Court Information

Date: July 29, 2019

Court File No.: 2811 998 18 00188 00

Ontario Court of Justice

Her Majesty the Queen v. James W. Sikora

Before: The Honourable Justice G.W. Wakefield

Location: Oshawa, Ontario

Appearances

Crown: K. Pollock

Defence: I. Isenstein

Reasons for Judgment

Background and Charges

Mr. Sikora was charged with one count each of impaired care and control of an automobile and an over 80 while having care and control of an automobile. These charges arose from an incident on February 16, 2018.

The charges resulted from the defendant being suspected of poor driving on the 401, which resulted in several civilian complaints. P.C. Wong was dispatched to investigate in the late afternoon during rush-hour traffic. The officer observed the defendant's vehicle weaving within the lane and driving over the demarcation lines once. The officer confirmed the licence plate matched the subject of the civilian complaints. The roads were dry and clear, despite it being February.

Traffic Stop and Observations

The officer executed a traffic stop of the defendant just before 6:14 p.m. During the stop, the officer:

• Requested the usual documentation
• Confirmed the smell of alcohol on the defendant's breath
• Observed dilated pupils and bloodshot eyes
• Directed the defendant to accompany him to his cruiser

When exiting the vehicle, the defendant was described as stumbling out of the driver's seat. While walking alongside his motor vehicle, his walk had a stagger and he was wandering towards the live lane of traffic, requiring the officer to guide him for safety.

Arrest and Reasonable and Probable Grounds

By 6:14 p.m., the officer had concluded reasonable and probable grounds of the defendant's impairment and effected a formal arrest.

While some of the officer's observations were undermined by effective cross-examination, the court concluded that at the time of arrest there was a sufficient constellation of indicia to amount to reasonable and probable grounds, both subjectively and objectively.

However, the court noted that the officer mostly read from his notes and report, and there were memory reliability issues. The officer did not even remember whether the defendant was placed in a cell while awaiting the breath tests. This memory issue was also reflected in his testimony regarding what choice of counsel was provided to the defendant during the rights to counsel notice. The arresting officer was less than impressive in his testimony regarding the accuracy of his recollection and the reliability of his testimony in contrast to the station video played at trial.

Station Procedures and Duty Counsel

At the station, the defendant was put in touch with Duty Counsel. There was no explicit complaint by the defendant regarding advice given prior to the breath tests. However, the defendant did request the ability to call another lawyer after being turned over to the breath technician, which request was denied.

The breath technician stated that his Centre of Forensic Sciences training required him to take two samples as soon as possible after the mandatory delay between test samples. The court noted it did not understand why the request for counsel would cause a problem if a second and third test were taken after permitting the defendant to call counsel.

The breath technician affirmed that the rights to counsel obligations had been satisfied by contacting Duty Counsel, given his confidence in the professional abilities of Duty Counsel. However, the court noted it was unsure if that confidence would be maintained if the officer was aware that the Duty Counsel contact was only three minutes in duration.

The breath technician acknowledged that by asking to call his own lawyer, the defendant was making the request because he wanted to talk to that lawyer, and that the breath technician asked if the defendant wished to talk to his own lawyer in order to get legal advice. However, Duty Counsel was not called to testify at trial as to what was said during those three minutes.

Breath Test Results

The breath test did not occur until 07:23 in the afternoon due to the instrument having been turned off prior to the breath technician's shift, requiring a cold start. The officer also chose to equip himself before checking the instrument and finding out that it had indeed been turned off. However, the first test was completed within 50 minutes of the defendant's arrival at the station and being uncuffed. Overall, the tests were not overly delayed and were conducted within a reasonable amount of time, satisfying the "as soon as practical" requirement.

The court accepted that the defendant's B.A.C. readings analyzed by the instrument were 152 and 149.

Defendant's Testimony

The defendant testified on the Charter issue only. He was forthright in considering that he initially did agree to talk to Duty Counsel in the context of the arresting officer's vagueness on how that transpired. The defendant described feeling rushed in the back of the cruiser and again felt rushed during his brief conversation with Duty Counsel at the station.

