Ontario Court of Justice
Date: August 16, 2019
Court File No.: Central East - Newmarket 4911-998-18-00519
Between:
Her Majesty the Queen
— and —
Yehonatan Rafaeli
Before: Justice P.N. Bourque
Counsel:
- T. Hamilton, for the Crown
- V. Paskarou, for the Defendant
Reasons for Judgment
Released on August 16, 2019
Overview
[1] At just after 01:01 hours on January 17, 2017, an officer doing radar patrol saw a vehicle go past him at 113 kilometres an hour in a 50 kilometre an hour zone. He pulled out of his parked spot and engaged his emergency lights and followed the defendant car which continued for almost a minute, turned onto a side street and then pulled into a residential driveway. After further investigation, the defendant is charged with impaired driving, driving with excess alcohol, dangerous driving, speeding, and stunt driving under Highway Traffic Act.
Evidence of Officer Jeff Gourevitch
[2] Jeff Gourevitch is a York Regional Police officer with some 10 months' experience at the time of this incident. He gave his evidence viva voce and with the aid of the in-car camera and audio.
Timeline of Events
| Time | Event |
|---|---|
| 01:01 | Officer doing radar duty in parked "shadow marked" police cruiser. He was using a Genesis handheld device Serial #14900 and it had been tested at the start of his shift and he successfully tested it again after this incident. He saw, and it is visible on the video, a black car go past his spot very quickly. The radar device registered 113 kilometres an hour in a 50 kilometre zone. The officer followed with his emergency lights engaged. With regard to these observations, the officer admitted in cross-examination that the road was slightly downhill where he first observed the defendant. He also admitted that in the 2 kilometre drive, there was no other northbound traffic on Yonge St. |
| 01:04 | The black car pulls into a driveway. The video shows the defendant getting out of the driver's door and walking toward the officer as he approaches. The video clearly shows that the defendant makes a stumble backwards one step as the officer approaches. The officer smells an odour of alcohol on the defendant's breath and defendant has blurry eyes. With the high rate of speed, the officer feels he has grounds to arrest the defendant for impaired driving, for speeding and stunt driving. The defendant is turned around and is walked back to the side of the cruiser and the defendant is searched and handcuffed. The defendant is protesting his arrest. The officer was cross-examined about his observations and it was his evidence that he was able to see the defendant's first steps out of the car and it was his evidence that not only was there a subsequent unsteadiness (noted above) but the defendant almost fell forward on his first step. |
| 01:05 | Takes the defendant to his car and searches him. |
| 01:08 | The officer radios for assistance to deal with the impounding of the car and another officer attends. |
| 01:11:12 | The officer begins to read the caution. The defendant says he does not understand the reason for his arrest and the officer explains it. It is another minute before the officer can start the rights to counsel (01:12:30) and he reads it and the defendant says he is not impaired. The officer explains his reasons. The defendant states he has a lawyer but wants to "figure it out". The officer tells him about duty counsel. The officer reads the rights to counsel again in full. There is further conversation. |
| 01:16:25 | The officer reads the breath demand twice and further explains it to the defendant. |
| 01:16:27 | The cautions and rights to counsel and discussion are finished. |
| 01:18:22 | The officer leaves for the detachment. While in the car, the defendant fell asleep and did not hear the officer question him (2x) about his phone number. The defendant after arriving aroused himself from sleep and spontaneously stated the date he came to Canada and stated that he had done nothing and no one treats him with respect. |
| 01:28 | At the station, the defendant was helped out of the car and the officer stated that he had to hold up the defendant while he was walking. On my review of the video, I could see some rocking back and forth as the defendant was walking away from the car. At the booking desk, the defendant continued to protest his innocence. While he was searched, the officer located two receipts from that evening from a pub in York Region which indicated the defendant paid for drinks. At the booking area, the defendant stated he would speak to duty counsel. Upon viewing the video, there was a time when he was taken to the cell that he took an extra step in entering the cell. |
| 01:51 | The officer called duty counsel and then brought the defendant to the phone, where he spoke to the duty counsel for 5 or 6 minutes. After the call the defendant complained about his advice and gave the name Frank Lento to the officer. |
| 02:05 | The officer calls the lawyer after looking up a number on a google search. There is no answer. The officer calls again at 02:08 and leaves a voice message. The officer goes to the defendant and tells him there is no answer and at that time there will probably not be a call back. The defendant then asks to speak to some other civilians. The officer believes he just wants to tell them where he is. The officer denies that the defendant stated he wanted to get another number for the lawyer or the name of another lawyer. |
| 02:12 | The officer takes the defendant to the breath technician. |
The Breath Test Records
[3] The breath test records put into evidence show that at 02:21, the defendant had a breath reading of 177 milligrams of alcohol in 100 millilitres of blood. At 02:44, the defendant had readings of 168 milligrams of alcohol in 100 millilitres of blood. The report of the toxicologist opined that the projected range at the time of driving was a minimum of 160 milligrams of alcohol in 100 millilitres of blood.
