ONTARIO COURT OF JUSTICE

CITATION: R. v. Adams, 2019 ONCJ 60

DATE: 2019 02 05

COURT FILE No.: Kitchener Info # 17-10392

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CASSIE ADAMS

Before Justice Scott Latimer

Heard on December 13, 2018 & Jan 16, 2019

Reasons for Decision & Judgment released on February 5, 2019

J. Damaskinos..................................................................................... counsel for the Crown

A. Fiszauf........................................................................................... counsel for Ms. Adams

LATIMER J.:

[1] Cassie Adams and her friends spent the early morning of December 13, 2017 socializing at a bar in Cambridge, leaving shortly after closing. A cab was obtained, but Ms. Adams assured her friends that she was okay to drive. The roads were icy and, shortly after leaving, she took a corner too fast and lost control of her vehicle, colliding with a pole. Fortunately, she and her passengers were largely uninjured. A police officer arrived on scene and arrested Ms. Adams for driving with excess blood alcohol. She later provided two breath samples at a police station that, following a read-back calculation, indicated her blood alcohol concentration to be between 120 and 170 mg of alcohol in 100 mL of blood at the time of driving.

[2] Before me, Ms. Adams is being tried on a single count of driving over 80, contrary to section 253(b) of the Criminal Code. We have conducted a blended trial/Charter voir dire. The Crown has called seven witnesses; Ms. Adams has also testified, but only in relation to the Charter issues. She raises two discrete section 10(b) grievances: the first relating to circumstances at the roadside; the second, later at the police station. I will address both issues as they arise in the factual narrative. For the reasons that follow, I accept that a section 10(b) violation occurred at the police station but have not excluded the breath samples pursuant to s. 24(2) of the Charter. As all elements of the offence are otherwise made out, Ms. Adams is found guilty as charged.

Issue 1 – Section 10(b) at the roadside

[3] Ms. Adams’ two friends, Meghan Hope and Jamie Lapointe, testified regarding the events leading up to the collision. The three of them had been at a bar. They were all drinking. Upon leaving after closing time, Ms. Adams assured the others that a cab was not required, as she was “fine to drive home”. Ms. Lapointe described Ms. Adams’ car speeding before it lost control, spinning out and striking a pole on the passenger side. The car received extensive damage. Ms. Hope similarly testified that it was speed and weather conditions that caused the collision. Both women acknowledged consuming alcohol, up to six beers, that evening. I accept that this consumption minimizes their reliability to a degree, but in all the circumstances I accept their evidence – which was largely identical – regarding the events leading up to the collision.

[4] Afterwards, the three women sat in the vehicle. Ms. Adams tried to start the car, to no avail. Another driver came by and towed their vehicle to a nearby mill parking lot. An employee at the mill had heard the sound of the crash and came to assist. He saw Ms. Adams’ car being towed by the other vehicle. He called 911 to report the collision.

[5] With regard to the time of driving, both Ms. Lapointe and Ms. Hope described leaving the bar after 2:00 a.m., with Ms. Lapointe stating that it was between 2:00-2:30 a.m. Constable Kyle Lewis, the first officer on scene, was dispatched at 2:50 a.m. I am prepared to infer that the 911 call would have moved through the police system relatively quickly, such that I find the driving took place sometime between 2:30-2:45 a.m. In the circumstances, the 911 caller’s estimate of midnight is unreliable.

[6] When Constable Lewis arrived on scene at 2:58 a.m. he saw a black Nissan sitting in a parking lot. He was told it had been towed there from the road. It was an extremely cold night. He spoke with Ms. Lapointe and Ms. Hope, learning that they had been outside in the weather for approximately ten minutes. He offered to let them warm up in the back of his cruiser while he took their statements. He thereafter spoke to Ms. Adams, and formed grounds for an approved screening device demand at 3:03 a.m. At 3:07 a.m., a ‘Fail’ resulted, and Ms. Adams was arrested for driving with excess blood alcohol.

[7] At 3:12 a.m., Constable Lewis read Ms. Adams her rights to counsel from the pre-printed form in his notebook. I accept that he did so, and that his form contained the standard rights to counsel language. Ms. Adams told him that she understood her rights, and wished to contact a lawyer, but that she would wait until at the station. Specifically, he asked “do you wish to speak to a lawyer now?”, and she responded, “Yes, I will wait until at the station”. She was thereafter cautioned about statements to persons in authority, and a section 254(3) Code breath demand was made.

