R. v. Ndaye

Court Information

Court File No.: Toronto 4817 998 17 75001952-00

Date: 2018-07-27

Ontario Court of Justice

Before: Justice Howard Borenstein

Heard: June 18 and June 19, 2018

Reasons for Judgment Released: July 27, 2018

Parties and Counsel

Her Majesty the Queen

— AND —

Bruno Ndaye

Counsel:

• Mark Friedman, for the Crown
• Tyler MacDonald, for the defendant Bruno Ndaye

Introduction

[1] Bruno Ndaye is charged with care or control of a vehicle while his ability to do so was impaired by alcohol and with a BAC over 80.

[2] P.C. Ali received a radio call around 6:30 in the morning, indicating that there was an impaired driver asleep in a running car, located in the parking lot of an apartment building. That car, the caller said, had rolled into another parked car. When P.C. Ali arrived, firefighters and EMS were on scene and the accused was walking away. The paramedic told Ali that that male was the driver. Ali stopped the male and brought him to the cruiser. He took the male's identification and keys. He told the male he wanted to investigate the collision. He did not give the male his right to counsel. He questioned the accused for the next four or five minutes, and acquired reasonable and probable grounds to believe the accused was impaired. He arrested the accused, read him his right to counsel, and brought him to the police station. The accused then provided two breath samples that were over the legal limit.

[3] I heard from Constable Ali, the paramedic and the breath technician, as well as the accused.

[4] The accused testified that he felt detained when initially approached. He also testified that he had been at a party the night before and drank two cups of punch. He did not know there was alcohol in the punch.

[5] The defence argued that the accused's right to counsel was violated during the four-five minute exchange in which Ali detained and questioned the accused, and obtained his grounds. He further submits that the grounds obtained during the violation of the right to counsel should be excised, and that there was therefore a s. 8 violation as well. He submits that the breath readings should be excluded. He also submits that, if his evidence raises a reasonable doubt about whether he knew he consumed alcohol, he should be acquitted on that basis as well.

Evidence

P.C. Ali

[6] Turning to the evidence of P.C. Farhan Ali. He was working the morning shift on April 26, 2017. At 6:34 a.m., he received the call referred to above.

[7] At 6:45 a.m., P.C. Ali approached the accused to investigate him. The accused seemed disoriented, flustered and was sweating as if in medical distress. Ali asked him if he was okay and needed an ambulance. The accused said he was okay and did not need an ambulance.

[8] Ali asked the accused to come to his cruiser so that he could investigate the collision. He asked for his identification. The accused pulled out various cards and fumbled through them, passing over a photo health i.d. before then handing over that card. Ali ran the accused's name and confirmed his identity. Ali asked for and obtained the accused's car keys. Ali got closer to the accused to investigate the collision, and detected an odour of alcohol coming from the accused's breath. Ali asked the accused about the collision. He replied there was no collision. Ali took the accused to the car and showed him the damage to his and the other vehicle. The accused seemed surprised. Ali testified that the accused's responses were all delayed more than a coherent person would delay. The accused's eyes were very bloodshot, glassy and watery. Ali asked the accused if he had fallen asleep behind the wheel. The accused said he hadn't. He was there to see his girlfriend.

[9] At 6:49, Ali formed reasonable grounds to believe the accused had had care or control while his ability to do so was impaired by alcohol. He arrested and handcuffed him and brought him to his cruiser. He told the accused the reason for the arrest, and turned on his in car camera. Ali testified that his grounds for arrest were based on the following:

1. The accused was disoriented and incoherent.
2. The delay in finding his photo identification.
3. The accused appeared confused about the collision and denied it, even when shown the damage.
4. He was sweating profusely as if in medical distress.
5. His eyes were bloodshot and watery.
6. He had a strong odour of alcohol coming from his breath.
7. The paramedic identified him as the driver.

