R. v. Cox, 2019 ONCJ 491

CITATION: R. v. Cox, 2019 ONCJ 491

DATE: June 11, 2019

Information No. 18-113

18-617

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

TIMOTHY COX

REASONS FOR JUDGMENT and REASONS FOR SENTENCE

BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY

on June 11, 2019 at ORANGEVILLE, Ontario

APPEARANCES:

D. Garbaty Counsel for the Crown

R. Wulkan Counsel for Timothy Cox

MR. WULKAN: Good afternoon, Your Honour.

THE COURT: Yes. Mr. Wulkan. If Mr. Cox could come forward.

TIMOTHY COX: Yes, Your Honour.

THE COURT: Thanks. You can remain standing - have a - remain seated for the next little while. Everybody all set?

MS. GARBATY: Yes, Your Honour. Thank you.

THE COURT: Okay.

REASONS FOR JUDGMENT

PUGSLEY, J.: (Orally)

Timothy Cox is charged with an offence under section 253(1)(b) of the Criminal Code, driving with excess alcohol. The offence date was June 3rd, 2018. The trial completed on April 25th, 2019.

One focus of the submissions of counsel related to the transitional provisions engaging wide ranging amendments to the Criminal Code that took effect in December of 2018.

Constable Catuira of the Caledon OPP stopped the defendant's vehicle at 2:13 a.m. on June 3rd, 2018 to check the sobriety of the driver. The defendant was the driver and had his young son in the vehicle with him. Mr. Cox did not have his driver's licence with him, but provided his correct name and date of birth to the officer. The officer checked this information and determined that, first, the defendant's driver's license had expired four months before, and second, there were outstanding warrants for his arrest from the Collingwood OPP detachment.

At 2:24 a.m. the defendant was arrested on the strength of the outstanding warrants. Constable Catuira handcuffed him and placed him in his police car. He did not provide Mr. Cox's right to counsel immediately on his arrest on the warrants. The officer stated that the defendant was very concerned about what would happen to his son after his arrest and that they spoke about that at length. As they conversed, the officer began to detect an odour of alcohol on the defendant's breath and asked him when his last drink had been consumed. Mr. Cox admitted to consuming one beer.

At 2:29 a.m., the communications center initially advised the officer that Collingwood OPP was not prepared to pick up Mr. Cox on the outstanding warrant at that time. The officer stated that he filed that information in his mind for further discussion. In his experience, often other police forces would be prepared to meet to pick up a prisoner part way when they would not otherwise be able to pick up a prisoner at the Caledon detachment.

The witness was now more focused on the potential drink/drive offence and made a demand at 2:30 a.m. for a sample of the defendant's breath into an approved screening device. At 2:32 a.m., the defendant provided a suitable sample into the ASD, which registered a fail. The defendant was then re-arrested at 2:32 a.m. on the over 80 charge. At 2:34 a.m., he was provided his right to counsel advice. He was then cautioned and read the breath demand. He understood all the advice and did not wish to speak to counsel.

Another officer arrived to assist the defendant's ten-year-old son and to look after the impounding of the defendant's vehicle. The closest available qualified technician was at the Dufferin OPP detachment in Primrose, Ontario at Highways 10 and 89. They drove directly there arriving at 3:06 a.m.

Constable Catuira briefed the qualified technician and the defendant spoke to duty counsel. At 3:52 a.m., PC Mask, the qualified technician, took charge of the defendant for his breath test. The defendant's test results were 95 milligrams of alcohol in 100 millilitres of blood and 110 milligrams of alcohol in 100 millilitres of blood respectively.

The defendant had outstanding warrants including for fail to appear and was held for a bail hearing. Constable Catuira served Constable Mask's certificate upon Mr. Cox, as well as material from what the officer described as the qualified technician's readings. The defendant signed the certificate acknowledging receipt of a copy and the officer signed that he served the certificate. The certificate was initially identified as Exhibit A. The officer agreed that because they were at a different OPP detachment than his usual assigned station, his recollection of events regarding how he got the certificate might have been mixed up with his regular routine. But he did serve the certificate, entered as Exhibit A, upon the defendant.

