DATE: March 4, 2021 Information No.’s: 19-203 19-1248

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN v. JOSE. A. DOMINGUEZ

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on MARCH 4, 2021 at ORANGEVILLE, Ontario

APPEARANCES:

D. Garbaty Counsel for the Crown V. Cojocaru Counsel for Jose A. Dominguez

THURSDAY, MARCH 4, 2021

PUGSLEY J. (Orally):

Jose Dominguez was charged with two drink driving related offences: Impaired driving and refusing a breath test.

As will be related shortly, due to the inaction of the police officers in regards to the defendant’s right to counsel, the Crown opened the second day of the trial by inviting me to dismiss the refuse allegation. I accepted that invitation.

The defendant moved to exclude evidence with regard to the impaired driving allegation based upon alleged breaches of his Charter rights. The application continued after the refuse charge was dismissed.

The defendant testified only on the Charter application. What he said as to the allegations in the trial proper during that evidence does not represent evidence on the merits of the impaired driving charge.

The events leading to the allegations faced by the defendant took place on October 14th, 2019 — Thanksgiving Day. The weather was very nice in Bolton that day in the Town of Caledon and many people were outside. At 3:40 p.m. a call came in to the O.P.P. dispatcher that a car had hit a light standard at Regional Road 50 and McEwan Drive in Bolton. The report was that the vehicle was a white Nissan and it had left the scene.

As the police responded another call came in that a white Nissan had driven along Hickman Street in the centre of Bolton and it hit a fence and stopped on an adjoining road, Sackville Street. The investigating officer headed to that location.

Meanwhile, Donny DiVincentiis was outside his home near Hickman and Sackville enjoying the weather with friends on his front porch. He saw a white Nissan drive west on Hickman and saw that the vehicle was driving from side to side. The vehicle turned the corner onto Sackville and hit a fence across the road from his location. The fence was between the street and a park. This is a residential area. Sackville dead-ends near Mr. DiVincentiis’ house. The Nissan stopped, reversed and turned around to come back on Sackville where it parked on the side of the street.

The vehicle had obviously been damaged before it hit the fence. The witness observed the damage when he first saw the vehicle while it was driving.

The driver, later identified as the defendant, got out and then was in and out of his car for a moment. He then walked towards the witness and his friends. He was what the defendant referred to as Spanish looking with a dark complexion and a yellow jacket. As he walked past he was mumbling something. Mr. DiVincentiis called 911. The defendant walked back to Hickman and then east, and the police arrived and picked him up.

In the witness’ view the defendant was definitely unstable in his movements. As he drove he nearly hit the witness and did hit the fence, and that’s why he called the police to report his behaviour. Mr. DiVincentiis agreed that he had not mentioned the defendant’s lack of stability to the arresting officer because that officer never asked him. He had a very clear recall of the events of that day.

During cross-examination photographs of the area and the defendant’s vehicle were identified by the witness. The vehicle had extensive damage to the front and the driver’s side airbag had discharged.

Mr. DiVincentiis did not mention any signs of impairment to the officer who asked for his statement.

Kevin Smith lives in the area and was out walking his dog on Hickman. His attention was first attracted to the defendant’s vehicle. It was driving behind him and was making a lot of noise, and was loudly rattling and the vehicle passed in front of him. Steam was coming out of the hood and the front of the vehicle was badly damaged. As Mr. Smith watched, the defendant’s vehicle turned onto Sackville hitting the fence at the park as it turned. It was Thanksgiving Day and many people were outside and saw the vehicle. The vehicle backed up and went down Sackville to the dead end then turned around and came back. The vehicle was driving very slowly. As the car turned he and others yelled to the defendant to stop because it was clear he did not have good control of his vehicle. Mr. Smith stood in the road and gestured for the car to stop. He too called the police and told the defendant to stay at the scene. The defendant got out and then got a white piece of paper to cover the front licence plate of the vehicle, and then started to walk back to Hickman and east towards the bridge over the river. The defendant was described by the witness as having a dark complexion, dark hair and a yellow coat.

As the driver neared the bridge the police arrived and apprehended the defendant. The defendant and the police spoke for a few moments and then the defendant was placed in the police cruiser.

The defendant told Mr. Smith something about the vehicle being his father’s car. He told the defendant that he should stay on the scene, but the defendant spoke to Mr. Smith, indicating that he needed to go. The witness and others at the scene expressed that the defendant might hurt himself or others. Mr. Smith felt that there was something unusual about the defendant, something that was not normal. The defendant may have had a limp, but he could not recall.