[10] Between 6:50 and 6:55, Ali requested another cruiser attend the scene to take statements from witnesses and deal with the collision. He requested the location of the nearest breath technician, and read the accused his right to counsel. The accused said he wanted to speak to a lawyer. Ali said he would facilitate that when he could afford the accused privacy.

[11] At 7 a.m., the 2nd unit arrived and at 7:03, Ali and the accused departed the scene for the nearest breath technician. They arrived at 7:26 but had to await the booking sergeant. Between 7:33 and 7:55, the accused was booked. At 7:56, he provided his lawyer's name. The accused spoke to counsel between 8:04 and 8:10.

[12] At 8:21, he provided his first breath test, which yielded readings of 104 milligrams of alcohol per 100 millilitres. The accused wanted to call someone so the officer got him his cell phone. The accused provided his second breath test at 8:47 a.m., which produced results of 93 milligrams of alcohol per 100 millilitres. He was then taken to 53 Division and was provided with all the paperwork, including the certificate of qualified technician. That all occurred at 12:30 p.m.

[13] In cross-examination, P.C. Ali initially confirmed that he was aware of the potential impaired charge and collision when he arrived on scene. He agreed he detained the accused.

[14] He was asked as to why he did not immediately advise the accused of his right to counsel. He replied that he had to give right to counsel when detaining someone for a criminal offence. He maintained that he detained the accused to investigate the collision but not the impaired charge. This, despite the call that was described as an impaired driver, who rolled into cars and was asleep in his own car. He maintained that he gave the accused his right to counsel when he formed his grounds for arrest. He denied conflating grounds for arrest with detention and investigation. He continually maintained that he was only investigating a collision under the HTA. When it was asserted, and he agreed, that the HTA did not apply as the entire event took place on a private parking lot, he testified that the accused was not detained. In short, the cross-examination on the issue of detention undermined P.C. Ali's credibility. As a result, I am prepared to rely on his evidence only where it is corroborated by other evidence or compelling in the context of the circumstances of the case.

[15] Beyond the issue of detention, he testified the accused's condition gradually got better as booked. Ali agreed that the booking video showed no lack of balance or co-ordination.

P.C. Niziol

[16] The breath technician P.C. Niziol testified that the Certificate of Analysis incorrectly stated 2016 rather than 2017. He dealt with the accused about an hour and forty minutes after the alleged offence, and agreed that the odour of alcohol he detected on the accused's breath was not strong or weak. He did not then note any perspiration. The accused speech was good, not slurred, and the accused was not stumbling, and his attitude was quiet. The accused's eyes were bloodshot and his pupils were dilated.

Mr. Panagakos

[17] The paramedic, Panagakos, testified that he arrived on scene at 6:40 a.m. The accused was asleep in the driver's seat and the engine was running. He was parked in such a way that the right side of his car was blocking three cars. His car was very close or in contact with one of those cars, and was against a fence at the front. He knocked loudly on the window and awoke the accused. He asked if he needed help or an assessment, and the accused said no and fell back asleep. He asked the accused to turn off the car. The accused then tried to move the car forward and backwards a few feet. His eyes were glassy and he seemed a bit confused. He told the accused he had crashed the car but the accused did not reply. He did not notice any slurring or stumbling. That was the Crown's case.

Bruno Ndaye

[18] The accused testified on both the Charter application and the trial. He had been working late the night before this incident. At around midnight, he went to a party. While there, he had two large, red plastic cups of punch from a punch bowl. He did not know nor taste any alcohol, only the punch. He left the party and was going to visit his friend Nicole, who lived in one of the apartment buildings connected to that parking lot. He arrived around 2 a.m. He called Nicole as he arrived but she did not answer. He did not know where to park in that lot as the parking spots were assigned, so he parked up against a temporary construction fence, blocking three cars on his right. He did so, so that other cars (presumably not those three) could get around him. He called Nicole numerous times but she did not answer. He fell asleep in the car but was awoken by a male who told him he could not park there. He then moved the car, however his front wheels were turned right. When he moved it, he heard a scratch to the front. The male who had knocked on his window walked away. He fell back asleep. He was then awoken by the paramedic.

