Ontario Court of Justice

Date: 2018-01-09

Court File No.: Central East - Newmarket 4911-998-16-07269

Between:

Her Majesty the Queen

— AND —

Christopher Howell

Before: Justice P.N. Bourque

Reasons for Judgment Released On: January 9, 2018

Counsel:

• K. Hutchinson, for the Crown
• Christopher Howell, Self-Represented

BOURQUE J.:

The Facts

[1] The defendant was stopped while driving in a parking lot in the early morning hours of September 17, 2016. He is facing a charge of driving with excess alcohol.

[2] The defendant was unrepresented. He did not bring any Charter applications. By virtue of my common law responsibility to give some assistance to an unrepresented defendant, and indeed to raise Charter issues on the defendant's behalf where I believe they arise in the evidence, I notified the Crown, before the close of her case that there appeared to be a Charter issue under section 10(b) of the Charter of Rights, and specifically, whether the defendant was given enough assistance to speak to his counsel of choice.

Matthew Perreault

[3] Is a York Regional Police officer of some 3 years' experience. The officer testified viva voce. There was an in-car video but it was not utilized in the course of the examination in-chief.

[4] He was on patrol in uniform in a marked police cruiser. He stated that at 02:38, he saw a red vehicle starting in a parking lot and then slowed down and stopped more than once. He decided to do a traffic stop to check for sobriety.

[5] After stopping at 02:40, he went up to the vehicle and he said he smelled a strong odour of alcohol. He asked for the driver's licence and it was given. He stated he had a reasonable suspicion that the driver (sole occupant of the car) had alcohol in his body. He went back to his car to check the driver and then returned with the ASD device. At 02:45, he read the ASD demand from the back of his book. The defendant (identified by the officer in court) was shown how to use the device. He blew into it and it registered a fail.

[6] At 02:46, the defendant was arrested for driving with excess alcohol. He was handcuffed, searched and placed in the rear of the cruiser. At 02:56, he was read the rights to counsel. The defendant asked to speak to his own lawyer. The officer wrote down Reid Penkouski as the name of the lawyer. The caution was read, and the breath demand was given at 03:00. The officer left for the station at 03:03 and arrived at the station at 03:15.

[7] The defendant was paraded before the staff sergeant at 03:17 and taken to the breath technician at 03:27. The officer stated that during the booking process, he tried to find the lawyer but could not find a phone number for that name. During the booking process the defendant gave him the name again and the officer spelled it "Reid Pintkousky". Again the officer did not note that it was a firm name and only noted it as if it were a person's name.

[8] He looked at the Law Society of Upper Canada web page but could not find the name either. He stated that he spoke to the defendant who at that point stated he did not want to speak to the lawyer so the officer took him to the breath technician. The officer stated that after taking the defendant to the breath technician, he was informed by the breath technician that the defendant would wish to speak to duty counsel, so the officer called, and when the call was returned, took the defendant to a telephone room, where he spoke to duty counsel for about 6 minutes. The defendant was taken back to the breath technician at 03:48 and at 04:51, he was returned and the officer served many documents upon the defendant including the certificate of analysis, which indicated he had exceeded the statutory limit.

[9] In cross-examination, the officer stated that he ran the licence plate of the defendant and then ran the record of the owner (who was the defendant). It revealed a record with a significant gun offence. The officer stated that while the defendant was not driving "awkwardly", it was not in a normal fashion.

[10] The defendant cross-examined the officer and used the in-car camera video. As an initial matter, the officer's microphone was not turned on when he went up to the defendant's car. The officer admitted that he had taken the strap of his holster off his gun as he came up to the car. The officer said that he forgot to turn on the microphone. The officer agreed that the defendant could have had his documents ready when he attended but did not note it. He also agreed that he could have said right away, "I smell liquor". The video indicates that the officer went back to his cruiser and another officer arrives at the scene and the officer says to the attending officer: "It's a bad dude". The officer admitted to saying that. The two officers then speak for a while with all the microphones turned off. The officer then turns on the microphones and they go up to the defendant.

