ONTARIO COURT OF JUSTICE

CITATION: R. v. Ladi, 2019 ONCJ 323

DATE: 2019-03-18

COURT FILE No.: Newmarket 17-10373

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TIMOTHY JOHN LADI

JUDGMENT

Evidence heard: March 18, 2019

Delivered: March 18, 2019

Mr. A. Vanden Ende.................................................................................. counsel for the Crown

Mr. D. Kim............................................................................................ counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Ladi was stopped at a RIDE program. He admitted he’d been drinking and an Approved Screening Device test was conducted. After he failed that test he was brought to the station for further breath tests on an Approved Instrument. The results of those tests led to the “Over 80” charge before the court.

[2] This trial was focused on one issue – whether the Crown proved that the breath tests were taken “as soon as practicable” within the meaning of s.258(1)(c)(ii). The defence submits that the accused’s conversation with duty counsel was unwanted and the resulting test delay was unreasonable.

As Soon As Practicable

[3] The phrase “as soon as practicable” means that the tests were taken within a reasonably prompt time under the circumstances. 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 – R v Vanderbruggen 2006 CanLII 9039 (ON CA), [2006] OJ No 1138 (CA) at para 12. The court is required to look at the whole chain of events from the demand to the test, bearing in mind the outside limit of two hours from the time of the offence to the taking of the first test – Vanderbruggen at paras 13,16.

[4] Where there is a clear waiver of the right to counsel and the police insist that the accused speak to duty counsel, the resulting delay may result in a finding that the tests were not taken “as soon as practicable” – R v MacCoubrey 2015 ONSC 3339.

Submissions of Counsel

[5] Both parties agree that the investigation proceeded efficiently and all periods of delay were well explained. The only period at issue is the time taken to permit Mr. Ladi to obtain legal advice from duty counsel. Mr. Ladi testified that he didn’t want to speak to duty counsel and “just wanted to go home”. The defence submits that there was a clear waiver of the right to speak to counsel at the roadside and the officers should not have revisited the issue during booking at the station. The police imposed duty counsel upon Mr. Ladi and they were not acting reasonably in doing so.

[6] The Crown submits that Mr. Ladi’s evidence in cross-examination supports the officers’ account of the discussions regarding right to counsel. The accused’s response at the roadside was ambiguous and the officers had a duty to revisit the issue on booking. Mr. Ladi expressed a desire to speak to a particular lawyer and when it turned out that person was a paralegal he asked to speak to duty counsel. The officers were right to accommodate that request. The Crown submits that the breath samples were taken promptly.

Analysis

[7] A review of the evidence as a whole shows that the Crown is correct that there is no contest of fact that survived cross-examination. Mr. Ladi agreed, point by point, with every aspect of the evidence of both officers including their testimony regarding what was said and done regarding right to counsel.

[8] Mr. Ladi’s present testimony that he intended to waive the right to speak with a lawyer at the roadside was not communicated to Constable Webster. In response to right to counsel advice Mr. Ladi told the officer he didn’t have a lawyer. The “no” recorded in the officer’s notes referred in context to not having a specific lawyer he wanted to call. Mr. Ladi agreed in cross-examination that the “no” answer was, as the officer said, to the question whether he had a specific lawyer he wanted to call. There was no discussion of duty counsel at the roadside.

[9] PC Webster and the booking Staff Sgt. revisited the right to counsel issue at the station and were right to do so given the ambiguous answer at the roadside. Mr. Ladi agreed in cross-examination that he gave the officers the name of a “traffic ticket lawyer”. PC Williamson searched for that lawyer on the internet via his phone and determined that the person was a paralegal. Given that the person he asked to speak to could not provide the legal advice required the Staff Sgt. asked him if he wanted to call duty counsel. In cross-examination Mr. Ladi confirmed that he understood he could “take or leave” that offer and he asked the officers to call duty counsel. He made no complaint about the fact that the officers complied with his request either before or after the call.

[10] Mr. Ladi’s present recollection that he “wasn’t planning on talking to anyone that night” appears inconsistent with his statements and actions on the day in question. His memory on this point may not be accurate. He explained in cross-examination that “it’s been a long time” and he doesn’t now remember some details about the right to counsel discussion. He does not have the benefit of notes but he agreed with the evidence of the officers who did. Whatever his intention at the time, it’s plain that the right to counsel discussion was not complete at the roadside. The officers had a duty to explain to him his other options at the station. Had they failed to do that based on the ambiguous response to one question that certainly would have been challenged at trial. Even if his answer had been direct and conclusive it would not be an error for the officers to offer access to counsel at the station where it could be accommodated. It would be simple for an accused to decline and that caution with respect to right to counsel and waiver would benefit the accused and not result in any significant delay.

[11] Mr. Ladi engaged the officers in a search for a lawyer who turned out to be a paralegal. He subsequently asked to speak to duty counsel and the officers properly accommodated that request. I find that the officers acted reasonably throughout.

Conclusion

[12] The Crown has proved that the breath tests were taken, “as soon as practicable”. The presumption of identity applies. The Crown has proved the charge beyond a reasonable doubt and there will be a finding of guilt.

Delivered: March 18, 2019.

Justice Joseph F. Kenkel