Court Information
Information Number: 2811-998-17-34157-01 Date: 2018-10-09 Ontario Court of Justice
Between: Her Majesty the Queen — and — Nicholas Doobay
Before: Justice M.S. Block
Heard: June 6 & 7, 2018
Reasons for Judgment Released: October 9, 2018
Counsel
For the Crown: J. Kim
For the Defendant Nicholas Doobay: A. Gold, L. Metcalfe
Judgment
BLOCK J.:
Charges and Issues
[1] On March 17, 2017 Nicholas Doobay was charged with impaired operation of a motor vehicle, contrary to s. 253(1)(a) and refusal to provide a breath sample, contrary to s. 254(5) of the Criminal Code. The Crown did not pursue the charge of possession of marijuana, contrary to the Controlled Drugs and Substances Act. The Crown has conceded that the charge of impaired operation should be dismissed. Mr. Doobay argues that his right to counsel, pursuant to s. 10(b) of the Charter, was violated and that evidence of his refusal should be excluded from the evidence at trial, pursuant to s. 24(2) of the Charter. He also argues that the Crown has not met its burden to prove his refusal beyond reasonable doubt. The Charter application and the trial proper were heard as part of a blended proceeding. Mr. Doobay gave testimony only in relation to the Charter issue.
Facts Regarding the Stop and Arrest
[2] The first witness at trial was PC N. Cronin, a member of the Durham Regional Police. At 4:25am on March 17, 2017 he was driving a Chevy Tahoe with Durham Regional Police markings east bound on Bayly Street in the City of Pickering. PC Cronin observed a black Volkswagen Golf travelling north bound on Brock Road. The vehicle was speeding as it executed an improper left turn onto Bayly. PC Cronin turned to follow the vehicle on westbound Bayly. As the vehicle-of-interest approached Salk Road it braked abruptly and turned right on to northbound Salk Rd without the activation of its signal lights. The vehicle then turned right onto Plummer St and stopped in a shopping plaza parking lot. At 4:28am PC Cronin entered the lot and parked behind the vehicle.
[3] PC Cronin approached the driver's side. There were two occupants. The driver was Mr. Doobay. He stared forward as he ignored PC Cronin's first knock on his door. He responded to the second. PC Cronin smelled an "overpowering" scent of alcohol emanating from the interior of the vehicle. He told the driver that he stopped him because of his erratic driving. The driver, Mr. Doobay, then said: "I saw you and was trying to get away from you". The defendant then admitted that he consumed "a few sips of alcohol" that night.
[4] PC Cronin testified that he wanted make sure that the smell of alcohol was coming from the defendant's breath. Mr. Doobay complied with his direction to step out of the car. PC Cronin then confirmed that the source of the smell of alcohol was the defendant's breath. PC Cronin advised him that he was being investigated for impaired operation of a motor vehicle. As Mr. Doobay unsuccessfully attempted to locate his driver's license, he said to PC Cronin "don't tell my parents I have been drinking and driving". PC Cronin noticed a number of other indicia of potential impairment which led him to arrest Mr. Doobay for impaired operation at 4:32am. Grounds were provided to the qualified breath technician, PC Fong, at 5:27am. They included the features of the poor driving observed, odour of alcohol, bloodshot brown eyes, unsteadiness on his feet and slurred speech.
[5] PC Cronin related that on being informed of his arrest Mr. Doobay said "I'm not under arrest" and attempted to re-enter his vehicle. He was then handcuffed and led to the rear of the police vehicle. While underway, he repeated "I'm not impaired" and "you can't do this to me". After Mr. Doobay sat down in the police vehicle he attempted several times to prevent PC Cronin from closing the car door by putting his foot between the door and the threshold. The constable then pushed the defendant inside the vehicle and succeeded in closing the door.
[6] During the above interaction between PC Cronin and Mr. Doobay, PC Cronin's partner, PC Delaney, dealt with the passenger and recovered a nearly empty bottle of Hennessy cognac and some marijuana from the vehicle.
Charter Rights to Counsel
[7] After Mr. Doobay was arrested for the drug offence, PC Cronin read him the following rights to counsel advice from a pre-printed card on the back of his memo book.
I am arresting you for impaired operation of a motor vehicle by alcohol. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1 800 265 0451 is a number that will put you in touch with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?
[8] Mr. Doobay responded "no" to the last question in the above recitation.
[9] PC Cronin testified that he then restated the rights to counsel in "plain English". Again, Mr. Doobay replied "no" when asked if he understood.