[11] The witness goes to the passenger side and tells the defendant that he will ask him to blow into the ASD device. The officer formally reads the demand and the defendant is asked out of the car and goes to the front of the cruiser. The officer asks when his last drink was and the defendant says it was 2 hours ago. The defendant blows into the ASD and registers a fail. The defendant is denying any lack of sobriety saying that he has had 2 or 3 beers some two hours ago. In the police cruiser after the rights to counsel, the defendant asks to speak to his lawyer.

[12] On the way to the station, there is a car in front of the cruiser which is clearly straddling the lines and the officer honks at him. The officer does not investigate that car and does not call for any other officer to investigate that car.

[13] On one occasion, the officer stops at an intersection and the police vehicle is clearly over one or more of the stop or pedestrian walk lines. The defendant points it out to him but the officer denies it, for what reason, I do not know.

[14] Again just before arriving at the station, the defendant restates that he wants to speak to his lawyer.

Defence

[15] The defendant testified. He stated that he had something to drink that evening and was just leaving for home when his sister called him on his cell phone. He did not want to drive speaking on his cell phone, so instead of going onto the road he drove into a nearby parking lot to park and speak to her. He admitted that he had been drinking. He denied that the officer could have smelled alcohol on his breath, but he did admit that he told the officer had had two beers to drink. The defendant was very nervous and was very much aware of his previous record which had a serious entry for gun offences. He stated that in the car, he told the officer that he wished to speak to the Reid Pinkofsky firm. He stated that one Reid Rusonik of that firm had acted for him some 10 years ago. He agreed that he spoke to the officer more than once about his wish to speak to Reid Pinkofsky. He did not know how to spell the names.

[16] When the officer returned to speak to him he was adamant that he also said Reid Rusonik. The Crown played to the defendant the video of the breath room which included a conversation with the defendant while he was in his cell. The officer can be heard asking the defendant if he could spell the name Pinkofsky. The defendant's voice is barely audible and anything that he said in reply could not be heard. When asked by the Crown whether he could be mistaken about that, the defendant said it is possible but his best recollection is that he remembered saying the name Reid Rusonik.

Overall Credibility of the Officer

[17] The defendant believed that he had been singled out by the officer stopping him. The officer described the reasons that he stopped the defendant after seeing him in a parking lot with a liquor establishment and then seeing him go to leave and then go to park at a different point in the lot. The officer stated that he wished to check upon the driver's sobriety. He became aware before he got out of the car that the defendant had a record for guns. He said to another officer who attended at the scene that the defendant was a "bad one", obviously referring to his record. However, for the most part, the officer treated the defendant with deference and respect. While I accept that the defendant was nervous, and the officer touching his gun as he approached made the defendant more nervous, I do not think that he treated the defendant any differently from any other person involved in a drinking and driving investigation.

[18] Where the issue of credibility comes into play, is the several conversations about the defendant's counsel of choice. The officer clearly did not hear correctly when the defendant first gave him a name and added the word "firm" to it. That would clearly have changed what the officer was looking for. The question is whether, when there is a contradiction between the officer's evidence about the saying of the other lawyer's name (through the door of the cell) and that of the defendant, whom am I to believe? On balance I am swayed by the general credibility of the defendant. He gave his evidence in a slow and measured manner. He did not argue with the Crown, and accepted several of her suggestions. The officer made the initial error when he did not hear the word "firm". He could have made another error when the proper name of the lawyer was given to him.

[19] The defendant further explained that Reid Rusonik was the lawyer who had assisted him in his other matter, which was extremely serious, and obviously this defendant had faith in his abilities.

Was the defendant's right to consult with his counsel of choice infringed?

