Court Information

Ontario Court of Justice

Date: 2019-07-18

Court File No.: Guelph – information 2536/18

Parties

Between:

Her Majesty the Queen

— And —

Warren Dickson

Judicial Officer and Counsel

Before: Justice M. K. Wendl

Heard on: April 14th and July 3rd, 2019

Reasons for Judgment released on: July 18th, 2019

Counsel:

• Tom Meehan, for the Crown
• Jason Dos Santos, for the accused

Judgment

WENDL J.:

Introduction

[1] Warren Dickson is charged with "over 80". At the outset of trial, counsel filed a Charter motion. He argues that Mr. Dickson was funneled to duty counsel and that the arresting officer's belief that the ASD was properly functioning was either subjectively unreliable or objectively unreliable because of the recent consumption of food, drink or alcohol.

[2] At trial counsel for the accused admitted the presumption of accuracy and identity as it relates to the breath samples. Identity, jurisdiction and time were admitted as well.

[3] Finally, in addition to the Charter issues, the defense contests that Mr. Dickson was in care and control of the vehicle at the time of the alleged offence.

Care and Control

[4] Constable Wing testified that he was called for a possible impaired to a pizza parlour in Mount Forest. When he came upon the accused, Mr. Dickson, the accused was exiting his vehicle and walking towards the pizza parlour. During the ensuing conversation, Constable Wing states he noted the smell of alcohol on his breath and requested an ASD demand. Mr. Dickson failed the ASD and subsequently failed the breath test.

[5] Mr. Dickson testified that he was working on his property all day clearing brush. While there he received the bad news: his cousin passed away. He left his property to go back to Mount Forest where he was staying for the night. Even though he wasn't hungry, he stopped his vehicle at a pizza parlour minutes from where he was staying that night. He ordered wings and a pizza. That is when he began drinking, according to his evidence. Mr. Dickson was going in and out of the restaurant while waiting for his food. Outside he would drink his peppermint schnapps that he left in the centre console of his car. The keys were in the ignition and music was playing from the car.

[6] Mr. Dickson admitted that he offered to buy a pizza for a stranger who entered the parlour. He also said something to the effect that he loved one of the patrons. His state of mind was upset and angry because of the passing of his cousin.

[7] Although I sympathize with the passing of Mr. Dickson's cousin, his behavior at the pizza parlour, through his own evidence, can be characterized as capricious, impulsive or even erratic.

[8] Mr. Dickson testified that he was not going to drive home after drinking the schnapps because he does not drink and drive. He was going to leave his car at the pizza joint.

[9] If Mr. Dickson was such a conscientious driver as he states, he repeated numerous times, emphatically, that he never drinks and drives, I find it odd that he would stop at the pizza parlour three minutes from his house and start drinking, rather than leave the car at his house and walk back to the pizza parlour. Furthermore, there is absolutely no evidence that he put any thought into the parking situation. He did not determine if he could park his car overnight and did not turn his attention to any possible ticketing or towing of his vehicle.

[10] This belies any notion of a plan. Furthermore, upon arrest, he told Constable Wing that he was not impaired. If he did not believe he was impaired why would he not drive home?

[11] Finally, as stated above, his behavior was capricious, impulsive and erratic.

[12] I reject his evidence that he had a plan to walk home and leave his car behind and it does not raise a reasonable doubt.

[13] I find that Mr. Dickson was going to drive home or at the very least there was a realistic risk he was going to do so. The facts in this case are similar to Cadieux. As Justice Rutherford stated, sitting as a Summary Conviction Appeal Court, in Cadieux:

A finding of "care and control" in these cases where, at the time of apprehension, the accused is not actually driving and may not even be behind the wheel often involves, if not conjecture, at least an assessment of what, in all the particular circumstances, may occur in the not too distant future.

[14] To reiterate my view: I reject Mr. Dickson's evidence and it does not raise a reasonable doubt. Mr. Dickson's behaviour was capricious and impulsive from the moment he left his property to go to the Pizza Parlour. He went to get food even though he wasn't hungry, he offered to buy pizza for a stranger and told someone in the store "Oh, she loves me" about a patron who just left. Instead of going home, leaving his car there, and walking back to the pizza parlour, he chose to stop three minutes from his house to buy pizza, wings and drink. He had no idea whether he could park in the spot overnight. He was upset and angry by the death of his cousin and his mood was affected by it. This is not the mindset or the actions of a man who had a plan. Moreover, by his own admission upon arrest he did not think he was impaired. Again, if he did not believe he was impaired why then would he leave his car behind?

