes were blood shot and his speech was slurred at times. He described Mr. Fabris as polite, cooperative and talkative. He related that he seemed to be excited, upbeat and happy despite the seriousness of the situation. He concluded that the effect of alcohol on Mr. Fabris was obvious. In response to questions to rate the level of impairment from 0 to 10 with 0 being the lowest and 10 being the most extreme intoxication, he rated Mr. Fabris as a 6 out of 10 due to all of the indicia of impairment commencing with the poor driving up to and including their interactions at the station.
[28] Cst. McNab was an impressive witness throughout his evidence. He had a clear recollection of the events and his interactions with Mr. Fabris. He presented in a thorough, compelling and cogent manner. His evidence was completely unshaken in cross-examination.
PC Mussington
[29] PC Mussington was the second witness called by the Crown. He was on duty in full uniform on July 31st, 2015, working at the detachment. He was working on a missing person call when he became involved in this matter.
[30] In contrast to Officer McNab's evidence, PC Mussington's evidence was sometimes difficult to follow, his recollections were intermittently hazy and it was evident that he was not the investigating officer.
[31] Cst. Mussington first became involved at 2:25 a.m. when Cst. McNab advised him that he had a person arrested for impaired and over 80 and he needed assistance with helping the Defendant to contact a lawyer. He spoke with Mr. Fabris who provided him with his counsel of choice's name, Frank Crewe. Contrary to PC McNab's evidence that Mr. Fabris only knew that his lawyer was from Toronto, PC Mussington related that Mr. Fabris provided him with counsel's phone number, fax number and address. He couldn't recall how Mr. Fabris knew all of this information or if he had the lawyer's business card.
[32] Despite the frailties in his evidence, Cst. Mussington had clear notes and recollection about the phone number that he called and the person who he spoke to while he was trying to connect Mr. Fabris with Mr. Crewe. He called 416 362 2202 and spoke with Ms. Laura Martins. He believed that Ms. Martins was working as an answering service for Mr. Crewe. She explained that she was not a lawyer and that she would leave a message for Mr. Crewe to follow up in the morning. She clearly expressed that Mr. Crewe was not available and the message would not be delivered to him until the morning. Cst. Mussington then conducted an internet search for more information about Frank Crewe to try and find another means to contact him. He discovered that Frank Crewe with an address of 171 Jarvis Street in Toronto was appointed to the Ontario Court of Justice in November of 2014.
[33] As a result of his internet search, the time of night and Mr. Crewe's representative advising him that Mr. Crewe would not receive the message until the next morning, he advised Mr. Fabris that Mr. Crewe was not available. During cross-examination, he advised that he did not assume that Mr. Crewe could not take calls from Mr. Fabris because he was a Judge. He related that he believed that Mr. Fabris could still take advice from him and he didn't make any judgements about who he chose to seek legal advice from.
[34] He could not recall Mr. Fabris' exact response to the news that his lawyer was unavailable. He believed he said something about duty counsel or "need another lawyer". He could not recall exactly how he delivered this news or the exact wording of the options that he provided Mr. Fabris other than indicating that he could wait until the morning for his counsel of choice, he could speak with duty counsel, call another counsel of choice or use the list of local lawyers. He told the Court that he had a lawyer "dictionary" available which he later explained was a directory of names and numbers for counsel. He also presented Mr. Fabris with the list of local lawyers as another option that he could choose from to get legal advice. At 2:48 a.m., Mr. Fabris chose David O'Neil from the list. Cst. Mussington contacted David O'Neil and he returned the call within a minute. Mr. Fabris consulted with counsel from 2:49 to 2:54 a.m. in private. After he finished speaking with counsel, PC McNab took custody of Mr. Fabris.
[35] Cst. Mussington advised that he spent a total of 16 minutes, between 2:32 a.m. and 2:48 a.m., trying to assist Mr. Fabris with contacting his counsel of choice and then providing him with his alternatives when it was apparent that Mr. Crewe was not readily available.
[36] He did not recall PC McNab being present during his interactions with Mr. Fabris. Rather, he thought he was in the breath room. During cross-examination, he conceded that he was not sure if he discussed the results of his internet search with PC McNab.
[37] Although PC Mussington's recollection was vague at points, he was unequivocal that he tried to assist Mr. Fabris with contacting his counsel of choice and when it became clear that counsel was not going to be available until the following morning, he assisted Mr. Fabris with obtaining legal advice from another source that he chose without any direction from the police.
C. Issues
(i) Section 10(b) of the Charter
[38] The onus is on the Defendant to establish on the balance of probabilities that his rights to counsel were breached by the conduct of the state actors in this case.