[19] He testified that he had been working very hard and had not slept for about 30 hours when he encountered the police, other than when he fell asleep in the parked car.

Findings of Credibility and Reliability

[20] While P.C. Ali's evidence was impressive in-chief, the cross examination about detention undermined his credibility. This includes whether, when and why the accused was detained. P.C. Ali's evidence continually changed depending on the context of the question.

[21] For example, he initially agreed he was there to investigate the collision and potential impaired allegation. He agreed he detained the accused at 6:45 a.m. When asked why he did not give the accused his right to counsel, he replied that he does not give right to counsel for collision investigations, only for criminal investigations. He then maintained that he was not investigating the potential impaired allegation. When challenged on that, he maintained that he was not investigating the impaired allegation until he formed his grounds. That was not credible. He received a call about an impaired driver, asleep in a parked car, who rolled into another car. He was there to investigate that allegation. He tried to answer by conflating the formation of grounds with whether he was investigating the matter. When the evidence evolved to the point that this was not an HTA investigation, he changed his evidence again and said the accused was not detained. In short, the cross-examination on the issue of detention undermined P.C. Ali's credibility. As a result, I am prepared to rely on his evidence only where it is corroborated by other evidence or compelling in the context of the circumstances of the case.

[22] I also had problems with the accused's credibility. His evidence that he did not know he consumed alcohol was not credible, particularly when he then added that he was not even suspicious that there was alcohol in the punch bowl of this late night party. It was an adult party, not a child's party. There was alcohol on the counter. I do not believe the accused on this point, which is significant in this case. Moreover, at one point in the evidence, the accused volunteered that it occurred to him that he was being investigated by the officer. I did not believe that evidence and it seemed as though he volunteered that point gratuitously to try to assist in his Charter application. Further, he was unnecessarily combative with the Crown and unwilling to yield the obvious points in in cross-examination, and that all detracted from his credibility as a witness. I do not at all believe or have a doubt that he did not know he consumed any alcohol.

[23] I had no concerns about the credibility or reliability of the breath technician or the paramedic.

Findings

[24] With those comments, I turn now to my findings of fact.

1. The accused was detained by P.C. Ali from 6:45 a.m. onward, once the officer called him over, took his identification and car keys. Despite P.C. Ali's inconsistency and equivocation, the accused was detained and felt detained. I accept the accused's evidence on this point that he felt detained as well.

2. The detention was for the purpose of investigating a potential impaired driving charge, as well as the collision. That is the only reasonable interpretation of the events. I make this finding despite P.C. Ali's evidence.

3. P.C. Ali did not inform the accused of his right to counsel upon detention at 6:45 a.m. but did so at 6:49, only after questioning him about the collision and forming his grounds for arrest.

4. The next question is whether P.C. Ali should have given the accused his right to counsel immediately upon detention. The short answer is a qualified yes, as per R. v. Suberu, 2009 SCC 33.

[25] The Charter requires the police to inform a detainee of his or her right to counsel without delay or immediately upon detention. The immediacy requirement is subject to legitimate concerns for officer or public safety, or other reasonable limits prescribed by law. A brief delay, such as occurred here, could be justified by safety or medical concerns, or even by the officer performing reasonably, necessary tasks (see R. v. Foster (2017) ONCJ 624 per Jaffe, J.; R. v. Rossi (2017) ONCJ 443 per Henschel, J. for but two examples). However, the delay that occurred here, although brief, was not for any of those reasons. It was to engage the accused in questions while investigating this impaired call. While P.C. Ali did not need to inform the accused of his right to counsel before he asked the accused if he was okay or needed medical attention, he should have before he began to question him about the collision. Justice K. Campbell's judgment in R. v. Chanmany (2016) ONSC 3092 is instructive. In Chanmany, the accused was a passenger in a car. The car was stopped. Officers saw the accused slide cell phones and money under the seat. The officer asked the accused to exit the car. They asked his name and then ran his name. They learned he was on a recognizance not to possess mobile phones and related devices. The trial Judge found there was a breach of s. 8 but not of s. 10(b). Despite the breach, the trial judge admitted the evidence. On appeal, Justice Campbell held there was no s. 8 breach but there was a s. 10(b) violation and excluded the evidence. In so doing, he held:

