Court File and Parties

Court File No.: 170533 Date: January 24, 2018 Ontario Court of Justice

Between: Her Majesty the Queen — and — Joanne Cummings

Before: Justice J. Peter Wright

Heard on: January 10, 2018

Reasons for Judgment released on: January 24, 2018

Counsel:

• Andrew Macdonald, for the Crown
• Matthew Wolfson, for the accused, Joanne Cummings

WRIGHT, J.:

Background

[1] The Investigating Officer is on a routine evening patrol in the Town of Perth and is flagged by civilians who are concerned with respect to a vehicle which they say has gone through a stop sign. We are told that it is cold, that the streets are snow covered in the Town of Perth. Sometime later at the south part of Town the officer sees a vehicle matching the description from earlier, it is proceeding southbound on the Rideau Ferry Road. The vehicle veers across where the centre line would have been, followed by a correction. This vehicle is stopped, as the Constable approaches, the windows are down, the accused before the Court is in the driver's seat chewing a mint. Her speech is slow and lethargic, there is an odour of alcohol but there is a male passenger as well who is described as intoxicated. So the accused person is asked to exit so that the Constable is able to isolate the odour. He smells alcohol on the breath of the accused and makes the roadside demand. The roadside demand is followed by a fail at 2:44. Ms. Cummings is arrested, she is cuffed and placed in the cruiser and it should be noted that her attitude changes on arrest. She says "no" and becomes difficult and keeps interrupting. The Constable goes to search her vehicle and arrange a tow. On returning, he gives right to counsel at 2:52, eight minutes more or less. There is a breath demand at 2:57 at which time the accused becomes angry and aggressive. At 3:03 they depart, arriving at the Lanark Detachment at 3:11. At 3:13 Ms. Cummings is in cells, at which point Ms. Cummings demands to speak with her mother who is going to Florida as she wishes to say goodbye. She is asked if she had a lawyer or wished to look at the list or speak with Duty Counsel. Ms. Cummings wouldn't answer the officer and she says she wants to call her mother to say goodbye. At 3:20 she says she wishes to speak with Richard Knott. The officer explains he is a judge and she will need to select someone else. They go through the options again, list, Duty Counsel or if she had a name of a lawyer the police would do an internet search on her behalf. Ms. Cummings goes to the list three times and says McGillivary. She then says, "I don't want him, I don't want the list". Ms. Cummings then asks for Bridgit Quinn. She says she's not 100% that she practices criminal law but get hold of her. She then says she recently had a baby and didn't want her. She then becomes more angry, it is now 3:28 at which point another officer realizing that there are difficulties attempts to direct Ms. Cummings to the list, then he as well suggests Duty Counsel. He says there is one number that only works from Monday to Friday at 9 to 5, she says "oh I want that one !", the one that won't answer.

[2] She then goes back to Richard Knott and again is told she needs to pick someone else. Ms. Cummings goes to the list, she says she wants to call her mom again. At 3:32 she's back to McGillivary. Ms. Cummings then says she wants Alex Ferguson, then she says, "No, McGillivary", she is lodged in cells and a call is placed. A message is left, a call is made to an alternative number and at 3:49 she is told that it's been 15 minutes, he has not called back and she's offered another counsel "of choice". She then screams to the arresting officer, "it's your fault, get me my lawyer!" She is asked who and at 3:51 she goes back to Bridgit Quinn, police are unable to find a number, Ms. Cummings could not offer a firm name. The police conduct a search and find a P. Quinn in the book and offer to call on the chance that this might be a relative of Bridgit Quinn. The accused then says, "don't call her, she just had a baby", Ms. Cummings is still annoyed. At 3:56 she says, "Eric Smith", she is lodged, a call is placed and the number is not in service. An internet search is undertaken which yields the same number. A third officer calls Ottawa to the cell block looking for a more up to date number for Smith. At 4:08 Ms. Cummings is told that they couldn't reach him, at 4:11 she looks at the list and says, "I want the first one, Langevin". The call is placed which is directed to Giancaterino. At 4:17 a consult begins, at 4:29 Ms. Cummings whips the door open and is yelling. She says, "the lawyer wants to talk to you", the police gather that Ms. Cummings is refusing Giancaterino and wants another lawyer. She is asked, "who would you like to talk to? She says she is not refusing, she wants her lawyer. At 4:33 she is again looking at the list, she then says she wants Duty Counsel. A call is placed at 4:35, a second call is made 5:17, she is put in contact with Duty Counsel and at 5:27 she is completed and is turned over to the technician.