He made no inquiry as to what other qualified technicians might have been available for the breath test here. He simply asked the communications center for the nearest qualified technician and they directed him to Dufferin OPP, so that is where he went.

Constable Catuira testified that when he first arrested the defendant on the strength of the outstanding warrants, he tried to read the defendant his rights to counsel, but the defendant kept asking about his son in the truck, and Constable Catuira then called for a second officer to come to the scene. As they conversed, he smelled alcohol and then focused on the potential drink/drive investigation. Had the defendant passed the approved screening device test, he would not have been arrested for the over 80 offence.

At the end of the cross-examination, the certificate was re-entered as Exhibit 1 on the basis of the officer's identification of the document, subject to argument as to the evidentiary effect of that exhibit.

Constable Mask was the qualified technician who tested Mr. Cox at the Dufferin OPP detachment. At 2:36 a.m., he was advised that the Caledon OPP required his services as a qualified technician. He commenced the process to ready the approved instrument, an Intoxilyzer 8000C. Constable Mask described how he set up the instrument and conducted various quality assurance tests. He described the calibration test. The target value is 100 milligrams of alcohol in 100 millilitres of blood plus or minus ten percent. Here the result of that test was 98 milligrams of alcohol in 100 millilitres of blood. He concluded at the end of his tests that the instrument was functioning properly and was ready to accept the defendant's breath samples.

At 3:14 he reviewed Constable Catuira's grounds to arrest and then spoke to the defendant about whether he wished to speak to counsel. The defendant then requested to speak to duty counsel and this was arranged by Constable Mask. Constable Mask observed the defendant and noted a strong odour of alcohol on the defendant's breath and his eyes were watery and bloodshot and his face was flushed. He also described the defendant as cooperative and polite.

Two proper breath samples were received for analysis by the approved instrument. The results were 95 milligrams of alcohol in 100 millilitres of blood at the sample completed at 4:01 a.m., and 110 milligrams of alcohol in 100 millilitres of blood in the sample commenced at 4:25 a.m.

Constable Mask reviewed the Intoxilyzer test print-out with the defendant and returned him to the care of the arresting officer. He then prepared his certificate of qualified technician on his computer and signed it. He gave the documents to Constable Catuira to serve the defendant. Exhibit 1 was not the original certificate because he kept the original signed certificate, but it bears his name and badge number. The officer is not sure whether he signed other copies of the certificate, but he had the original signed certificate with him when he gave evidence. He was not satisfied with the quality of the defendant's first try at providing his second sample and he rejected that try. He then required the defendant to make a second attempt and that was the suitable sample recorded at 4:25 a.m.

The alcohol standard solution had been tested by an analyst as having a target value of 100 milligrams of alcohol in 100 millilitres of blood. But Constable Mask agreed that he himself had not tested the alcohol standard solution to determine if that certificate provided by the Center of Forensic Sciences was accurate.

As a matter of habit, Constable Mask makes one copy of a certificate and relies on the officer-in-charge to make others as needed. He relied on his notes as to the exact results of the breath test here.

No further evidence was led by Crown or defence on the trial, nor on the Charter application here.

The defence raised three basic submissions on the merits and also submitted that the breath test results ought to be excluded here on the basis of an alleged breach of the defendant's right to be informed of the availability to speak to counsel forthwith upon arrest. Two of the defendant's submissions on the merits depend on the legal analysis in two recent cases from the Ontario Court of Justice, R. v. Shaikh [2019] ONCJ 157 and R. v. Flores-Vigil [2019] ONCJ 192.