The defendant was not panicky. He was more on the calm side.

The car was heavily damaged on the front and had leaks from the radiator.

When the police first had contact with the defendant he was questioned and then handcuffed and put into the police cruiser. That questioning could have been under five minutes. The defendant seemed calm, but was not himself. He was not close enough to see the defendant’s eyes or smell his breath. The defendant’s gait was off, perhaps a limp, and he did have clunky boots on.

People at the scene asked him to stop and wait, but he just walked away.

O.P.P. Constable Maggie Taylor was the arresting officer. At 3:40 p.m. on the day of the alleged offence she received a call from her dispatcher to go to a fail to remain motor vehicle accident at Regional Road 50 and McEwan in Bolton in the Town of Caledon. The vehicle in question was described as a white Nissan. She then learned that the vehicle had turned onto Hickman Street and it hit a fence while turning onto Sackville. A licence number and description of the driver was received and passed to her as she drove to the last sighting of the Nissan.

The updated dispatches included a male trying to remove the vehicle licence plates at the scene, that the vehicle was heavily damaged, and then that the suspect was on foot and walking towards the intersection of Regional Road 50 and Hickman.

She got to that latter area at about 3:44 p.m. and immediately saw and recognized the defendant. She stopped her police cruiser near the bridge on Hickman and saw the white Nissan across the field.

Constable Taylor had met the defendant before from previous dealings on more than one occasion. She and the defendant came close to each other outside of her police cruiser about one metre apart. She observed that the defendant had a very strong odour of alcohol on his breath, bloodshot eyes and was quite unsteady on his feet. They had spoken in the past. This time the defendant’s speech was slurred. Similarly, she had seen him walk on previous occasions. This time his walking and standing were visibly unsteady. She described it as a wobble from side to side. The defendant denied having any injury.

People at the scene on Hickman yelled out to her, “That’s him. That’s him.”

Constable Taylor knew the defendant’s motor vehicle from previous interactions with him. The damaged vehicle at the scene on Sackville was his vehicle.

Constable Taylor arrested the defendant for impaired driving and called for a male officer to attend at the scene to search the defendant. While waiting, the defendant was handcuffed and placed in the rear of her police cruiser.

At 3:46 p.m. she read the defendant his right to counsel advice from a card kept in her notebook. The defendant confirmed that he understood his right to counsel, but when asked if he wanted to call a lawyer he asked her for legal advice by saying to her, “No. I, I don’t know. Should I? Do you think it would help? I don’t know.” She explained to the defendant it was his choice and he said he would think about it.

At 3:47 p.m. the standard police caution was read to the defendant, again from her O.P.P. card. The defendant interrupted her a couple of times as she read the caution and she had to tell him not to continue to make statements while she was providing him with the caution. She then repeated the police caution in lay terms. The defendant said he understood.

At 3:50 p.m. Constable Smith arrived to search the defendant. P.C. Smith found several receipts from three different establishments in the defendant’s pockets. She knew that these establishments were near Highway 50 and McEwan and they were for the purchase of alcohol. The receipts were not produced, nor entered into evidence at the trial.

The search also found the defendant’s car keys and the ownership and registration for the damaged white Nissan associated with the defendant.

After caution and before the breath demand the defendant told her that his birthday was on the 31st and he had decided to celebrate the whole month, and that he had had some drinks. She did not ask him for this statement. It was made spontaneously. She had made no promises, threats or inducements in exchange for any statements by the defendant.

At 3:56 p.m. she made the intoxilyzer demand, again reading from her issued card. The defendant agreed to do the breath test.

She left Constable Smith and Constable Szabo on scene and took the defendant for breath tests at the O.P.P. detachment in Caledon East. During the drive there the defendant was, as she described, chatty. She found this unusual as in her previous contacts with the defendant he appeared to have been very shy and not at all outspoken. The odour of alcohol persisted at the station.

Constable Taylor asked the defendant if he wanted to speak to a lawyer. The defendant said, “Yeah, I think his name is Virgil.” She asked for the lawyer’s last name and he said he did not know. P.C. Taylor said to the defendant that she needed a last name, that they had a lawyer’s phone book, but that it was sorted by last names, not first names. She testified that they needed to know that the person called was really a lawyer. P.C. Taylor testified that the defendant then stated, “You know it’s probably not worth it to call him. Don’t worry about it.” She told the defendant, “Yeah, okay. If you change your mind we can call any lawyer or duty counsel.” The defendant was placed in a cell and Constable Taylor prepared a grounds sheet for the qualified technician.