[39] Counsel for Mr. Fabris argued that Mr. Fabris' rights to counsel were infringed in two different ways. First, he argued that Mr. Fabris' rights to counsel should have been read a second time after he was arrested for impaired driving and, further, that he should have been given a "Prosper warning" because of his change in jeopardy. Alternatively, he argued that Mr. Fabris' rights to counsel of choice were breached because he was not given an opportunity to speak to counsel of choice, Mr. Frank Crewe. He also submitted that Mr. Fabris should have been given a "Prosper warning" by the police when it became apparent that he would not have the benefit of consulting with his counsel of choice.
[40] With respect to Counsel's first argument, this is not a case that necessitated a Prosper warning. As noted by the Supreme Canada in R. v. Willier, 2010 SCC 37:
31 The informational duty imposed on the police is relatively straightforward. However, should a detainee positively indicate that he or she does not understand his or her right to counsel, the police cannot rely on a mechanical recitation of that right and must facilitate that understanding: R. v. Evans. Additionally, there are specific, narrowly defined circumstances in which s. 10(b) prescribes an additional informational obligation upon the police. In R. v. Prosper, Lamer C.J. described this additional informational duty, and the circumstances that trigger it, as follows (p. 274):
In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter-protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up.
32 Thus, when a detainee, diligent but unsuccessful in contacting counsel, changes his or her mind and decides not to pursue contact with a lawyer, s. 10(b) mandates that the police explicitly inform the detainee of his or her right to a reasonable opportunity to contact counsel and of the police obligation to hold off in their questioning until then. This additional informational obligation, referred to in this appeal as the duty to give a "Prosper warning", is warranted in such circumstances so as to ensure that a detainee is informed that their unsuccessful attempts to reach counsel did not exhaust the s. 10(b) right, to ensure that any choice to speak with the police does not derive from such a misconception, and to ensure that a decision to waive the right to counsel is fully informed. (Emphasis mine)
[41] Clearly, this is not a case wherein Mr. Fabris initially invoked his rights to counsel and then changed his mind and chose to proceed without counsel. In addition, the police did not question Mr. Fabris, take further investigative steps or take his breath samples until after he had the benefit of speaking with counsel. The Prosper decision is not applicable to the facts in this case.
[42] Counsel submitted that the Officer should have read Mr. Fabris his rights to counsel a second time after he arrested him for impaired driving in addition to the over 80 charge. There was no need to read his rights to counsel a second time when he just heard them and had not had a chance yet to exercise his rights yet. Furthermore, a detainee does not have to be aware of the precise charge or charges that he is facing as long as he has been provided with sufficient information to appreciate the extent of the jeopardy faced and be in a position to make an informed decision about whether to consult with a lawyer.
[43] Mr. Fabris was not arrested on the additional count after he already consulted with counsel and his jeopardy changed which may have necessitated a second call to counsel. See for example, R. v. Sinclair, 2010 SCC 35. Rather, Mr. Fabris' jeopardy did not change significantly nor was there any palpable change in circumstances by that additional charge. More importantly, Mr. Fabris was well aware of both of the charges that he was facing prior to consulting with counsel. Mr. Fabris was given ample opportunity during his 5 to 6 minute conversation with counsel to seek legal advice about both charges.
[44] With respect to Counsel's second argument, Mr. Fabris was provided with fulsome information from PC McNab about his rights to counsel and the various options that he had available to him to exercise those rights. Once he returned to the station, PC McNab ensured that another Officer was available to assist with contacting Mr. Fabris' counsel of choice. PC Mussington took steps to contact that counsel including calling a specific number and speaking with an answering service who advised that she would not pass on the message to Mr. Crewe until the morning time.
[45] PC Mussington took additional steps to try and find alternate contact information for Mr. Crewe by conducting an internet search and that is when he discovered that Mr. Crewe had been appointed to the Bench. The police did nothing to frustrate Mr. Fabris' access to counsel of choice or discourage him from contacting him, that lawyer was unavailable through no fault of the police. Waiting an indeterminate amount of time to speak with Judge who could not provide legal advice in any event was not a reasonable option in the circumstances. Since Mr. Fabris' lawyer of choice was obviously unavailable, Cst. Mussington provided Mr. Fabris with other options and Mr. Fabris chose to select from a list of local lawyers. He was given an opportunity to consult in private with the second lawyer who he chose and he spoke with him for approximately 5 or 6 minutes. Moreover, after he completed his call, he told PC McNab that he was satisfied with the advice that he had received and he did not wish a further opportunity to consult other counsel. He told Officer McNab "no, I am good".
[46] The decision from the Supreme Court of Canada in R. v. Willier, 2010 SCC 37 is also dispositive of Counsel's second argument. The following paragraphs are particularly instructive:
35 Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended …
And further:
39 The circumstances of this case are not analogous. The concerns animating the provision of a Prosper warning do not arise when a detainee is unsuccessful in contacting a specific lawyer and simply opts to speak with another. In no way did Mr. Willier attempt to relinquish his right to counsel and thus any opportunity to mitigate his legal disadvantage. He made no attempt to waive his s. 10(b) right. Instead, unsuccessful in contacting Mr. Royal, he exercised his right to counsel by opting to speak with Legal Aid. As such, the police were under no obligation to provide him with a Prosper warning, and its absence fails to establish a Charter breach.
