Court File and Parties

Court File No.: Central East - Newmarket 15-09971 Date: 2017-09-05

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Filomena Skochelas

Before: Justice P.N. Bourque

Counsel:

• C. Valente, for the Crown
• T. Edmund Chan, for the Defendant

Heard: In Writing

Reasons for Judgment

Released on September 5, 2017

Overview

[1] An officer received a dispatch that a driver was driving impaired and was given the location and the licence plate of the car. The officer determined that the vehicle was very close to the address of the owner of the car (within 30 seconds drive) and he went to the address, where he saw the car described in the dispatch. It was in a driveway. The officer went up to the car. As a result, on December 22, 2015, this defendant was charged with impaired care and control and driving with excess alcohol care and control.

[2] The defendant states that her 10(b) rights were infringed in that the officer waited several moments after obtaining his grounds to allow an EMS to check to see if the defendant was having a diabetic condition which could explain the symptoms. The delay was some 20 minutes in total.

Evidence

Ryan Lynch

[3] ...is a York Regional Police officer of some 6 years' experience. His evidence was given viva voce and he watched the in-car video played in court (Exhibit 1). His timeline of events is as follows:

Time	Event
17:11	Received a radio dispatch of a civilian following a possible impaired driver and gave the description and location particulars. The vehicle was then about a 30-second drive from the residence of the owner of the car.
17:20	Officer arrived at address and saw car (description and plate) parked in the driveway. The car had its lights off and it was not running. The officer saw the defendant slumped over the wheel of the car. The officer knocked on the window and shined his flashlight in the car and the defendant (who had her keys in her right hand) moved her right hand towards the ignition. The officer instructed another officer who had arrived to put his car behind the defendant's car. The officer said she appeared dazed and confused (only the rear of the car is visible on Exhibit 1). The officer instructs her to get out of the car. She remains in the car and the officer smells the smell of alcohol. The officer asks her why she is asleep and she denies being asleep. The defendant drops her keys onto the floor of the car. The defendant's words are slurred. The officer asks if she has any medical conditions and the defendant states that she had diabetes. The officer states that at 17:21 he believed he has reasonable and probable grounds to arrest her for impaired driving but he was to make sure that this is not caused by some sort of medical diabetic emergency and he calls EMS. They arrive at 17:32 and by 17:39 they advise the officer that there is no diabetic emergency. Before their arrival, the officer is speaking to the defendant about her work and family and other things and says that he is doing this to make sure she does not suffer some diabetic condition. The officer in cross-examination admitted that he did not turn his mind to giving her rights to counsel as he felt the medical issue should be seen to first. He admitted that she was under detention at this point.
17:40	The officer arrests the defendant for impaired driving, handcuffs her and puts her into the back of his cruiser. The officer describes her as walking "very carefully". (On the video this is confirmed but there is no stumbling).
17:43	Caution read to the defendant and rights to counsel. The defendant says that she understands and does not want to speak to a lawyer right away as she does not have her phone. The officer offers to have her speak to a lawyer from the station. He asks if she has a lawyer and she says "no". He offers to put her in touch with a free duty counsel lawyer and she says "yes".
17:45	The officer began transport to 4 District.
18:05	Arrives at detachment but has to wait for sally port to clear.
18:17	Takes defendant to parade before Duty Sergeant.
18:26	She was placed in a cell.
18:29	The officer contacts duty counsel.
18:41	Took her to the telephone room.
18:45	Removed her from the telephone room and took her to the breath technician.

[4] The only other contact with this defendant was at 20:37 when he served her with various documents including the breath certificate.

P.C. Holden

[5] ...did not give viva voce evidence but both parties agreed that the following would have been his evidence:

(i) He located the defendant's purse in the motor vehicle;

(ii) Upon arrival he felt the hood of the car and it was warm to the touch and it was recently driven.

Yuk Mo Chong

[6] ...is the breath technician. He testified that the only observations he made of the defendant which pointed to impairment was red rimmed eyes and a smell of alcohol. He stated that with regard to balance and standing, he did not observe any unsteadiness. He stated that after several attempts, the defendant provided a sample at 19:12 of 183 milligrams of alcohol in 100 millilitres of blood, and at 19:35, 204 milligrams of alcohol in 100 millilitres of blood.