[15] Leaving that aside, the keys were still in the vehicle. He would need to enter the vehicle after drinking to remove the keys from the vehicle if he wanted to walk home. The radio in his vehicle was on. This indicated an intentional course of conduct associated with a motor vehicle, causing a realistic risk, leaving aside his intention to walk home.

[16] Finally, the plan posited by Mr. Dickson about not driving was vague and hazy at best. As the Supreme Court stated in Boudreault, for the plan to have an impact on the on the court's risk assessment it must be concrete and reliable.

Recent Consumption of Food, Fruit Juices or Alcohol

[17] On either the testimony of Constable Wing or the testimony of Mr. Dickson I find there is no breach. Mr. Dickson indicates that Constable Wing asked him if he had anything to drink. On that same testimony there is no evidence that Constable Wing asked him if there was any recent consumption of alcohol. There is no evidence that Constable Wing asked Mr. Dickson, from his own testimony, whether he had recently eaten anything or drank any non-alcoholic beverages.

[18] The crux of Mr. Dickson's testimony is that prior to administering the ASD machine Constable Wing asked Mr. Dickson if he had anything to drink and he pointed in the direction of his vehicle where peppermint schnapps was in a canister in the centre console. There is no evidence in front of me as to whether Constable Wing even noticed the canister prior to administering the ASD.

[19] On the other hand, Constable Wing's testimony was that he noticed the smell of alcohol on Mr. Dickson and then made an ASD demand.

[20] There is nothing in either version of events that could undermine the subjective honest belief of Constable Wing or the objective reasonableness of that belief at the time of making the ASD demand or when Mr. Dickson failed the ASD.

[21] As the Court of Appeal recently re-articulated in Notaro, there is no constitutional obligation to inquire about the presence of mouth alcohol, by implication there is no constitutional duty to inquire about food or sugary juice. In addition to that, the officer's subjective belief will only be undermined if he actually knew that there was residual mouth alcohol or food or sugary juice and it would cause an unreliable reading. That is not the evidence in front of me on either versions of the testimony.

[22] In relation to the objective component of the test, the strongest argument for Mr. Dickson was that peppermint schnapps was found in the centre console of his vehicle after the arrest. However, this only raises the possibility that alcohol was consumed 10 minutes prior to administering the ASD. The possibility of recent consumption is not enough to undermine a reasonable reliance on an ASD fail. I note that it was never put to the officer whether the finding of peppermint schnapps in the vehicle affected his assessment of reasonable grounds.

Right to Counsel

[23] The issues raised by Mr. Dickson in relation to a breach of his right to counsel are properly characterized in two ways: funneling to counsel and improper implementation of his right to counsel of choice.

[24] Defense counsel posits three arguments in relation to the funneling issue. The first one is that the police need to provide the accused with tools so that he can find a possible lawyer.

[25] The second one is that Constable Wing's notes were porous in regard to the responses by Mr. Dickson to the right to counsel and Constable Wing's plain language explanation of the right to counsel. Connected to this argument is that Constable Wing's plain language explanation gave Mr. Dickson a binary choice between "his" lawyer or duty counsel. Counsel further argues that this would have contaminated the second iteration of the right to counsel by Constable Wing prior to Mr. Dickson speaking with Duty Counsel.

[26] The third argument is that another conversation occurred after the second iteration of the right to counsel between Constable Wing and Mr. Dickson to the same effect as after the right to counsel was given at the roadside. Basically, defense counsel argues that Constable Wing clarified Mr. Dickson's his right to counsel in a binary fashion again: do you have a lawyer or can I call duty counsel. He looks towards the evidence of Constable Martin for support.

[27] Constable Martin testified that he heard a vague conversation about the counsel of choice at the station. I do not put much weight in the evidence of Officer Martin's testimony on this point. It is not clear when this conversation would have taken place. The details of that conversation was not flushed out in the evidence. Constable Wing was not cross-examined about any further conversation after having provided the rights to counsel for a second time. Essentially, I find that there is no reliable evidence for me to find that a second conversation took place as alleged by defense counsel.

[28] Also, I find that the second reading of the right to counsel, immediately prior to Mr. Dickson's excising his right to counsel, would have cured any defects in Constable Wing's plain language explanation of the right to counsel.