[38] In R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2, 37-42, the Supreme Court of Canada held that the "right to counsel" duties that are imposed upon the police by s. 10(b) of the Charter are triggered immediately upon an arrest or detention. The court held, in short, that the phrase "without delay" in s. 10(b) means "immediately." In the result, upon any detention or arrest, the informational duty and implementation obligation cast upon the police must be immediately executed. This is so, as the court in Suberu explained, because concerns over compelled self-incrimination and interferences with individual liberty are triggered as soon as a citizen is detained or arrested, and citizens must accordingly be protected. The Supreme Court held that the immediacy of the obligation cast upon the police is subject only to concerns for officer or public safety, or reasonable limits that are prescribed by law and justified under s. 1 of the Charter. See also R. v. Wong, 2015 ONCA 657, 127 O.R. (3d) 321, at paras. 50-52.

[39] Accordingly, in concluding that the "the brevity of the detention" made it "unnecessary to activate" the appellant's right to counsel, the trial judge erred. In reaching his conclusion, the trial judge relied upon the decision in R. v. Harris, where the Court of Appeal held, at paras. 47-48, that Mr. Harris, who was lawfully detained as incident to a brief and lawful highway traffic stop and investigation, was not required to be provided with his right to counsel at the roadside. Doherty J.A. expressly noted that this point was conceded by defence counsel and was consistent with the jurisprudence holding that the exercise of s. 10(b) Charter rights is "incompatible with the brief roadside detention contemplated by a stop made for road safety purposes." See also R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3; R. v. Suberu, at para. 45; R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont.C.A.); R. v. Saunders (1988), 41 C.C.C. (3d) 532 (Ont.C.A.). That is the critical distinguishing feature between Harris and the present case – the accused in Harris was detained pursuant to a lawful highway traffic stop and investigation, while the appellant in the present case was detained in furtherance of an independent criminal investigation.

[40] In the result, as I have indicated, the police were constitutionally obliged to provide the appellant with his right to counsel immediately upon detaining him for investigative purposes. In failing to do so, the police violated the appellant's rights under s. 10(b) of the Charter. Instead of providing the appellant with his right to counsel in a timely way, and promptly advising him of his right to remain silent, the police required him to identify himself so that they could pursue their criminal investigation.

[41] It was at the very outset of his investigative detention that the appellant most needed the wise counsel of a criminal lawyer, who could have advised him that he was not obliged to provide any information to the police, including any information concerning his identity. See R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21.

Accordingly, there was a violation of s. 10(b) of the Charter.

[26] Returning to my factual findings, P.C. Ali subjectively believed that the accused's ability to be in care or control of a car was impaired by alcohol at 6:49, when he arrested him and read him the breath demand. P.C. Ali testified that his grounds were based on the following factors:

• disoriented and incoherent
• delayed in finding id card
• appeared confused about collision and kept denying even after seeing damage
• sweating profusely as if med distress
• eyes bloodshot glassy and watery
• strong odour of alcohol beverage from breath
• EMS id him as driver

[27] The defence submits that the first three factors relied upon by the officer were obtained as a direct result of the violation of the right to counsel. I agree. However, even absent factors 1-3, there remained ample objective reasonable grounds for the arrest and breath demand without those factors. Based on the information received by the officers, as well as seeing the accused walking away from the car sweating as if in distress with bloodshot and glassy eyes, together with an odour of alcohol on his breath, at 7:00 in the morning, amply justify objectively the officer's subjective belief and subsequent arrest and breath demand.