Toxicologist Certificate

[7] Filed on consent was the certificate of a qualified toxicologist. It was the opinion of the toxicologist that between 5:00 p.m. and 5:20 p.m., the blood alcohol level of the defendant was between 180 and 225 mgs of alcohol in 100 millilitres of blood. The toxicologist also opined that "an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range".

The Defence

Filomena Skochelas

[8] …is the defendant and was born in 1953 in Italy but came to Canada as a young child. She has a high school education. She has a twin boy and girl 20 years old. She was recently widowed. She resides at 57 John Kline Lane. She has a criminal record from May 10, 2011 for forgery, uttering a forged document and fraud over $5,000. She was given a conditional sentence and was ordered to pay restitution of $33,500.00.

[9] It was her evidence that she had dinner just before 4:00 p.m. that evening and had two glasses of wine with dinner. She states that sometime before 5:00 o'clock, she drove her daughter to work at the Vaughan Mills Mall to work in a store. She stated that she then returned home. She did not note the time but did not disagree with the officer that she would have been on the road at 5:13 PM. She stated that she returned home. She had no intention to drive the car that evening as a friend of her son would be going to pick up her daughter at around midnight.

[10] She stated that she had three or so bags of shopping in the car, and some items of laundry. She stated that she had bought them earlier in the day. She stated that she gathered all these things up and went into the house through the garage door.

[11] She stated that she put the things down and before putting anything away (or indeed going out to the car to get her purse) she immediately (while standing) drank two 7 ounce glasses of wine in quick succession. She said it took no longer than one minute for drinking each glass of wine.

[12] She said that she had taken off her Velcro running shoes and then went out through the garage and put on sandals and went to get her purse. She stated that she got into the driver's side and the door closed. She stated that she reached onto the floor of the front passenger side to get the purse and put it on the seat. She said that she also rearranged a religious memento which she hung from the rear-view mirror. She stated that she believed that her keys were in her pocket. She says that she saw some light but was sitting up when the officer knocked at her window. She denied that she was sleeping and denied that she was slumped over the steering wheel.

[13] She states that the officer asked her if she was sleeping or if she was impaired and she denied both. She denied dropping the keys on the floor but insisted the keys were in her pocket the whole time, and they were not noticed by the female officer who searched her at the station.

[14] She stated that she engaged in a conversation with the officer and in response to his question about whether she had a medical condition, she stated that she had diabetes and she agreed with the officer that it could cause dizziness and slurred speech. She insisted that she was okay. She did not ask for an ambulance but she did not object to the officer when he called one. She denied understanding what any of this was about. She stated that if she was given the opportunity, she would have called a lawyer. Her cell phone was in the house and she had a land line phone.

[15] She stated that after her arrest, she did speak to duty counsel for a very short period of time. She did not complain about the advice nor did she ask to speak to a lawyer again.

Analysis

Has the Crown proven care and control of the automobile?

[16] The defence asserts that while the defendant was seated behind the wheel of the car when the police arrived, she did not enter the vehicle for the purpose of putting it in motion and thus has rebutted the presumption (in section 248(1)(a)), and it is therefore up to the Crown to prove beyond a reasonable doubt that the requirements of R. v. Boudreault are met.

[17] The first issue is whether the evidence of the defendant, on a balance of probabilities, has rebutted the statutory presumption of care and control.

[18] The first issue is whether the evidence of the defendant, on a balance of probabilities, has rebutted the statutory presumption of care and control.