The Breath Technician
[4] The evidence of the breath technician was given with the breath video and a page of the officer's notes. Both parties agreed that with regard to any statements made by the defendant to the breath technician, the defence admitted that they were voluntary.
[5] The crown's case on the facts and the Charter application was complete. I will rule upon the Charter issues and thus the admissibility of the breath test results and the statements made to the breath technician before calling upon the defendant to give evidence on the facts of the case.
Defence Evidence on the Charter Application
Defendant
[6] The defendant testified on the 10(b) Charter application. He asserted that he had received bad advice from the duty counsel who told him to "do what the police ask you to do" and he therefore wanted to speak to a lawyer Frank Lento who was his family's lawyer and one he could have confidence in. He agreed that he understood everything that the lawyer told him and indeed understood everything the police told him, notwithstanding his statements at the time that he did not understand. He also stated that if the officer had provided to him other options (such as waiting longer or calling someone else) he would have taken advantage of them. I note he did not say that he asked to speak to anyone else and perhaps the officer was incorrect in his evidence on that point.
[7] In his cross-examination, the witness was very reluctant to admit anything with regard to his alcohol consumption. Even when shown the two receipts, he pointed out that only one of them had his name on it. He eventually after much questioning admitted that both receipts were his although he also was adamant that the alcohol products listed on those receipts were for drinks also bought for his friends at the bar.
[8] I cannot say that I will place a great deal of weight upon his evidence. His reluctance to admit obvious things (that he was drinking that night in a bar) and that the bills from the bar were his, causes me to believe that he wishes to tailor his evidence to produce the legal result that he seeks.
Analysis
Did the officer have reasonable and probable grounds to arrest the defendant and make a breath demand?
[9] The defendant was arrested for impaired driving and the officer eventually made a breath demand. He was also arrested for stunt driving and for speeding. By the time the officer returned the defendant to the detachment, he was also under arrest for dangerous driving.
[10] With regard to the grounds cited by the officer he stated:
- (i) The excessive speed;
- (ii) The defendant seemed to stumble when he got out of the car;
- (iii) He had blurry eyes; and,
- (iv) He had a strong smell of alcohol.
[11] The excessive speed alone would allow the arrest for the stunt driving. However, to justify making the breath demand, and arrest for impaired driving the officer would have to have reasonable and probable grounds for those issues.
[12] As stated in R. v. Irving, 2018 ONCJ 270:
[72] The Criminal Code requires that in order to justify a demand for breath samples under section 254(3) a peace officer must have reasonable grounds to believe that the person to whom the demand is made is committing, or at any time within the preceding three hours has committed, an offence under section 253 – that is to say either impaired driving or driving with a blood alcohol concentration above the legal limit.
[73] The onus is on the Crown to prove reasonable and probable grounds exist:
The onus is on the Crown to prove that the officer had reasonable and probable grounds to make the demand because the Crown seeks to rely on breath samples obtained as a result of a warrantless search. it would also be impractical to place the burden on the accused because evidence of the presence or absence of reasonable and probable grounds is within the "peculiar knowledge" of the Crown (R. v. Bartle, [1994] 3 S.C.R. 173, p. 210).
[74] The standard of reasonable and probable grounds in the context of drinking and driving prosecutions exists within a continuum of findings beginning with a reasonable suspicion the driver has alcohol in his body (ASD test threshold) and ending with the standard of proof beyond a reasonable doubt required to sustain a conviction. Reasonable and probable grounds lies between the two ends of the spectrum.
[75] The arresting officer must not only have reasonable grounds in the subjective sense of a personal, honestly held belief, but also the asserted grounds must be justified on an objective measure of a reasonable person standing in the shoes of the officer.