[10] PC Cronin re-stated the rights to counsel. On the third occasion Mr. Doobay replied "yes" and added that he wasn't trying to be difficult. Following this apparent success, PC Cronin asked Mr. Doobay "do you wish to call a lawyer now?" The defendant replied "yes". However, the defendant did not respond when asked which lawyer he wished to call.
[11] PC Cronin then read the standard caution to the defendant.
You are charged with impaired operation of a motor vehicle by alcohol. You are not obligated to say anything unless you wish to do so, but whatever you do say to me may be given in evidence. Do you understand?
[12] In response to that last question the defendant replied "no". PC Cronin then re-advised the defendant in "plain English". This time Mr. Doobay said that he understood. When asked if he wished to say anything in answer to the charge, Mr. Doobay replied "I'm not impaired".
[13] PC Cronin then read the standard breath demand to Mr. Doobay. When asked by the constable if he understood, the defendant again said "no". When the demand was re-stated the defendant confirmed that he understood.
[14] At 4:46am PC Cronin then transported the defendant to the West Division. They arrived at 4:51am. Mr. Doobay was brought before Sgt McMillan during the parade. The Sgt asked Mr. Doobay whether he had been read his rights to counsel. Mr. Doobay told Sgt that he did not understand the rights to counsel. After his Charter advice was re-read to him, the defendant stated that he understood.
[15] PC Cronin testified in chief that, at the parade, Mr. Doobay denied receiving his rights to counsel after his arrest. He was wrong. When contradicted by the station video he readily admitted his mistake. I conclude that this isolated error did not impair the reliability of the evidence of PC Cronin as a whole. His evidence regarding Mr Doobay's physical indicia and alleged lack of comprehension was unchallenged.
The Police Station Parade
[16] The parade was conducted by Sgt MacMillan. He was appropriate and professional. He squelched some mild momentary exasperation expressed by PC Cronin. During the parade Mr. Doobay asked the Sgt how long he had to await counsel's return call. The reply was to the effect that the preference was that the test be conducted within two hours.
[17] The parade process for was preserved on video. I was able to directly observe Mr. Doobay as he was on arrival at the police station. I observed that Mr. Doobay was coherent, focused, displayed no signs of impairment and spoke complete sentences of unaccented, idiomatically fluent Canadian English.
[18] I have compared Mr. Doobay's alleged incomprehension and uncooperative behavior at the scene to his behavior and demeanor captured by the police station video. I also apply my own observations of the confident, intelligent, articulate and adroit third-year university student I saw before me at trial. I find as a fact that this alleged lack of comprehension at the scene and shortly thereafter was a charade.
Attempts to Contact Counsel
[19] The defendant indicated at the parade that he wanted to call Joseph Neuberger. He was unsure of the spelling of counsel's name and had no contact telephone number for him. PC Cronin found counsel's name and contact information in the lawyer's directory. He also checked the Law Society website to ensure that Mr. Neuberger was still practicing law. At 5:18am Constable Cronin called Mr. Neuberger and left a message for counsel regarding Mr. Doobay and requested a return call. At 5:21am he transmitted an email message to counsel.
[20] At 5:27am PC Cronin provided his grounds for arrest to PC Fong, the qualified breath technician. At 5:30am Mr. Doobay told PC Cronin that he needed to defecate. He was accommodated. Mr Doobay occupied the washroom it until 5:46am. At that time he said he was unable to use the toilet. While the defendant was in the washroom, PC Cronin heard apparent retching sounds. During this interval, PC Cronin called Mr. Neuberger again at 5:36am and left a second voicemail.
[21] At 5:49am Mr. Doobay again asked to use the toilet. He occupied that facility until 6:02am. Again, the constable heard retching sounds. Later, in the breath room, the defendant accused the police of forcing him to "take a shit". This was pure mendacity, in my view. The accusation also suggests that his alleged need to use the facilities was a time-wasting ruse. During the second toilet interval, at 5:55am, PC Cronin made a third attempt to reach Mr. Neuberger by telephone and left a voicemail.
[22] At 6:02am Mr. Doobay was removed from the cell area and told of the attempts to reach Mr. Neuberger. Mr. Doobay responded by asking how much time he would be given to wait for counsel to return his call. Constable Cronin told the defendant that a reasonable time would be provided for the return call and advised him again of the opportunity to speak to another private lawyer or duty counsel. Mr. Doobay was adamant that he wanted to speak only to Mr. Neuberger. He suggested that he was prepared to wait hours for Mr. Neuberger to call back.