At 4:24 the defendant was turned over to the qualified technician for breath tests.

At 4:33 or so the defendant was returned to the cell and she was informed that he had refused to do the test.

She released him at 6:10 p.m. She did not note his physical state on his release.

The officer was asked if the defendant had trouble walking when entering the police station. She said no, but that she had him by the arm, supporting him.

She described the lawyer directory that they have at the police station. She agreed that the defendant did want a lawyer named Virgil. She could have looked online for lawyers with that first name, but she did not because the defendant then told her he did not want to speak to a lawyer. She did not address duty counsel after giving the formal right to counsel advice at the roadside. She never noted that the defendant did not want duty counsel because he said he did not want counsel. She did say if he changed his mind to let her know. Counsel, to this officer, meant all the same: Legal advice. She did not mention duty counsel because in her mind it was the same thing as counsel. She may not have said, “Duty counsel”, but she said, “Counsel”, and the defendant did not want it so she said, “Sure.”

Constable Taylor testified that she gave the defendant his right to counsel advice at the scene, not later at the detachment. The defendant told her at the scene he would do the breath test.

Constable Taylor observed the defendant’s motor vehicle to be heavily damaged with the driver’s airbag deployed. She asked the defendant if he was injured and he said no.

She never went to look at the lawyer’s book since the defendant told her, “Never mind” when she said she could not find a lawyer without a last name. She agreed that she never referenced duty counsel in her notes at any time.

Parenthetically, Constable Taylor seized the receipts for multiple alcoholic beverages at three restaurants that day, but did not bring them to court and they were never proven nor entered as evidence. The contents of the receipts are therefore inadmissible hearsay at this trial.

At one point during their interaction the defendant was seen to be crying.

She described him as cooperative and polite.

O.P.P. Constable Alvin Paliuanan was the qualified technician who dealt with Mr. Dominguez. He met the defendant at the police detachment and introduced himself, and readied the intoxilyzer for tests. His observations of the defendant were that he had an odour of alcohol on his breath and watery, red-rimmed eyes. His hands were dry and red. His face was flushed and red, and he was crying and tearing up a bit.

As Constable Taylor interacted with the defendant the defendant said he wanted to speak to his lawyer and gave the lawyer’s first name, Virgil. The defendant did not know the last name. The defendant said it was probably not worth it and not to worry about it.

A breath room video was played and entered into evidence. On the video the officer told the defendant that he did not remember his lawyer’s last name and that he did not want to speak to a lawyer now. He said the defendant could call later. At no time did this officer mention free duty counsel.

Mr. Dominguez asked the officer, “Do I have to do this?”, referencing the tests. The qualified technician replied, “If you don’t want to it’s up to you.” The officer then said, “You don’t want to give the test?” And the defendant nodded. He told the defendant that there were similar penalties if you did not do the test. The defendant said, “I’m refusing.” The officer said, “Repeat it for the recording” and the defendant did so. The qualified technician asked the defendant to sign saying he refused and the defendant complied with this request.

He never noted if the signs of impairment were the same when he was done with the defendant, but recalled that they were the same.

In cross-examination the officer agreed that he never offered the defendant duty counsel. He agreed that he told the defendant if he did not want to take the test it was up to him. The defendant refused and the breath technician said that that worked for him.

Constable Taylor was the officer in charge and the qualified technician said it was not his job to try and find a lawyer named Virgil. He assumed that she had done so. Parenthetically, she never did so.

After the evidence of the qualified technician the assistant Crown closed his case. When the matter continued on the next court date the Crown stated that based upon his review of the officer’s failure to implement the defendant’s right to counsel at the detachment he was inviting me to dismiss the refuse count. I did so as, in my view, the evidence even without the defendant’s testimony showed a severe deficiency in the officer’s disinterest in pursuing any efforts to locate the defendant’s counsel of choice and never describing the duty counsel option at any time to the defendant.

Further, the qualified technician told the defendant on camera that it was his choice whether he wanted to provide a breath sample or not. He also took essentially no steps to warn the defendant of the consequences of a refuse. It was clear that the defendant could have reasonably concluded that he need not do the breath test.