[29] In relation to the funneling issue, I follow Justice Woollcombe's reasoning in Mumtaz and Justice Kenkle's reasoning in Raaneyi and find no breach. Constable Wing read, not once, but twice, from the standard rights caution. Twice, he said to Mr. Dickson that he had the right to contact any lawyer he wished. Significantly, and uncontroverted by cross-examination, Constable Wing read the rights to counsel from the placard on the wall in the booking room area prior to Mr. Dickson's phone call with duty counsel.

[30] Finally, I find that the police are under no obligation to provide resources to identify a possible lawyer.

[31] I will point out, however, that Constable Wing's note taking on the crucial issue of the right to counsel was horrible. It is unacceptable in this day and age that a police officer does not note down the answers to the right to counsel by an accused or notes down what he may have said to clarify the right the counsel.

[32] Although Constable Wing believes that his notes only exist for his memory that is not correct. The police have a duty to prepare accurate, detailed and comprehensive notes as the Supreme Court stated in Woods v. Schaeffer:

the duty to make careful notes pertaining to an investigation is an important part of the investigator's broader duty to ensure that those who commit crimes are held accountable for them

The Court went on to say:

[67] Against that background, I have little difficulty concluding that police officers do have a duty to prepare accurate, detailed, and comprehensive notes as soon as practicable after an investigation. Drawing on the remarks of Mr. Martin, such a duty to prepare notes is, at a minimum, implicit in an officer's duty to assist in the laying of charges and in prosecutions — a duty that is explicitly recognized in s. 42(1)(e) of the Act.

[68] None of this, of course, comes as news to police officers. In this case, for example, OPP policy confirms the duty to make notes by requiring constables to record "concise, comprehensive particulars of each occurrence" during their tour of duty and to "make all original investigative notes . . . during an investigation or as soon thereafter practicable" (OPP Order 2.50, Member Note Taking, SIU Record, at pp. 48-52). More generally, police manuals have long emphasized the importance of accurate, detailed, and comprehensive notes; see, e.g., R. E. Salhany, The Police Manual of Arrest, Seizure & Interrogation (7th ed. 1997), at pp. 270-78.

[33] The second right to counsel issue is more accurately characterized as an implementation one. Again, on either version of the event, that of Mr. Dickson or that of Constable Wing, I find no breach. This issue turns on whether Constable Wing had a duty to facilitate contact of counsel of choice.

[34] The crux of Mr. Dickson's evidence was that he knew a lawyer but did not know how to get a hold of him. He testified that the lawyer he was thinking about did not have a "Caucasian" or "Canadian" name and that he was from the Toronto region. He testified that he was internet savvy and he would have been able to find his counsel. I find that assertion doubtful. He did not know Mr. Dos Santos' name, and he did not know how to get ahold of him. He had no real parameters through which he could locate Mr. Dos Santos. Significantly he did not testify that any third party would have been able to facilitate the contact with the lawyer who did not have a "Caucasian" or "Canadian" name.

[35] The police have an obligation to facilitate access to counsel of choice when a specific counsel is named. That is not the case on the evidence of Mr. Dickson. On his evidence he said he knew of a counsel and when Constable Wing asked who, he testified "the name will slip me because it's not someone that I am personally acquainted with but that I know of" at which point Constable Wing advised him of his right to speak to duty counsel again.

[36] I digress to note that Constable Wing denies this exchange taking place and that Mr. Dickson's evidence was slightly different on this point further on in-chief. However, the first version of Mr. Dickson's evidence is consistent with his other testimony that he did not have a name of counsel or any contact information for him.

[37] The police have a duty to facilitate access to counsel when a specific counsel is named, not when there is a vague expression about contacting a lawyer whose name the accused does not know nor can provide any guidance about how to get ahold of him or her.

[38] Furthermore, any ambiguity about a potential issue regarding counsel of choice is laid to rest because Constable Wing specifically advised Mr. Dickson of his right to contact any counsel he wished immediately prior to his conversation with duty counsel. Also, Mr. Dickson testified that he was satisfied with the advice from duty counsel and had he not been he would have been provided with a chance to speak to someone else.

Conclusion

[39] Finding no breach of Mr. Dickson's rights and since the presumption of accuracy and identity was admitted, I find Mr. Dickson guilty on the charge of "over 80".

Released: July 18th, 2019

Signed: Justice M. K. Wendl