Court Information

Toronto Region

Date: 2019-08-09

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Leonard Mapiye

Before: Justice L. Feldman

Heard on: October 29, December 21, 2018, April 11, 17, 2019

Reasons for Judgment released on: August 9, 2019

Counsel:

• L. Vandersteen for the Crown
• T. Kay, A. Hussain for the accused

FELDMAN J.:

Introduction

[1] Leonard Mapiye entered not guilty pleas to charges of Operation Impaired and Blow Over 80. It is alleged that the defendant drove into the back of a stationary vehicle while having more than the legal limit of alcohol in his system.

[2] Mr. Mapiye says that his Charter rights under ss. 8, 9 and 10 were infringed by the police, warranting the exclusion of his breath readings on a s. 24(2) analysis. He says, as well, that there is a reasonable doubt on the evidence that he was in care or control of his vehicle following the collision. With the consent of counsel, this matter was conducted as a blended proceeding.

[3] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.

The Evidence

[4] On May 26, 2017, P.C. Zachary Lobsinger was working as a paid officer for a construction company at the intersection of McCowan Rd. and Triton Rd in Scarborough. He was in uniform sitting in a marked cruiser that had no computer or in-car camera. He was parked behind a construction pickup truck beside which were orange pilons that were placed in such a way as to direct oncoming traffic into a second lane. The truck was illuminated by lights. The traffic cones were fluorescent.

[5] The officer testified that at 2:26 a.m., he was startled by the sound of a vehicle that had crashed through the pilons and into the back of the truck with such force that it created a cloud of smoke. He walked over to the driver's side of the accused's vehicle and observed Mr. Mapiye, the sole occupant, struggling to make his way through the deployed air bags. He saw the defendant stumble out of his car, but regain his balance. Mr. Mapiye told the officer he was fine. He declined medical attention.

[6] At the time, Mr. Mapiye was prohibited from driving. He was also a novice driver who was not allowed to have alcohol in his system when behind the wheel of his car. He was also required to be accompanied by an adult driver after midnight. He was in breach of all three restrictions.

[7] P.C. Lobsinger noted a strong odour of alcohol on the defendant's breath, in addition to slightly red and glossed over eyes. When asked how much he had to drink, Mr. Mapiye stared blankly at the officer for a few seconds before answering. He said he had consumed two drinks. The officer asked him which drinks. The defendant's initial response was to say that his wife was flying to Sierra Leon. He then said he had two Budweisers for which he had a receipt.

[8] P.C. Lobsinger told the court that he advised the defendant he was being investigated for a drinking and driving offence. He agrees that meant Mr. Mapiye was being detained, although he did not immediately provide him his rights to counsel. The officer was unable to explain why not, beyond suggesting in re-examination that he thinks he was continuing the investigation in order to build grounds for an ability impaired charge.

[9] P.C. Lobsinger escorted Mr. Mapiye to his cruiser and asked for identification. He said the defendant stared at him briefly before taking out his wallet and going through his cards one by one. He produced a permanent resident card.

[10] Given the unexplained accident and indicia of impairment, the officer believed he had reasonable and probable grounds to arrest the accused. He did so at 2:29 a.m., placing the defendant in the back of his cruiser. He read him his rights to counsel at 2:31 a.m. Mr. Mapiye said he understood, wished to call a lawyer, but first wanted to speak to his wife. He did not say why, nor was he asked.

[11] At 2:32 a.m., P.C. Lobsinger demanded that the defendant provide a sample of his breath into an approved instrument. Mr. Mapiye said he understood. The officer asked the dispatcher for two units, one to do the accident investigation, the other to transport the defendant.

[12] Mr. Mapiye was driven to 41 Division at 2:54 a.m., arriving 13 minutes later. He was paraded at 3:21 a.m., He was asked if he had his own lawyer, to which he appeared to respond no. P.C. Lobsinger felt the defendant had no difficulty conversing in English.

[13] The Crown played a video of what occurred after the booking. At 3:25 a.m., Mr. Mapiye is seen being escorted into the report room, where he is handcuffed to a bench. When asked if he had his own lawyer or wished to speak with duty counsel, the defendant said he had his own counsel. P.C. Lobsinger asked for the name twice but received no answer. Mr. Mapiye then said he had a lawyer's card in his wallet. It was retrieved. It had two phone numbers for Charn Gill.