The issue then devolved to the question as to whether the Crown had proven the impaired driving count beyond a reasonable doubt.

The defendant continued with his Charter application on the basis that he was not given his right to counsel at the scene. The defendant testified on the Charter voir dire alone, but called O.P.P. Constable Dwayne Smith to give evidence for the defence on the trial proper and on the Charter application.

Constable Smith first became involved when P.C. Taylor asked the dispatch to have a male officer come to the scene to search the defendant. When he arrived the defendant was taken out of the police cruiser, placed with his hands against the vehicle facing away from Constable Smith who then frisked the defendant. The defendant was then returned to the police cruiser. Constable Smith agreed that he did not detect an odour of alcohol on the defendant’s breath while conducting this brief frisk search and noted that for most of, if not all of that time, the defendant was facing away from him.

Constable Smith also seized three restaurant receipts from the defendant’s pocket plus his vehicle keys and documents.

The officer photographed the defendant’s Nissan and then went to Regional Road 50 and McEwan Avenue and photographed the scene of the initial occurrence, which had led to the police becoming involved with Mr. Dominguez. Those photos show damage to a light standard, various fluids on the road surface and pieces of a white vehicle.

Notably, photographs of the accident scene at McEwan showed a silver Nissan symbol lying next to the broken white car parts.

The photos taken on Sackville showed a white Nissan vehicle with heavy front-end damage and a missing Nissan symbol. The driver’s side fog light assembly is missing at Sackville, but is seen to be lying on the ground at McEwan. The two sites were roughly three-and-a-half kilometres apart.

The defendant testified on the Charter application only. He testified that he had one beer to drink and the rest of the alcohol purchases at the three establishments were for friends. He described how he had tried to dodge an O.P.P. cruiser at McEwan and Regional Road 50 because he was driving under suspension at the time and, in doing so, he accidentally was distracted and hit the light standard. The airbag went off and hit his face. He saw that no one else had been involved in the accident and concluded that his best decision would be to drive his damaged vehicle home.

He drove north on Regional Road 50, but when he got to the north hill of Bolton his vehicle could not get up the hill, so he turned around and went on to Hickman to find a place where he could park it. His intention was then to walk home from there. He did not hit the fence on Sackville. He was very worried about what his father would say and do when he found out about the car.

He said that his body felt okay, but that he was jumpy and panicky. As he walked towards Regional Road 50 he saw Constable Taylor arriving. When he approached her his face felt better and he was crying. Mr. Dominguez testified that Constable Taylor had him place his hands on her vehicle and a male officer searched him. Constable Taylor then placed him under arrest or gave him some sort of caution and arrested him. He then testified that first Constable Taylor asked him if he was okay and he agreed that he was.

His recall was affected by his mind being elsewhere and he was reacting in what he described as a whole state of shock.

The defendant was asked when he was first given his right to counsel and he said at the detachment. He was certain that he did not receive his right to counsel advice at the scene of his arrest, but only later. The sequence he described was caution then arrest then in the rear seat of the cruiser.

He may have seen Constable Smith’s face when he was removed from the cruiser to be searched.

After he was searched he was put back into the cruiser and then they went to the detachment. He recalled that at the detachment he followed Constable Taylor inside and had no trouble walking.

At the detachment they had a conversation about him speaking to a lawyer. He told Constable Taylor his lawyer’s first name was Virgil from Brampton. She told him she could not find his lawyer’s name without knowing his last name, so Mr. Dominguez told her not to bother. She did not mention duty counsel to him and did not try to find his lawyer. No one mentioned duty counsel or explained his right to private counsel or free counsel.

Mr. Dominguez described his conversation with the qualified technician, Constable Paliuanan, which was also entered into evidence by way of the breath room video recording. He asked the qualified technician if he was making a mistake doing the test without speaking to his lawyer. The officer replied he could speak to him after and if he remembered his last name he could also speak to the counsel.

He also asked the qualified technician if he had to take the test. The officer replied that no, it was up to him and he could speak to his lawyer afterwards. Before this Mr. Dominguez planned to take the test, but this advice from the officer led him to change his mind and reject doing the breath test. The officer said fine and had him sign that he was refusing. No one ever asked him about a lawyer again.

The defendant described that hitting the light standard was very stressful and he was overwhelmed by the emotion of having to tell his father. At the scene he remembered speaking to Constable Taylor, but that was all said before he received his right to counsel advice at the station. He felt fine as he walked. He needs glasses to drive, but he could not find them after he hit the light standard.