[18] I have set out her evidence above. For the following reasons, I feel that I cannot accept her evidence:

(i) While I accept that a 7 minute window could (just barely) give her the opportunity to do what she said she did (from the driving up to the house to that attendance of the police with her in the car). I find that the multiplicity of tasks she describes (especially the consumption of two very full glasses of wine and the entry into discussions with her son) makes this scenario unlikely to have been completed in the widest possible reading of the time;

(ii) I find it most unlikely that she would have immediately upon entering the kitchen (and before retrieving her purse from her car) downed some 14 ounces (more than ½ a standard bottle of wine) of wine. By her evidence this was done while she was standing up and by her own evidence, it would have to be in the nature of "gulping";

(iii) Her explanation as to why the lights she had turned on the kitchen were not visible does not ring true. Blinds and drapes are likely to block a lot of light but not all of it;

(iv) If she was merely coming out to get her purse on the floor of the front passenger side of her car, then going into the driver's seat would be the most difficult means of retrieving it. More likely would be to simply open the passenger door and pick it up;

(v) For me to accept that she had completed the task of getting her purse, and putting it on the seat, and retrieving a religious memento and arranging it on the rear view mirror, and then sitting up, before the police arrived, I would have to discount significantly the officer's evidence that when he arrived, the defendant was slumped over the wheel and apparently asleep or simply unconscious. I have no reason to doubt the veracity of the officer's evidence in that regard, and I prefer it over her account;

(vi) I had no real explanation from her as to why she said that she changed her shoes. She came in and did not leave the kitchen and she would have known that she was immediately going back to the car;

(vii) Her evidence of the location of the keys is also at odds with the officer's evidence and indeed is contrary to the other evidence in this case. She denies that she was holding the keys or had dropped them on the floor of the car. The officer's evidence was very direct on this issue. I find that the officer's version is somewhat corroborated by the fact that the defendant was searched at the station and no keys were found on her person.

[19] While I find that her story has some elements of internal consistency, it needs to be more than just raising a doubt in my mind. It has to convince me on a balance of probabilities that she did not enter the motor vehicle with the intention of putting it in motion. I find that I am not convinced of that fact and indeed, I find on the balance of probabilities that after her arrival at her house, she did not leave her car, and she fell asleep with the keys to the vehicle in her hand. That is how she was found by the officer.

Have the 10(b) rights of the defendant been infringed?

[20] The defendant asserts that the officer formed his reasonable and probable grounds to make an arrest and make the breath demand at 17:21 or 17:22. The officer did not make the arrest and then do the demand until 17:40. The rights to counsel were not given until 17:43. From the time the officer formed his grounds, the defendant was under detention.

[21] The officer's explanations for the delay was that, on being informed of the existence of diabetes, he wished to have medical personnel see to a possible diabetic reaction or rule it out as a cause of the symptomology of the defendant. In coming to my ruling in this matter, I do not question the bona fides of the officer. I also do not think it matters whether the officer's primary objective was to rule out the existence of diabetes insofar as it related to his investigation or whether there was a concern for the well-being of the defendant. I believe he was considering both. I believe that he would have been justified, if the EMS had wanted her to go to the hospital, in notifying his detachment and requesting a mobile breath machine. He stated that if a doctor attributed her symptoms to diabetes, he would have gone no further, but he wanted to be ready in case any diabetic issues were not the sole cause of her indices of impairment.

[22] In any event, this was never put to the test, as the EMS personnel ruled out the existence of any diabetic reaction. In that sense, while he stated that he had reasonable and probable grounds to arrest before he summoned the EMS, (based on the driving information and the symptoms that he had seen), because he could not rule out the existence of a medical issue, this severely impacted upon his objective grounds.

[23] As stated in R. v. Suberu, at para 2:

…from the moment that an accused is detained, s. 10(b) Charter is engaged and …the police have the obligation to inform the detainees of his or her right to counsel "without delay". The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.

[24] In R. v. MacMillian, the Court of Appeal found that where the officer held off making an ASD demand for a long period of time while he dealt with other persons at an accident scene and after the defendant had received medical attention, the defendant was actually not under detention and thus there was no delay. There was no requirement in these circumstances to provide rights to counsel.

[25] There are many cases dealing with the provision of rights to counsel while the police are awaiting the ASD device. Those cases hinge mainly on the amount of time available to allow contact with counsel. I agree that many of my brother and sister judges have held delays of around 10 minutes to be unacceptable and would lead to a Charter breach.

