Court File and Parties
Ontario Court of Justice
Date: April 30, 2019
Court File No.: Kitchener 168750
Between:
Her Majesty the Queen
— and —
Edgardo Chavez
Before: Justice C.A. Parry
Heard on: January 17, 2019
Reasons for Judgment released on: April 30, 2019
Counsel
Ashley Warne — counsel for the Crown
Eric Uhlmann — counsel for the defendant Edgardo Chavez
Judgment
PARRY J.:
I. INTRODUCTION
[1] Mr. Chavez stands charged with operating his car while his blood alcohol level exceeded the legal limit. The alleged offence occurred on December 24, 2016. He pleaded not guilty to the charge. The trial took place before me.
[2] Mr. Chavez has raised four issues. Three of the issues involve allegations that the arresting officer violated Mr. Chavez's constitutional rights. The fourth issue involves an assertion that the Crown has failed to prove beyond a reasonable doubt that Mr. Chavez was the driver of the car during the course of the incident that is the subject of this case.
[3] Mr. Chavez has not contested whether the presumption of identity created by the now repealed section 258(1)(c) ought still to operate to the Crown's benefit in Mr. Chavez's trial. While the issue has not been raised, I concur with the reasons of Justice Schwarzl in R. v. Sivalingam, [2019] O.J. No. 1975 (C.J.), and Justice Latimer in R. v. McAlorum, 2019 ONCJ 259, and therefore conclude that the Crown may rely upon presumption of identity created by the now repealed section 258(1)(c). I have had the benefit of reading the decision in R. v. Shaikh, 2019 ONCJ 157, and respectfully disagree with the conclusion reached in that case. Because the issue was not raised before me and because I have had the benefit of reading the above decisions, together with other decisions that occupy their respective camps, I do not feel it necessary to broach the issue with counsel in this case.
[4] Similarly, given the admission that Mr. Chavez's blood alcohol level exceeded the legal limit, I need not address whether or not the Crown may rely upon the statutorily created presumption that the breath readings were accurate. I leave it for another day to consider whether I can take judicial notice that all Canadian models of the Intoxilyzer 8000C are designed to conduct calibration checks with standard solutions that have a 100 mg / 100 ml alcohol concentration and, as a consequence, I can infer that a simple certification that the sample is suitable for use necessarily implies that the sample had that very same alcohol concentration – an issue not argued before me in R. v. Flores-Vigil, 2019 ONCJ 192. Having said that, I find this line of reasoning to be quite persuasive.
[5] Mr. Chavez's counsel concedes that the Crown has proven that Mr. Chavez's blood alcohol level exceeded the legal limit at the material time. Accordingly, he concedes that if his Charter applications fail and if the Crown proves beyond a reasonable doubt that Mr. Chavez was the driver, then a conviction must follow.
[6] The three alleged constitutional violations can be summarized as follows. First, Mr. Chavez alleges that the arresting officer violated his right against unreasonable searches and seizures by failing to form the suspicion required by section 254(2) of the Criminal Code. Second, he alleges that the arresting officer violated his right against unreasonable searches and seizures because the officer failed to make the ASD demand forthwith upon forming the requisite suspicion, as required by section 254(2) of the Criminal Code. Third, Mr. Chavez alleges that the arresting officer violated his right to retain and instruct counsel by failing to inform Mr. Chavez of his right to counsel immediately upon arresting Mr. Chavez. For the reasons that follow, I am not prepared to conclude on a balance of probabilities that any of these alleged violations warrant the exclusion of any evidence from Mr. Chavez's trial.
[7] With respect to the issue of identity, I conclude beyond a reasonable doubt that Mr. Chavez was the driver of his car at the material time. In the reasons that follow, I will explain why.
[8] Given the dismissal of the Charter applications and given my conclusion on the issue of identity, a conviction must register.