While waiting for the breath tests after the Duty Counsel call, he described himself as being unhappy with Duty Counsel and wanted to call Mr. Isenstein, whom he had known for 25 years as a family friend and whose contact numbers he actually had in his cell phone at the O.P.P. station. He felt, quite understandably, that the police officers had all of the control over him.

In cross-examination, the defendant again asserted dissatisfaction with Duty Counsel, stating he felt rushed and uncomfortable with Duty Counsel. He felt uncomfortable talking to a stranger. However, the defendant also said that while he did not understand everything Duty Counsel said, he did not have any issue with the advice given by Duty Counsel and that his main concern was his feeling uncomfortable speaking with a stranger.

Charter Section 10(b) Analysis

The court found that discomfort with a stranger is not the basis for a breach of a detainee's Charter section 10(b) rights.

The court noted that it need not review the copious caselaw filed on this application, as the Charter application was resolved in the simple factual finding. In the absence of the defendant's concession, however, the court would certainly have come to a different conclusion. The breath technician knew of the defendant's desire to speak to his own lawyer. The officer conceded it would be for legal advice. That, by itself, would be an indicator of dissatisfaction with Duty Counsel.

The court accepted the defendant's description of the officer "shutting him down" on the issue of his own lawyer as being consistent, albeit in a different perspective, from the officer's testimony about moving the matter forward in an efficient manner.

The court stated:

I would have found a breach of s.10(b) and given the importance of rights to counsel, would not felt a Jennings analysis would apply without undermining the fundamental importance of access to counsel to a detainee or for that matter, the importance to all Canadians interacting with the police in circumstances of being deprived of liberty and cut off from society. I would have excluded the evidence of the readings in those circumstances.

However, absent the defendant's concession, the court would have found the defendant had made a sufficient expression of requiring additional legal advice, and at a minimum opened the obligation of the breath technician to inquire further of the defendant.

The court noted it was still unclear how competent advice can be given by Duty Counsel in a time frame that is one to two minutes longer than it takes an officer to read the rights to counsel from the duty notebook. However, without testimony, the court was not in a position to make findings of fact as to the content of the advice as opposed to the discomfort of talking to Duty Counsel from within a police station.

The court found the defendant had not met his onus in demonstrating on a balance of probabilities that his Charter 10(b) rights were breached.

Shaikh Defence Argument

On a different issue, counsel raised the issue of a Shaikh defence argument, at the same time acknowledging that the court had already ruled against that decision, and accepting that the result would have been the same in this trial, but reserving the right to raise that issue in a different forum if necessary. The court commended counsel for this approach and agreed that proceeding this way preserved the defendant's rights on that argument.

Impaired Driving Analysis

The court accepted into evidence the blood alcohol content readings.

With respect to the count of impaired driving, the court found there was a sufficient constellation of indicia to amount to reasonable and probable grounds. However, the question remained whether the Crown had proven beyond a reasonable doubt that the defendant was indeed impaired even to a slight degree.

The court had evidence of the arresting officer observing the defendant crossing the lane line once, albeit only referenced in his note by a squiggly line without any explanation whatsoever written down. The court was troubled by that. Additionally, the court had testimony as to the defendant's difficulty getting out of the motor vehicle and wandering over requiring redirection by the officer. There was an odour of alcohol on the breath of the defendant who also had bloodshot, dilated eyes. However, the court lacked confidence in the officer's actual independent recollections by the time of trial.

The breath technician advised of grounds which included only slight balance issues. The breath technician confirmed that the defendant's fine motor skills permitted his placing the mouthpiece on the instrument hose without difficulty. The defendant walked from the cruiser into the station without difficulty. The defendant pulled his vehicle over without difficulty for the traffic stop. There was no slurred speech and no difficulty in retrieving documentation for the arresting officer.