The Breath Room Episode
[23] At 6:07am Mr. Doobay was transferred to the custody of PC Fong, the qualified breath technician. PC Cronin and PC Fong pushed the defendant into the breath room as he refused to enter and became passively resistant. Mr. Doobay was not physically aggressive or verbally abusive toward the officers, but in all other respects his demeanor in the breath room was consistently uncooperative, unreasonable and petulant.
[24] The 26 minute effort to induce the defendant to supply a breath sample was recorded on the breath room audio-video equipment. It represents the core of the case before me in respect of both the alleged refusal and the right to counsel issue.
[25] At the outset of the breath room episode, the defendant told PC Fong that he resisted entry into the breath room because the police wouldn't respond to his questions. Mr. Doobay's question regarding the length of time he would be permitted to wait for a return call from Mr. Neuberger was a persistent feature of the breath room episode.
[26] PC Fong's invariable reply to the above query was "a reasonable length of time". Mr. Doobay repeatedly expressed frustration with this response. As the qualified breath technician, PC Fong had been informed of the time of arrest at 4:32am and would have been aware that the two hour period for the presumption of identity to apply was fast running out by the time Mr. Doobay entered the breath room at 6:07am.
[27] There is no requirement in law that the police inform the detainee of the number of minutes they will be permitted to wait for counsel's response prior to being required to supply a sample or any other investigative consideration. There is no legal obligation on P.C. Fong to define "reasonable time". That said, it would have been no error to inform Mr Doobay, in the starkest terms possible, of the time remaining before a first sample was required. The defendant had already stated that contact with Mr Neuberger was a condition precedent to his compliance with the breath demand. Given that posture, it is probable that the same ultimate result would have obtained without the protracted and futile effort to convince Mr Doobay of the merits of compliance which dominated the breath room episode.
[28] As a result of the information supplied by Sgt MacMillan at the parade, Mr. Doobay was certainly aware that the police placed importance on the provision of a breath sample within two hours. His conduct before that time had impeded the police investigation and extended the time necessary to impart advice regarding his rights to counsel. His conduct after that time was a deliberate and largely successful attempt to delay the ensuing process as long as humanly possible. There is no question that the defendant both knew of, and was determined to frustrate, his obligation to provide breath samples.
[29] By the time Mr. Doobay entered the breath room, it was clear that there was no reasonable probability that Mr. Neuberger would return the three telephone messages and one email message left for him. Yet, on Mr. Doobay's insistence, two further messages for Mr. Neuberger were left by PC Cronin at 6:17am and 6:30am. At the time of the last call to counsel Mr. Doobay had been under arrest for one hour and 58 minutes. In making these last attempts to reach Mr Neuberger, the police were clearly accommodating the defendant's wishes at the expense of investigative imperatives.
[30] Mr. Doobay was adamant that only Mr. Neuberger would do. No substitutes would be accepted. This was said to the police on no less than eight occasions during the 26 minute breath room episode. On no less than six occasions in the same period PC Fong offered the defendant the opportunity to contact another private lawyer or duty counsel. On each occasion but one, Constable Fong's suggestion was immediately and unequivocally rejected by the defendant.
[31] The one apparent exception took place at approximately 6:23. In response to one of PC Fong's suggestion of other counsel options, Mr. Doobay asked if he could get another lawyer. PC Fong attempted to accommodate him. The defendant then supplied the name of an alleged cousin of Mr Neuberger with the same surname, albeit a slightly varied spelling. Understandably, Constable Fong tried to establish whether this person was an actual lawyer. This was met with the accusation, repeated at least six times, that the constable was attempting to intimidate the defendant. After several minutes Mr. Doobay told the officer that this "cousin" was an invention, created because he was intimidated and scared by the police.
[32] Under cross-examination in the voir dire portion of the trial, Mr. Doobay told the court that the reason for this apparently pointless falsehood was his interest on ensuring that the police were diligent in procuring contact information for the real Joseph Neuberger. He made no mention of, and offered no reason for, the breath room intimidation accusation.
[33] The significance of this annoying episode is not merely that it was yet another effort by the defendant to delay the investigative process. It was also a striking demonstration of this young man's easy ability to prevaricate.
[34] The defendant's persistent claims that he did not comprehend police advice or instructions, his conduct at the police station and his inventive and unresponsive testimony have convinced me that Mr. Doobay is not a credible witness.
The Refusal
[35] In response to the repeated police demand for breath samples, invariably conveyed in a polite manner, Mr. Doobay stated multiple times that he would not provide breath samples unless contact was first made with Mr. Neuberger. On a number of occasions this appeared to be a demand for voice contact. At other times, the defendant demanded the physical presence of counsel.