[20] The defendant asked to speak to his own lawyer. The officer took down a name that he could not find on the Law Society of Upper Canada website or on a Google search. The next question being: is that sufficient to satisfy the implementational requirement of the section 10(b) right. Even if that is sufficient, when given the name of another lawyer, should the officer have looked it up, before speaking to the defendant about duty counsel.

[21] The defendant bears the onus to satisfy me on a balance of probabilities that his right to counsel pursuant to s 10(b) was breached.

[22] The police have a duty to facilitate the implementation of the s.10(b) right of the defendant. As stated in R. v. Michael, 2017 ONSC 4579, the police have a duty to facilitate an opportunity to contact counsel, and further facilitating a reasonable opportunity to contact counsel of choice where a detained person has specified a particular lawyer. The detained person has a corresponding obligation to use reasonable diligence to contact counsel. As stated in R. v. Kumarasamy, [2002] O.J. No. 303, "if counsel of choice is not immediately available, an officer must not short-cut the right to counsel of choice by using duty counsel".

[23] Some recent decisions on what constitutes sufficient actions on the part of the police to facilitate access seem to be very fact specific. The police should allow a person to call another (such as a spouse) to find the phone number of a lawyer; for example (R. v. Mand, 2016 ONCJ 765). In a situation where an accused wished to call his own lawyer but did not have the phone number, the officer defaulting to duty counsel constituted a breach of the 10(b) right (R. v. Michael, supra). Where an officer has left a message for a lawyer, there can be a requirement that the officer inform the accused that he can wait a reasonable time before defaulting to duty counsel (R. v. Vernon, 2015 ONSC 943).

[24] I find in this matter that the defendant stated several times that he wanted to speak to his lawyer. I find he gave the name of the law firm that he believed had the lawyer that he wanted to speak to. I find that the officer made an initial error in that he believed he was being given the name of a lawyer. In that regard, any search he attempted was doomed to failure. I find that while the defendant at one point, seemed to waive his right to speak to a lawyer, he re-asserted his right and his earlier waiver has no relevance to this analysis.

[25] I find that this defendant did eventually tell this officer about the lawyer in the firm he wished to speak to but for some reason, the officer did not act on it. The officer then offered duty counsel and the defendant agreed. It is clear he agreed with some reluctance, as he had previous dealings with the lawyer Reid Rusonik.

[26] I do not find that the defendant could have done anything further to assert his right. He did not have his lawyer's number. He had no need of his services for about 10 years.

[27] In the result, I do find that the defendant's rights under section 10(b) of the Charter were indeed infringed.

Should the breath results be excluded from evidence?

[28] Pursuant to R. v. Grant, (2009) SCC 32, I must apply a three part test.

(i) The seriousness of the Charter-infringing state conduct. The question is whether this is a minor and technical breach or whether it constitutes a flagrant breach of this defendant's Charter rights. The right to speak to a lawyer after arrest and before compelled to provide a test which could provide the necessary evidence to convict you of a criminal offence is one of the most basic and necessary right in the Charter. In my opinion, the facts of this case point to a serious Charter violation.

(ii) The impact upon the Charter related interests of the defendant. This defendant had a previous relationship with his counsel of choice. It is easy to understand that he had some trust in him and wished his advice. He did however speak to the duty counsel and somewhat ameliorated the impact upon his interests. However even this would not favour admitting the breath test results into evidence.

(iii) Society's Interest in the adjudication of this case on its merits, would almost always favour an admission of the breath test results.

Conclusion

[29] When there is a weighing of the 3 factors in R. v. Grant where the seriousness of the offence is the only factor favouring admission, then the result is almost always an exclusion of the evidence. I find that this is the case I have here. I find that having found the Charter breach, I also find that I must exclude the results of the breath tests as to admit them would bring the administration of justice into disrepute.

[30] Having excluded the breath test evidence, I find the defendant not guilty of the offence as charged.

Released: January 9, 2018

Signed: "Justice P.N. Bourque"