II. THE FACTUAL CONTEXT
[9] Mr. Chavez did not testify on either the voir dire or on the trial proper, nor did he call any other witnesses in support of his Charter application or in support of his defence. The determination of the issues raised in this case depends entirely upon the impact of the evidence of the Crown witnesses on the issues raised.
[10] The Crown called four witnesses: Austin Haddow (a security guard), Linda Malcolm (a paramedic), Cst. Brent Reeve (the arresting officer), and Detective Steven Careless (the breath technician).
[11] Austin Haddow was a security guard at St. Mary's General Hospital in the City of Kitchener. He was on duty on December 24, 2016, at about 2:24 a.m., when a grounds keeper drew his attention to a car mounted on a snow bank on the other side of the street from Mr. Haddow's security office and the adjacent emergency ward of the hospital.
[12] Mr. Haddow went across the street to offer his assistance. He testified that he saw one man in the driver's seat and two men pushing the car from behind. On Mr. Haddow's evidence, the car was clearly running: the men were rocking the car back and forth in an attempt to extricate the car from the snowbank. While Mr. Haddow's notes from the evening indicated that three men pushed the car while one sat at the wheel, I accept his explanation that he accidentally conflated his count of the total number of people at the car with his count of the men pushing. I therefore accept as accurate his in-court recollection that two men were pushing as one attempted to drive the car out of the ditch.
[13] After about ten minutes of watching the three men try in vain to remove the car, a paramedic, Linda Malcolm, who had just arrived in the nearby ambulance bay, also came over to assist.
[14] Ms. Malcolm testified to seeing the tires spinning as the men tried to get the car out of the ditch. She too testified that two men pushed as one man sat behind the wheel. Her evidence also clearly establishes that the car was running at the time she arrived to assist.
[15] Both Ms. Malcolm and Mr. Haddow testified that Ms. Malcolm interacted with the driver when she attended. According to Ms. Malcolm, she asked the driver if he wanted her to get behind the wheel so that he could join in pushing the car. He agreed and gave her the keys. She then got behind the wheel. Before turning the car on, she realized that the pushing was not working. She got out again and asked the security guard to procure a shovel. They tried digging the car out when Mr. Haddow returned with the shovel. While this was going on, Ms. Malcolm realized that the two passengers appeared intoxicated. She also had concern about the driver and asked him if he had been drinking. The driver assured her that he had just picked up his two friends from a party and was bringing them home.
[16] Ms. Malcolm called the police, in part because she was of the view that they needed more "manpower" to extricate the car. She used her portable radio to make the call. While speaking with dispatch, she voiced concern that the driver may have been drinking. In recounting her contact with dispatch, she revealed a concern that the driver was not walking "super straight."
[17] Mr. Haddow described the driver. According to him, the driver wore a Blue Jays baseball cap, jeans, and black coat. He did not describe the colour of the baseball cap. He also described the driver as having light brown skin tone and having a slim build. His description of the driver's build and skin tone is consistent with the accused's appearance at trial.
[18] Ms. Malcolm gave a similar description of the driver. She testified that he wore a baseball cap, a black wool coat, and jeans. She also described him as having a tanned skin tone.
[19] Neither Ms. Malcolm nor Mr. Haddow were able to give any kind of description of the two passengers. Both testified to being more focussed on the driver. Accordingly, their memories of the passengers had faded.
[20] Similarly, both offered somewhat unclear accounts of their transition from the roadway to the emergency ward to await the arrival of the police.
[21] According to Mr. Haddow, all three men went inside the emergency ward to await the arrival of the police. However, he could not recall what became of the two passengers after they went inside the emergency ward. Having said that, he testified to knowing the driver's appearance and clothing and therefore being prepared and able to identify him upon police arrival.
[22] Ms. Malcolm recalled escorting the two passengers to the emergency room, because she was concerned about their safety as they wandered around the roadside. She could not recall the movements of the driver as she went to the emergency room with the other two. She also did not recall the whereabouts of the driver as she waited briefly with the two passengers in the emergency room. She also did not offer specifics about Mr. Haddow's movements from the roadside to the emergency room. Given their lack of clarity, I cannot come to the conclusion that either contradicts the other on the movements of any members of the group from the roadside to the emergency ward.