[14] P.C. Lobsinger left a voice message on one of the numbers at 3:31 a.m., but can't recall if he did so on the second. He waited a brief time before telling the defendant that there was no return call. He asked him if he wished to speak to duty counsel, but received no response. On being asked a second time, the defendant stared at the officer for about five seconds, but did not answer.

[15] P.C. Lobsinger told Mr. Mapiye again that the lawyer failed to return his call. He did not offer the defendant access to a telephone directory or the internet, but asked him if he wished to call a free duty counsel. Mr. Mapiye agreed. The officer placed a call to duty counsel at 3:38 a.m. Mr. Mapiye spoke with duty counsel from 3:44 -54 a.m. Mr. Gill never called back.

[16] P.C. Taylor, the breathalyzer technician, was ready to receive the accused at 4:15 a.m. After a number of unsuccessful attempts, Mr. Mapiye provided a suitable breath sample and was returned to the report room at 4:34 a.m. Brought back at 4:54 a.m., he provided a second suitable sample.

[17] The breath tests were taken outside of two hours. A toxicology report, admitted on consent, indicated that the range of Mr. Mapiye's blood alcohol concentration between 1:58-3:02 a.m. would have been 140-200 mgs. P.C. Taylor felt the effects of alcohol on the accused, including odour on his breath and bloodshot eyes, were noticeable.

[18] P.C. Lobsinger finally left a message for the accused's wife at 5:03 a.m. From the beginning, he was incurious why the defendant wished to speak to her.

The Defendant's Evidence

[19] Mr. Mapiye testified in his own behalf. He is 58. He has been employed since 2014. He claims he speaks broken English at work.

[20] The defendant's evidence is confusing with regard to his being given rights to counsel. He first said that he wished to speak to his wife at the scene, given her proficiency in English, in order that she might help him understand what he was being asked to do. In fact, he claims to have made this request a number of times. If that were the case, it makes little sense that he failed to explain why. Even less plausible is his assertion that he does not recall being advised of his s. 10(b) rights at the time. His point seems to be that he was cold, afraid and chose merely to follow what he was told to do. But he was no novice. He had previously been investigated and convicted for the same offence.

[21] Mr. Mapiye recalls that he provided his lawyer's card to the officer at the station. He claims the police told him later that they were unable to reach his lawyer, but that they got another one for him. He says duty counsel told him not to speak to anyone, I assume, in English. He asserts that he did not express his dissatisfaction with the advice he received because he felt obliged to follow police directives. On all the evidence, I view this latter point as self-serving and not reliable.

[22] Mr. Mapiye says he understands English, "but not as much as others". What he means by that is unclear. He says he "can move around and work in English". That he felt he could not express himself, but must just do as told in silence, given his prior experience and understanding of English, is unlikely.

[23] The defendant's evidence concerning his rights to counsel continued to be confusing. Under cross-examination, he agreed he was provided his rights at the scene. He cannot explain why he did not then offer Mr. Gill's card.

[24] The defendant testified that he was unable to comprehend the approved instrument demand, claiming to understand only that he was being transported for a booking at the station, although he recalls agreeing to blow into an instrument.

Positions of the Parties

[25] Mr. Mapiye has a number of Charter complaints. He says that when he was detained at the scene, the officer failed to immediately provide him either reasons for the detention or right to counsel; that the police lacked reasonable and probable grounds to arrest him; that the authorities breached his right to counsel of choice, streamed him to duty counsel and in addition, failed to recognize the 'special circumstances' that required his being provided with an interpreter; and that on the evidence there is a reasonable doubt the accused was in care or control of his motor vehicle after the accident because it was inoperable. He submits that the compounded effect of these infringements should lead to the exclusion of the breath readings under s. 24(2).

[26] The Crown submits that the officer's delay in satisfying his s. 10 obligations was as a result of a briefly continuing investigation of possible impaired driving and that in any case it was brief. He says the evidence warrants a finding that there were reasonable and probable grounds for the arrest. Regarding s. 10(a) and the requirement of immediately informing the detainee of the reasons for his detention, he says that given the circumstances and the defendant's prior related conviction, he would know the reason. Mr. Vandersteen submits, in addition, that the police satisfied its implementational duties regarding counsel of choice before offering access to duty counsel. He says there were no special circumstances warranting use of a translator. Finally, he says the facts support a finding that Mr. Mapiye was in care or control of his vehicle at the relevant time.

