Court Information

Date: December 5, 2019

Ontario Court of Justice Central West Region – Brampton Ontario

Between:

Her Majesty the Queen

-and-

Gebre Byrnes

Reasons for Judgment

Duncan J.

Charge and Defence

[1] The defendant is charged with exceed 80, offence date November 14, 2015.

[2] The case is defended solely on Charter grounds. It is contended that the police stop of the defendant was racially motivated, unlawful and a breach of section 9. It is further contended that the defendant was denied his right to counsel by being denied use of his cell phone to contact a third party for contact information for a lawyer.

[3] This is the second trial in this matter. An acquittal on the first trial [2018] ONCJ 278 was reversed on summary conviction appeal by D. Harris J: 2019 ONSC 1287, [2019] OJ No 975 (Sup Crt). It was agreed by Crown and defence that I could and should read the earlier judgments for guidance on the law applicable to this case.

Section 9: Racial Profiling

[4] At around 8:40pm OPP officer Fraser was on routine patrol in a stealth (muted markings) police vehicle driving eastbound on the 403 in the GTA. She was accompanied by a 19-year-old female auxiliary officer, Hadaway. They approached from behind and then came up on the driver's side of a Mazda vehicle that turned out to be driven by the defendant. Fraser testified that she saw the defendant apparently talking on a cell phone. She activated her lights and pulled him over. When she approached his car, she told him that she had stopped him for the cell phone violation [1] and requested his driving documents. She saw a cell phone in his lap. As she dealt with him, she noticed a smell of alcohol. From there, matters followed their usual course – demand, roadside test, FAIL, arrest and ultimately provision of breath samples that betrayed blood alcohol levels of 180 and 160.

[5] Fraser's notes did not contain reference to a cell phone in the initial points written at the scene of the stop. Rather the reference first appeared in a narrative that was written sometime after the defendant was taken into the breath room for testing. The qualified technician who received Fraser's grounds as part of the pre-test ritual was uncertain whether Fraser had mentioned a cell phone. His notes recorded that she told him that it was a "traffic stop" without specifying the violation. That exchange was not otherwise recorded.

[6] The defendant testified that he was not talking on the cell phone. He said that he was driving normally, in fact being extra cautious because he had had a few drinks. He said he always drives with his left hand on the wheel, a habit gained from his work where he steers heavy equipment with his left hand while working controls with his right. He acknowledged that Fraser told him she had stopped him for a cell phone violation, though he said that she told him that after she asked for his driving documents. He also acknowledged having a cell phone close beside him, in the cup-holder of the console.

[7] Auxiliary Officer Hadaway testified in chief that as they drove, she was running license plate queries through the on-board computer. She had run about 15 when they came upon the defendant's car. She ran his plate but received an error message, possibly because the plates were out of province. While she was so engaged, she heard Fraser make a comment to the effect "Is he on his cell phone?" She said she looked and saw the defendant's left arm and hand in a position consistent with talking on a phone but did not actually see a phone. In cross-examination her evidence from the first trial was put to her where she had testified that she saw his left hand, not in phone position, but on the steering wheel – a rather glaring contradiction! She immediately accepted and adopted her earlier evidence given at a much earlier time as being the correct version.

[8] The law on racial profiling was thoroughly discussed by Harris J. in the appeal judgment in this case. It is binding on me and, for what it's worth, I agree with his analysis. It is not necessary to repeat it here.

[9] The burden of proving a section 9 Charter violation, including one rooted in a claim of racial profiling is on the applicant/defendant. It is a difficult burden since the defendant of course cannot know what is in the police officer's mind. However, his position will be advanced if he can establish on a balance of probabilities that the purported justification for the stop was bogus or pretextual. The defendant contends that he has met that burden particularly having regard to the evidence of Hadaway which supports his denial and undermines Fraser's claim of witnessing a cell phone violation.

[10] While I found that the defendant presented well and generally seemed credible there were certainly some blemishes in his evidence. He obviously lied at the scene when he told Fraser more than once that he had had nothing to drink. I also find that he greatly understated his consumption when he testified. Most significantly he was very evasive about why he had purchased a pay as you go cell phone in a false name, that he couldn't remember. This failure of memory was his excuse for not being able to produce any records that could show whether he was on the phone at the relevant time. I am very skeptical of that explanation. [2]

[11] Hadaway's evidence is perplexing. While she referred to notes while she testified, she apparently had no note about the precise observation that she made – otherwise it is inconceivable that she could have given such vastly different descriptions of what she saw. Apparently then, she relied on memory alone when testifying on this point at the first trial, about 18 months after the offence, and later before me at the second trial, 4 years after the offence. That memory was shown to be dramatically unreliable. [3] In my view the only reliable kernel in her evidence as to what she did or didn't see, is that she did not see a cell phone. This of course favours the defendant.