Shaikh stands for the proposition that since the wholesale amendments to the drink/drive provisions of the Criminal Code taking effect in December 2018, the Crown has lost the ability to rely on the former statutory presumptions that streamline the process of determining a defendant's blood alcohol concentration established long ago by the Criminal Code.

Since Shaikh was delivered, several other courts of concurrent jurisdiction have considered the issues identified in Shaikh. Other justices of my court have done the heavy lifting on the persuasive nature of the Shaikh reasons. In my view, the reasoning in Shaikh is flawed for the reasons set out by my brother, Justice Schwarzl, in the case of R. v. Sivalingam [2019] ONCJ 239, and further in, for example, R. v. Bandal [2019] ONCJ 337; R. v. Porchetta [2019] Ontario Judgments 1985; R. v. McRae [2019] ONCJ 310.

In my view, also, the application of the decision of the Supreme Court of Canada in 1990 in R. v. Ali is dispositive of the defence argument here. The Crown may rely on the pre-amendment presumptions and I declined to follow the Shaikh line of cases here.

The defendant's submission based on R. v. Flores-Vigil is rooted in the submission that there was no properly admitted evidence that the target value of the alcohol standard solution was 100 milligrams of alcohol in 100 millilitres of blood. The defendant submits that without knowing what the target value is, any solution could have been used. And, therefore, there is no admissible evidence as opposed to hearsay that demonstrates that the solution was properly used.

Subsection 320.31(1) of the Code allows the Crown to provide the necessary evidence of the target value by certificate, but no such certificate was served before trial in this case. This part of the amendment specifically applies to trials on charges laid before the effective date of the amendments, but conducted after that date, such as Mr. Cox's trial.

Constable Mask testified that he has been a police officer since 2008. His qualifications as a qualified technician were not challenged by the defendant and his notes were conceded subject to one issue that was raised later. It is clear from Constable Mask's evidence that he completed every necessary step to ready the instrument in accordance with his training and experience. He testified that the target value of the alcohol standard solution was 100 milligrams of alcohol in 100 millilitres of blood based upon the certificate of analyst. He concluded that the instrument was functioning properly and was ready to test the defendant after all of the officer's pre-test preparation.

Constable Mask agreed in cross-examination that the only reason he knew of the target value was by reference to the certificate of analyst. His evidence of the results of his testing of Mr. Cox were his notes taken at the time, including the alcohol influence report and the certificate he created and the print-outs from the instrument itself. He used these sources to refresh his memory when he gave his evidence.

The defendant submitted that the evidence of the qualified technician as to the target value was inadmissible as hearsay. As such, the Crown, in their submission has not satisfied the onus placed upon it to satisfy the new presumption of identity set out in subsection 320.31(1) of the Code. Without expert evidence, it is submitted the defendant must be acquitted.

The defendant submitted that I should be persuaded by the reasons of R. v. Flores-Vigil and the decisions that were delivered soon after, which found the Flores-Vigil reasoning persuasive. In my view, those decisions are not compelling and I decline to follow them. I prefer and adopt the reasoning in R. v. Porchetta and R. v. McRae, already cited, among other cases.

And on the facts of this case, I make the following findings: First, Constable Mask was a properly qualified and experienced qualified technician. Second, he conducted all of the quality assurance tests in accordance with his training and experience. Third, the approved instrument was self-tested and passed. Fourth, he ascertained that the target value of the alcohol standard solution was 100 milligrams of alcohol in 100 millilitres of blood and the instrument tested that alcohol standard solution with a result of 98 milligrams of alcohol in 100 millilitres of blood. Fifth, Constable Mask was entitled to rely upon his training and experience in his preparation of the instrument for testing this defendant and found it to be operating properly.

Part of his training is to check the value of the alcohol standard solution. It is part of his training and expertise to operate this device accurately. Part of the quality assurance process mandated by that training and experience stems from the records and reports he receives and accepts or rejects as part of the breath test procedure. These are summarized in the test print-outs, in his notes, and in the certificate that he created, all disclosed before trial to the defendant. When he testified that he ascertained that the target value was 100, he was not relating impermissible hearsay, he was testifying as to the steps he took to complete the required quality assurance test pursuant to his training as a qualified technician. It would be no more hearsay than to observe that the operating temperature of the solution was so many degrees centigrade. I cannot give effect to this defence submission.