[28] The defence further submits that, given Ali's evidence that all of the factors were necessary for his reasonable grounds, if I excise 1-3, the officer no longer has subjective reasonable and probable ground.

[29] I disagree. Excising grounds 1-3 do not alter the officer's subjective belief formed then and there. See the approach in R. v. Garofoli. At most, they might undermine the objective basis for that belief but they do not in this case.

[30] So, despite the masterful cross-examination, I am of the view that there remained reasonable and probable grounds that were both objectively and subjectively reasonable.

[31] Accordingly, there is no section 8 violation. The breath demand was lawful.

[32] There was a s. 10(b) violation. It was not particularly serious. It was only four minutes and, it had little impact upon the accused's Charter-protected interest given that there remained sufficient grounds for the arrest. But there was a violation of the right to counsel. And counsel seeks to exclude the breath readings as a result.

Section 24(2)

[33] Turning now to the Grant analysis under s. 24(2).

[34] Beginning with the seriousness of the Charter-infringing conduct. In one sense, the violation of the right to counsel was not particularly serious for the reasons just given. However, the seriousness is significantly aggravated by the officer's evidence about the detention. In R. v. Pino, the trial judge found that the gunpoint arrest of the accused was unreasonable. Further, one officer testified that he could not recall if his partner pulled his gun. The other officer testified that it was a routine traffic stop. The trial judge found that that evidence was not credible. Nonetheless, he admitted the evidence finding the breach to be moderately serious. There was also a s. 10(b) breach which was serious. In overturning that finding and excluding the evidence, the Court of Appeal held:

Second, the police's dishonest testimony about the arrest, though not an element of the Charter breach itself, is relevant to the first Grant factor. In my view, the trial judge understated its impact. The Supreme Court's decision in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, is directly on point. In that case, at para. 26, the Supreme Court endorsed the observation of my colleague Cronk J.A. in her dissenting reasons in this court:

The integrity of the judicial system and the truth-seeking function of the courts lie at the heart of the admissibility inquiry envisaged under s. 24(2) of the Charter. Few actions more directly undermine both of these goals than misleading testimony in court from persons in authority.

[103] For these reasons, to adopt the trial judge's phrase, the three Charter breaches are close to "the extreme end of seriousness." This first Grant factor favours exclusion of the evidence. Admission of the evidence in the light of the seriousness of the breaches, and especially the officers' dishonest testimony, may send the message that the justice system condones this kind of conduct.

[35] So, despite the relatively minor nature of the breach, in light of the evidence given in relation to the issue, the Charter-infringing conduct was serious.

[36] There is no impact on the accused's Charter-protected interests in this case because there remained reasonable grounds, and I have not considered any of the impugned comments.

[37] The third consideration also favours admission.

[38] Balancing these factors, I conclude that the evidence of the breath readings should not be excluded.

[39] The impact of the officer's evidence has already been addressed. I will no longer rely upon it without corroboration. That means, as will be seen in a moment, that the accused will be found not guilty of the impaired count.

[40] I am also excluding the evidence that was obtained as a result of the breach. I am relying only upon that evidence that is corroborated. In my view, the non-reliance upon the officer's evidence, the acquittal that flows on the impaired and the exclusion of the impugned indicia is a balanced and sufficient remedy for the breach as exacerbated by the evidence.

[41] Excluding the readings at this point would be overly overkill. It would be punitive in effect a stay, given the other remedies already obtained. In Pino, there were more and more significant breaches to be sure.

[42] As for the impaired count, he will be found not guilty. I am not prepared to rely on Ali's evidence to support the conviction. His evidence, as corroborated, satisfies me as to grounds. But not as to guilt beyond a reasonable doubt. The breath technician's evidence revealed slight indicia. The disorientation or confusion or sleep witnessed by Ali and, to an extent, the paramedic, in the context of the case, could well be attributable to having been sound asleep in the car before being woken.

Released: July 27, 2018

Signed: Justice Borenstein