[26] In our case, the time to consider is not the total time from formation of grounds to arrest, but the time between the formation of grounds and the arrival of the EMS personnel. I find the time is some 10 or 11 minutes. I note during the course of the wait, the officer did make inquiries as to the estimated time of arrival of the ambulance. I also note that other than general conversation, he did not try to elicit any incriminating information from her. I find that the time when the EMS personnel were engaged was time spent on dealing with a potential health issue of the defendant and I would not consider it in any delay. I also accept the officer's assertion that he was speaking to her to make sure she did not slip into any diabetic induced lack of consciousness. In that sense, the process of giving rights to counsel and facilitating that right would have been difficult.

[27] I find that in these circumstances, the officer was justified in making the call to EMS to have the defendant seen to. I also find that while the defendant was detained at that point, the medical concerns were paramount and it justified dealing with that issue before any further steps were taken. I find that the 11 minute delay in waiting for the EMS was not so significant a period of time that it would have allowed all the steps necessary to make a call to duty counsel (the defendant did not have and did not request a counsel of choice).

[28] I therefore find that on the facts of this case, there is no Charter breach. I find specifically that where there is a legitimate medical issue that needs to be addressed, then the officers are correct in holding off proceeding with any further steps, including giving the rights to counsel.

[29] Even if I am incorrect in my analysis and indeed the period of detention was almost 20 minutes and there was sufficient time for the defendant to obtain duty counsel, I must ask myself, would I find that the admission of breath test results or observations of impairment would bring the administration of justice into disrepute?

[30] The first issue is the seriousness of the breach. I find the officer had legitimate health issues of the defendant to consider. I find that he did not act unreasonably in having the EMS people attend. I find that taking care of all of these issues within 20 minutes was not a great deal of time. I therefore find that this was not a very serious Charter breach.

[31] The second issue is the effect of the Charter breach upon the Charter-protected interests of the defendant. Breath tests have been found to be minimally intrusive. The defendant did speak to duty counsel and did get legal advice before the breath tests were administered. Overall I find that the effect on the Charter rights of the defendant was minimal.

[32] Finally, the reliability of breath test results and the seriousness of the offence would mitigate against exclusion (at least) of the breath test results. I also find that most of the evidence of impairment was known to the officer before he formed his grounds and thus these would not be excluded in any event.

[33] On balance, even if I found this to be a breach of the defendant's 10(b) rights, I would not exclude the breath results of evidence of impairment.

[34] I dismiss the application.

Is the impaired care and control proven beyond a reasonable doubt?

[35] Having dismissed the Charter application, I must assess all of the evidence to determine whether the Crown has proven beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired, to any degree, by the consumption of alcohol.

[36] The evidence of impairment consists of the officers observations:

(i) The officer went up to the car and shone his flashlight and the defendant did not respond;

(ii) The officer saw the defendant slumped over the steering wheel with her hair over the wheel and she appeared to be asleep;

(iii) The defendant did not respond until the officer knocked twice on the window;

(iv) The defendant, upon being aroused, made a motion to put the key into the ignition;

(v) The eyes were glassy;

(vi) The defendant seemed dazed and confused;

(vii) When walking to the cruiser, the defendant walked slowly, but did not stumble or sway.

[37] Based upon the above, the officer clearly (he also had the report of bad driving) had reasonable and probable grounds to make an arrest for impaired driving.

[38] The observations of the breath technician only add red eyes to the indicia of impairment and by an hour or so later there was no evidence of unsteadiness.

[39] There is, however, the toxicologist's expert opinion that based upon the blood alcohol readings of this defendant (180 milligrams of alcohol in 100 millilitres of blood) that "an individual would be impaired in their ability to operate a motor vehicle".

[40] Based upon all of the above and especially taking into account the expert opinion of the toxicologist, I find that the defendant's ability to operate a motor vehicle was impaired by the consumption of alcohol.

Conclusion

[41] I therefore find the defendant guilty of the offences as charged.

[42] By virtue of R. v. Kienapple, I provisionally stay the charge of having care and control of an automobile with a blood alcohol level in excess of 80 milligrams of alcohol in 100 millilitres of blood.

Signed: "Justice P.N. Bourque"

Released: September 5, 2017