Were there breaches of s. 10(a) and (b) of the Charter?

[27] P.C. Lobsinger understood he was involved in an investigative detention sometime after 2:26 a.m., likely within a minute or so. He had heard and observed the result of the collision, seen the driver stumble from his vehicle, noted indicia of impairment and was informed by him that he had consumed alcohol. The officer told the defendant he was being investigated for drinking and driving and escorted him back to his vehicle. There, he checked his papers and arrested him at 2:29 a.m., placing him in the back of his cruiser. He provided his detainee rights to counsel at 2:31 a.m.

[28] Once P.C. Lobsinger escorted the accused back to his cruiser a detention was made out and he was obliged to provide his detainee his s. 10(b) rights. The precise time he escorted him is unclear. I don't consider that the brief delay in the giving of these rights constituted a breach. The officer was alone at an accident scene and was permitted some latitude to both investigate and secure the situation before providing those rights. I am of the view that the officer's "preliminary investigative questioning" fell short of establishing a detention: R. v. Suberu, 2009 SCC 33, at para. 29.

[29] I am also of the view that P.C. Lobsinger did not infringe the defendant's right under s. 10(a) "to be informed promptly of the reasons" for his detention. On this evidence, the officer indicated right away that he was conducting a drinking and driving investigation, for which Mr. Mapiye had previous experience. The defendant knew he had been drinking alcohol and had to have been aware that there was no apparent explanation for the collision beyond poor judgment or diminished motor skills.

[30] In R. v. Kumarasamy, [2011] O.J. No. 2114 (Ont. S.C.), Justice Dambrot observed that the accused was aware he had consumed alcohol, there was such an odour in his car and he had been driving erratically. Although not informed promptly of the reasons for his detention, the court found, at para. 53, that in all the circumstances he "would necessarily have known precisely why he was detained". That is similar to this situation. I would not give effect to this submission.

Reasonable and Probable Grounds

[31] To establish these grounds, the officer need have an honest belief that the driver committed the offence, one that is supported by objective facts. The test, not onerous, is whether there were reasonable and probable grounds to believe the driver's ability to drive was even slight impaired by the consumption of alcohol: R. v. Bush, 2010 ONCA 554, per Durno J. (ad hoc), at paras. 38, 46-48.

[32] In this case, P.C. Lobsinger was aware that the accused drove into a parked truck in the early morning hours despite it being demarcated with an illuminated sign, pilons and the officer's own emergency lights. He observed, as well, that the driver displayed certain impaired indicia, including an odour of alcohol on his breath, red eyes, stumbling on getting out of the car, not being fully responsive to questions and admitting having consumed 2 beers.

[33] This would be more than sufficient to meet the Stellato test regarding slight impairment to drive in the sense of "a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road": Bush, at para 47, referring to R. v. Stellato (1993), 12 O.R. (3d) 90 (Ont. C.A.), aff'd, [1994] 2 S.C.R. 478 (S.C.C.); and to R. v. Censoni, [2001] O.J. No. 5189 (Ont. S.C.J.).

[34] On this evidence, there were reasonable and probable grounds for the arrest.

Section 10(b) – Right to Counsel of Choice

(a) Obtaining Counsel Through a Third Party

[35] When given his rights to counsel, Mr. Mapiye asked first to speak to his wife. He did not explain why, nor did the officer ask. I did not accept the defendant's evidence that he asked again a number of times. He was permitted to speak to his wife prior to his release from the station.

[36] In R. v. Mumtaz, 2019 ONSC 468, when read his rights to counsel, the accused asked to speak to a friend, a police officer, but gave no reason. His request was denied. Justice Woolcombe found no s. 10(b) breach in this denial.

[37] The court noted, at para. 37, that where the detainee asks to contact a third party in order to reach counsel, police must facilitate this. But where the person does not provide a reason, the authorities indicate that "there is no legal obligation on the police to permit contact with that third party or to make further inquiries as to the reason the detainee wishes to make contact" (para. 38). Rather, the obligation is on the detainee to explain the reason for the request (para. 39).