[8] Constable Skelding, a female officer, arrived shortly after the arrest, at 3:17 a.m. She searched Ms. Adams and, at 3:27 a.m., Ms. Adams was transported to a local police station. The officers’ testified that the time between 3:17 and 3:27 a.m. was taken up with ‘Niche’ queries and the compiling of an accident report. At 3:35 a.m., Ms. Adams arrived at the South Division of Waterloo Regional Police

[9] Mr. Fiszauf cross-examined Constable Lewis regarding the possibility of Ms. Adams contacting counsel from the roadside. The officer answered these questions, but also stated that, “regardless of her wishes, she would not be given a lawyer until they arrived at the station”. I was made to understand that it is WRPS policy not to contact counsel from the roadside for an arrested party under any circumstances. Constable Lewis further advised that, while there were no articulable safety concerns relating to Ms. Adams, she was handcuffed while in the cruiser and he would not have removed her restraints under any circumstances. He considered it an officer safety issue, as unrestrained some initially compliant arrestees may cease to be so, and become uncooperative and aggressive. He however described Ms. Lewis as cooperative throughout; he was also aware that she was in possession of a cell phone, having located it during a search incident to her arrest.

[10] Ms. Adams testified on the Charter motion. She agreed that she had requested to contact a lawyer once she was taken to the police station. She said that she was handcuffed at the time, and did not believe that she would have been permitted to consult with counsel at the roadside. She thought she only had one option, and she took it. I accept her evidence on these points.

[11] Mr. Fiszauf, on behalf of the applicant, submits that, given the passage of time Ms. Adams remained at the roadside post-arrest, Constable Lewis was obligated to advise her that she could contact counsel immediately from the roadside and, if necessary, implement such a request. In my view, the applicant has not met her burden on this aspect of her s.10b argument. I will endeavor to explain why I have come to the conclusion.

[12] I would begin first with the wording of Section 10(b) of the Charter:

Everyone has the right on arrest or detention . . . to retain and instruct counsel without delay and to be informed of that right

[13] The scope of the section 10b right was authoritatively discussed by Justice Doherty, writing for the Court of Appeal in R. v. Devries, 2009 ONCA 477. I find the following passages presently important. First, para. 21:

Section 10(b) contains two distinct rights. First, it obligates the police to inform a detainee of his or her right to speak with a lawyer without delay. Second, it guarantees the right of a detainee to retain and instruct counsel. If a detainee chooses to exercise that right, the police must provide the detainee with a reasonable opportunity to do so and must refrain from further questioning the detainee or otherwise eliciting evidence from the detainee until he or she has had a reasonable opportunity to consult with counsel.

[14] Devries dealt with a different s. 10(b) roadside issue, but the Court’s analysis is helpful for present purposes. In Devries, the complaint was that the standard RTC language – ‘do you wish to speak to a lawyer now’? – did not sufficiently identify that consultation would happen at the police station, and not the roadside. It was argued that inclusion of the word “now” leads arrestees to believe that the only opportunity to consult counsel was at the roadside. The Court of Appeal dismissed that argument in allowing the Crown’s appeal. In paragraphs 30 to 32, Doherty J.A. wrote:

With respect to the contrary view, I do not think that the use of the word "now" in the context of the administration of the s. 10(b) caution at the roadside implies that the detainee can speak with a lawyer instantly upon the officer's completion of the s. 10(b) caution. Most police officers are not standing with a telephone in their outstretched hand as they complete the s. 10(b) caution. The officer's statement to a detainee at the roadside that he or she may speak with a lawyer "now" would necessarily convey that the right to speak with a lawyer was contingent on the availability of a telephone that was useable in circumstances that would permit the detainee to speak with a lawyer for the purpose of obtaining legal advice.

It is important to distinguish between the nature of the rights guaranteed by s. 10(b) and the further question of whether the police have properly complied with a detainee's right to consult with counsel in any given case. The constitutional right is the right to speak with a lawyer "without delay". All detainees are entitled to that right and must be so advised by the police. The language used by the police cannot suggest that the right to speak with a lawyer only arises at some point later on in the detention. If the detainee, having been told he or she has a right to speak with a lawyer "without delay", chooses to exercise that right, the police must then afford him or her a reasonable opportunity to do so. Whether the steps taken by the police to make a telephone available to a detainee, in circumstances where he or she can speak with counsel, comply with the implementational requirements of s. 10(b) turns on the facts of the specific case and not on whether the police properly informed the detainee of his or her right to speak with counsel without delay.