In cross-examination on the defendant’s evidence on the Charter application the defendant agreed that although he lost his glasses when he hit the pole he was okay to drive without his glasses because he could drive straight.

He agreed that he did tell Constable Taylor that he was celebrating his birthday and had consumed alcohol. He disagreed that the alcohol affected his memory. He had only one pint of beer and all the other alcohol on the receipts were for his friends. He walked fine, but was also in shock. His speech was fine, as best he could remember.

He disagreed that he did not really remember and denied that it was slurred.

Mr. Dominguez had met Constable Taylor in the past and they had spoken to each other on previous occasions.

He did not see civilians at the scene, except maybe someone walking a dog. He never asked for their help because he was in shock and thought he could walk home. He agreed with the suggestion that shock could affect memory.

The assistant Crown asked him that he really cannot say if Constable Taylor gave him his right to counsel. Mr. Dominguez replied he did not recall her giving him his right to counsel at the roadside. Constable Taylor did not induce him to speak about being out for his birthday. She may have asked him what was going on or what he was doing.

He was asked if the order of events was first caution, second arrest, and third search. The defendant replied, “More or less, yes”, and that he was fairly confident that that was the order of events.

Constable Taylor wrote in her notebook, but no one took out a card and read from it.

The defendant was then asked if he remembered the breath demand and that he answered, “So we’re going to do the breathalyzer.” He said yes, but he did not see Constable Taylor read the demand from anything. She told him the caution and the breath demand without reading them from anything. He does recall, however, that he spoke to Constable Taylor several times when she was reading the caution and she stopped him from speaking and told him to wait until she had finished. He agreed that Constable Taylor read the caution, but not the right to counsel advice.

Mr. Dominguez agreed that he had said in chief that he did not remember a lot of what he said to Constable Taylor and agreed that he babbled, but he recalled that she never read him his rights. She did nothing to make him say anything, however.

The defendant agreed that he did tell Constable Taylor that, while his birthday was on the 31st, he intended to celebrate the whole month. He said that to her to get points from Constable Taylor because he liked her and had certain feelings about her from their previous interactions. It was suggested to Mr. Dominguez that he said it because it was true and that he told her he consumed drinks plural. He testified that he was trying to impress her and he never said “Drinks” plural. His alcohol did not cause an accident nor his decision to leave the scene of the accident.

He told Constable Taylor he was all right when she asked him if he was okay because he thought he was okay and was able to walk. He found Constable Taylor attractive and wanted to say things that would catch her attention and impress her. He spoke to her so he could get physically closer to her. He wanted to impress her by telling her what he thought she wanted to hear. He cannot recall now why he thought that, but testified that he was not thinking straight at the time.

The defendant submits that the evidence does not reach the criminal standard of proof on the impaired driving allegation. Further, the issue of right to counsel at the scene is also informed by the abject failure of the police to implement rights to counsel at the station. Constable Taylor’s sloppiness there makes it more likely she was sloppy at the scene, as the defendant’s evidence suggests, and never gave the right to counsel advice at the roadside. If not, then the utterance by the defendant regarding celebrating all month and having a drink should be excluded by his submission.

The Crown submits that the defendant has not met his onus of proof on the Charter application and that there is ample evidence to prove that the defendant operated his vehicle while his ability to do so was impaired by alcohol.

I start by observing again that the defendant’s oral evidence was given on the Charter application alone and cannot be used on the trial of the remaining charge.

While the assistant Crown Attorney cross-examined the defendant as to his alcohol consumption and decision to drive, that can only relate to the credibility and reliability of the defendant’s evidence on his Charter application, not to his impairment by alcohol on the trial proper.

I pause for a moment to address the charge that I have already dismissed since all of the evidence received by the court is the evidence before me on the remaining charge, with the caveat already noted as to the defendant’s own oral evidence. I have no doubt that the evidence discloses a failure to implement the defendant’s right to counsel that was fatal on the refuse count.

First, Constable Taylor basically said if you do not know the lawyer Virgil’s last name we cannot find him. This is incorrect. There are more ways to locate a lawyer of choice than the single lawyer book at the Caledon East detachment. P.C. Taylor agreed that she could have accessed the Internet to try and find, “Virgil”, but did not. Notably, every licenced lawyer in the province is listed on the Law Society of Ontario website. Notably, lawyers can be searched on that website by first name, last name or either name. There is only one lawyer on the Law Society of Ontario website in Brampton whose first name is Virgil.

