Court Information

Ontario Court of Justice

Date: December 20, 2018

Court File No.: Brampton 16-16119-00

Between:

Her Majesty the Queen

— and —

Jake Mattie

Before: Justice M.M. Rahman

Heard: November 7 and 8, 2018

Reasons for Judgment released: December 20, 2018

Counsel

Adriana Nigro — counsel for the Crown

Andrew Edgar — for the defendant Jake Mattie

Judgment

RAHMAN J.:

1. Overview

[1] In the early morning hours of December 30, 2016, the defendant, Jake Mattie, pulled out of the parking lot of a bar in Mississauga. Constable Amanda Van Ryssel, who was parked nearby, followed Mr. Mattie on Royal Windsor Drive. She saw Mr. Mattie cross two lanes without signalling. Cst. Van Ryssel decided to pull over Mr. Mattie's car to check his sobriety. The officer ended up administering an ASD test to Mr. Mattie, which he failed. Cst. Van Ryssel arrested Mr. Mattie for driving with excess blood alcohol (over 80) and took him to 11 Division to perform Intoxilyzer tests.

[2] Upon arrival at 11 Division, Mr. Mattie said that he wished to call a specific lawyer, Andrew Edgar. A call to Mr. Edgar's number revealed he was out of the country and that another lawyer, Mr. Willschick, could be contacted in his absence. Cst. Van Ryssel called Mr. Willschick's number and left a message. She tried his number again about 10 minutes later. Again, there was no answer. Cst. Van Ryssel told Mr. Mattie that he could speak to duty counsel, and that if Mr. Willschick called back he could speak with him or any other lawyer he wished to speak to. Mr. Mattie agreed to talk to duty counsel. After speaking with duty counsel, Mr. Mattie entered the breath testing room and expressed dissatisfaction with his consultation. Cst. Leamon, the breath technician, administered the first breath test. While waiting to administer the second test, Mr. Willschick called back. Mr. Mattie spoke with him for about seven minutes, before returning to the breath test room and taking a second test.

[3] At his trial, Mr. Mattie sought to exclude his breath samples and test results on the grounds that his rights under ss. 8 and 10(b) were violated. Mr. Mattie argued that Cst. Van Ryssel did not have sufficient grounds to administer the ASD. He also argued that he was denied his right to consult counsel of choice because he was effectively forced to speak with duty counsel, rather than Mr. Willschick.

[4] These reasons explain why I find that Mr. Mattie's s. 8 and s. 10(b) rights were violated, and why I am excluding the evidence under s. 24(2).

2. Charter Application

2.1. Section 8: Lack of Reasonable Suspicion

2.2. Facts

[5] Cst. Van Ryssel testified during examination in-chief that she told Mr. Mattie that she had pulled him over to check his sobriety because he had been leaving a bar. She also testified that she had Mr. Mattie get out of his car "to conduct an ASD test on him to see if he had consumed alcohol." The officer also testified that, when she was speaking to Mr. Mattie while he was still seated in his car, she could smell alcohol from his breath. Cst. Van Ryssel also testified that, before she made the ASD demand, Mr. Mattie had told her he had two beers about a half an hour before.

[6] In cross-examination, Cst. Van Ryssel acknowledged that she had nothing in her notes about the timing of Mr. Mattie's comment about how much he had to drink. She also had no notes about smelling alcohol from his breath.

2.3. Parties' Positions

[7] Mr. Edgar, on behalf of Mr. Mattie, takes no issue with the propriety of the vehicle stop. Rather, Mr. Edgar argued that Cst. Van Ryssel did not have reasonable suspicion that he had alcohol in his body when she administered the ASD demand. He points to the fact that she did not have a note of the odour of alcohol, nor did she have notes about the timing of Mr. Mattie's comment that he had two beers.

[8] Crown counsel, Ms Nigro, argued that Cst. Van Ryssel's evidence on this point in-chief is reliable, and that the absence of the two factors in her notes does not undermine her credibility on this point. Ms Nigro also pointed to the fact that, when Cst. Van Ryssel told Cst. Leamon her grounds for arresting Mr. Mattie, she mentioned an odour of alcohol as one of the factors.

2.4. Analysis

[9] I cannot accept the Crown's argument that it has shown that Cst. Van Ryssel had reasonable suspicion that Mr. Mattie was driving with alcohol in his body.