[36] The exchange between the defendant and PC Fong at approximately 6:29am is a typical example of the defendant's posture. After the sixth warning by PC Fong that failure to supply a sample would be met by a charge of refuse, P.C. Fong again invited Mr. Doobay "the option to contact any other lawyer you wish or to speak with duty counsel". Mr. Doobay replied:
I want Joseph Neuberger and I'm going to wait until he comes here and he advises me on what to do because I feel so much pressure now that you're not even answering any of my questions and I've been pressured to take a shit when I didn't even be able to take a shit at all. Um, yeah like I feel super under pressure …
[37] It would have been appropriate to have charged the defendant with refuse at that time. However, with great forbearance, PC Wong persisted in attempting to persuade Mr. Doobay to comply with his legal obligation to supply breath samples. Once again, the defendant was offered the option of duty counsel or another private lawyer and warned of the legal consequences of refusal. The fifth unsuccessful attempt to contact Mr. Neuberger then took place and the defendant was so advised. He again indicated that he needed legal advice from that lawyer before considering compliance. This fruitless process consumed another four minutes. He was then charged with the offence before me. Almost exactly 2 hours had elapsed from the defendant's arrest.
Legal Analysis: Right to Counsel
[38] There is no absolute right to delay the provision of breath samples until a particular counsel-of-choice is available. Reasonable delay is appropriate in these circumstances. In cross-examination it was suggested to PC Fong that he could have waited to 8:00am, if necessary, for Mr. Neuberger to call back. Mr. Doobay made the same suggestion to the police. With great respect to learned counsel, the suggestion is manifestly unreasonable in the context of a demand for breath samples. As time marches on the blood alcohol content of the subject diminishes. At some point the evidence of blood alcohol disappears entirely. The police are not obliged to risk the disappearance of the evidence. In the circumstances of this case, the police were not obliged to wait until the presumption of identity became unavailable to a potential prosecution.
[39] There is dispositive appellate authority that diligence is required from the detainee seeking primary legal advice on arrest. When Mr Doobay was placed in the breath room it must have been clear that there was no reasonable probability that Mr. Neuberger would respond. By this time 49 minutes had elapsed since the first message had been left for counsel. Reasonable diligence in the exercise of the rights to counsel required the defendant to take advantage of the options made available by the police: contact duty counsel or a private lawyer other than Mr. Neuberger.
[40] The Supreme Court in R. v Willier, 2010 SCC 37 made it clear that diligence is required of the detainee who does not receive a return call from counsel of first choice:
[33] Detainees who choose to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee's reasonable diligence in attempting to contact counsel: R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Black, [1989] 2 S.C.R. 138; R. v. Smith, [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson J. stated in Black, at pp. 154-55:
A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain from questioning the accused are suspended: see R. v. Tremblay, [1987] 2 S.C.R. 435.
[34] Such a limit on the rights of a detainee are necessary, as Lamer J., as he then was, noted in Smith, "because without it, it would be possible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or rendered impossible to obtain. The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society" (p. 385).
[41] There is persuasive authority that a finite waiting period for a return call from preferred counsel is reasonable in drink drive cases. Justice Duncan considered this issue in Wilson, 2016 ONCJ 25:
It is argued that the police should have told the defendant that he had the right to wait a reasonable time for Ms. Pemberton to call back: R v Prosper, [1994] 3 SCR 236. However, the fact is that the police waited 29 minutes after leaving the first message before suggesting that she wasn't going to be calling and that duty counsel should be considered. In my view that period – almost half an hour – was a reasonable time to wait. There was no point telling the defendant that he had a right to wait a reasonable time if a reasonable time had already passed.
It is also argued that police suggesting that Ms. Pemberton would not be calling back was inappropriate in that it discouraged the defendant from waiting longer and pushed him into accepting duty counsel. I disagree. He did not have the right to wait any longer. Due diligence required him to pursue other possible options at that point. I see nothing wrong with police telling him bluntly that which was pretty obvious – that Ms. Pemberton would not be calling: R v Willier 2010 SCC 37, [2010] SCJ 37. The defendant agreed in cross-examination that he had come to the same conclusion himself.
[42] See Maciel, 2016 ONCJ 563, for the proposition that the investigative imperatives involved in taking breath samples within two hours of operation or care or control are a valid consideration when considering the reasonableness of the wait for a return call from preferred counsel. Justice Stribopoulos found a Charter breach precisely because the police had 40 minutes left to take advantage of the presumption of identity. No urgency existed.