Coincidentally, it is Mr. Dominguez’s counsel at this trial, Mr. Cojocaru. His name and contact information would have been available in minutes had Constable Taylor or the qualified technician bothered to try to find it.

Second, Constable Taylor testified essentially that while she mentioned duty counsel when she read the defendant his right to counsel from her issued card at the scene, she never had to follow up with the defendant to see if he wanted free duty counsel advice, because to her “Counsel” meant all legal counsel. So, I suppose, Mr. Dominguez should have known that after she read him the card once at the scene he would have known counsel meant duty counsel and his own counsel. Neither officer ever even mentioned duty counsel at the station, only said, well, we cannot try to find Virgil, so if you remember his name later you can call him.

Third, to compound the errors, the qualified technician so much as told the defendant that, notwithstanding the breath demand from Constable Taylor and from the technician, it was really up to him to decide if he wanted to do the test or not. He never engaged in a fact-finding exercise to tell the defendant what would happen if he did not provide the sample, nor give him any chance to think about it. At the scene the defendant agreed to do the test. After the qualified technician told him he could do the test or not as he chose, he changed his mind and did not do the test.

With respect, the process on arrest, detention, right to counsel and implementation and then the intoxilyzer testing itself is not rocket science. It should be a matter of procedure long learned by experienced and trained police officers. Most officers do it accurately and by the book. The process here was shockingly sloppy and as a direct result the refuse count was obviously lost.

The defendant, not unreasonably, suggested I should conclude that that sloppiness also happened at the roadside. Although not submitted, perhaps it would also inform the general credibility of Constable Taylor, not as to the veracity of her evidence, but perhaps as to the accuracy of that evidence.

I pause to note two other aspects of her evidence that could support such a submission if it had been made.

In her evidence in chief Constable Taylor described reading the defendant his right to counsel from her O.P.P. issued card. When asked to read it out in court she had her notebook, but she had not bothered to bring that card to court. Over a scheduled break and before her in chief evidence was completed she secured the card and was able to read what she says she told Mr. Dominguez.

Second, the police seized three relevant receipts when Officer Smith searched the defendant at the scene. They were secured by her at the station for use at the trial, but she never picked them up on the day of the trial and they were never submitted in evidence. The receipts are said to relate to timely and detailed alcohol consumption at three separate restaurants that day just before this incident. Without the evidence of the legally seized receipts that information is mere inadmissible hearsay.

So the first issue here is whether the defendant has successfully shown a breach of his rights such that not only is his refusal evidence excluded as has already happened, but also in some way the evidence of his impairment. The key, by the defendant’s submission, is first, that without right to counsel the arrest was improper and the remedy is to direct a s. 24 stay, and/or, second, that at least I should exclude the otherwise voluntary statements made by the defendant at the scene, most damningly about his intent to celebrate his birthday all month and that he, therefore, had a drink or drinks plural.

In my view there was no breach of the informational aspect of the right to counsel. The defendant’s evidence on this point was steadfast that at no time was he given his right to counsel at the scene. However, at the station he and P.C. Taylor immediately engaged in a dialogue about what lawyer he would like to call and he immediately asked for Virgil, last name then unknown. This strongly suggests that the defendant was given his right to counsel advice before they arrived at the station.

Further, the defendant testified at first that P.C. Taylor never read him anything at the scene. He then, in cross-examination, agreed that Constable Taylor did read him the standard police caution at the scene, as she said, because he kept interrupting her when she was reading it and she took special care to tell him not to speak until she had finished reading in the caution.

Further, in cross-examination, unlike in chief or in reply, Mr. Dominguez testified that he did not recall Constable Taylor giving him his right to counsel at the roadside. The defendant’s evidence was that although he had only had one drink, he was affected by emotion and stress at the scene and that might have affected his ability to recall events.

I found his evidence to be vague and rambling, and his evidence in chief had inaccuracies disclosed during cross-examination.

On the issue of right to counsel at the scene I prefer the evidence of Constable Taylor, notwithstanding her less than impressive performance when they got back to the station.