In cases involving a roadside detention and a breathalyzer demand, all detainees must be told that they have the right to speak with a lawyer "without delay". They must also be told that they can access immediate free legal advice using the toll-free number. Should a detainee choose to speak with counsel "without delay", the police must afford him or her the opportunity to do so. Depending on the circumstances, consultation with counsel "without delay" may require a telephone call at the roadside, at the police station where the breathalyzer test will be administered, or perhaps in very unusual cases, somewhere else. It will all depend on the facts of the particular case. Questions of where and when consultation with counsel will occur are properly considered as part of the implementational phase of the rights guaranteed by s. 10(b).

[15] In the present case, Constable Lewis fully complied with his informational obligations. He told the applicant that she could speak to a lawyer without delay. He asked her if she wished to speak to a lawyer “now”. I find as a fact this occurred. She responded that she understood, but would wait until at the station. This was a reasonable response in the circumstances; the officer had no s. 10(b) informational obligation to go any further.

[16] In coming to this conclusion, I note that while Ms. Adams believed she would not be permitted to speak to counsel at the roadside, she did not seek any clarification from the officer on this point. The wording of the rights, on their face, speak of access without delay, or “now”. Leaving aside Constable Lewis’ statement that he would not have provided such access at the scene under any circumstances, in the absence of the applicant making any inquiries about roadside access I do not believe the officer had any constitutional obligation – specifically any s. 10(b) informational obligation – to provide more information than he did. I reviewed some of the relevant authorities on this point last year in R. v. Chappell (2018), 23 M.V.R. (7^th) 157, at paras. 26-32. I apply my understanding of these authorities to Ms. Adams’ circumstances. Her s. 10(b) rights were not violated by the police at the roadside. This branch of her argument is dismissed.

Issue 2 – Section 10(b) at the police station

[17] Ms. Adams and Constable Lewis both testified about their conversations at the station regarding access to counsel. I must say that I was struck by how deficient Constable Lewis’ notes were in this area. Given the importance of the s. 10(b) right, and how frequently courts need to inquire into an officer’s efforts with regard to the right, it is remarkable to me that an officer would have no notes relating to his discussion with an arrestee regarding contact with counsel. In the circumstances, I choose not to trust his memory with regard to what he may have done, or what he believes he would have done: see, relatedly, R. v. Hegedus (2015), 2015 ONCJ 34, 17 C.R. (7^th) 368 (Ont. C.J.), at paras. 34-39. I prefer the testimony of Ms. Adams, and the objective video record, to Constable Lewis’ unassisted recollection of their discussions at the police station.

[18] Ms. Adams testified that she told Constable Lewis that she had a connection to a lawyer in Barrie, but that she could not remember his name. I accept that she raised this issue, and that he did not respond or address the existence of the Barrie lawyer in any meaningful way, other than, as borne out on the video, to hand her the directory and tell her that she could identify any lawyer to be contacted. On the video, the officer tells Ms. Adams that the directory contains, “every practicing lawyer, everybody you want to contact”. She responds, “I’ve been through something like this before, but do I have to pick tonight?” Constable Lewis tells her, “No, you can speak to duty counsel, and later pick any lawyer you want, we just have to offer you choice of any lawyer you like, or duty counsel, or no lawyer.”

[19] Ms. Adams responds, “I do have a lawyer but he is not in Cambridge, so I guess I would elect duty counsel tonight”. Constable Lewis did not correct her, or provide any additional information explaining that it would not matter whether the lawyer was physically located in Cambridge or elsewhere in the province.

[20] Ms. Adams subsequently spoke to duty counsel for approximately three minutes before being transferred to the custody of the breath technician for testing.

[21] With regard to the directory, we see it on the video and it was brought into court but, on consent, not made an exhibit. It is readily identifiable to any member of the legal profession. It is orange, with many pages of lawyer’s names from across the province. It does not have subject listings, such as criminal lawyers, or employment lawyers, etc. It is largely alphabetical.

[22] Ms. Adams did not make use of the directory to find the name and phone number of the lawyer in Barrie. She testified that she still could not remember the name, and it felt useless to look through this very large book. I find as a fact that Ms. Adams believed that she had to contact a local lawyer because she had been arrested in Cambridge. As already noted, she told the officer as much by stating, “I do have a lawyer but he is not in Cambridge, so I guess I would elect duty counsel tonight”. Again, this statement elicited no response, or correction, from the officer.