[10] First, Cst. Van Ryssel admitted that she had no notes of smelling alcohol on Mr. Mattie's breath. She also could not say precisely when Mr. Mattie told her he had two beers. While I do not doubt that the officer smelled alcohol on his breath at some point, and that he told her he had two beers, I cannot find that it happened before she administered the ASD demand.

[11] In making this finding, I do not just consider the absence of information in her notes. My inability to find that she probably smelled alcohol and knew of Mr. Mattie's alcohol consumption before making the ASD demand is supported by Cst. Van Ryssel's comment about why she planned to administer the ASD. Cst. Van Ryssel said that she planned to administer the ASD to see if Mr. Mattie had been consuming alcohol. The ASD cannot be used to check whether there is alcohol in someone's body. It can only be used after an officer forms that suspicion. Cst. Van Ryssel's comment undermines the inference that she smelled alcohol on Mr. Mattie's breath before making the ASD demand.

[12] I appreciate that, during examination in-chief, Cst. Van Ryssel said that she formed a belief he had been consuming alcohol and then driving. However, that answer came in response to Crown counsel's direct question about "what, if any, beliefs did you form?" after smelling alcohol on his breath. While there was nothing improper about the question, it did have the effect of reminding the officer of the correct legal answer. However, for the reasons I have noted above, the helpfulness of that answer to the Crown's case was undermined by the officer's admission in cross-examination that she had no notes about an odour of alcohol, and planned to conduct the ASD test to see if Mr. Mattie had been consuming alcohol.

[13] Further, Cst. Van Ryssel's mention of the odour of alcohol in her grounds for arrest when briefing Cst. Leamon does not support a finding that she knew about the odour of alcohol before she made the ASD demand. It simply supports the fact that she knew about those grounds before she arrested him. She could have smelled the alcohol from his breath during or after administering the ASD test. I also note that Cst. Van Ryssel did not mention an odour of alcohol when she testified in examination in-chief about her briefing with Cst. Leamon.

[14] Because the ASD test was administered without the required grounds, I find that Mr. Mattie's s. 8 rights were violated. The unconstitutional ASD demand and result mean that the subsequent breath demand was conducted without the required grounds, since Cst. Van Ryssel said that the ASD fail was her basis for making the breath demand. Therefore Mr. Mattie's breath samples, and Intoxilyzer results, were obtained in violation of s. 8.

2.5. Section 10(b): Counsel of Choice

2.6. Facts

[15] After Cst. Van Ryssel advised Mr. Mattie of his right to contact counsel (at 1:16 am), he said that he wanted to contact a lawyer. Shortly after arriving at 11 Division at 1:29 am, Mr. Mattie said that he wanted to call Mr. Edgar. Cst. Van Ryssel called Mr. Edgar at 1:35 am and got an automated message saying that Mr. Edgar was out of the country. The message gave Mr. Willschick as an alternate contact and provided his number. Cst. Van Ryssel could not say whether the number at which she called Mr. Willschick was a mobile, office, or home line. She could not recall what Mr. Edgar's voicemail said about whether this was an after-hours contact number, or just an office number.

[16] Cst. Van Ryssel then called Mr. Willschick at the number given at 1:47 am. She left a message because Mr. Willschick did not answer. At 1:57 am the officer called Mr. Willschick a second time. She did not believe she left a message the second time.

[17] Cst. Van Ryssel testified that she kept explaining to Mr. Mattie as she was making the calls that she was not getting an answer. After her second call to Mr. Willschick, she told Mr. Mattie that if Mr. Willschick did not call back at that late hour, he could speak to duty counsel. She also explained that if Mr. Willschick called back, Mr. Mattie could speak to him, or he could speak to any other lawyer he wanted to. She did not explain to Mr. Mattie that he could wait a reasonable amount of time to see if Mr. Willschick would call back. Mr. Mattie agreed to speak with duty counsel. Cst. Van Ryssel called duty counsel at 2:00 am. Mr. Mattie spoke with duty counsel at 2:02 am and finished his consultation at 2:05 am.

[18] Mr. Mattie was turned over to Cst. Leamon at 2:07 am. When Mr. Mattie entered the room and was asked by Cst. Leamon whether he had spoken to duty counsel, he responded "unfortunately," and said it was not the counsel he wanted. In cross-examination, Cst. Leamon said that his interest was taking the first breath sample to comply with the Criminal Code's "as soon as practicable" requirement. Cst. Leamon said that if he believed Mr. Mattie was not satisfied with his consultation with counsel, he would not have taken the first breath sample. Cst. Leamon also testified that, although the two-hour limit is always at the back of his mind, it was not a high priority for him. Cst. Leamon also acknowledged that there was nothing preventing him from waiting a little longer for counsel to call back.