The defendant had been drinking and had alcohol in his system while operating a motor vehicle. However, the indicia of impairment described by the officers was at best minimal. Additionally, there was the video record of the defendant in the station. That video depicted the defendant standing, walking, and sitting without any difficulty whatsoever. The video also depicted, without demonstrating a remarkable degree of balance and dexterity, the defendant removing his belt and shoes without assistance or even sitting down.

The court was left very much in reasonable doubt as to even the slightest degree of impairment of the defendant.

Verdict

Not guilty of impaired care and control of an automobile.

Guilty of over 80 while having care and control of an automobile.

Sentencing

Crown Submissions

The Crown sought a fine in the amount of $1,300.00 and a 12-month driving prohibition. The Crown noted that the readings were 150 and 140, and that Mr. Sikora was driving on a 400 series highway on the Friday of a long weekend with those readings, so there was risk to numerous members of the public.

Defence Submissions

Defence counsel submitted a community service letter for Mr. Sikora. The defendant is 47 years of age, born November 6, 1971, and was born in Toronto. He has a fiancée and works in construction. The conviction is extremely difficult for him. He lives in Etobicoke and does a lot of his work in Oshawa as well. He is involved in the community in terms of basketball. The trial took place over a number of days, which resulted in him having to attend on several occasions. Defence counsel argued there were certainly arguable issues and asked the court to impose the minimum fine of $1,000.00 and give him time to pay. The defendant would be eligible for Stream B but that would be for another forum.

Defendant's Statement

When asked if there was anything he wanted to say before sentence, the defendant stated: "I guess I kind of put a monkey wrench in work now, I guess."

The court noted it was hoping the defendant could make alternative arrangements for the next six months and explained that Mr. Isenstein would explain to him both the interlock program and what is involved with it.

The defendant stated he earns $32.00 an hour, though it depends on how much work there is. The defendant lives with his mother and his brother in an apartment in Etobicoke. His mother recently has had her hours cut back as well, getting only twenty hours every two weeks.

Court's Sentencing Remarks

The court noted that the readings, while not on the facts found amounting to evidence beyond a reasonable doubt of impairment, are still troubling. The court asked if there had been any effort by the defendant to check into community resources, anything like that so far. The defendant responded no.

The court asked if that was something the defendant was prepared to undertake—to look at whether it's a Pinewood equivalent, A.A., something to give him some advice to consider whether drinking has become a problem in his life. The defendant agreed.

The court stated:

All right, with that undertaking, there were some real triable issues. In fact there is an acquittal on one, and I don't mind saying that I took some time thinking through the final result on the over 80 and Charter application, and I don't accept that somebody should be penalized for having a valid trial, especially one that has been run as efficiently as this one.

The court imposed the minimum fine of $1,000.00. The court noted it believed it was 16 days in custody if it was not paid. The court granted six months in which to pay the fine initially, but after counsel requested nine months, the court extended the period to one year to pay.

The court stated:

All right, look. I'm going to give you a year to pay, all right? The reason I am doing that, if you need it, you have got the time without having to come back here to make the application. If you get it paid off in six months, you do not have to worry about whether I have given you six months, nine months or twelve months.

The court noted that if things are tight financially and the defendant cannot pay it off in one year, Mr. Isenstein would explain to him how to make the application to extend the period of time. The court stated it was very flexible in giving as much time as needed, as long as the defendant was making basic efforts and an explanation as to why he didn't have it paid off.

Driving Prohibition

The court imposed a one-year driving prohibition.

Final Instructions

The court confirmed the defendant's address had not changed since the date of arrest. The defendant confirmed he had gotten his licence back and had it with him. The court asked the defendant to give it to Mr. Isenstein to pass to the clerk. The defendant confirmed the address on the licence was his current address.

The court instructed the defendant to wait in the hallway until the Clerk completed the paperwork. Once the defendant signed the paperwork, he was free to go. The court took the defendant at his word that he would check into community resources in terms of the dangers of drinking.

Transcript Order

The court ordered a transcript of the proceedings to be done by Jodi Hewett within the next two or three weeks.

Released: July 29, 2019

Justice G.W. Wakefield