Court Information

Ontario Court of Justice

Date: 2019-05-13

Between:

Her Majesty the Queen

— and —

Elmer Jiron Morales

Before: Justice G. Sparrow

Heard on: April 15 and 16, 2019

Reasons for Judgment released on: May 13, 2019

Counsel

Marnie Goldenberg — counsel for the Crown

Frank Lyons — counsel for the defendant Elmer Jiron Morales

Reasons for Judgment

Justice G. Sparrow:

Overview

[1] The accused is charged with the offence of having care and control of a motor vehicle while his blood alcohol level exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 253(1) of the Criminal Code. The incident took place on October 28, 2017.

[2] He brings a motion to have the results of his breathalyzer test excluded from evidence pursuant to section 10(b) of the Charter. In summary, he argues that his right to counsel, both informational and implementational components, were violated by police following his arrest and that the test for exclusion established in R. v. Grant, 2 SCR 53 pursuant to section 24(2) of the Charter has been met.

[3] He admits that he had care and control of a motor vehicle at about 4 a.m. having pulled off of the 401 Highway westbound just east of Yonge Street in Toronto sometime before 4:05 a.m.

[4] The facts regarding what occurred before he arrived at the police station are largely undisputed, and will be summarized below. All Crown evidence was called on a blended voir dire; defence evidence pertained only to the Charter motion.

Undisputed Facts

[5] Witness Aravienth Chandrasegaran, a tow truck operator in training, testified that he was driving westbound on the 401 when he saw a black Honda Civic pulled off on the shoulder; the accused was wandering outside of the vehicle. Chandrasegaran stopped, got out and asked the accused if he needed help; he said that he had run out of oil. Chandrasegaran testified that he could smell alcohol on the accused. The accused got into the car and tried to start it five or six times with no success. Chandrasegaran called the Ontario Provincial Police, who arrived about 20-25 minutes later.

[6] Janusam Jeyadevan, the owner of the tow truck who was with Chandrasegaran, provided similar testimony. He ultimately hooked the car up and towed it away. He said that the accused was not confrontational.

[7] Constable Ghazwan Al-Obaidi of the OPP testified that he was dispatched to the scene at 3:54 am. When he got there, he pulled up behind the Civic, got out and told a Ministry of Transport official and the tow truck operators on scene that they could leave. He testified that he spoke to the accused who had red glassy eyes and smelled of alcohol. By 4:05 am he had a reasonable suspicion that the accused had care and control of a motor vehicle while his ability to operate it was impaired; he then demanded that the accused provide a breath sample into an approved screening device. He did so; a fail was registered. At 4:09 am Al-Obaidi formed reasonable and probable grounds to believe that the alleged offence had been committed. He arrested the accused, did a pat down search, put him in the rear of his car and read him his rights to counsel, the standard caution and the standard demand for a sample of his breath. The accused does not contest the validity of the reading of the rights and demand.

[8] The accused told Al-Obaidi that he wanted to call his lawyer, but only knew his first name, Richard. The lawyer's card was in his wallet. Al-Obaidi said that he would get it when they arrived at the station.

[9] They pulled into a bay at the station at 4:45 am; at 4:52 the accused was taken to the lodging area, where his lawyer Richard Wazana's business card was found in his wallet. It reflected only one telephone number. Al-Obaidi left the accused in the custody of another officer and left to call Wazana.

[10] Al-Obaidi took the accused to the breathalyzer room at 5:34 am; and after providing grounds, left him with qualified breath technician Kesav Bhargava. He took custody of the accused again after the samples were taken, and obtained the certificate of the technician. The certificate showed truncated readings of 130 and 130 milligrams of alcohol in 100 millilitres of blood. He served copies of the certificate and other documents on the accused and released him at 8:15 a.m.

[11] Crown witness toxicologist Inger Bugyra was qualified as an expert in her field. She testified that the accused's blood alcohol level between 3:30 and 4:15 am would have been between 130 and 190 milligrams of alcohol in 100 millilitres of blood.

[12] Breath technician Bhargava testified that the accused was coherent, cooperative and respectful. He had red eyes and smelled of alcohol. Bhargava testified that all usual tests of the Intoxilyzer 8000C used to obtain the samples were done properly, and that the machine was in good working order. He obtained readings of 134 and 139 milligrams of alcohol in 100 millilitres of blood at 6 and 6:17 am respectively.

Testimony Related to the Charter Voir Dire

[13] With respect to the section 10(b) motion, as stated above Al-Obaidi testified that after reading the right to counsel he asked the accused if he wanted to call a lawyer; he responded yes, but said that he did not have the number now and would have to get it. Al-Obaidi asked what the lawyer's name was; the accused said that it was in his wallet. Al-Obaidi said that he would get it at the detachment.