[12] With respect to Fraser, she appeared to me to be an honest witness though one who understandably struggled with details of an event 4 years old. Her telling the defendant that he had been stopped for a cell phone violation, acknowledged by the defendant, tends to support her evidence. I don't place much significance on the chronology of her notes nor her not specifying the infraction for which she stopped the defendant when she related her grounds to the QT.

[13] In my view Hadaway's evidence that Fraser made a comment to the effect "Is he on his cell phone?" has pivotal significance in this case. Given her other demonstrated unreliability on detail, I do not take this verbatim or necessarily even that the statement was in question form. It might just as likely have been a statement "He's on his cell phone". The point is that I am satisfied that such a statement was made, and it caused Hadaway to look. In my view that statement – made in the moment – is compelling evidence that Fraser at least perceived and believed that the defendant was on his phone.

[14] I should add that I dismiss any suggestion that the statement should not be given the significance I have assigned to it because it could have been a knowingly false statement made by Fraser in order to provide her with a cover for a groundless stop. That scenario seems to me to suggest a degree of sophisticated malevolence that is way beyond any realistic view of the situation, the defendant's importance [4] or Fraser's character. Moreover, there would be no reason to manufacture the occurrence of a traffic offence – much less create a cover for doing so – since the police in Ontario have authority to make random (ie groundless) stops for sobriety and license checks anyway. There is no need to create a pretext offence.

[15] On the evidence, particularly having regard to Hadaway's evidence, I find that it is slightly more likely than not that the defendant was not using the phone. But I also find that PC Fraser honestly but mistakenly believed that he was. While this finding does not necessarily extinguish any possibility of racial profiling, in the circumstances of this case where there is no other evidence of racial profiling, I find that it has that effect. [5]

[16] Accordingly, I dismiss the application made under section 9. The defendant was not subjected to racial profiling.

Right to Counsel

[17] The defendant was read the standard multi-part rights to counsel upon arrest. When asked if he wanted to call a lawyer he replied, according to Fraser, "Not at this moment but I reserve the right to call one later." Fraser said there was no further discussion on the way to the police station except that she asked the defendant whether he wanted to call his own lawyer or duty counsel and the defendant answered, "duty counsel". [6] Almost immediately on arrival she called duty counsel and left a message. When the call was returned the defendant accepted the opportunity and spoke to that lawyer.

[18] When the defendant was taken into the breath room the rights were reviewed by the qualified technician who confirmed that the defendant had spoken to duty counsel. The defendant was not asked if he was satisfied or if he had any further requests regarding counsel. The defendant did not spontaneously complain or make any further request.

[19] The defendant testified that when read the rights to counsel on arrest he wanted to call a specific lawyer – "Marco" – but didn't know his last name or number. He said that on the way to the station he asked for his cell phone to call his cousin to get the full name and contact information. He said his request was then denied by Fraser, who told him to wait until they arrived at the station. However once there, he was put into cells and was not offered his phone. He was asked whether he had a lawyer that he wanted to call, and he said "Marco" but didn't know the last name and wanted his cell phone to call his cousin. He was told that he could not have his phone. [7] When he was offered duty counsel he accepted, reasoning that he had no other choice having been denied his phone and ability to pursue his quest for Marco.

[20] Hadaway's evidence tended to support the defendant. She said that on route to the station the defendant repeatedly asked for his phone but was told by Fraser that he could access it once they arrived.

[21] In view of Hadaway's support, I accept the defendant's version of what transpired in the police car on the way to the station. Having regard to the defendant's repeated requests at that time, it seems highly unlikely that he would abandon or not pursue his request on arrival. I accept his evidence that he was not provided the promised opportunity on arrival or at any time. I think it likely that he again asked at the station and was denied, but even if he didn't, I don't think it matters. He had already asked and it was up to the police to fulfill the request or ensure that he made an informed and voluntary waiver – and make some reliable record of his doing so.