[49] Beyond the failure of the police to exercise reasonable diligence in their efforts to contact counsel of choice on behalf of Mr. Maciel, I have also concluded that the police violated his section 10(b) Charter rights when they only waited twenty-five minutes for Mr. Locke to call back. On a practical level, the failure to wait longer in this case had no real effect, given that Mr. Locke was away from the office and not at home on Christmas Day. Of course, the police did not know this at the time. When the police insisted on proceeding with breath testing, the window for relying on the presumption of identity under subsection 258(1)(c)(ii) was still open for almost forty more minutes. In these circumstances, I am of the view that the police were not faced with a situation of urgency and were constitutionally obligated to wait longer for Mr. Locke to return their calls.
[43] As we see, Justice Stribopoulos used the time remaining in the two hour period for the application of the presumption of identity in determining whether the police provided a reasonable period for counsel to respond. In the case before me, the two hour curtain was descending at the point of final refusal.
[44] I disagree with the position of learned counsel that the police were required to inform the defendant of reference materials available to locate contact information for other private counsel. On every occasion where the issue arose, Mr Doobay specifically rejected contacting counsel other than Mr. Neuberger. He confirmed this stance under cross-examination in the voir dire. In my view the obligation to offer to supply directories, internet access or other means of seeking alternate private counsel does not arise in such circumstances. Reasonable diligence by the detainee in the instant circumstances requires, at very least, that they not reject consultation with other counsel when their first choice is unavailable.
[45] The Court of Appeal in R. v. Van Binnendyk, 2007 O.J. No. 2879, supplies guidance in this respect:
Like both courts below, we are of the view that this case is very similar to R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.). Again, like the courts below, we rely on the reasoning in Richfield, particularly at para. 6: a person detained by the police must be provided with a reasonable opportunity to exercise the right to counsel and, except in cases of urgency or danger, the police must refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity. The detained or arrested person who is offered the opportunity to contact counsel and asserts his right to a "particular counsel" must, however, exercise that right diligently.
While an accused person has a right to his or her counsel of choice, that right is not absolute. If the lawyer chosen is not available within a reasonable amount of time, the accused person will be expected to exercise the right to counsel by calling a different lawyer: Richfield, para. 7.
[46] I do not accept the defendant's evidence that he would have sought counsel with expertise in drink driving matters had the police made him aware of the availability of resource materials. As I have indicated, I find Mr. Doobay an incredible witness. His repeated vehement demands for the assistance of Mr. Neuberger to the exclusion of the other options made available to him belie any suggestion that he was open to other counsel.
[47] I also had an opportunity to take the measure of Mr. Doobay, both as a witness in the voir dire portion of the trial and in the evidence at trial, including the extensive police video record at the station. I have no doubt that if this combative, educated, and intelligent young man had any willingness to speak to counsel other than Mr. Neuberger, he would have made his intentions clear and demanded the relevant assistance.
[48] I find no Charter breach.
Validity of the Breath Demand
[49] Although the Crown has invited me to dismiss the count of impaired driving and counsel for Mr. Doobay have chosen not to pursue the s. 8 portion of the Charter application, the validity of the grounds for the breath demand are relevant to the refusal issue.
[50] PC Cronin grounds were the overwhelming odour of alcohol emitted from the defendant's breath, his speech difficulties, bloodshot eyes and unsteadiness on his feet. PC Cronin also referenced the defendant's aberrant driving in his report of his grounds to the qualified breath technician, PC Fong. None of these indicia of impairment were challenged.
[51] After hearing all of the testimony and reading the arguments of counsel, I have concluded that Mr. Doobay's driving was likely intentional conduct aimed at evading contact with the police and not the result of impairment. I also find that his somewhat bizarre actions and comments at the scene of his arrest as well as his feigned incomprehension of the various forms of advice provided by the police were the result of Mr. Doobay's intention to frustrate the police investigation, and not the result of impairment. However, these conclusions were the result of my deliberations after trial. PC Cronin did not have the luxury of protracted assessment at the roadside. It was entirely reasonable for him to readily conclude that impairment by alcohol was the probable cause of the defendant's condition. Both the breath demand and the arrest for impairment were lawful exercises of police authority.
Conviction
[52] Mr. Doobay's unshakeable insistence on receiving advice from unavailable counsel before he would comply with his lawful obligation to supply breath samples was a refusal beyond any reasonable doubt. I convict him.
Released: October 9, 2018
Signed: Justice M.S. Block