Court File and Parties
Date: February 2, 2018
Court File No.: Halton Region, Central West Region 16-3419
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Kelly Branton
Before: Justice Alan D. Cooper
Heard on: October 26, 2017
Reasons for Judgment released on: February 2, 2018
Counsel:
- Elise Quinn for the Crown
- Carlos Da Cruz for the accused Kelly Branton
Crown Evidence
[1] On Tuesday, October 25, 2016, in the City of Burlington, Kelly Branton was charged with operating a motor vehicle after having consumed alcohol in excess of the legal limit.
[2] At 5:20 pm, a motorist saw the defendant driving a dark Chrysler car on the Toronto bound Queen Elizabeth Way between Fifty Road and Fruitland Road. The car was crossing both lanes in front of the motorist and was being driven at inconsistent speeds. The driver was a female, and she was the sole occupant. The weather was good and the roads were dry. The police were called.
[3] Ontario Provincial Police officer Steve Hulsman saw the Chrysler on the Queen Elizabeth Way as it was approaching Burlington. He followed the car and saw it drifting in its own lane and then crossing twice into other lanes. At 5:47 pm he stopped the car as it was going eastbound near Walker's Line.
[4] Ms. Branton had an odour of alcohol on her breath and the officer formed the suspicion that she had been operating her car with alcohol in her system. The screening device demand was read to her and the officer did a self test to show her how to give a breath sample. A zero reading was registered, and the officer believed the device was in proper working order. At 5:55 pm the defendant blew into the machine and a fail result was registered. At 5:56 pm, she was arrested for operating a motor vehicle after having consumed alcohol in excess of the legal limit.
[5] At 5:57 pm, officer Hulsman read the right to counsel information to the defendant from his notebook and this included the right to speak to a legal aid duty counsel free of charge. Ms. Branton said that she understood. She was asked if she wanted to call a lawyer and she said that she did and that she had her own lawyer. En route to the Burlington detachment she said her lawyer was Mr. Barhydt whose telephone number was 416-960-0049.
[6] After arriving at the police station, at 6:35 pm, the officer left a voicemail message for Mr. Barhydt, and then went to the cell area to advise Ms. Branton of this. He explained her right to counsel information again and said that she could contact duty counsel or wait a reasonable amount of time for her lawyer to call back. She appeared to understand but did not want to wait as she had two children at home she needed to get to. This was a Tuesday evening.
[7] The officer told the defendant that if her lawyer did call back he would stop the breath testing and let her speak to him. At 6:44 pm, the officer turned the defendant over to officer Beckers, the breath technician.
[8] In his examination-in-chief, the officer said that he would have called Duty Counsel had he been asked to. He said that Miss Branton never asked him to call her lawyer back, but had she done so he would have. He also would have called any other lawyer she wanted, or looked up the number of another lawyer for her to call.
[9] The breath room video was played in court and the breath technician, officer Beckers, is heard to ask if the defendant had consulted a lawyer, and telling her that if her lawyer called back she would stop the testing. The breath certificate was entered into evidence and the readings were 190 and 180 milligrams of alcohol in 100 millilitres of blood. A charge of impaired driving was never laid.
[10] In cross-examination, officer Hulsman said that he was certain as to what the defendant said concerning her right to counsel. Defence counsel then read the contents of an affidavit of the defendant filed on a Charter application, which alleged a breach of her right to counsel, contrary to sections 10(a) and 10(b). The relevant paragraphs of this affidavit are set out below:
4 - Following my arrest, officer Hulsman advised me that I had the right to speak with a lawyer.
5 - When asked if I wanted to call a lawyer, I indicated that I would like to speak with my own lawyer, Mr. Charles Barhydt.
6 - I provided officer Hulsman with his contact information.
7 - Officer Hulsman indicated he would contact him when we got to the police station.
8 - Upon our arrival at the police station, I was eventually placed in a room that look like a jail cell. It had a door with bars, a concrete bench, and a steel toilet.
9 - While I was in the cell, officer Hulsman approached me and informed me that he had contacted Mr. Barhydt, but there was no answer.