[22] Even on Fraser's evidence the defendant initially reserved his right to call a lawyer. That right included counsel of choice and the right to seek contact information from third parties: R v Tremblay, [1987] 2 SCR 435. What is the evidence that he ever waived? With respect, the minimal note taken by Fraser is not sufficient to satisfy the burden of establishing waiver, which rests on the Crown. Further, apart from waiver, it is my view that even where the burden is on the defendant to establish a Charter violation, there is a duty on police to create a reliable record of what occurred since the defendant is not in a position to do so, is unaware of the significance of events that are occurring and is usually over-refreshed.

[23] As an aside – It is not an exaggeration to say that the facilitation of the right to counsel of a detainee has become something of a minefield for police. Even with the best of intentions it is easy for them to make an error having regard to the evolving, demanding and often hair-splitting case law that is constantly being produced. The litigation of these errors, real or alleged, consumes a great deal of court time. I suggest that in Peel Region, much of this could be avoided by providing an extension of the yellow "Driving Offence Notes" to cover counsel facilitation issues that often arise at the station. Consideration could also be given to posting written guidelines such as suggested by Stribopoulos J in R v Maciel, 2016 ONCJ 563, [2016] O.J. No. 4789 para 47 and having waiver forms available at the various police Divisions.

[24] I am satisfied that the defendant was denied his right to make reasonable searches for contact information and was accordingly denied his right to counsel.

Exclusion of Evidence Under Section 24(2)

[25] Applying the three-part Grant analysis, in reverse: The charge is serious and the readings were high. Drinking and driving is a pressing societal problem and the public interest in trial on the merits is high. Having said that, the offence is not of the highest level of gravity. It is not murder or child molestation. Aside from the readings, there are no aggravating circumstances – no accident, no bad driving, no allegation of impairment. As usual this factor favours admission, though not overwhelmingly so.

[26] As for impact on the Charter rights of the defendant, it is quite arguable that the impact was negligible in that the scope for and usefulness of legal advice in this situation is minimal. Besides, he did receive legal advice. There is no suggestion that he had any excuse to do anything but provide breath samples. Had he talked to "Marco," he would almost certainly have found himself in exactly the same position – providing damning breath samples into the Intoxilizer. However, the same argument could be made in all of these cases and, if accepted, would lead to scoring this factor in favour of inclusion in every case with the eventual devaluation and practical evisceration of the right to counsel of choice in the breathalyzer situation. This result, though arguably practical, sensible and in keeping with the provision of state funded duty counsel, has not gained general favour in Canadian law [8]. It must be taken then that denial of counsel of choice or opportunity to pursue same, had some significant impact on the Charter rights of the defendant.

[27] As for seriousness of the police conduct, I do not think the police were acting in bad faith or intentionally attempting to deny the defendant an opportunity to acquire contact information. But I think that they acted unreasonably in denying the defendant access to his phone while in transit and were then careless in failing to follow up on his request – and their promise – to permit access to his phone at the station. They then, at best, failed to ensure that he was clearly abandoning his desire to speak to counsel of choice and defaulted too readily to duty counsel. At worst, they just ignored his earlier request. Each of these things is serious and they are even more so when taken cumulatively.

[28] There is also the aspect that I referred to above with respect to the haphazard way that counsel facilitation is carried out and recorded. What begins as a well-structured and well-documented investigation guided by a template falls apart and becomes ad hoc imprecise and often poorly documented between arrival at the station and entry into the breath room. Unnecessary issues arise and credibility contests are created in this period that eventually must be resolved in court, placing an unnecessary burden on the system and all of the participants.

[29] Grant makes it clear that a determination under section 24(2) must consider the long-term interests of the administration of justice. In my view that consideration together with a balancing of the three Grant factors tips the scale in this case in favour of exclusion.

[30] The breath test evidence is excluded. The charge is dismissed.

December 5, 2019

B Duncan J.

M Forte for the Defendant; N Nigro for the Crown

Footnotes

[1] She said that he shrugged. There was no cross-examination on this point. There was certainly no evidence that he protested or took issue with her.

[2] He was not asked why he could not get the records by reference to the phone number.

[3] For some reason, none of the witnesses refreshed themselves from the transcript of the first trial.

[4] Why would she jeopardize her credibility and career to falsely entrap this defendant?

[5] There was not even any evidence that Fraser knew the driver was black when she made the stop. She couldn't recall.

[6] The only record of this conversation is a note "L or dc" with dc marked in some way, made either while she was driving or on arrival.

[7] The defendant left the impression that this conversation was with PC Fraser, though Fraser, called in reply suggested that, if it occurred it may have been with the cells officer Cst Thorson.

[8] To the contrary, the case law considers counsel of choice to be important in this and other arrest situations: See Maciel infra pars 36 and 37.