By the defendant’s own admission he decided to tell her about celebrating his birthday all month and having consumed one or more drinks. P.C. Taylor did not record what he said verbatim, but wrote down “Drinks” plural. The defendant drank at least one drink. Constable Taylor did not have any alcohol, was on duty and was making notes. Her evidence as to what happened at the scene was part of her duty and I conclude that she did read the defendant his right to counsel, caution and breath demand from her O.P.P. issued card. The events at the roadside at Hickman were as she described in her evidence.

The defendant’s version of those events was inaccurate at the least and somewhat incredible at the most. Inaccurate due to the passage of time, his emotional state and admitted recent alcohol consumption. Incredible, because in the end he recalls the officer reading the caution and giving the breath demand, but at no time reading him his right to counsel from the same issued card, right to counsel that he asserted immediately upon his arrival at the detachment.

Finally, it is obvious that he received right to counsel at the scene since he immediately asked Constable Taylor if she thought a lawyer would help and she recorded this verbatim in her notebook.

There was no Charter breach shown by the defendant related to the impaired driving count.

If I am wrong I would not have stayed the charge. Any breach would have only touched on a tiny part of the evidence related to the impaired driving count and was cured by defendant’s demonstration at the detachment moments later that he understood his right and wanted to speak to his named personal lawyer. The breaches at the station do not inform the remedy sought on the impaired driving charge. The admission of “Celebrating” was made spontaneously and without inducement, nor in any way was it related to the right to counsel flaw that the defendant asserts.

Further, even by his evidence it was made after the caution. A stay would be far too drastic a remedy here. For similar reasons I would not have excluded the admission of the word “Celebrating” and following. The police did nothing to compel any statement by the defendant and his stream of consciousness speaking to Officer Taylor could not in any way relate to the suggested failure to provide right to counsel. He, by his own admission, was trying to impress Officer Taylor. He spoke without any regard to right to counsel or a caution and any connection to a suggested failure to give his right to counsel at the scene is remote and created by the defendant’s action, not by that of the police.

The Charter application is necessarily dismissed as it relates to the impaired driving count.

The remaining issue is whether the Crown has proven beyond a reasonable doubt that the defendant’s ability to operate a motor vehicle was impaired by his consumption of alcohol.

R. v. Stellato informs that test by observing that impairment to any degree can make out the charge. The evidence of impairment comes from four sources. First, the civilians at the scene. Second, Constable Taylor. Third, the qualified technician and, fourth, Constable Smith who searched Mr. Dominguez and who photographed his vehicle and the scene at Regional Road 50 and McEwan.

Mr. Dominguez, as is his absolute right, did not testify on the trial proper, only on the Charter application. This precluded the Crown from gaining evidence on the defendant’s alcohol consumption and his driving applicable to the trial proper. As noted, cross-examination on those issues went to the accuracy of the defendant’s evidence on his application.

I have summarized the evidence of the two civilian witnesses already. Paraphrased, it was a nice Thanksgiving Day and everyone was outside enjoying the weather. They heard and saw the defendant’s vehicle approach. Mr. DiVincentiis said the Nissan was driving side to side on the road. It was obviously a badly damaged motor vehicle. Fluids were leaking from it. The defendant turned the corner striking a fence. He turned at the dead-end and then parked. He went in and out of his vehicle. One witness saw him trying to block his licence plate. The defendant started to walk back towards Regional Road 50. They tried to have him stop and wait for the police. He was not acting normal. He was seen to be unstable and his gait was affected, and he was mumbling. Neither witness was close enough to smell alcohol on his breath and did not therefore smell any alcohol.

Constable Taylor was dispatched to the accident scene at Regional Road 50 and McEwan and then was updated that the suspect vehicle was at Hickman and Sackville. She went there and immediately saw the defendant. She knew the defendant from more than one prior duty occasion. She had spoken to him before and noted what she described as him having a shy character. His demeanour on this occasion was outgoing and, indeed, he was babbling.

The defendant came up to her and close to about one metre away. She detected a strong odour of alcohol coming from his breath. He had bloodshot eyes and was quite unsteady on his feet, wobbling from side to side. When he spoke he slurred his words. He was crying at one point.

She had, on prior occasions, both been spoken to by the defendant and had seen the defendant walking and standing. His speech and his balance were different on this occasion.

She could see his motor vehicle and knew it from their previous interactions. It was damaged. Witnesses told her the defendant was connected to the damaged vehicle, but she knew that already anyway.