[14] Al-Obaidi said that as soon as he took the accused to the lodging area, at 4:52 am, he asked for the lawyer's business card, which the accused produced from his wallet in his pocket. The card had the name Richard Wazana on it with one phone number. After transferring custody of the accused to another officer at 4:58 am Al-Obaidi called the number; there was no answer, only a voice mail system on which he left a message with his name and phone number, the accused's name, and the reason for the call, including the fact that his client had been arrested and was in custody.

[15] Al-Obaidi testified that he then went back to the lodging area and told the accused about the call; he then asked the accused if he wished to speak to duty counsel while waiting for his own lawyer to call. The accused said yes. At 5:02 am he left a message for duty counsel; at 5:11 he told the accused about the call. Duty counsel called back at 5:24 am. Al-Obaidi returned to the accused's cell, removed him and placed him in a private room with a phone and connected him to duty counsel. He testified that the accused spoke to duty counsel from 5:28 to 5:33. Al-Obaidi asked the accused if he was satisfied; the accused said "yeah". He was then taken to the breathalyzer room.

[16] In cross-examination, Al-Obaidi said he was not sure if the number he called was that of a business, a cell phone or a residential line. When asked if he checked for the lawyer's number or numbers on the law society website, a possible internet website or a lawyer's directory, he responded "no".

[17] Al-Obaidi agreed that if Wazana had called back before 5:02 he might not have called duty counsel; however if Wazana had called back before or after the accused had spoken to duty counsel, he would have so informed the accused.

[18] He agreed that he did not ask if the accused knew of another way to contact Wazana, and he did not tell the accused that he could wait for him if he wished.

[19] In re-examination, Al-Obaidi said that the accused never said he "wanted to wait" for Wazana, nor did he ask Al-Obaidi to try to find another number or to try to get someone else to find Wazana.

[20] Breath technician Bhargava testified that he made a demand for a proper sample at 5:54 am, following which rights to counsel were discussed. The accused said he understood his rights. Bhargava testified that the accused never made a request to call duty counsel or anyone else, and never said he was dissatisfied with duty counsel. Bhargava said that he would have waited for the accused's lawyer if he had asked.

[21] In cross-examination, Bhargava said that Wazana's name did not come up. He said that he might check the lawyer's phone book for all numbers listed for a lawyer, but that there was "no old school phone book" to access. He said that he might do or allow an intense search for a lawyer's number.

[22] Testifying on the voir dire, the accused said he initially forgot his lawyer's surname. He said that he was told that message had been left with his counsel, and told "right away" that duty counsel was available; however he was not told that he could wait for Wazana and that if told he could wait, he would have done so. He acknowledged saying that he was satisfied with duty counsel because he was tired and hung over; if he had been asked if he still wanted police to try to reach his lawyer, he would have said yes.

[23] In cross-examination, he acknowledged having a criminal record for several offences between 2002 and 2015. He said that Wazana is his immigration lawyer; he has had more than three criminal lawyers but couldn't remember their names.

[24] He also acknowledged asking the officers when he was in his cell if they had reached Wazana; they responded "no". Later he said that he asked about the lawyer a few times, but they ignored him.

[25] The affidavit of Wazana was filed on the voir dire. It provides his home phone number, and the fact that it is contained in the "white pages". He states in the affidavit that he received no phone call between 4:55 and 6 a.m. on the day of the incident. He testified in-chief that he was not sure if a google search or a search on the site "Canada 411" would reveal his home landline number.

[26] In cross-examination, he acknowledged that the number on his card is his business number, which is the number of his cell phone. The website of the Law Society of Ontario and a business website page with a design only reveal the cell number. However the website "whitepages.ca" reveals his landline phone number, listed at an outdated home address.

[27] Wazana testified that he is the accused's immigration lawyer and that he does no criminal work. He said that he picked up the message from police on his phone after 8 am when he was at work, but that he did not return the call. He also testified that he leaves his cell phone on the ground floor of his home at night so that he won't be woken up by business calls.

Argument

[28] With respect to the facts on the voir dire, in my view the officers were straightforward and credible in their testimony. Defence counsel did not make argument about credibility and the officers' evidence will be accepted. It should be noted that the evidence of the accused did not contradict that of the officers in any significant way.

[29] Defence counsel argues that the officers – particularly Al-Obaidi – did not fulfill either the informational or implementational duties imposed by section 10(b) of the Charter, and that the test established in R. v. Grant, supra, for exclusion of the evidence has been met.