[76] The reasonable and probable grounds standard is not an onerous test. It is not to be inflated to the equivalent of "prima facie case" or balance of probabilities but by the same token it must discernibly rise above mere suspicion or possibility and it must not be so diluted as to threaten individual freedom.
- Reasonable and probable grounds to believe that the suspect's ability to drive was even slightly impaired by the consumption of alcohol will suffice.
- In deciding whether reasonable grounds exist the arresting officer must conduct the inquiry which circumstances reasonably permit taking account of all available information and disregarding only such information as he or she has good reason to believe is unreliable – the officer is not required to seek out exculpatory facts or rule out possible innocent explanations – a trial judge should not engage in a minute dissection of the officer's grounds looking at each in isolation nor is the objective assessment of grounds the equivalent of an impaired driver scorecard with a list of present and absent indicia.
- Reasonable and probable grounds do not involve a mathematical assessment of facts and circumstances but rather a non-technical approach.
[13] The officer made observations of the movements of the defendant at the motor vehicle which are attacked by the defendant. I find the officer to be a reliable witness. I also find that much of what the officer states is supported by the video evidence. While the camera was not in a position to see exactly the movements of the defendant as he made his first step out of the car, I was able to see subsequent steps. I find that he was showing signs of unsteadiness which could be attributed to alcohol consumption. I therefore accept the officer's evidence about this.
[14] Having accepted this officer's evidence and the evidence of the excessive speed, I find that he not only had the subjective belief about the impairment of the defendant, he also had enough objective indices of impairment that the test of having reasonable and probable grounds exists.
[15] I therefore dismiss this Charter application.
Were the 10(b) rights of the defendant breached in the period between arrest and giving the rights to counsel?
[16] The officer arrested the defendant just after 01:04. The officer began to read the caution, rights to counsel and breath demand at 01:11. He actually started the breath demand at 01:12. Does the fact that there was a delay of between 7 and 8 minutes lead to a breach of the Charter rights of the defendant? I find that it does not.
[17] From the arrest to the reading of the rights and cautions, the officer was performing necessary tasks for the investigation. He put cuffs on the defendant, searched him and then put him in the back of his cruiser. This took up the bulk of the time from arrest to the beginning of the reading of the rights. The next tasks took maybe 3 to 4 minutes. He then spoke briefly with an officer who attended to assist. He then spoke to dispatch to get the place to take the defendant for the breath tests. All of these things were necessary and did not take a great deal of time. Should the officer have prioritized all of these tasks? Would he then be giving priority to just one of the clocks set ticking on an impaired driving investigation and neglecting others? Maybe that would be advisable, but that does not lead to a Charter violation.
[18] I reject this Charter application.
Was the defendant denied his counsel of choice?
[19] The Crown asserts that in this case, the defendant can only assert a constitutional right to speak to another counsel, if the factors in R. v. Sinclair, 2010 SCC 35, are met. That is; there being new procedures involving the detainee, a change in jeopardy facing the detainee, or reasons to believe that the defendant did not understand the initial advice of his rights to counsel. I do not find that any of the above conditions were met in this case, but I am left with the fact that the officer gave the option to the defendant to consult with another counsel.
[20] I agree with the Crown that apart from the displeasure expressed by the defendant, there were no objective reasons why he had not received and understood his legal rights. This defendant was clearly very unhappy about the predicament that he found himself in. Notwithstanding him being an educated native speaker of the English language, he continuously told the officers that he did not understand things. I do not believe him, and I find suspect anything he may have said to the officers at the scene or indeed to this court when under oath. The defendant argues that he was entitled to a further counsel as he did not have any "trust" in duty counsel. I make no such finding.
[21] The defendant spoke to duty counsel. After he spoke to duty counsel, he expressed his displeasure with that interview and asked to speak to a lawyer named Frank Lento. The officer made a call at 02:05 and got a voice mail. He made a call at 02:08 and got a voice mail and left a message on the voice mail with the defendant's name, the charges he was facing, the name of the officer and the number to call to speak to the defendant. The officer then spoke to the defendant and told him this. I do not find that he told the police officer that he wanted to speak to anyone else. The officer spoke to the breath technician who advised him to wait a "few minutes" to see if his call was returned. The officer did not advise the defendant he could wait longer to see if his lawyer returned the phone call. The officer brought the defendant to the breath technician at 02:12. The first breath test was taken at 02:21. The call was never returned. As stated by Rose J. in R. v. Porchetta, 2019 ONCJ 244:
When the arrestee asks to speak to counsel, the police become effectively the agent for the arrestee. The police make the call and find the phone number. The arrestee can do nothing but wait for the police to effect that contact. When the arrestee asks to speak to a specific lawyer, they have a right to have the police put them in touch with that lawyer. This situation was addressed by the Ontario Court of Appeal in R. v. Traicheff, 2010 ONCA 851,
Appropriately the police should advise the detainee after waiting a reasonable period of time for his lawyer to return the call that no call has come in from his lawyer and ask him if he would like to consult another lawyer. Alternatively the police should ask the detainee whether he has another telephone number where his counsel of choice could be reached or give him a telephone directory to see if he could find his lawyer's name and another telephone number where he could be reached.