[19] At 2:22 am, Mr. Mattie provided his first breath sample. About nine minutes later, at 2:31 am, Mr. Willschick called the division. Mr. Mattie spoke to Mr. Willschick for about seven minutes, from 2:32 am to 2:39 am. After this consultation with counsel, Mr. Mattie returned to the breath room and provided a second breath sample at 2:47 am. Cst. Leamon was asked whether he considered starting over after Mr. Mattie returned from his consultation, by taking two more samples instead of just one more. Cst. Leamon said that he was only trained to take a third sample if the first two samples were not in "good agreement," a problem that did not arise in this case.

2.7. Parties' Positions

[20] Mr. Edgar argued that the police did not wait a reasonable time for Mr. Willschick to call back before going ahead with the Intoxilyzer test. He also contends that the police did not make sufficient efforts to find out they could contact Mr. Willschick at another phone number or to determine if the number they had called was a mobile phone, a home phone, or an office line. Mr. Edgar also argued that the police ought to have re-read Mr. Mattie his s. 10(b) rights when they learned he was in breach of his bail conditions. Finally, Mr. Edgar argued that Cst. Van Ryssel delayed contacting counsel without any good reason. First, she waited six minutes to make the first phone call to counsel after arriving at the police division. Second, after learning that Mr. Willschick was an alternative contact, she waited for an unexplained 12 minutes to place the first call to Mr. Willschick's number.

[21] Ms Nigro argued that there was no breach of s. 10(b) here. She said the police made reasonable efforts to contact counsel of choice. Given the time of year and time of night, the police's decision not to wait any longer was reasonable. Ms Nigro acknowledged that Mr. Mattie expressed some dissatisfaction with his call with duty counsel, but noted that he did not suggest that he wanted to get additional advice. As for the timing of Cst. Van Ryssel's calls to Mr. Edgar and Mr. Willschick, Ms Nigro observed that the timing requirement for the implementational component of s. 10(b) is not the same as the immediacy requirement for the informational component. In this case, the officer did comply with the implementational component as soon as practicable, which was all that was required.

2.8. Analysis

2.8.1. Reasonable Opportunity to Contact Counsel of Choice

[22] In my view, the police breached Mr. Mattie's right to contact his counsel of choice because they did not wait a sufficient amount of time for Mr. Willschick to call back, and they were aware that Mr. Mattie was dissatisfied with his consultation with duty counsel.

[23] Cst. Van Ryssel gave Mr. Mattie the impression that, because Mr. Willschick had not called back, he could call duty counsel and would be put in touch with Mr. Willschick only if he called back. There was, of course, another option. Mr. Mattie could have waited a reasonable period of time for Mr. Willschick to call back, during which the police would have had to hold off doing the Intoxilyzer test. In this case, Cst. Van Ryssel waited only about 10 minutes after her first call to Mr. Willschick to steer Mr. Mattie towards the duty counsel option. Although this was not a situation where she had to give Mr. Mattie a Prosper warning, there was no way Mr. Mattie would have known that he could have asked to wait a short period of time for Mr. Willschick to call back, and that the police would have to hold off eliciting evidence from him during that time.

[24] I recognize that the time of night may have played a part in Cst. Van Ryssel's decision not to wait for Mr. Willschick to call back. However, in the circumstances, there was no pressing need to conduct the Intoxilyzer test. Mr. Mattie was pulled over at 1:12 am. The last unsuccessful call to Mr. Willschick was at 1:57 am. Only 45 minutes had elapsed. The police still had an hour and 15 minutes before the two-hour limit would have elapsed.

[25] Moreover, Mr. Mattie expressed dissatisfaction about his consultation with duty counsel when he entered the breath room. Even if it can be said that Mr. Mattie accepted consulting duty counsel over his counsel of choice, when the police knew he was dissatisfied with duty counsel, they ought to have held off doing the breath test and confirmed with Mr. Mattie that he did not want to wait for Mr. Willschick or try calling another lawyer. As it turned out, had the police simply held off until 2:31 am (just over half an hour after the last call to Mr. Willschick), Mr. Mattie would have spoken to counsel before any tests were conducted and there would have been no s. 10(b) issue.