Informational Right

[30] With respect to the informational component, he submits that Al-Obaidi had a duty to inform the accused that he could wait for his lawyer to return the call, rather than speaking to duty counsel. When asked by the court what should have been conveyed regarding a wait period, defence counsel acknowledged that there is no binding authority regarding a required wait period, and that the breath test had to be administered as soon as practicable. He relies on the case of R. v. Vernon, 2015 ONSC 3943, in which Ellies J. of the Ontario Superior Court states:

However in my view the trial judge was correct in finding that the police breached the informational component in the particular circumstances of this case where the officer so quickly resorted to duty counsel without informing the respondent of his right to wait a reasonable period of time for counsel of choice to call back.

Vernon was upheld in an endorsement by the Ontario Court of Appeal 2016 ONCA 211.

[31] In Vernon, the accused was charged with the offence commonly referred to as "over 80". An officer placed a call to his lawyer, who did not answer; 15 minutes later he was connected to duty counsel. Although it is not clear if he had been asked if he wanted to speak to duty counsel, the officer told him that he couldn't reach his lawyer and "come talk to duty counsel". Vernon testified that he did so because he thought he had no choice and because he was told right away to speak to duty counsel.

[32] Defence counsel also submits that his argument is supported by R. v. Prosper, [1994] 3 SCR 236, which makes it clear that that an accused who is not successful in reaching counsel and decides to proceed on his own must be told that he can wait a reasonable period for counsel to call back. This informational component is known as a "Prosper warning".

[33] In my view, the Crown is correct in submitting that Prosper does not apply to this case, as the accused did not decline an opportunity to speak to counsel; in fact, he testified that while in a cell he asked police repeatedly if Wazana had called back. As stated in R. v. Willier, 2 SCR 429, Prosper does not apply if the accused does not attempt to relinquish counsel.

[34] Vernon, supra, is in my view distinguishable because, as stated above, the accused testified that he thought he had no option but to agree to speak to duty counsel, and did so promptly. The accused in this case testified that he continued to ask if his own lawyer had called back before he agreed for the second time to speak to duty counsel; thirty minutes passed between the call to Wazana and the beginning of the conversation with duty counsel. He did not state that he thought he had no options other than agreeing to speak to duty counsel.

Finding on Informational Right

[35] The Supreme Court of Canada has made the informational requirements of section 10(b) abundantly clear in R. v. Bartle, [1994] 3 SCR 173, and has not imposed a duty on police to regularly inform accused persons that they can wait for a particular or undefined time period for a call back from a particular lawyer. In my view Vernon seems to turn on its own facts. The informational component of section 10(b) was not breached in this case.

Implementational Right

[36] With respect to implementational rights, counsel argues that if an accused has asserted his right to counsel of choice, the Crown at trial bears the burden of proving that he subsequently waived that right; without a waiver, the implementational right is breached. He argues that a conversation with duty counsel does not constitute a waiver, and that if a lawyer does not respond to a call, police must make greater efforts to locate him or her. More significantly, he argues that in this case – presumably because there was no prompt call back and it was approximately 5 am – police should have tried to locate a residential landline or a cell phone number. He submits that the fact that Wazana ultimately testified that he uses his cell phone for work and does not answer it at night is irrelevant in determining if police have satisfied implementational rights.

[37] In making the this argument, counsel relies primarily on two cases from the Ontario Court of Justice – R. v. Maciel, 2016 ONCJ 563, a decision of Stribopoulos, J. as he then was, and R. v. Mattie, 2018 ONCJ 907, a decision of Rahman J.

[38] In Mattie, the accused was arrested for "over 80" and provided the name of his counsel of choice; an officer left a message on the voicemail of another lawyer named by the counsel of choice in his voicemail message. Ten minutes later the officer, in the words of the court "steered him" to duty counsel. He told the police he was not satisfied with duty counsel. The 10-minute wait time, and the expression of dissatisfaction make Mattie distinguishable from the case at bar.

[39] In Maciel, a case of refusing to provide a breath sample, the accused maintained immediately after arrest that he wanted to call a specific lawyer. It was mid-afternoon. Officers took him to the station, where they located the lawyer's number on the Law Society website, and a second number, which turned out to be a home number through a google search. The lawyer's cell phone number, which was accessible on his own website, was not located. Calls were not returned for an unspecified time period, and the accused refused to speak to duty counsel. The refuse charge was laid.

[40] In finding a section 10(b) breach, the court acknowledged that the immediate availability of duty counsel is a relevant consideration in determining how long an officer must wait for a call back before proceeding: see R. v. Richfield, 178 C.C.C. (3d) 23 (O.C.A.). However he found at paragraph 47 that in order to be reasonably diligent, an officer must, inter alia, 1) conduct an internet search for a lawyer's website to see if it leads to a cell phone number or email address, and use these; 2) use the internet to search any online directories such as Canada 411 or the Law Society directory, and 3) use any conventional paper-based directories, such as the white and yellow pages.

