R. v. Siskos

Court: Ontario Court of Justice

Date: 2019-07-10

Court File No.: Toronto 4817 998 17-75005736

Between:

Her Majesty the Queen

— AND —

Alexander Siskopoulos Siskos

Before: Justice Richard Blouin

Heard on: March 11 and 12, 2019

Submissions heard on: April 17, 2019

Reasons for Judgment released on: July 10, 2019

Counsel:

• Mr. Matthew Morley, counsel for the Crown
• Mr. Barry Fox, Counsel for the defendant Alexander Siskopoulos Siskos

BLOUIN, J.:

Introduction

[1] Alexander Siskos was driving his SUV northbound on Sherbourne Street in Toronto around 10:40 p.m. on December 1, 2017. As he approached Dundas Street his vehicle slowed, appeared to be moving slightly left, and then proceeded slowly straight through the green light. A short distance north of Dundas Street, he either stopped or reduced his speed so as to cause a TTC bus following his vehicle to honk. Constable Kotzer, observing the above, decided to investigate and engage his lights and siren. Mr. Siskos stopped his vehicle against the curb shortly after the police cruiser came into view. All of the above was captured by Kotzer's dashboard camera.

[2] Shortly after speaking to the defendant through the open driver's window, he ordered him out of the car. Because the defendant appeared to be preparing to flee by putting the vehicle into drive, Kotzer yelled at him to "put it in park", pulled his gun, and pointed it at the defendant.

[3] After the defendant was arrested and placed in the rear of the police cruiser, Kotzer read rights to counsel, a caution, and a breath demand. The defendant responded that he wanted to speak to a lawyer and, very soon after arrest, on two occasions, said that he was not going to provide one.

Issues

[4] The defendant submits that the evidence (video, police witnesses, and the defendant's testimony) does not establish impairment beyond a reasonable doubt. In fact, he argues that Constable Kotzer did not objectively, or even subjectively, have reasonable grounds for the arrest.

[5] Siskos also argues that his refusal to provide a breath sample minutes after arrest was not unequivocal given that he was not provided an opportunity to consult with counsel before he was charged.

[6] Siskos also argues he was overheld at 51 Division for about nine hours until release the next morning. He seeks a stay of proceedings regarding that violation.

Police Evidence

[7] Constable Kotzer was of the view that the defendant should receive some advice regarding his legal jeopardy and he took the defendant to Traffic Services (TSV) for that purpose. Kotzer testified that he "had an argument," with Staff Sergeant Redmon when he arrived at TSV. He felt that the defendant, after speaking with a lawyer, might change his position and provide a breath sample. Redmon advised Mr. Siskos that the offence of refuse breath sample had been completed, and he was going to be charged. She then told the defendant that Kotzer had erred in bringing him to TSV and that he was being taken to 51 Division to be "lodged in the drunk cells until such a time as he would become sober enough to be released." Redmon prevailed and Kotzer took the defendant to 51 Division (later Redmon phoned 51 Division to apologize to Kotzer regarding not keeping the defendant at TSV).

[8] Jeff Douglas, the booking Sergeant at 51 Division, testified that he decides when it's safe to release a defendant after taking into account input from other officers. He admitted there is no protocol in place to determine such release. He had no note or recollection of how many times he was updated by others in the police station. He did not personally check on Mr. Siskos before his shift ended at 5 a.m.

[9] At 51 Division, the defendant was given an opportunity to contact counsel – which he declined. He felt, reasonably given what Redmon had told him, that there was no point in speaking to a lawyer at that point.

The Defendant

[10] Siskos testified that he drank two beers before he left home to get some food. He was initially unaware that the emergency lights from Kotzer's cruiser were for him, but he pulled over properly considering Sherbourne has a dedicated bike lane. He felt that the officer was not safely located beside his driver's window and thought he should move to the right. Although Siskos did not see his vehicle move on the dashboard camera (neither did I), he remembered it moving when he took his foot off the brake. He was shocked and frightened when the officer pulled out his gun and pointed it at him.

[11] Siskos agreed that he told the officer he wasn't doing any breathalyzer right after he told the officer that he wanted to speak to a lawyer. Siskos said that at that point, he did not trust the officer and did not want to have any further conversation with him. He was not given an opportunity to speak with a lawyer at TSV. By the time he was taken to 51 Division, Siskos did not feel that speaking with a lawyer then would make any difference since he had been told earlier that he was going to be charged and that it was a "done deal".

[12] Siskos testified that he drank two beers and that he was not intoxicated or impaired in any way. He was frustrated that he was detained in police custody until close to 8:30 a.m.

Findings on Refuse Breath Demand

[13] In R. v. Mandryk, Code J. dealt with the defendant refusing to supply a breath sample after the defendant made clear that he wished to speak to counsel. After the breath sample demand, the defendant had a four-minute discussion with the officer, which, although not recorded verbatim, went something like:

• I don't think I want to.
• I didn't do well with roadside screening.
• I don't want to do it.