[22] I believe that once the police agreed to make efforts to contact a further lawyer that he had requested, they were under an obligation to comply with R. v. Traicheff.
[23] In this case, I find that the police should have waited longer than four minutes in these circumstances.
[24] I find a breach of the defendant's right to counsel of choice, and thus his 10(b) rights.
Should any subsequent evidence be excluded because of the breach of s. 10(b)?
[25] As per R. v. Grant, 2009 SCC 32, in assessing whether to permit the exclusion of any evidence I must assess:
- (i) The seriousness of the breach;
- (ii) The impact of the breach on the Charter-protected interests of the defendant; and,
- (iii) Society's interest in an adjudication of the matter on its merits.
[26] With regard to the seriousness of the breach, I would find it as largely technical. As stated in R. v. Grant, "police conduct can run the gamut from blameless conduct, through negligent conduct, to conduct demonstrating a blatant disregard for charter rights … What it important is the proper placement of the police conduct along that fault line, not the legal label attached to the conduct".
[27] The defendant did not seek to call another lawyer or suggest another way to contact his lawyer. I find that the police conduct could be characterized as one of negligence and it is not a blatant disregard of Charter rights. Upon balance, I would find that this ground is largely neutral.
[28] With regard to the Charter protected interests of the defendant, I find little infringement. He did speak to duty counsel. It is not part of the 10(b) right that the quality of the advice be somehow guaranteed: see R. v. Beierl. The defendant testified that he believed the advice was bad and he was suffering a lack of trust. I do not make any such finding as I found the defendant's evidence generally unreliable.
[29] I contrast this with a situation where the defendant does not speak to any lawyer and waives his right after not being able to speak to his counsel of choice. I find that a weighing of this point is either neutral or it would favour admission.
[30] With regard to the adjudication of the case on its merits, it is well known that breath test results are highly reliable, and the procedure is minimally intrusive. This ground would favour the admission of the breath test results. I also note that the call was never returned.
[31] With regard to the statements of the defendant, the defendant admitted that the statements were given voluntarily, and the combination of the video exhibit and the notes of the officer have produced an accurate statement of what was said. I note, however, that the crown only wishes to use it in cross-examination. It is not an essential element in the crown's case. It is just another tool, in attacking the credibility of the defendant if he should choose to testify. I am inclined to think that on this third ground, the statement is either neutral or weighs toward exclusion.
[32] Taking all these factors into account, I believe that to exclude the results of the breath tests would bring the administration of justice into disrepute while the exclusion of the verbal statements would not do so.
[33] In the result, the results of the breath tests will be admitted into evidence while the statements made to the breath tech will be excluded.
Driving with Excess Alcohol
[34] Having admitted the breath results into evidence, I find the defendant guilty of the offence of driving with excess alcohol and specifically, that he had 160 milligrams of alcohol in 100 millilitres of blood.
Impaired Driving
[35] As per the decision in R. v. Stellatto, and many other cases, the test for
[36] Impaired driving is whether the crown has proven beyond a reasonable doubt that the defendant was operating a motor vehicle was impaired, to any degree.
[37] I feel that the evidence I must look at is as follows:
- (i) He was operating a motor vehicle in the dark at 01:00 hours on a city street with a speed limit of 50 kilometre an hour, at a clocked speed of 113 kilometres an hour;
- (ii) He was "rocking back and forth" and therefore showed some unsteadiness as he got out his motor vehicle;
- (iii) He fell asleep in the police cruiser;
- (iv) He had blurry eyes;
- (v) He had a strong smell of alcohol (just an indicator of alcohol consumption);
- (vi) The toxicologist report and opinion.