[41] The Crown relies primarily on the cases of R. v. Willier, [2010] S.C.R. 429, and R. v. Littleford, [2001] O.J. No. 237, a decision of the Ontario Court of Appeal.

[42] In Willier, the accused, who was awaiting an interview on a murder charge, left a message on the voicemail of counsel of choice and expressed a desire to wait; when told that the lawyer was unlikely to return the call on a Sunday evening, he opted to speak to duty counsel for what was a second time and went forward with the interview. Confirming the decision of the Ontario Court of Appeal, the Supreme Court ruled that the police had a duty to inform the accused of his right to legal aid and that compliance with this duty did not interfere with the accused's 10(b) rights.

[43] In Littleford the accused, who had been arrested on an "over 80" charge, was read his rights and said he wished to speak to his own lawyer. A message was left at 12:38 a.m., and another thereafter for duty counsel. Duty counsel called back and the accused was taken to a room to speak to him. He did not complain about the service or ask again to speak to his own lawyer. In answer to the Appellant's argument that he was not given a reasonable opportunity to speak to his own lawyer, the court ruled that his rights were not breached given that he spoke to duty counsel and did not raise sufficient concerns at the time or in testimony.

Finding on Implementational Right

[44] It is clear that in the digital age, tools to find contact numbers have expanded, with various websites and other search devices appearing on the internet. Nevertheless, in my view the availability of internet tools does not change the fact that appellate courts, such as those in Willier and Littleford, have imposed no duty on police to exhaust every possible means to find phone numbers or email addresses at which lawyers could be located at any hour. What constitutes a reasonably diligent effort to contact counsel, and fulfill s. 10(b) obligations will, as noted in Maciel, vary with the circumstances, including consenting to speak to readily available duty counsel.

[45] In my view, the implementational duty of police was satisfied, given that:

(a) The officer relied on a business card given to him by the accused – a card which reflects only one number;

(b) The accused agreed to speak to duty counsel, both when he arrived at the station and about 30 minutes later when the service became available;

(c) The accused did not ask to speak to anyone else who could help him find Wazana;

(d) Thirty minutes passed between the call to Wazana and the connection to duty counsel without a return call – unsurprising given the hour, and

(e) The accused expressed satisfaction with his call to duty counsel. He did not thereafter ask again to speak to his own counsel or to wait for him although he was re-read his rights by the breath technician.

[46] In R. v. Ferose, 2019 ONSC 1052, the Ontario Superior Court found at paragraph 73 that a review of appellate case law suggests that when a combination of factors such as those listed above exist, "it is unlikely that that any breach of the detainee's s. 10(b) interest will be found".

[47] In my view, the fact that the police did not engage in an additional search for a phone number given the above facts does not demonstrate a breach of the implementational component of section 10(b).

[48] With respect to the argument concerning waiver, I agree with the Crown that the question of waiver does not arise in these circumstances. The accused agreed to speak to duty counsel twice and engaged in a five minute conversation; he did not attempt to decline to contact counsel, as occurred in Prosper. The Crown does not have to prove a waiver of rights given that the right was implemented satisfactorily.

[49] Given that no breach of either informational or implementational rights has been demonstrated, it is not necessary to consider exclusion of evidence pursuant to s. 24(2). However, a brief analysis will follow in the event that the court has erred in finding no breach.

Section 24(2)

[50] With respect to the first criterion in Grant, supra, the seriousness of the breach, any breach was not very serious in nature. Police made an effort to contact the accused's lawyer based on a card provided, thirty minutes passed before the accused was connected to duty counsel, and he agreed twice to speak to him. There is no evidence that the police acted in bad faith. As stated above, there is no jurisprudence requiring greater efforts on these facts.

[51] The impact on the accused was not serious. As acknowledged in Grant, supra, and many cases since including the recent decision of R. v. Jennings, 2018 ONCA 26, the taking of breath samples constitutes a minimally intrusive search. The accused did not complain about having to go ahead, and in fact said he was satisfied with duty counsel.

[52] With respect to the third criterion, adjudication on the merits is favoured given that the breath samples are reliable evidence and society's interest in prosecution of the significant problem of drunken driving is great.

[53] The Charter motion will therefore be dismissed, and the evidence of the breathalyzer results and the related evidence of Bugyra will be admitted.

[54] Given the concession as to the facts regarding care and control, the accused will be convicted.

Released: May 13, 2019

G

Signed: Justice G. Sparrow