Court Information
Ontario Court of Justice
Date: April 5, 2017
Court File No.: Newmarket 15-03551
Parties
Between:
Her Majesty the Queen
— And —
Aleksander Ratsimor
Judgment
Before: Justice Joseph F. Kenkel
Delivered on: April 5th, 2017
Counsel:
- Mr. Anthony Vanden Ende — counsel for the Crown
- Mr. Aaron Spektor — counsel for the defendant
Decision
KENKEL J.:
Introduction
[1] Mr. Ratsimor is charged with driving with a blood alcohol level in excess of the legal limit (Over 80). He was stopped by PC Gabay for a sobriety check after he left a bar called the Pro Café. The accused denied consuming any alcohol that evening but the officer detected an odour of alcohol on his breath and the accused had some difficulty retrieving his driver's license from his wallet. An Approved Screening Device (ASD) test was administered and the Fail result led to the arrest of the accused. Further testing at the station showed readings of 157mgs and 148mgs of alcohol in 100ml of blood.
[2] The Crown has proved the elements of the offence subject to consideration of the Charter issues. The Notice of Application alleges seven breaches but the evidence at trial and the final submissions of both parties identified three issues for decision:
CHARTER s.8 – Approved Instrument (AI) Demand As Soon As Practicable – Whether the Crown has proved that the AI demand was made "as soon as practicable" as required under s.254(3).
CHARTER s.10(a) – Reasons for Detention – Whether the accused's right to be informed promptly of the reason for his detention was breached.
CHARTER s.10(b) – Right to Counsel – Whether the accused's right to speak with a lawyer was breached by insufficient advice from duty counsel and a failure of the police to contact another Russian speaking lawyer.
s.254(3) – AI Demand ASAP
[3] The defence submits that the Crown has failed to prove a lawful approved instrument demand. The demand was not made, "as soon as practicable" as required by s.254(3) so the subsequent testing was not authorized by law and contrary to s.8 of the Charter.
[4] After the fail result on the ASD test, Constable Gabay arrested the accused and read him right to counsel advice and the approved instrument demand. The demand was "as soon as practicable" and was based on reasonable grounds. The defence submits that demand doesn't count as the accused didn't understand it due to language difficulties. If the accused did not understand due to language difficulty that might amount to a "reasonable excuse" under s.254(5) for non-compliance but that circumstance does not render a lawful demand unlawful nor does it make an otherwise lawful detention arbitrary – R v Yin 2016 ONCJ 857 at para 12. In this case the conversation at the roadside shows the accused didn't understand the formal wording of the AI demand but did understand the demand once it was explained in plain terms.
[5] The approved instrument demand was translated for the accused into Russian at booking by PC Maksimov. I accept the officer's evidence on this point as consistent with PC Gabay's evidence. Translation of the demand and right to counsel advice was the reason Constable Maksimov attended the station and it was the first thing he was asked to do. The constable was sober and acting in a professional capacity that night and his recollection was assisted by reference to contemporaneous notes. The fact that the accused did not recollect that demand I find does not reasonably cast doubt on the officer's evidence.
[6] The breath technician Constable Mooring received grounds from PC Gabay and made an approved instrument demand when the accused was brought to him. That demand and all proceedings in the breath room were translated by PC Maksimov. That demand was made as soon as practicable after that officer received grounds. The Crown need only prove one timely demand – R v Guenter 2016 ONCA 572.
[7] I find that the Crown has proved that three approved instrument demands were read to the accused "as soon as practicable". While he didn't understand the first formal demand read in English, his subsequent response shows he likely understood the officer's informal explanation. The demand was translated as soon as practicable at the station and a further independent demand was made as soon as practicable in the breath room.
Charter s.10(a) – To Be Informed Promptly
[8] Mr. Ratsimor has the right to be informed promptly upon arrest or detention of the reasons for his detention – Charter s.10(a). The first thing Constable Gabay said to the accused was that he had stopped him to check sobriety. He asked Mr. Ratsimor if he had consumed any alcohol that night and after Mr. Ratsimor's negative response the officer told him that he could smell alcohol. English is not the accused's first language but he had extensive discussions in English with the officer at the roadside and at the station. It's plain that he understood the reason for his detention given his response to the officer's question and subsequent conversation.