10 - I proceeded to inquire with us her husband about his willingness to call Mr. Barhydt back.
11 - I told officer Hulsman that Mr. Barhydt has a feature on his voicemail that allows you to press 7 or 9 if the matter was urgent, which would connect you to his home.
12 - Officer Hulsman would not try again because he had indicated that he had tried calling already.
13 - At that point, I was told by officer Hulsman that if Mr. Barhydt called while I was conducting my breath test, I would be afforded an opportunity to speak with him.
14 - Officer Hulsman asked if I wanted to wait for Mr. Barhydt to call back or to proceed with breath testing.
15 - I told Officer Hulsman that I didn't want to wait for Mr. Barhydt and to just do the breath testing.
16 - Officer Hulsman did not advise me of my right to speak with Duty counsel. I was clearly trying to engage my rights.
17 - When I asked officer Hulsman to make a further call to Mr. Barhydt and wait for that prompt to dial 7 or 9, and the officer wouldn't even try, I didn't know what other options I had.
18 - I have never been arrested before and was nervous.
19 - Had officer Hulsman offered duty counsel services, I would have requested to speak with duty counsel.
20 - Shortly after that discussion about Mr. Barhydt was completed, I was escorted out of my cell and placed in the breath testing room with officer Beckers.
21 - During the time I was with officer Beckers, she reviewed the circumstances surrounding Mr. Barhydt but also did not speak to me about duty counsel.
22 - The only thing officer Beckers told me was that she was aware that I did not want to wait for Mr. Barhydt to call back, but there was no discussion of duty counsel.
23 - I recall that the door to the breath testing room was open that officer Hulsman was just outside of the room when Oscar Beckers spoke with me about Mr. Barhydt. Neither officer raised the option for duty counsel.
24 - Had I been aware that the police had an obligation to hold off on my breath testing until I had a reasonable opportunity to speak with Mr. Barhydt and/or duty counsel, I most certainly would have requested to seek legal advice whether it was from Mr. Barhydt or a duty counsel lawyer.
[11] Officer Hulsman stated that the defendant never asked him to call her lawyer back again, and denied the allegations raised in Ms. Branton's affidavit. He admitted that he had not read the "Prosper" case.
Defence Evidence
[12] Kelly Branton gave evidence and adopted the contents of her affidavit as being accurate and true.
[13] During cross-examination she agreed that officer Hulsman read her right to counsel information to her from his notebook at the scene of her arrest and told her that if she did not have a lawyer, one would be provided. She did not remember his exact words and said the traffic noise may have prevented her from hearing everything that he said to her. She did not say that the officer never advised her of her right to a legal aid lawyer upon her arrest.
[14] At the police station, the defendant said that officer Hulsman called the number she gave him for lawyer Barhydt and got his answering service and left a message. She stated that she told him to call back and listen carefully to the message on the answering service, because it explained how to reach Mr. Barhydt's residence number. However, the officer refused to do so. He did ask if she had another lawyer he could call, but she did not.
[15] Ms. Branton said that Hulsman never told her about receiving free advice from a legal aid duty counsel when she was at the police station, nor did he offer her a telephone directory to be able to contact another lawyer. She said that she would never have turned down the offer of free duty counsel advice.
[16] After not being able to reach Mr. Barhydt, she then decided to take the breath tests and get home to her children.
[17] She agreed that alcohol consumption may distort one's memory, but it did not affect her own on the day in question.
Charter Issues
[18] The defence filed an application which alleged breaches of sections 10(a) and 10(b) of the Charter. The remedy sought the exclusion of any evidence obtained after the breaches, including breathalyzer readings.
Charter Sections
[19] The relevant Charter provisions are:
10. Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right
24. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Onus
[20] It was agreed that the Charter application would be blended with the trial proper. The onus is on the defence to establish a breach of sections 10(a) or 10(b) of the Charter on a balance of probabilities. If there has been a breach, the defence has the burden of establishing that the impugned evidence, if admitted, would bring the administration of justice into disrepute under section 24(2) of the Charter, or that a stay of proceedings is warranted.