I note as well that an analogy might be made to the reasoning of Justice Langdon in the Ontario Court (General Division) in R. v. James [1995], Ontario Judgments No. 190, cited with approval in the Ontario Court of Appeal in R. v. Gundy [2008] OCA: “What is the likelihood that the OPP would supply its constables with an unapproved device with which to enforce the RIDE program?” Put in an another way, what is the likelihood that the OPP and the Center of Forensic Sciences would supply qualified technicians with an alcohol standard solution other than that upon which the qualified technician has been trained to use to check the accuracy of his or her approved instrument?

The defendant submits that because confusion exists as to the creation and service of Constable Mask's certificate of qualified technician, he was forced to rely on his notes to ascertain the exact blood alcohol reading of the defendant's test, and that to do so, was impermissible because he did not have any independent recall of those numbers.

First, the summary conviction appeal decided in R. v. Moonessar [2019] ONSC 340, Justice D.E. Harris, a decision binding on me, stands for the proposition that a certificate of qualified technician need not be signed to have evidentiary value. Further, Exhibit 1 was served upon Mr. Cox by Constable Catuira and Mr. Cox acknowledged receipt of that certificate. Although, the Crown did not seek to rely upon the certificate, that decision does not bind me. My duty is to determine the admissible evidence and to decide the case on the application of the law to that admissible evidence.

Based upon Moonessar, I would have given effect to the combined evidence of both officers to find the certificate was admissible here. In the event, however, the qualified technician himself testified and his evidence included the times and results of the two breath tests conducted here. The officer is entirely entitled to rely upon the documents he did rely on in this case to refresh his independent recall of the events of testing the defendant to relay to the court the results of those tests. The notes are intended to do just that. The print-outs are created during the test process and the certificate is a document he created and on his copy affixed his original signature. Unless saved by the results of his Charter application, the defence submissions on the Crown's case on the merits creates no reasonable doubt here.

The Charter breach alleged by the defendant is that upon his arrest on the outstanding bench warrants, the defendant was not immediately provided with his right to counsel on those charges. The defendant submits that all subsequent events are, therefore, tainted by that breach, and the approved screening device result and subsequent Intoxilyzer results must be excluded under subsection 24(2) analysis in the Canadian Charter of Rights and Freedoms.

Further, the Crown appears to concede what the trial Crown characterized as a technical breach of the Charter. I do not read the evidence of the arresting officer, Constable Catuira, in that way at all. That officer testified that he knew he had to give Mr. Cox his right to counsel upon the defendant's arrest on the outstanding warrants, but as he tried to do so, the defendant interrupted him because Mr. Cox was understandably very concerned about the status of his ten-year-old son.

As Constable Mask also testified, his son's mother was two hours away and Mr. Cox was under arrest on outstanding warrants that he accepted upon his arrest he knew about. The arrest on the warrants was at 2:24 a.m. The officer cuffed the defendant and placed him in the police car where they awaited information about whether Collingwood OPP was going to return him immediately on the warrants. The officer testified that his attempt to provide rights to counsel was interrupted or curtailed by Mr. Cox's expressed concerns for his son's welfare.

While they talked, the officer noted the odour of alcohol on the defendant's breath and began to consider a drink/drive investigation. At 2:28, Collingwood OPP relayed through the communications center their initial disinclination to return Mr. Cox on the outstanding warrants, but by then the officer had decided to make an ASD demand and he did so. The drink/drive investigation continued thereafter.

After the ASD fail at 2:32 a.m., the defendant was re-arrested on the over 80 allegation, received his rights to counsel on that allegation at 2:34 a.m., and then later at the station spoke to legal counsel before the breath test.