[23] Both Mr. Haddow and Ms. Malcolm testified to seeing the driver depart the emergency ward with some dispatch at around the same time the police arrived on scene.
[24] According to Mr. Haddow, Cst. Reeve arrived at about 2:45 a.m. Accordingly, by the time of their arrival he had been in the company of or the vicinity of the driver for about 20 minutes. Mr. Haddow went outside to speak with Cst. Reeve upon his arrival. He spoke with Cst. Reeve for about five to eight minutes. While speaking to him he saw the driver depart the emergency ward and walk along the sidewalk towards the main entrance of the hospital. Mr. Haddow pointed the driver out to Cst. Reeve, who told the driver to stop. According to Mr. Haddow, the driver broke in to a light jog, which prompted the officer to repeat his demand for the driver to stop. The driver then stopped and became compliant with the officer. Mr. Haddow testified that he then returned to his security office, which had a view of both the emergency ward and the street outside.
[25] Ms. Malcolm testified that she saw the driver running away when the police arrived. She also testified that the officer told the driver to stop and that the driver complied. In her statement to the police, Ms. Malcolm neglected to assert that the driver was "running" as he departed the scene. Nevertheless, Ms. Malcolm purported to have a memory of the driver running.
[26] Constable Reeve testified that he spoke with Mr. Haddow outside shortly after arriving on scene. He then made his way towards the emergency room to speak to the occupants of the car. As he did so, Mr. Haddow pointed out the driver to him. The driver was walking from the emergency entrance towards the main entrance. Reeve called out to the driver to stop. As he did so, the driver quickened his pace. The driver briefly popped out of view and Reeve began to run towards him. Reeve called out again and the driver turned and approached the officer. They met at approximately the midpoint between the emergency entrance and the main entrance. According to Reeve, about 3-4 minutes had transpired between his arrival and his initial sighting of the driver.
[27] Constable Reeve testified that he informed the driver that he had been informed of a concern that the driver had been drinking and that he had also been driving the car that became imbedded in the snowbank. He then asked the driver to identify himself. The driver produced a valid driver's licence, revealing himself to be Mr. Chavez. The defence concedes that Mr. Chavez was the man who interacted with Constable Reeve at this juncture. After alerting Mr. Chavez about the concern that he had been drinking, Cst. Reeve then directly asked Mr. Chavez if he had consumed any alcohol. According to Cst. Reeve, Mr. Chavez informed him that he had consumed "a couple of beers."
[28] Possessed with the admission of the consumption of alcohol, Cst. Reeve formed the suspicion that Mr. Chavez "had consumed an alcoholic beverage". He formed this suspicion at 2:48 a.m. He then immediately requested over the air that an officer bring an ASD to his location. He then told the accused that an ASD was being delivered and that they would wait for its arrival. The officer then had Mr. Chavez accompany him to the vestibule of the emergency room.
[29] The ASD arrived at 2:54 a.m. Reeve and the accused were still in the vestibule at the time. Upon receipt of the device, Reeve made a more explicit ASD demand to the accused. After satisfying himself that the device was working properly, the officer provided it to the accused so he could provide a sample of his breath for testing. At 2:56 a.m., the accused failed that breath test. Consequently, the officer formed grounds to believe that the accused's blood alcohol content exceeded the legal limit and informed the accused he was under arrest.
[30] Constable Reeve did not feel that the vestibule area was the appropriate location to continue the arrest. Consequently, he brought the accused to his cruiser, which was across the road. He performed a brief pat-down search of the accused before placing him in the cruiser. Once the officer had secured Mr. Chavez in the cruiser, he informed Mr. Chavez of his right to counsel. This occurred at 3:04 a.m., 8 minutes after the arrest had commenced. When initially asked if there was a lawyer he wished to call, Mr. Chavez responded with a "No." Reeve then provided the police caution and made a breath demand, before departing for the nearby police detachment.