As Soon As Practicable
[21] It was argued that the twenty two minute period between the breath tests was excessive and that, as a result, the tests were not taken as soon as practicable as required by law.
Evidence of the Defendant
[22] In R. v. W.(D.), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397 (S.C.C.), Cory J. held that an appropriate way of dealing with the issue of credibility would be to instruct the jury first, that if they believe the testimony of the accused then they must acquit. Secondly, if they do not believe the testimony of the accused but are left in a reasonable doubt by it, then again the jury must acquit. Thirdly, even if the jury are not left in doubt by the evidence of the accused, they must ask themselves whether, on the basis of the evidence which they do accept, they are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.
Analysis
As Soon As Practicable
[23] Section 258(1)(c) of the Criminal Code provides as follows:
258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(i) [Repealed before coming into force, 2008, c. 20, s. 3]
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;
[24] In R. v. Vanderbruggen, [2006] O.J. No. 1138 (C.A.), there was a 46 minute gap between the time when the defendant was lodged in a cell at the police station and when he was turned over to the qualified technician for testing.
[25] At paragraph 8, Justice Rosenberg stated as follows:
Section 258(1)(c)(ii) of the Criminal Code is part of the scheme to ease proof of the concentration of alcohol in the accused's blood for inter alia proving the "over 80" offence in s. 253(b). Section 258(1)(c)(ii) provides that where the breath samples were taken "as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken" then, provided certain other conditions are fulfilled, the prosecution may rely upon the presumption of identity. This presumption simply deems the results of the breath tests to be proof of the accused's blood alcohol level at the time of the offence in the absence of evidence to the contrary. Thus, in this case, although the first test was not taken until more than one hour after the appellant drove the vehicle, that test is deemed to show what his blood alcohol level was at that time of the driving.
[26] At paragraph 12, the learned Justice said:
That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.).
[27] At paragraph 13, he said:
In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.
[28] It is my view that the police acted reasonably in taking the samples and that the seven minute delay is not excessive.
The Right to Counsel Issue
[29] Once the detainee has requested to speak to a lawyer, attempts to obtain incriminating evidence must be suspended to allow for a reasonable opportunity to consult counsel: R. v. Manninen, [1987] 1 S.C.R. 173.
[30] Officer Hulsman gave his evidence in a forthright and credible manner and I find as a fact that he gave the defendant her right to counsel information shortly after he arrested her, and this included the right to free advice from a legal aid lawyer. Ms. Branton, in her testimony, said that she was given her right to counsel information at the scene, but may not have heard the part about free legal advice from a legal aid lawyer because of roadside noise. I find as a fact that this information was provided by officer Hulsman.
[31] I also find as a fact that he told her again about her right to call duty counsel at the police station after Mr. Barhydt could not be reached.
[32] It is also my view that officer Hulsman never refused to call Mr. Barhydt's number again after Ms. Branton claims that she told him a feature on the lawyer's answering machine message would allow him access to Mr. Barhydt's home number. Since he told her she could contact duty counsel or wait a reasonable amount of time for Mr. Barhydt to call back, there is no reason to believe he would not have called her lawyer's number again if he thought he could reach him at his home.
[33] Officer Hulsman told the defendant that he would delay taking breath samples for a reasonable amount of time so that she could speak to a lawyer. It is my opinion that he did everything that could to put her in touch with counsel.
[34] The defendant had a significant amount of alcohol in her system and may not have remembered everything which was said and which took place, or simply was not telling the truth. In any event, I reject her version of the events in question.
[35] Concerning the alleged breach of section 10(a) of the Charter, I find as a fact that the defendant was told by officer Hulsman of the reason for her arrest, so there was no breach of that section.
The "Prosper" Issue
[36] The Court of Appeal in R. v. Soules, [2011] ONCA 429, at the conclusion of its judgment at f.n.1, said the following:
1 - R. v. Prosper, [1994] 3 S.C.R. 236. What is known as a "Prosper warning" arises where a detainee who has asserted the right to counsel, changes his or her mind and no longer wants to exercise the right. Prosper requires that at this point, the police provide additional information to the detainee, namely, to tell them of their right to a reasonable opportunity to contact a lawyer, and of the obligation of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.