[23] Having considered the matter, I am satisfied that a violation has been established on the present facts. During their discussion regarding counsel, Ms. Adams stated her belief that she had to contact a local lawyer. In my view, Constable Lewis was obligated to cure her of this misapprehension and advise her that she had the right to telephone any lawyer of her choosing, not just one who was in the Cambridge area. Ms. Adams’ erroneous stated belief that the location of the lawyer mattered required addressing by the officer, as it amounted to a positive indication that she did not understand an aspect of her s. 10(b) right: see R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869, at 891; Devries, supra, at para. 38. While Ms. Adams does not make any real effort to locate counsel in the directory, I am satisfied that her actions, or lack thereof, were partly as a result of her erroneous belief that she could only contact local counsel. Possessed of such a belief, she considered duty counsel her only viable option. In the circumstances, a section 10(b) violation has been established.

Section 24(2) of the Charter

[24] The applicant seeks exclusion of her breath samples from evidence at trial. The test for exclusion of evidence under s. 24(2) of the Charter was described by the Supreme Court in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1. The relevant evidence is assessed during a three-part analysis, which assists in focusing the balancing of interests that must ultimately occur:

1. The seriousness of the Charter-infringing state conduct;

2. The impact of the breach on the Charter-protected interests of the accused;

3. Society’s interest in an adjudication on the merits.

[25] A helpful method of gauging the significance of Charter-infringing conduct is to determine where it falls on a spectrum of seriousness, with “inadvertent or minor violations” at one end and a blatant or brazen disregard for Charter-protected interests at the other: Grant, supra; R. v. Kitaitchik (2002), 2002 CanLII 45000 (ON CA), 166 C.C.C. (3d) 14 (Ont. C.A.); R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at paras. 23, 39.

[26] With regard to the seriousness of the Charter-infringing state conduct, I consider the officer’s failure to address Ms. Adams’ informational deficit problematic. For someone arrested and being held at the police station, it is not unreasonable to think that the lawyer’s proximity to the jurisdiction matters. As Ms. Adams said in re-examination, she didn’t know if the lawyer “had to show up or something”. Constable Lewis’ decision to leave her statement about the lawyer not being in Cambridge unanswered risked limiting her access to counsel of choice. I do not find it was done in bad faith, however, and I note the rest of the officer’s conduct was constitutionally appropriate. I would place his Charter-infringing conduct somewhere in the low-moderate range on the spectrum of seriousness. I find this branch of the test points softly towards exclusion.

[27] With regard to the impact of the breach on Ms. Adams’ Charter-protected interests, I am not satisfied that she would have been able to contact the unnamed Barrie lawyer from the station. I note that it was just prior to 4:00 a.m., and she did not remember the name of the lawyer. These were formidable barriers to access, in the circumstances. It is also relevant that Ms. Adams did speak to counsel – duty counsel – and received legal advice prior to providing breath samples. Finally, I note that Constable Lewis had a legal basis to demand samples of breath from Ms. Adams, and she had a legal obligation to provide those samples, which involved a minimal intrusion on her privacy, bodily integrity and dignity: see R. v. Jennings, 2018 ONCA 260, at paras. 27-32. I find the second branch of the test points softly towards admission.

[28] The final part of the test focuses on society’s interest in criminal allegations being adjudicated on their merits. Breath samples are highly reliable evidence; the devices used are approved by Parliament and subject to rigorous screening, maintenance and re-calibration. The readings are necessary evidence in an excess blood alcohol prose­cution – a crime that extracts a tragic toll on Canadian families and our community at large. The Supreme Court of Canada recently reminded us of the continuing social cost of drunk driving in the first paragraph of R. v. Alex, 2017 SCC 37:

Each year, drunk drivers cause tremendous suffering and loss of life on Canada’s roadways. Tragically, drinking and driving offences remain one of the most common crimes in Canada — and they place a substantial burden on the criminal justice system.

I find this third branch points strongly towards admission.

[29] Having balanced the relevant factors through the lens of this three-part test, I conclude, on balance, that Ms. Adams has not satisfied me that exclusion of her breath samples is warranted. Drinking and driving continues to be a pressing concern in our community. On the facts before me, Ms. Adams knowingly bypassed taking a cab home, choosing instead to drive after ingesting a considerable amount of alcohol. I note the toxicological evidence that would put her blood alcohol concentration, at the time of driving, somewhere between 120 and 170 mg of alcohol in 100 mL of blood. In turning down a cab ride, Ms. Adams risked her own safety, those of her friends, and anyone else who would have been unlucky enough to encounter her on the roadway. In my view, the repute of the administration of justice would suffer more from exclusion than admission in the circumstances of this case.

Disposition

[30] The application for exclusion of the breath samples is dismissed. The evidence is admissible at trial. In the circumstances, I agree with counsel that the other elements of the offence have been proven to the criminal standard. There will be a finding of guilt on the single count on the information.

Released: February 5, 2019

Signed: Justice Scott Latimer