[31] At 3:15 a.m., Reeve and the accused arrived at Central Division. By 3:47, Mr. Chavez had completed his consultation with duty counsel. By 3:56 a.m., Mr. Chavez was in the breath room, ready to provide his first breath sample. He ultimately provided two breath samples, the results of which have led counsel to concede that Mr. Chavez's blood alcohol level exceeded the legal limit at the time he was allegedly behind the wheel.
III. ANALYSIS
A. THE REASONABLE SUSPICION ISSUE
[32] Mr. Chavez alleges that Constable Reeve did not possess the requisite suspicion to make an ASD demand at the hospital. He argues that, without the requisite suspicion, the demand made by the officer was not authorized by section 254(2) of the Code. Without this statutory authority, the Crown could not establish that the roadside breath sample was obtained lawfully. If not lawfully obtained, it was obtained in violation of the accused's right against unreasonable searches and seizures.
[33] I reject the contention made on Mr. Chavez's behalf. I appreciate that section 254(2) requires that an officer have reasonable grounds to suspect the accused have alcohol in his body. And I appreciate that Constable Reeve testified that he had grounds to suspect that the accused had consumed an alcoholic beverage that evening. But those words must be interpreted in the context in which they were proffered. Constable Reeve had been told of a concern that the driver had been drinking. The only way to reasonably interpret this concern is to interpret it as a concern that the accused was currently under the influence of alcohol. This is the concern that prompted the officer to ask the accused if he had been drinking. I infer that the officer asked this question in an effort to ascertain whether the accused was currently under the influence of alcohol. Mr. Chavez made an admission that he had consumed alcohol, albeit an admission couched in the claim that the consumption had occurred the previous afternoon. Nevertheless, the officer knew that this accused's car was in a snow bank, that someone else had raised concern about his sobriety, and that the subject of that concern had briefly tried to scuttle away before admitting to the officer that he had consumed a couple of beers. To be sure, the officer was not particularly adept at expressing himself. But I infer his awareness of all of the above-noted context at the time he formed his suspicion. I infer from his stated belief that the accused had consumed an alcoholic beverage that the officer believed the accused currently had alcohol in his body, but did not have the linguistic sophistication to communicate clearly that belief or the reasons for arriving at that belief. I therefore conclude he had the requisite suspicion. However, I must stress that the officer can and should be more clear and precise in the future, lest a different court interpret his unsatisfactory evidence differently.
B. THE FORTHWITH ISSUE
[34] The officer did not make his formal roadside breath sample demand – as read from the pre-written template in his notebook – until six minutes after forming the suspicion. However, the officer almost immediately informed Mr. Chavez that he had requested an ASD and that they would wait for its arrival. Any reasonable person in Mr. Chavez's situation would conclude that waiting was not optional. Mr. Chavez's conduct causes me to infer that he reached that very conclusion: when told to do so, he accompanied the officer to the emergency ward vestibule to wait for the ASD.
[35] The law does not require only one particular form of demand. A demand is sufficient so long as the words used and the circumstances in which they are uttered convey to the accused the existence of the legal obligation to provide the breath sample: See R. v. Toornsey, 2007 ONCA 67, [2007] O.J. No 355 (C.A.); R. v. Melville, [2007] O.J. No. 2649 (C.A.); R. v. Laroche, [2005] Q.J. No. 9117 at para 49 (S.C.). While the officer's declaration that they had to await the arrival of the breath testing device may not be sufficient to ground a charge for refusing a breath demand in every case, I infer on a balance of probabilities, that the accused knew he was detained and that he would remain detained until the ASD arrived and he provided a breath sample. The subsequent more formal demand merely confirmed what I infer the accused already knew. I therefore conclude that the officer imparted enough information to comply with the "forthwith" requirement contained within section 254(2).