[37] In cross-examination, officer Hulsman frankly admitted that he had not read the Prosper decision from the Supreme Court.
[38] Even though he had not read the case, it is my opinion that he was complying with the spirit of the "Prosper warning" when he told Ms. Branton that he "would" delay the breath testing procedures until she spoke to duty counsel, or wait a reasonable amount of time for Mr. Barhydt to call back.
[39] In paragraph 24 of her affidavit, the defendant said that had "I been aware that the police had an obligation to hold off my breath testing until I had a reasonable opportunity to speak with Mr. Barhydt and/or duty counsel, I most certainly would have requested to seek legal advice whether it was from Mr. Barhydt or a duty counsel lawyer."
[40] In R. v. Lobo, [2015] O.J. No. 5666 (Sup. C.J.), MacDonnell J., was sitting as a Summary Conviction Appeal Court. He too was dealing with a drinking/driving charge, and after giving the defendant her right to counsel information, the defendant said that she wished to speak to counsel and, ultimately, duty counsel was called. In paragraph 5, these additional facts are set out:
5 While waiting for duty counsel to call back, the appellant remained in the interview room and P.C. Norman continued with his paperwork. After a while, the appellant knocked on the door to get his attention and told him "she just wanted to get on with it." He told her that duty counsel had been called "and we can wait for a little while longer" but "she said that she just wanted to get on with it. So we started heading towards the breath room and at that time the phone rang and another officer answered the phone and told me that duty counsel was on the phone for her. So we were ...walking through the office at the time and I told her that...the lawyer's on the phone right now, we can talk to him right now and she said 'no, let's just get on with it'. So the other officer said 'no, thank you' to duty counsel and we headed down to the breath room and began the first breath test".
[41] MacDonnell J. also said the following:
12 In R. v. Prosper, [1994] 3 S.C.R. 236, Chief Justice Lamer cautioned that where a detainee has asserted his or her right to counsel, has been diligent in exercising it, but has been unable to speak to a lawyer because duty counsel is unavailable, courts must ensure that the right to counsel is not too easily waived. In those circumstances, he held, "the police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up". 1
13 The obligations imposed by Prosper are not to be interpreted in a mechanistic or artificial fashion: R. v. Smith and Stacey (1999), 134 C.C.C. (3d) 453, at paragraph 26 (Ont. C.A.). When the appellant told Norman that she no longer wished to speak to counsel, he made it clear to her that the breath testing process could wait until she had the opportunity to speak to duty counsel. Subsequently, when duty counsel did call, while the appellant was walking to the breath room, Norman told her that she could speak to duty counsel "right now". While he did not say explicitly that the police were under an obligation to delay the taking of breath samples, it was manifest that they would do so if she wished to exercise her right to counsel. That is, it was implicit in what Norman said that her right to speak to duty counsel would take precedence over the breath testing process. That is substantially what Prosper required the police to convey to the appellant. In my opinion, the requirements of Prosper were met in this case.
[42] I am of the opinion that I am bound by this decision. I, too, find that it was implicit in what officer Hulsman told Ms. Branton that her right to speak to a lawyer would take precedence over the breath testing process. It is my view that the defendant, despite what she said in paragraph 24 of her affidavit, would have understood that the officer was willing to delay the breath testing. However, she did not want to wait for her lawyer to call back and urgently wanted to get home to look after her two children. The Crown has met its burden of establishing an informed, clear, and unequivocal waiver of the defendant's right to counsel. Therefore, there has been no breach of section 10(b) of the Charter.
Conclusion on the Trial Proper
[43] The Crown has proven all the elements of the offence beyond a reasonable doubt, and the defendant is found guilty of the offence of operating a motor vehicle after having consumed alcohol in excess of the legal limit.
Released: February 2, 2018
Signed: "Justice Alan D. Cooper"