[9] Mr. Ratsimor understood the ASD test process at the roadside. He understood that he failed. He asked the officer what the legal limit was and asked whether he was over 80. He asked the officer how much over he was and was told that they'd have to do further tests at the station to determine his actual level. The defence submits that the accused's testimony shows he did not understand the full extent of his jeopardy. He believed that the Over 80 investigation was a traffic matter only because that's the case in Russia. The defence submits this lack of full understanding of the reason for his detention impacted his right to counsel.
[10] The evidence shows that the accused understood the reasons for his detention for ASD testing, and he understood that the failure of that test led to his arrest. He understood that he was being brought to the station for further breath testing. He was handcuffed and taken to the police station. It would have been plain to him that the investigation had moved beyond a traffic matter that might result in a ticket at the roadside. PC Maksimov met the accused at the station and explained the right to counsel advice and breath demand in the Russian language. The accused had that information prior to his conversation with the Russian speaking lawyer. The accused's relaxed demeanor shown on the breath room video could provide some support for his evidence that internal beliefs about the way drinking and driving charges are handled in Russia led him to underestimate for a time the seriousness of his situation. However, all of the information provided to him by the police and his objective circumstances consistently showed the reasons for his detention and the nature of the investigation. The duty counsel who spoke to him was plainly aware that he was subject to a criminal drinking and driving investigation. The accused's changed mood after the fail results on the approved instrument may simply reflect disappointment, but if they show a delayed understanding of the nature of his predicament that delay flowed from internal beliefs not attributable to anything the officers said or failed to say.
Charter s.10(b) – Insufficient Advice from Duty Counsel
[11] When he was advised of his right to counsel at the roadside, Mr. Ratsimor told the officer he didn't see the point in speaking with a lawyer and he was concerned about the cost. He told the officer he'd paid lawyers before and he felt it was "for nothing". Constable Gabay reminded the accused that he also had the option of calling a duty counsel lawyer who would provide legal advice at no cost. Mr. Ratsimor told the officer, "ok call the free lawyer just in case". When the right to counsel advice was repeated in Russian at the station, Constable Maksimov encouraged Mr. Ratsimor to speak with a lawyer. Mr. Ratsimor agreed and spoke with a Russian speaking duty counsel lawyer for three minutes. The defence submits that the accused did not receive sufficient legal advice. He complained to the officers but they did nothing.
[12] Constable Maksimov testified that if the accused made any comment about his conversation with the lawyer it wasn't significant and he didn't note it. They discussed the breath tests during the short walk to the test room. Nothing was brought to his attention that would warrant a call to a different duty counsel. The only reference to duty counsel he recalled was the accused's statement that duty counsel told him he did not have to say anything when questions were asked and later a similar reason for not signing documents when they were served upon him. The video of the breath test room, showed Mr. Ratsimor speaking freely with the officers directly after he had completed his call with duty counsel. Mr. Ratsimor confirmed he spoke with a lawyer, but he did not make any complaint about the sufficiency of the advice.
[13] Mr. Ratsimor testified that he thought he would be detained for up to 48 hours even for a traffic offence based on his understanding of the legal system in Russia. He thought calling a lawyer was too expensive so he planned to consult a paralegal after his release. When the Russian speaking officer strongly suggested he consider speaking with a Russian speaking duty counsel he agreed and he was given that call in privacy within minutes of his request. Mr. Ratsimor said he told the lawyer what happened – that he had been arrested for driving with a blood alcohol level over the legal limit. He testified that the lawyer told him that he must blow into the approved instrument pursuant to the demand. He was told he did not have to answer questions, participate in physical tests or sign documents. He asked when he would be released and was told it would likely be in a few hours. Mr. Ratsimor testified he had further questions about impound and retrieving his vehicle, what would happen with his license and what would be the consequences of a conviction after trial. He said that the duty counsel did not respond to those questions but instead suggested that the accused could hire him as a lawyer. When he tried to pursue the questions he said the duty counsel hung up the phone. Mr. Ratsimor testified that he told PC Maksimov that the duty counsel had spent the entire time promoting himself and that he was a crook. He said the officer replied, "Well what do you want for free?"
[14] In cross-examination Mr. Ratsimor agreed that he spoke with the officers about a number of things in the breath test room including how the system worked in Russia. When asked why he did not mention any complaint about the legal advice he'd received he stated, "I was absolutely content with what I heard, I would be released in a couple of hours". The lawyer had told him what he had to do and what he did not have to do when dealing with the police and Mr. Ratsimor said he was in a "beautiful mood" after that. He mentioned that he even joked with the officers which is confirmed by the breath room video.