[36] Even if I had not come to this conclusion, I consider the breach to be so fleeting and so trivial as to not warrant any censure under section 24(2) of the Charter. The police conduct is far from being serious. The impact upon the accused's Charter protected rights was nominal at best. He had no reasonable opportunity to contact counsel during this brief six minute interval – and he knew why he had to wait.
[37] Once again, though, I feel obliged to observe that the officer can and should do better in the future. He had no valid reason for not being more thorough when first advising the accused of his required participation in the ASD test.
C. THE RIGHT TO COUNSEL ISSUE
[38] Section 10(b) of the Charter imposes an obligation upon the police to advise someone upon their arrest or detention of their right to retain and instruct counsel without delay. Our Supreme Court has interpreted the term "without delay" to mean "immediately.": R. v. Suberu, 2009 SCC 33.
[39] Counsel argues Cst. Reeve violated Mr. Chavez's right to be informed of his right to counsel without delay by waiting until Mr. Chavez was secured in the cruiser before reading Mr. Chavez his rights.
[40] Counsel for Mr. Chavez relies upon the following passage from paragraphs 41 and 42 of Suberu:
41 A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.
42 To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
[41] I have considered counsel's arguments very carefully. While I remain skeptical that a breach even occurred here, I am prepared to assume for the purposes of this application that one did occur and to address whether that breach warrants the exclusion of any evidence.
[42] I will express, however, the reasons for my skepticism. I accept that Constable Reeve did not inform Mr. Chavez of his right to counsel immediately after informing Mr. Chavez that he was under arrest. However, I also accept that Constable Reeve did not complete his arrest until he secured his prisoner in the cruiser. He testified that he did not feel it appropriate to continue the arrest in the vestibule. From this evidence, I infer that he acted out of courtesy, decency, and prudence. An arrest, by its very nature, involves a greater assumption of control over the suspect than an investigative detention– it requires more to take place before the statutory safeguards contained in sections 495 to 503 of the Code can be triggered. By contrast, a investigative detention begins the moment a person's liberty is restrained in such a way that they might reasonably require the assistance of counsel but may be prevented from seeking that assistance but for the constitutional guarantee of that consultation. A detention is defined as something that begins. An arrest is defined as something that has been completed. Included in the definition of the term in Black's Law Dictionary is the following: "The taking or keeping of a person in custody by legal authority…": Brian A. Garner, Black's Law Dictionary, 10th Ed. (St. Paul: Thomson Reuters, 2014). Suberu sanctions delays necessary to ensure officer and public safety. Surely, the securing of an arrestee – either in a locked cruiser, handcuffs, or such other restraint reasonably dictated by the context – addresses both of those aims and ought therefore to be permitted in most circumstances before requiring an officer to inform the arrestee of his right to counsel. All the conduct between Constable Reeve's declaration of the arrest and Constable Reeve's recitation of the right to counsel constituted conduct that was intrinsic to the process of the arrest itself: the advising of the arrest, the assumption of the physical custody of the accused, the search incidental to arrest, and the placing of the accused into a secure location. Only when he had completed these intrinsic functions did he complete his arrest. Immediately afterwards, Reeve informed the accused of his right to counsel. Reeve did not take any investigative steps extrinsic to the arrest procedure prior to informing the accused of his right to counsel. But for the fact that the evidence suggests that Reeve had absolutely no safety concerns or flight concerns, I would not fault him one bit for waiting to read Mr. Chavez his rights until Chavez was in the back of the cruiser.