[38] I find no breach in this respect in the case at bar.

(b) Did the Police Stream the Defendant to Duty Counsel?

[39] Mr. Mapiye had his lawyer's card on his person. He did not ask to speak to him at the scene when first read his rights to counsel. He was asked again during the booking process if he had his own lawyer. On the audio recording, I heard the defendant say no. It is possible he answered in the affirmative, but the sound is muffled because of the manner in which he spoke.

[40] It was in the report room that Mr. Mapiye said he had his own counsel. He provided a lawyer's card after being asked for the name twice. P.C. Lobsinger called at least one of two numbers on the car and left a voice message. He waited a brief time but received no answer. He then asked the defendant if he wished to speak with duty counsel. Mr. Mapiye agreed.

[41] P.C. Lobsinger made a "perfunctory effort" to facilitate contact with counsel of choice, waited a brief period of time for a response, and then offered access to duty counsel as an alternative, an offer that was accepted. The defendant did not make a further request for counsel of choice. This minimal effort is considered reasonable in the authorities: R. v. Blackett, [2006] O.J. No. 2999 (Ont. S.C.), at paras. 10-11, 25, referring to R. v. Littleford, [2001] O.J. No. 2437 (Ont. C.A.).

[42] Mr. Mapiye was provided a reasonable opportunity to have access to counsel of choice. There would be no response from counsel that night. The defendant went on to exercise his right to counsel when he chose to speak to duty counsel: see R. v. Willier, 2010 SCC 37, at paras. 33-35, 39.

[43] On the evidence, I find no s. 10(b) breach with regard to counsel of choice.

Language and Special Circumstances

[44] Mr. Mapiye's first language is Shonah, but he says he speaks English at work and that his employer also speaks to him in English. The defendant was responsive to the police in English. He testified that he understood his rights to counsel, as well as the breath demand, and was familiar with the breathalyzer process as he had participated in it previously in English. At the same time, he claimed that where he didn't understand the officer, he stayed quiet so that it would not be thought he was being uncooperative.

[45] In the circumstances, given his prior experience in particular, I consider that explanation to be self-serving. In fact, as noted earlier, he seemed unfocused when asked simple questions or, when asked what drinks he had consumed, he talked about his wife, permitting the inference that his thought process was affected by alcohol. I consider the issue in this latter regard to be not language, but rather the effects of alcohol. A review of the videos would appear to bear this out.

[46] In R. v. Barros - DaSilva, [2011] O.J. No. 3794 (Ont. S.C.), Tulloch J., as he then was, said that 'special circumstances' arise where "there are some objective indicia that an accused person's comprehension of the English language may be limited for various reasons…" placing an onus on the police to "take some meaningful steps to ensure that the accused actually understands his or her rights in a meaningful and comprehensive way".

[47] On the evidence, I am not left in reasonable doubt that the defendant was quite functional in English and was not disadvantaged in understanding his rights and obligations in any meaningful way.

Care or Control

[48] Ms. Kaye submits that the officer did not see Mr. Mapiye drive the vehicle, so that on the evidence, the Crown can only at best establish care or control. I don't agree.

[49] Immediately, following the collision, the officer saw Mr. Mapiye stumble out of the car on the driver's side. He was the only occupant. The only reasonable inference to be drawn on this evidence is that the defendant had been operating the vehicle and drove into the back of the truck.

[50] Regarding care or control, where an accused occupies the driver's seat of a motor vehicle, Code s. 258(1)(a) creates a legal presumption that he or she is in care or control of that vehicle. That presumption is rebuttable where the accused can prove on a balance of probabilities that he or she did not occupy the driver's seat for the purpose of setting the vehicle in motion: R. v. Smits, 2012 ONCA 524. That is not this case.

[51] Ms. Kaye submits, however, that the vehicle was inoperable so that the Crown would not have the benefit of the presumption and must prove a realistic risk of danger. That submission does not find support in the authorities: see R. v. Blair, 2014 ONSC 5327, at paras. 13, 15, per Trotter J.

[52] Mr. Mapiye will be found guilty of Operation Impaired. The Blow over 80 charge will be stayed.

Released: August 9, 2019

Signed: "Justice L. Feldman"