I agree that Constable Catuira failed in his duty to provide Mr. Cox with his right to counsel upon his initial arrest on the outstanding warrants. He started to do so and let himself become distracted and when he engaged the drink/drive investigation, he did not return to that issue. On R. v. Grant, (Supreme Court of Canada) (2009) analysis, however, I cannot agree with the defendant on the remedy under subsection 24(2) of the Charter.

First, I find that the breach was essentially inadvertent. The officer knew he needed to give right to counsel, but as noted, allowed himself to be distracted, first, by Mr. Cox's continued obvious concern as to what would become of his ten-year-old son. Second, by the issue of whether Collingwood OPP would actually return Mr. Cox on the warrants. Third, by the increasingly pervasive suspicion that the defendant had not long before driven his motor vehicle with alcohol in his body.

The first issue in Grant is the seriousness of the Charter-infringing state conduct. While real, the infringement here was more of one of omission than commission, and on the whole was a less serious infringement.

The second leg of Grant engages the impact on the Charter-protected interests of the accused. I start with the necessary presumption that upon being arrested, Mr. Cox was absolutely entitled to be told of his right to speak to counsel. On its face, this is then a serious impact. In my view, however, the nature of the arrest on outstanding bench warrants acts to lower the level of seriousness somewhat. I say this because when arrested for a fresh offence, for example, one an officer has seen happening, there is a high degree of potential jeopardy faced by an accused, who is the subject of an immediate investigation, and who might be at risk of self-incrimination before obtaining his Charter-mandated advice as to counsel.

Here, Mr. Cox was arrested on outstanding warrants from another police detachment. Constable Catuira did not know anything about those outstanding charges other than the facial charge Mr. Cox was wanted on, drug possession and failure to appear. The officer's only interest was whether Collingwood was going to return Mr. Cox then or later. There was no indication that he had any interest in investigating the root charges to the warrants. This, to an extent, reduces the impact of the breach on Mr. Cox.

The third leg of Grant, society's interest in an adjudication on the merits, usually enures to the benefit of the Crown on a Grant analysis since, in most cases, society favours the disposition of criminal cases by a process where the evidence is tested.

More problematic here is the remedy sought by the defendant, the dismissal of the drink/drive related charge.

In my view, the remedy sought is too remote from the breach here. It is common ground that upon his arrest on the over 80 charge, Mr. Cox was properly and fully apprised of his right to speak to counsel. And, indeed, he did so before the breath test. There is no compelling nexus between the breach I find here and the over 80 charge.

I agree without deciding that some Charter-related breaches may be so egregious as to impact all downstream events in the police interaction with the defendant, but this is not one of those very rare circumstances.

If Mr. Cox remained under arrest on the Collingwood warrants, he might have had a future 10(b) argument in the context of, for example, the fail to appear. Here, however, the public quite reasonably would be scandalized if the defendant's positive breath tests were excluded based on the Charter breach that took place under these circumstances.

Drinking and driving offences are notoriously prevalent in Canada, in Ontario, and in particular in this jurisdiction, where they make up fully two-thirds of our criminal case load. Although, I find that the defendant's right to counsel was not communicated on the initial arrest on the two outstanding warrants, I do not give effect to any subsection 24(2) Charter remedy here.

On the evidence, the Crown has proven that the defendant drove, as alleged, with a blood alcohol concentration of more than 80 milligrams of alcohol in 100 millilitres of blood and he must be found guilty of that offence as charged. Is the Crown alleging a record?

MS. GARBATY: There is a prior record. If I could just have a moment. Just one minor entry from 1998.

THE COURT: Could you show that to your friend?

MR. WULKAN: Record acknowledged.

THE COURT: The record will be Exhibit 1.

EXHIBIT NUMBER 1: Criminal record - produced and marked.