[14] Justice Code reviews the law and writes at para 65:

[65] The above line of authority has consistently interpreted the actus reus of the offence enacted in s. 254(5) in a flexible and fair manner, such that the element "fails or refuses to comply" is not applied in a way that would be inconsistent with the accused's right to counsel. These cases hold that where the accused seeks access to counsel's advice, either shortly before or shortly after an initial refusal to comply with the s. 254(3) demand, then the initial indication of the accused's intentions is treated as provisional. It is only after access to counsel that the initial provisional indication becomes final. This is simply a matter of reasonable and fair construction of the statutory terms, consistent with the Charter of Rights and with the Bill of Rights, since the accused is detained and is required to make a decision with significant legal consequences and is seeking access to counsel's advice. An important factual issue in all these cases is whether the request to speak to counsel, and the initial refusal to comply with the demand, are really part of one ongoing conversation, as in Jumaga, Brotton and Sullivan. When there is a clear break in the transaction, and the accused subsequently changes his mind as in McKeen and McGauley, then the offence of refusal to comply is already complete and cannot be undone.

[15] Although Mr. Siskos indicated immediately in the back of the cruiser that he would not supply a breath sample (this just seconds after being arrested at gun-point), I fail to see how the situation is functionally different than in Mandryk. It is true that Mandryk expresses some uncertainty while Siskos does not, but Mandryk, a few minutes after arrest and before speaking to counsel, refuses. Same with Siskos. Even P.C. Kotzer, in the spirit of fairness, is essentially treating Siskos's refusal as "provisional". He is clear that Siskos should wait to speak to counsel and takes him to TSV for that purpose. The problem was the staff sergeant at TSV did not agree that access to counsel was necessary and sent them to 51 Division. She told Siskos that he was going to be charged with refuse breath sample.

[16] Another Summary Conviction Appeal Court decision, binding on this Court, is R. v. Bourns, 1993 OJ 2687. Bourns was arrested and read rights to counsel. He did not respond nor did the police officer seek a response. After the demand for a breath sample was read, the defendant refused. In that case, even though Bourns did not assert his right to counsel (unlike Siskos, who did) he was taken to the police station where he was afforded an opportunity to speak to duty counsel who advised him to provide the sample (again unlike Siskos who was not afforded access to counsel until a decision to charge had already been made). No further demand was made after the consultation. Thomas, J. says the following:

15 In my respectful view, the officer had a duty to read the breath demand to the appellant after the appellant had exercised his right to counsel. It would be an academic and meaningless exercise to advise the accused of his rights to counsel and provide an opportunity to exercise those rights and not require the officer to read the demand again.

[17] I conclude, as PC Kotzer quite fairly viewed it, that Mr. Siskos' refusal was provisional and not final. He must be found not guilty on that count.

Findings on Impairment

[18] I conclude that Kotzer had reasonable grounds to arrest Mr. Siskos, but the evidence regarding impairment falls short of the criminal standard.

[19] It is clear that both Kotzer and Douglas were of the view that the defendant was impaired. It is equally clear that Siskos feels that he was not. Both Kotzer and Siskos had minor inconsistencies and incongruities in their testimony, which impacted Kotzer's reliability and Siskos' credibility. In my view, this determination comes down to viewing of the video evidence. Captured on camera is: driving before arrest; arrest and transport to TSV; TSV booking and 51 Division booking.

[20] In my view, the driving displayed by the defendant, while not textbook, did not cause one to conclude impairment. When I view him walking or speaking, he does seem slow. While I suspect his ability to operate a motor vehicle may have been impaired, I am of the view that in examining the video evidence (which I have done multiple times), I cannot conclude impairment, even to a slight degree, beyond a reasonable doubt. His balance seemed unremarkable except for one brief moment in the booking room at 51 Division where he quickly pivoted and lost his balance. I note that his slow manner of speech on video was consistent with his slow manner of speech when he testified before me.

Overhold

[21] Although not necessary given the above acquittal, I also conclude the police violated Siskos' Charter rights by arbitrarily detaining him. In my view, while initially determining he could not be released for safety reasons, they all but ignored any real assessment of the defendant. In addition, aside from inquiring as to whether he lived alone, there was no evidence the police ever considered an option to release Siskos to a trusted person.

[22] In R. v. Price, 2010 ONSC 1898, Justice Durno found that in holding a detainee at the police station for safety reasons, the officer-in-charge must consider all of the circumstances. Being guided only, as the officer was in Price, by the breath readings, is too narrow a focus. A non-exhaustive list of those considerations is found at paragraph 93.

[23] In the case of Mr. Siskos, where there were no breath sample readings, Sergeant Douglas did not consider all of the circumstances. No evidence was called regarding any considerations made by the officer-in-charge of 51 Division after 5 a.m., when Douglas went off shift.

Released: July 10, 2019

Signed: "Justice Blouin"