[3] As an aside, I quite frankly can't recall in 24 years a similar performance or similar patience being demonstrated by the police in efforts to facilitate. The Constable arresting Ms. Cummings testified that in 11 years she was one of the most difficult people to deal with, that she was aggressive and that he felt she should be detained until she was safe to be released, when she had calmed down and sobered up. His reasons for this are:

(1) having been charged and her reaction to the charge;

(2) the behaviour, angry and aggressive;

(3) significant readings, even at this late time.

[4] He testifies that this was an exceptional situation, his view was that she should be kept for four hours but that this should be re-assessed, the readings are completed by 6:00 a.m. and the accused is informed of the charges at 6:30. Constable is to go off shift at 7:00, by his estimate as indicated that the condition of Ms. Cummings should be assessed in four hours' time so going forward we are looking at something in the area of 10:00 or 10:30 in the morning, she is ultimately released at 12:30.

Issues: Right to Counsel and Over-Holding

Right to Counsel

[5] The defence argues that right to counsel is triggered on the arresting officer having a reasonable suspicion and argues that this would begin prior to the observation of alcohol on Ms. Cummings' breath.

[6] Reasonable suspicion is understood to be just that – there are two components as subjective suspicion of alcohol in the body which viewed objectively must be reasonable. The arresting officer was not at all shaken in any of his evidence, he tells us that he did not form a reasonable suspicion until he smelled alcohol from Ms. Cummings' breath and that is objectively reasonable.

[7] The next issue is the requirement of the right to counsel be provided forthwith as in immediately pursuant to Suberu subject only to safety and other limited concerns. Ms. Cummings is cuffed, she is searched, she is placed in the cruiser, all are proper and permissible by Suberu, all going to safety issues. The arresting officer says he needs to address the location of the vehicle because it is not safe where it is placed on the highway and this as well could be a safety issue as contemplated by the Supreme Court. The next step taken is the search of the vehicle. There are no suggestions of exigent circumstances which would allow the Court to conclude that this was a safety concern. There is no reason that explains why it could not have been done after the right to counsel and, in particular, where there was another officer who could have either conducted the search or secured the evidence. Although the jurisprudence as of late is conflicting I think a fair application of Suberu would lead one to the conclusion that right to counsel was not forthwith as in immediate and that this therefore results in a Charter breach.

Over-Holding/Continued Detention

[8] Defence argues that the accused was held for hours, she is released six hours after being told of the charge. The Constable provides an explanation for his decision to hold her, to allow her to sober up and to calm down. In all the circumstances his actions were reasonable. There is no specific evidence as to the reasons for the last two hours or so and I am mindful that such a decision as to an individual's sobriety and state of mind is not an exact science. It is very easy to second guess. In the circumstances of this case, I would not find that there was a Charter violation for the continued detention of Ms. Cummings.

Section 24(2) Right to Counsel

[9] I am going to follow the decision of my brother Justice Kenkel in Darlington:

The delay in right to counsel advice in this case was not serious as the officer was aware that advice was the next investigative step and he did not continue his investigation until after right to counsel advice was provided minutes later. In R v Suberu the Supreme Court explained at paragraph 41 that the primary reason "without delay" was interpreted as "immediate" was due to the risk of self-incrimination during detention. There was no risk of self-incrimination in the intervening minutes in the circumstances of this case. I agree with the Crown that this s.10(b) breach was a technical one. It could not have had any impact on the accused's Charter protected right. That's particularly the case here where the accused declined to speak to a lawyer at the roadside and then declined several further offers at the police station. This section 10(b) breach could not reasonably result in exclusion of evidence nor does it add anything to the case for exclusion in combination with other breaches.

[10] Justice Kenkel goes back to the rationale of Suberu, the point being to avoid risk of self-incrimination. There was no risk of self-incrimination here between the arrest and right to counsel being provided. I would echo Justice Kenkel's comments that in the circumstances of this case the breach could be seen and I hesitate to use the term as a technical one. In light of Ms. Cummings' somewhat unique approach to the exercise of right to counsel I think any other outcome would make a mockery of the Charter and would bring the Courts and the Charter of Rights into disrepute.

(1) the breach is momentary – there is no evidence obtained.

(2) the impact on Charter protected rights would be negligible – Ms. Cummings displays no actual interest in obtaining legal advice, either because of her level of intoxication or out of an attempt to defeat the process; we do not know which.

(3) of course, society has an interest in having matters involving drinking and driving dealt with on their merits so I would certainly not exclude any of the evidence as a result of the right to counsel breach.

Over-Holding Detention

[11] If I am in error and there was a Charter violation because of the continued detention then I would follow the decision of R. v. Cavanagh, Ontario Superior Court of Justice, Heeney J., that this would not be one of the clearest cases that would justify a stay.

[12] I am, therefore, satisfied that the Crown has proved the essential elements of both offences beyond a reasonable doubt.

Released: January 24, 2018

Signed: "Justice J. Peter Wright"