Court Information

Ontario Court of Justice

Date: November 22, 2018

Court File No.: Newmarket 1710158

Parties

Between:

Her Majesty the Queen

— AND —

Joselyn Esmaralda Umana Calderon

Judicial Officer and Counsel

Before: Justice David S. Rose

Heard: November 9, 2018

Reasons for Judgment Released: November 22, 2018

Counsel:

• Mr. DeChellis – counsel for the Crown
• Mr. Willschick – counsel for the Defendant

Judgment

Rose J.:

Facts

[1] Ms. Umana Calderon is charged with Over 80 Operation on December 2, 2017. The case raises two Charter issues, one under s. 8 and another under s. 10(b).

[2] Constable Phung of the OPP was doing a RIDE spot check on an exit ramp from Highway 400 to Teston Road just before 2 am December 2, 2017. He saw a gold Honda Odyssey Van approach the check stop driven by Ms. Umana Calderon. It had an open bottle of Corona beer in the center console. He directed the car to the right shoulder of the off ramp and as the car moved he saw the beer bottle fly from the front seat to the back seat of the vehicle.

[3] Cst. Phung told Ms. Umana Calderon that he suspected that she had been drinking and was going to do a roadside test. He escorted her from the vehicle where he made a formal demand for an ASD test. She provided a sample which recorded a fail. She was then arrested. Phung was asked about the timing of the events and said that the arrest was at 1:58 am and it was approximately 10 minutes at most from the time he saw the Honda to the time of the arrest. He testified that in that time frame he spent about 30 seconds focussed on the Liquor Licence Act violation involved in having open liquor in the car.

[4] Cst. Lannragan, a female officer, did a pat down search of Ms. Umana Calderon at 2 am.

[5] Cst. Phung testified about the effect of residual mouth alcohol on the ASD procedure. He said that the best practice is to wait 15 minutes for it to dissipate, but he was only 2 months on the job in December 2017 and it didn't occur to him at the time to wait. He believed the ASD to be functioning properly. On reflection he would have waited 15 minutes, removed the source of alcohol from the scene and made inquiries to ensure that the ASD test was at least 15 minutes from the last drink. That night however he didn't do that. He was candid in his evidence that he should have asked about Ms. Umana Calderon's last drink, and knew that he should wait 15 minutes for dissipation of residual mouth alcohol.

[6] With Ms. Umana Calderon in custody he began his Rights to Counsel at 2:03 am. She said that she understood and that the male passenger in her car had information for the lawyer she wished to call. The breath demand was made at 2:07 and they left the scene at 2:11, arriving at the Aurora OPP detachment at 2:30. At 2:45 she was put into a cell and said that she wanted to speak to a lawyer. At 2:50 Cst. Phung left that area and spoke with the male passenger from the car who gave him the name of a lawyer "Nicolas" and two telephone numbers – one a cell number and another an office number.

[7] Phung called both numbers at 2:54. No one answered and he left voice mail messages both times explaining that he had a person in custody who wanted to speak to him and a return phone number. At 2:58 he called the numbers again. The cell phone voice mail box was now full and another message could not be left. He called the office number at 3 am and left another phone message with an alternate return phone number. At 3:02 he called Duty Counsel because he had made multiple attempts to reach Nicholas and wanted to have the option of Duty Counsel in the event that Ms. Umana Calderon wanted to speak to Duty Counsel. He then went into her cell and told her that he could not reach counsel of choice and Duty Counsel was available if she wanted to speak with Duty Counsel. He explained that he had made attempts to speak with Nicholas and could not reach him. She nodded.

[8] Cst. Phung testified that Duty Counsel was presented to her as something she could use if she wanted. He said that when she wanted her phone call he took it as being to a family member but he knew that she wanted to speak to a lawyer.

[9] At around 3:19 am Duty Counsel called back and Ms. Umana Calderon was escorted to the private telephone booth. She exited that booth at 3:23.

[10] Ms. Umana Calderon provided two suitable samples of her breath to a Qualified Technician. The Certificate of Qualified Technician records those samples as being:

i) 150 mg alcohol in 100 ml of blood at 3:38 am; and

ii) 140 mg alcohol in 100 ml of blood at 4:01 am.

[11] Ms. Umana Calderon testified on the Charter Motion. The night of the arrest she was driving with her boyfriend. He knew the lawyer Nicholas, because Nicholas had helped him with a DUI case in the past. She did not know his last name. Her boyfriend had the contact information for Nicholas, not her. When she was in custody she kept asking for her phone call to speak to her lawyer. She said that she did not understand what was going on at the station. She admitted that she never said she was dissatisfied with her call with Duty Counsel.

Issues and Discussion

[12] There are no legal issues other than Charter based arguments. Ms. Umana Calderon argues that her rights were violated two ways. The first was when Cst. Phung proceeded to take an ASD sample after seeing an open bottle of beer in her car, thus violating her rights under s. 8 of the Charter. The second was in putting her in touch with Duty Counsel after being unable to reach Nicholas, her stated counsel of choice. That, she argues violated her rights under s. 10(b) of the Charter.

The Residual Mouth Alcohol Issue

[13] On the facts before me, I find that Cst. Phung was relatively inexperienced the night of the arrest. He had been a constable for only 2 months. At points in his testimony he was candid that he would have done things differently now and the mouth alcohol issue is one of them. That said, he believed that the roadside screening device was working properly. This is not a case where an officer believed that the sample he was taking would be suspect but rather one where the officer would have done things differently in hindsight.