[43] Having said that, I am cognizant that the Supreme Court has sought to remove uncertainty about the when police obligations upon arrest commence. The court has chosen to equate the phrase "without delay" with the term "immediately". And, at least in the context of an investigative detention, the court noted that the immediate action was required at the outset of the investigative detention. I am also cognizant there were no apparent security issues or other exigent circumstances that required Reeve to secure the accused prior to informing him of his right to counsel. There was nothing stopping him from reading those rights in the vestibule, other than the courtesy and decency he so obviously extended to the accused, coupled with the exercise of prudence. Even though the officer may not have yet completed his arrest, he could have foregone kindness, decency, and prudence and provided information that the accused would not be able to use until he got to the cruiser, in any event. As a result, I am prepared to assume, for the purposes of this judgement, that Mr. Chavez has established an extremely trivial breach of his right to be informed immediately of his right to counsel.
[44] However, such a trivial breach is unworthy of any remedy under section 24(2) of the Charter. In this regard, I note that the state conduct was the product of courtesy and decency. It was also fleeting and done without any ill-intent. I also note that the accused was not impacted in the least by this momentary breach. He could not have acted on any information provided in the recitation of his right to counsel until he got to the privacy of the cruiser, in any event. Also, there was no effort to elicit evidence from him and none was elicited. Moreover, he declined the opportunity to contact counsel when informed of his right to counsel inside the cruiser. And later, he changed his mind and spoke to duty counsel before the police ever attempted to elicit incriminating evidence from him. I therefore decline to grant Mr. Chavez any remedy for this chimera of Charter breach.
D. THE IDENTITY ISSUE
[45] Mr. Haddow provided a virtually contemporaneous identification of Mr. Chavez at the scene of the offence, making that identification extremely compelling and reliable. I note that the evidence establishes that Mr. Haddow was in the immediate vicinity of Mr. Chavez for about twenty minutes prior to the police arrival. He had ample opportunity to have a good look at Mr. Chavez. During that time frame, Mr. Chavez remained largely in Mr. Haddow's sight – either at the roadside or in the emergency room. The officer arrived at 2:42 a.m. The arrest occurred at 2:48 a.m. For a portion of that 6 minutes between Reeve's arrival and his arrest of Mr. Chavez, Mr. Haddow spoke with Reeve and thus did not have Mr. Chavez in his sight. However, his conversation with Cst. Reeve was cut short when he saw Mr. Chavez depart the emergency ward and walk towards the main entrance. He instantly recognized the man he just spent about 20 minutes with – and he pointed that man out to the police. The circumstances of this past identification are compelling and provide considerable assurance of its reliability. I take nothing from the fact that Mr. Haddow cannot now recall the appearance of Mr. Chavez's passengers. Those men did not concern him enough to warrant remembering. They were not the driver. There is no suggestion in the evidence that Mr. Chavez bore a striking resemblance to the passengers or anyone else in the emergency room. There is simply no air of reality to the suggestion that Mr. Haddow confused Mr. Chavez with one of the other occupants of the car.
[46] Ms. Malcolm provides a similarly compelling near-contemporaneous past identification of Mr. Chavez. She too had just recently interacted with Mr. Chavez and had ample opportunity to observe him. Her description of the driver bore a strong similarity to Mr. Haddow's description. She too immediately recognized Mr. Chavez as she saw him walk away from the emergency room and saw him get stopped by the officer after Mr. Chavez pointed him out. These circumstances make her identification very compelling.
[47] The defence does not seriously challenge that Cst. Reeve arrested the man pointed out by Mr. Haddow. The defence also concedes that the man arrested by Cst. Reeve is in fact the accused.
[48] The combination of Mr. Haddow's evidence, Ms. Malcolm's evidence, and Constable Reeve's evidence convinces me beyond a reasonable doubt that Mr. Chavez was indeed the driver of the car that was stuck in the snowbank that evening.
E. CONCLUSION
[49] Having concluded that none of the alleged breaches warrant the exclusion of any evidence; having concluded that Mr. Chavez was the driver of the car in question; and having regard to the concession about Mr. Chavez' blood alcohol content; I conclude that the Crown has established the accused's guilt beyond a reasonable doubt.
Released: April 30, 2019
Signed: Justice C.A. Parry