[15] The duty counsel Mr. Ratsimor consulted that evening testified after privilege was waived. He relied on a form completed on the night in question that set out the advice given in this case. Duty counsel confirmed that Mr. Ratsimor asked about release and was told that he would likely be released that evening. This duty counsel tells detainees that if they are charged they will be asked to sign papers upon their release but they're not to worry about complying with that request as it's not an acknowledgement of guilt. He advised Mr. Ratsimor that he must attend court on the date specified in the release. He explained the legal requirement to provide suitable samples but advised Mr. Ratsimor that he didn't have to answer questions, perform sobriety tests or provide other bodily samples. His form indicated that Mr. Ratsimor did not have further questions and that he confirmed Mr. Ratsimor understood the advice given.
[16] When asked what his response would have been if the accused asked about retrieving his car, the duty counsel explained that he would advise the accused about the provincial 7 day impound and administrative license suspension for 90 days. He would not discuss potential trial or sentencing issues. He denied touting his services but said that if he was not on the provincial duty counsel system at the time but was called as a private lawyer from a language list he might give the officers his business number or obtain the accused's number where the person asked to contact him later but didn't have the ability to write a number down. His form said that the accused was charged with "Impaired" which he may have taken from a phone message but whether the offence alleged is Over 80 or Impaired he gives the same legal advice in relation to breath testing after confirming that there is no suspicion that drugs are involved.
[17] Mr. Ratsimor's evidence that he complained to the officers about not receiving proper legal advice is not supported by the video record of the breath room conversations just after that call. Mr. Ratsimor had said numerous negative things about lawyers even before arriving at the station so even if he did call the duty counsel a "crook" in the short walk to the breath room that would not reasonably alert the officers that the legal advice was not sufficient. The breath room video is instead consistent with the accused's response in cross-examination that he was, "absolutely content" with the advice received as he focused on the one aspect that he'd be released in a few hours. It shows he was joking and in a good mood as he described in cross-examination. He did not complain to the officers about the legal advice received and he did not ask to speak with another lawyer.
[18] Duty counsel's notes did not record questions beyond the typical advice described, but duty counsel agreed that if he had been asked about license suspension or vehicle impoundment he would have answered those questions without making notes. He also agreed he would have declined to answer further questions about trial issues.
[19] Shortly after speaking with duty counsel, Mr. Ratsimor provided two samples of his breath into an approved instrument. His readings were 157mgs/100ml and 148mgs/100ml, both almost double the legal maximum for safe driving. I find that the accused's consumption of alcohol at the time now detracts from the reliability of his memory in relation to his complaint to the officer about the lawyer. His recollection regarding the complaint during the short walk is not internally consistent with his answers in cross-examination nor is it consistent with his conversation and demeanor in the breath room moments later.
[20] In R v Willier 2010 SCC 37 the appellant alleged that his consultations with duty counsel were inadequate and breached his s.10(b) Charter right. At paragraphs 41-42 the court held:
While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship … Unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier's conversations with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate.
[21] In a Newmarket case regarding the sufficiency of duty counsel advice in a drinking and driving context, the Summary Conviction Appeal court upheld the trial court finding that section 10(b) does not provide a state guarantee of the quality of legal advice. The Summary Conviction Appeal court went further and found that courts should not review the quality of legal advice provided. See: R v. Beierl 2007 ONCJ 267, affirmed [2009] OJ No 2708 (SCJ) (on this point see para 51) leave refused 2010 ONCA 697, leave refused [2010] SCCA 486.
[22] Mr. Ratsimor only spoke with a lawyer after being urged to do so by two officers. He did not advise the police that the legal advice he received was insufficient or inadequate. On the contrary, he was happy and content and he applied the advice he'd received by declining to answer certain questions posed by the officers. There's no evidence of a breach.
Conclusion
[23] I find that the Crown has proved that the approved instrument demand was made "as soon as practicable" on reasonable grounds. The applicant has failed to prove the two section 10 Charter breaches alleged on the balance of probabilities.
[24] The Charter application is dismissed. The Crown has otherwise proved the charge beyond a reasonable doubt. There will be a finding of guilt.
Released: April 5, 2017.
Justice J. F. Kenkel