THE COURT: There is a companion information under the Provincial Offences Act that was not the subject of an arraignment, drive motor vehicle without being in possession of a driver's license.

MS. GARBATY: That can be marked as withdrawn, please.

THE COURT: That will be withdrawn by the Crown. Counsel, prepared to make submissions today?

MR. WULKAN: Yes, Your Honour.

THE COURT: All right. What's the Crown's view?

MS. GARBATY: While the readings are not high, Your Honour, the facts are aggravating in the sense that there was a child in the car. Notwithstanding that, the Crown seeks a fine and a one-year driving prohibition, please. The fine or the minimum fine, at the time, was a thousand dollars.

THE COURT: I think the minimum fine right now is a thousand dollars, too, given the readings.

MS. GARBATY: True.

THE COURT: Yes, Mr. Wulkan?

MR. WULKAN: Yes. Thank you, Your Honour. And I will be requesting the minimum fines on behalf of Mr. Cox. He's 43 years old as of today. He's in a common-law relationship; has one child, a son, and I understand he's aged 11. He's employed as a contractor, self-employed; has been working for himself for the past about ten years now. He's fairly involved in his local community, informally, through things such as helping out a lot of his elderly neighbours on his cul-de-sac with things like outdoor housework, as well as helping out chores around the house. He also does volunteering on a kind of an event basis through local organizations helping things like setting up tents and doing the cooking, cooking and things of that nature. So he's, he's fairly involved out in the community. His leisure time is mostly spent doing outdoor activities, notably boating and ATVing will be off for this summer given the outcome of today's judgment. As well, of course, being a contractor, he does move from jobsite to jobsite. There may be some difficulties that arise he'll have to figure out as a result of the verdict of today, as well. Subject to any questions, those are my submissions, Your Honour.

THE COURT: Thank you. Will you stand up, please, Mr. Cox. Is there anything that you'd like to say before sentencing? You don't have to say anything, but now's your chance if you want to.

TIMOTHY COX: Oh, no, thanks, Your Honour.

REASONS FOR SENTENCE

PUGSLEY, J.: (Orally)

The Crown and the defence, essentially, are suggesting I impose the lowest fine I am allowed to impose. I agree with that submission here. There were triable issues, particularly, on the recent changes to the law and you always, of course, have the right to have a trial and have the evidence tested. So you will be fined a sum of $1,000 dollars. Twelve months to pay that, Mr. Wulkan?

MR. WULKAN: That's plenty, Your Honour.

THE COURT: Twelve months to pay the fine. You can pay it, of course, earlier than that if you wish. You are prohibited from operating a motor vehicle anywhere in Canada for one year. That starts today. Should still be eligible for Stream B?

MR. WULKAN: I would think so, Your Honour.

THE COURT: Yes. So you may be able to apply to the Interlock program and be able to drive before that year is up under certain conditions if you successfully make that application. If the defendant has a licence, it needs to be passed up to my clerk right now, Mr. Wulkan.

MR. WULKAN: Yes. I asked him about that earlier, Your Honour. He doesn't have it on his person. I told him he will need to surrender it at his earliest opportunity. Would that be to a courthouse or to the Ministry directly?

THE COURT: Good question. Madam Clerk, do you know? I think if you bring it into the courthouse, they'll know what to do with it.

CLERK REGISTRAR: We will take it from him.

THE COURT: Yeah. That's probably easier than trying to go to Service Ontario.

MR. WULKAN: So what - whatever your nearest criminal courthouse is.

THE COURT: They won't have a clue what you're talking about. All right. Thanks very much for your help. There will be a document for you to sign upstairs before you leave the courthouse today. Second floor, north end of the building.

TIMOTHY COX: Thank you, Your Honour.

THE COURT: All right.

MR. WULKAN: Thanks.

THE COURT: Thanks.

MR. WULKAN: I thank my friend.

THE COURT: Here's the Information. This one was withdrawn.

...PROCEEDINGS WERE CONCLUDED