[38] Regarding the toxicologist report, I note that the minimum blood alcohol reading at the time of driving was 160 mgs of alcohol in 100 millilitres of blood. I also note the opinion of the toxicologist at page 2:
…based on a critical review of the relevant scientific literature….it is my opinion that impairment with respect to driving becomes significant at a BAC of 50 mg/100ml and increases from then onward. ….
[39] Cases have been cited to me where the trial judge has discounted the opinion of the toxicologist as to the finding of impairment. I must say, that if there were no outward signs of impairment, I would also approach this opinion with some caution. Where however, such as is the case here, the opinion of the toxicologist is backed up with the panoply of outward indices noted above, I could not discount this opinion.
[40] I therefore find that the Crown has proven beyond a reasonable doubt that the defendant's ability to drive an automobile was impaired by alcohol. I find him guilty of impaired driving.
Dangerous Driving
[41] The Supreme Court of Canada has been clear that in examining the actus reus element of dangerous driving, the focus should be on the manner of driving, not the consequences of driving, or the cause of those consequences. This is because it is an offence to drive dangerously even if no-one is injured; the act or conduct that the offence of dangerous driving addresses is driving in a manner that puts the public at risk that his may happen: Roy, at para. 34. As Charron J. stated in Beatty, at para. 46:
As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The consequence, as here where death was caused, may make the offence a more serious one under s. 294(4), but it has no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. [Emphasis in original.]
[69] The same holds true, in my view, in assessing the mens rea of dangerous driving offences. This, again, is because the focus is on whether the manner of driving constitutes a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. There must be a meaningful inquiry into the manner of driving, not into the degree of departure from the norm that the consequence demonstrates.
[42] I agree that speed in and of itself can lead to a finding of guilt. (R. v. Richards). I also agree that the voluntary consumption of alcohol can be relevant in establishing a recklessness in creating a risk or danger to other users of the highway.
[43] In our case, I must look at only the manner of the driving and assess whether the Crown has proven beyond a reasonable doubt that the defendant drove in a manner that showed that his standard of care was a marked departure from the norm and that such departure was serious enough to merit punishment.
[44] In this case, there was no "accident" and thus I need not concern with issues of causation. The same holds true, in my view, in assessing the mens rea of dangerous driving offences. This, again, is because the focus is on whether the manner of driving constitutes a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. There must be a meaningful inquiry into the manner of driving, not into the degree of departure from the norm that the consequence demonstrates.
[45] The factors that I believe are important are the same as the factors that I have determined above on the impaired driving charge.
[46] The defendant points out that, because it was late at night, and less to little traffic on the road, then the speeding becomes less of an issue as there is a far lower effect upon other users of the road. There was no specific actions of cutting off any other cars and no specific instances of putting other drivers at risk. He also points out the relatively short duration of the speeding.
[47] The Crown points out that this is over twice the speed limit, and it being a 50 kilometre an hour zone, that in and of itself is evidence of the potential to find other users of the road who would be travelling at a much slower rate of speed, and indeed the type of road that they are travelling. The speed he was going would be speeding on a 400 series highway, which is the safest high speed road in the province.
[48] I have found that the defendant was impaired, with a blood alcohol reading of two times the legal limit.
[49] The question is whether, applying the tests as set out above, do these various factors lead one to believe that the actions of the defendant rise above mere negligence and carelessness and into the arena of moral blameworthiness for which a finding of guilt for dangerous driving is appropriate. I find that the grossly excessive speed in a built up area, in that dark, and while impaired, does indeed elevate this matter to the level of moral blameworthiness that would constitute dangerous driving.
[50] I am aware of the several cases cited by the defence where there were circumstances which included excessive speed and alcohol did not lead to a finding of dangerous driving. I do not dispute the findings made by those judges, but I am cognizant of the facts that each case must be decided on its own particular facts.
[51] I find the defendant guilty of the offence of dangerous driving.
Stunt Driving – s. 172(1) Highway Traffic Act
[52] The defendant was clocked at 113 kilometres an hour in a 50 kilometres an hour zone. That constitutes an offence under s. 172(1) Highway Traffic Act. It also constitutes an offence under s. 128 of the Highway Traffic Act, but a conviction on that count would offend the principle in R. v. Kienapple.
[53] The defendant is found guilty of stunt driving under s. 172(1) of the Highway Traffic Act.
Released: August 16, 2019
Signed: "Justice P.N. Bourque"