And finally:
43 Considering the circumstances of this case as a whole, the majority of the Court of Appeal correctly found that Mr. Willier did not suffer a violation of his s. 10(b) right to counsel. In no way did the police interfere with Mr. Willier's right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait, Cst. Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr. Willier was not told that he could not wait to hear back from Mr. Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise.
[47] Mr. Fabris' counsel of choice was not going to be available in a reasonable time to provide legal advice, if at all considering he had been appointed. The police fulfilled their duties by presenting Mr. Fabris with other routes to obtain legal advice and he voluntarily opted to speak with another counsel that he chose from a list of 12 to 15 lawyers. He was satisfied with the advice he received from that lawyer and he did not ask to speak to any other lawyer even though he was offered that opportunity.
[48] Counsel has not established on the balance of probabilities that Mr. Fabris' rights to counsel were violated. Mr. Fabris was unequivocally aware of the reasons for his detention, he was fully informed of his rights to counsel and the options available to him and he was afforded the opportunity to consult with counsel in private. The actions of the police did not in any way breach Mr. Fabris' rights as protected by section 10(b) of the Charter to consult with counsel of choice. Quite the contrary, once the police became aware that his lawyer of choice was not available, they tried other means to reach him and, when that failed, they presented him with options that he freely exercised without complaint.
[49] The breath readings and all of the statements that Mr. Fabris made at the station will be admitted as evidence during the trial.
(ii) Evidence of Impairment
[50] The Crown must prove beyond a reasonable doubt that Mr. Fabris' ability to operate a motor vehicle was impaired by alcohol. The Crown does not have to prove any specific level of impairment. Evidence that proves beyond a reasonable doubt that there is any impairment of a person's ability to drive from slight to great caused by the consumption alcohol is sufficient to prove this offence. Please see R. v. Stellato.
[51] There is ample compelling evidence that Mr. Fabris' ability to operate a motor vehicle was impaired by alcohol:
a. Mr. Fabris was driving at a dangerously high speed in excess of 45 km per hour above the posted speed limit. He was driving erratically, drifting in and out of lanes on a highway and then he stopped in a live lane of traffic on the highway instead of pulling over to the shoulder when the officer activated his emergency equipment;
b. He was initially confused and non-responsive to the Officer's queries about why he stopped in a live lane on a highway. While he was in the cruiser, the Officer had to repeat himself two or three times when he was explaining simple and straightforward information;
c. He had a strong smell of alcohol on his breath at the roadside and it persisted at the station;
d. He was unsteady on his feet and swaying as he walked from his car to the cruiser;
e. His eyes were glassy and blood shot and his face was flushed;
f. His speech was intermittently slurred at the roadside and it became more pronounced as the investigation continued;
g. Despite the seriousness of the situation that he found himself in, he appeared to be excited, happy and talkative while he was at the police station; and
h. He provided two breath readings of 108 mg of alcohol in 100 ml of blood and 102 mg of alcohol in 100 ml of blood.
[52] Mr. Fabris told Officer McNab that he was not sick, injured, under the influence of drugs, suffering from any diabetic related issues or sleep deprived that may have provided other explanations for some of these indicia. There is no other reasonable conclusion other than his ability to drive was impaired by the consumption of alcohol.
D. Conclusion
[53] I find that the Defendant has failed to prove the Charter breach alleged and that Application will be dismissed.
[54] In the absence of any Charter breach, I have considered the totality of the evidence introduced by the Crown on the trial proper. I find that the Crown has proven beyond a reasonable doubt that Mr. Fabris' ability to operate a motor vehicle was impaired by the consumption of alcohol and I find him guilty of that charge.
[55] With respect to the charge of operating a motor vehicle with an excess of 80 mg of alcohol in 100 millilitres of blood, I find that Mr. Fabris' breath samples were taken pursuant to a valid demand, they were taken as soon as practicable and the first sample was taken not later than 2 hours after Mr. Fabris was operating a motor vehicle. Each breath sample was received directly into an approved instrument that was operated by a qualified technician with an interval of at least 15 minutes between each sample. The readings were respectively 108 and 102 mg of alcohol in 100 ml of blood. Accordingly, I find Mr. Fabris guilty of the offence of operating a motor vehicle after consuming alcohol in such quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood.
[56] This Court cannot convict Mr. Fabris of both counts since they both arise out of the same transaction, as a result, on the next appearance the Court will seek further submissions with respect to which count ought to be conditionally stayed.