[14] The test for whether the officer could rely on the ASD result to form his Reasonable and Probable Grounds to arrest and make a Breath demand is whether, on an objective basis there are reasonable grounds to believe that the device was in proper working order, and therefore whether he could rely on the test result, see R. v. Topaltsis, 214 O.A.C. 115. In R. v. Notaro 2018 ONCA 449 this very issue was decided by the Ontario Court of Appeal.

An officer is not under a duty to inquire about the presence of residual mouth alcohol even where, on the information known to them, there is a possibility that the driver could have residual mouth alcohol. For example, in Mastromartino, at para. 57, Durno J. affirmed the principle that there is no duty to ask drivers when they last consumed alcohol even though the arresting officer in that case believed that the suspect, Mr. Mastromartino, had just exited a bar. At paras. 20 and 23, Durno J. also relied on Einarson to reject the submission that an officer, knowing a driver had just left a bar, must either "eliminate the possibility that [the suspect] had consumed alcohol within 15 minutes of being stopped, or wait 15 minutes before administering the test."

[15] That is sufficient to dispose of the accused's s. 8 argument. The issue is not whether the officer in hindsight would have done things differently, but rather what did he or she believe at the time of the ASD test. See R. v. Ho 2015 ONCA 559. In this case Cst. Phung believed at the time that the ASD test would be reliable. That belief was objectively reasonable. The presence of open liquor in Ms. Umana Calderon's car is insufficient to displace that. For these reasons the s. 8 argument is dismissed.

The Rights to Counsel Issue

[16] I find that Ms. Umana Calderon gave Cst. Phung the name of a specific criminal lawyer and two telephone numbers so that she could speak with him. Her assertion from the beginning was that she wanted to speak with a specific criminal lawyer. Cst. Phung made diligent efforts to call that lawyer, making four calls and leaving three messages over eight minutes. A fourth message was not possible because the voice mail message box was full. His immediate call to Duty Counsel was made before he reviewed the situation with Ms. Umana Calderon and before he outlined her options. As a result she was not given the option of finding another counsel of choice or exploring alternatives to reach Nicholas.

[17] Much of the argument before me was about whether the facts establish a breach of s. 10(b) in light of the Supreme Court of Canada's ruling in R. v. Willier 2010 SCC 37. The Crown argues that the officer's conduct was fully compliant with s. 10(b) because Ms. Umana Calderon simply opted to speak with Duty Counsel. As such the Crown argues that no additional caution is required as contemplated in R. v. Prosper (1994), 33 C.R. (4th) 85 (SCC). I find that there is more to it than that. In this case Cst. Phung was obliged to facilitate contact with counsel, and his efforts were deficient. He did not follow up with Ms. Umana Calderon to inquire if there was another way she had in mind to contact Nicholas or another counsel of choice she wanted. The Court of Appeal summarized the issue succinctly in R. v. Traicheff 2010 ONCA 851 where they approved of the following approach:

Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer's name and another telephone number where he could be reached.

[18] That is what is required for the arresting officer to 'facilitate counsel' per R. v. Willier at par. 41. This is precisely where Cst. Phung's efforts were lacking. His call to Duty Counsel came on the heels of his inability to reach Nicholas and before asking Ms. Umana Calderon what she wanted to do. His failure to give Ms. Umana Calderon any meaningful input into what to do when her counsel of choice did not call back is a violation of her rights under s. 10(b) of the Charter.

Admissibility of Breath Tests

[19] Having found a s. 10(b) violation the issue becomes one of whether admission of the Breath tests would bring the administration of justice into disrepute. Taking the 3 part test from R. v. Grant 2009 SCC 32, I find that the Charter violation is serious, but not overly so. Cst. Phung demonstrated no disregard for Ms. Umana Calderon's assertion of wanting to speak with a specific lawyer. He made four phone calls in an effort to set that up. He was candid with me that his inexperience was the source of his investigative failings that evening, and he would do things differently now which is to say that he was candid with the Court about his involvement in the case that evening. What elevates this case beyond a more technical violation and into the realm of a more serious one is that the Court of Appeal's clear direction from Traicheff (supra) is several years old. The facts before me support the finding that new officers are not taught that when counsel of choice cannot be reached they must ask the arrestee what they wish to do in order to facilitate contact with counsel of choice.

[20] The context is important here. Cst. Phung had called two different numbers twice. One of the phone numbers – the cell phone – now had a full mail box which would no longer accept messages. Cst. Phung therefore tried to contact Nicholas two different ways and one of those methods was no longer possible for reasons completely beyond his control. The fact that Nicholas' cell phone voice mail was no longer accepting messages was sufficient to lead Cst. Phung to reasonably believe that counsel of choice was not going to respond to the call. There is no evidence of bad faith on the part of the officer which sets this case apart from one like R. v. Vernon 2016 ONCA 211. The first limb of the Grant test modestly pulls towards exclusion of the evidence.

[21] What is the effect of the Charter violation on the Charter protected interests of Ms. Umana Calderon? The evidence is clear that Ms. Umana Calderon spoke with a lawyer before taking the breath tests and there is no evidence that the call was inadequate from her perspective. She received legal advice at the appropriate time. This significantly mitigates the effect of the Charter violation on Ms. Umana Calderon's Charter protected interests. I also find that the breath testing procedure is minimally invasive, see R. v. Grant (supra) at par. 111. The second limb of the Grant analysis favours admission of the evidence.

[22] The third line of the inquiry speaks to the public's interest in having the case decided on the merits. In this case the breath evidence is reliable and pivotal to the Crown's case. Drinking and driving is an ongoing problem here in Newmarket. In this case the public has a very strong interest in this case being decided on its merits. The third factor favours admission of the evidence.

[23] Putting the three factors of Grant together I would admit the evidence. Accordingly Ms. Umana Calderon is convicted of the charge.

Released: November 22, 2018

Signed: Justice Rose