[26] Because Peel is a jurisdiction where police effectively control, and take responsibility, for contacting counsel, it is up to the courts to assess the adequacy of those efforts. Had Mr. Mattie been left in a room with a phone, and decided, on his own, to contact duty counsel when Mr. Willschick did not call back, clearly there would have been no breach of his right to contact his counsel of choice. As long as he was not rushed in his use of the phone, it would have been his choice to speak to duty counsel and not wait.

[27] I recognize that the police might find themselves faced with a different problem if they delay performing an Intoxilyzer test promptly. Apart from the two-hour limit, the police are required to administer Intoxilyzer tests as soon as practicable. Requiring the police to make a judgment call about whether to hold off on performing the Intoxilyzer, while an arrested driver waits for a lawyer's callback, might be seen as placing the police in a double-bind. However, there is a simple answer to this problem. If the police simply present an arrested person with the various alternatives, and that person decides to wait for a call back, the police cannot reasonably be accused of not conducting the tests as soon as practicable. There will be a simple explanation that the police were trying to comply with the arrested person's constitutional right to consult counsel and held off conducting the tests at that person's request.

2.8.2. Obligation to Re-Advise and Delay in Contacting Counsel

[28] Before concluding on s. 10(b), I will address the two other s. 10(b) breach allegations. I cannot agree that Mr. Mattie ought to have been re-advised of his s. 10(b) rights when Cst. Van Ryssel knew he was in breach of his bail. Cst. Van Ryssel learned that her colleague found cannabis in Mr. Mattie's car while she was in the middle of reading him his right to counsel. This is not a case where Mr. Mattie's jeopardy changed – assuming it changed at all – some time after having been advised of his s. 10(b) rights. He knew about the additional charge before he had been fully advised of his rights. There was no need to re-advise him of something that Cst. Van Ryssel was already in the middle of explaining.

[29] Finally, I do not find that Cst. Van Ryssel's delay in making the calls to Mr. Edgar and Mr. Willschick violated s. 10(b)'s timeliness requirement. As Ms Nigro correctly pointed out, the police are required to fulfill the implementational component of s. 10(b) as soon as practicable, not immediately. Cst. Van Ryssel testified that Mr. Mattie was being booked when they first arrived at the police division. Mr. Mattie has not established that the calls were not made as soon as practicable.

[30] Consequently, because of the violation of Mr. Mattie's right to counsel of choice, I find that Mr. Mattie's rights under s. 10(b) were breached.

2.9. Section 24(2) of the Charter

[31] Having found a breach of Mr. Mattie's Charter rights, I must consider whether the evidence of his breath samples ought to be excluded under s. 24(2) of the Charter.

[32] On the first branch of the R. v. Grant inquiry, I find that the cumulative effect of the two breaches was serious. I find that the s. 8 breach was serious because of Cst. Van Ryssel's comment that she planned to use the ASD to see if Mr. Mattie had been consuming alcohol. As explained above, she could only use the device after she had suspicion that he had consumed alcohol. I also find that the s. 10(b) breach here was serious because the police did not seem to turn their minds to the importance of Mr. Mattie contacting his counsel of choice. Even if their decision to have Mr. Mattie call duty counsel could be forgiven because of the time of night, their apparent indifference once he expressed a dissatisfaction with his consultation with duty counsel is troubling. I find that the first step in the Grant inquiry favours exclusion.

[33] On the second branch of the Grant inquiry, I find that the breaches had a significant impact on Mr. Mattie's Charter-protected interests. On its own, the s. 8 breach would not have had a serious enough impact on Mr. Mattie's interests to warrant exclusion. I say that given the minimally intrusive nature of search. However, when I consider the s. 10(b) breach along with the s. 8 breach, the impact on Mr. Mattie's Charter-protected interests looks more serious. Mr. Mattie faced a violation of two different Charter rights here, affecting two different interests. Again, the cumulative effect of the breaches here causes this step of the Grant inquiry to favour exclusion.

[34] As is often the case in drinking and driving trials, the third step of the Grant inquiry favours admission. The evidence from the Intoxilyzer tests is reliable and is essential to the Crown's case on the over 80 charge. However, as Doherty J.A. observed in R. v. McGuffie, where the first and second steps of the Grant inquiry favour exclusion, the third step will seldom, if ever, tip the balance in favour of admission. I cannot say that this is one of those rare cases where step three tips the balance in favour of admission.

[35] I would exclude the breath samples and Intoxilyzer results under s. 24(2) of the Charter.

[36] There being no evidence of Mr. Mattie's blood alcohol content, he is not guilty of driving over 80.

Released: December 20, 2018

Justice M.M. Rahman