She arrested the defendant for impaired driving and asked dispatch for a male officer to come to the scene to search him. She read him his right to counsel advice from her police card and the defendant agreed that he understood his rights. Specifically, he asked Constable Taylor if he should speak to counsel, a statement recorded in her notes verbatim. She next cautioned the defendant, again reading from the same police issued card.

Constable Smith then searched the defendant and, after that, provided timely and detailed receipts from restaurants that day to Constable Taylor. The defendant then spontaneously said he decided to celebrate his birthday the whole month and admitted he had some drinks plural. Constable Taylor agreed that this statement was not written down by her verbatim. The receipts are not in evidence and any description of those receipts is inadmissible hearsay.

This latter statement by Mr. Dominguez was spontaneous and voluntary. Because it was not recorded verbatim I cannot conclude that he admitted to consumption of drinks plural or a drink singular. He did admit after caution and without prompting in any way by the officer to a recent decision to celebrate his birthday and to having a drink.

Constable Taylor held the defendant by the arm when they entered the detachment. She noted no problems with his gait at that time.

The defendant was recorded on video in the booking area and on video and audio in the breath room. What short evidence is seen of his walking is unremarkable. His voice on the audio is hard to hear at times, but again seems unremarkable as recorded by the camera and the microphone. No video was close enough to show the defendant’s eyes or face in any detail.

Constable Taylor agreed that the defendant may have been stressed and he cried at one point during their interaction.

Constable Paliuanan, the qualified technician, noted the defendant’s condition on the alcohol influence report. He noted an odour of alcohol on the defendant’s breath, watery red-rimmed eyes, and dry and red hands, red flushed face, and that the defendant was at times crying a bit and was tearing up. He recorded the defendant’s speech as good and did not note any trouble with walking or talking.

Constable Smith gave evidence for the defence on the trial and on the Charter application. His first contact with the defendant was to search him for Constable Taylor. His contact with the defendant was short and for the most part the defendant’s face was turned away so Constable Smith could search him. He may have had a glimpse of his face as he was removed and placed back in the car. That was his only contact with the defendant and he recalled no signs of alcohol consumption during that brief and structured contact.

Constable Smith’s evidence goes beyond that on the issue of impairment, however. He took photos of the accident scene at Regional Road 50 and McEwan Avenue, and of the defendant’s Nissan on Sackville. He testified that those locations were about three-and-a-half kilometres apart and were connected by downtown Bolton.

The defendant’s vehicle was found to be heavily damaged and leaking fluids. The driver’s airbag had deployed. The photos of the vehicle at Sackville, by irresistible inference, are connected to the scene of the accident south at Highway 50 and McEwan. At that accident there is a large dent in the light standard. A piece of a white vehicle with a fog light matching the intact fog light on the Nissan at Sackville is obvious. There is a silver Nissan badge on the ground beside that piece at McEwan. The Nissan badge on the car at Sackville is missing.

The defendant was alone in his vehicle when he got out of it at Sackville. He tried to hide the licence plate.

It is a reasonable and compelling inference that the defendant’s vehicle hit the pole at McEwan and then shed parts and considerable fluids there. That same vehicle, badly damaged with a discharged airbag, was driven by the defendant for three-and-a-half kilometres until parked and left at Sackville.

That act of leaving the scene and driving an essentially unsafe vehicle until it was parked at Sackville discloses a lack of judgment that could be related to impairment.

The actions of the officer-in-charge and the qualified technician at the station related to the implementation of the right to counsel and the over speedy refusal do not lead me to discount the observations made and recorded by those officers as they relate to the signs of impairment displayed by the defendant when they interacted with him. In particular, Constable Taylor had had more than one prior interaction with a sober Mr. Dominguez.

The defendant was driving a severely damaged vehicle after an accident at Regional Road 50 and McEwan through downtown Bolton to Hickman. He was seen by witnesses who were concerned enough to call 911. He weaved while driving on Hickman. He turned at Sackville and hit a fence. He left his damaged vehicle. He was told by bystanders to remain and left. He mumbled and walked abnormally.

Constable Taylor noted a strong odour of alcohol on his breath, red eyes, swaying and an unsteady gait. His speech was seen to be slurred. He was uncharacteristically voluble with Constable Taylor and admitted to celebrating and having a drink.

At the station he showed more signs of impairment by alcohol recorded by the breath technician.

There is ample evidence that the defendant drove his motor vehicle while his ability to do so was impaired by the consumption of alcohol and I must find him guilty of that offence.

There are Highway Traffic Act allegations here. The Crown position on that?

MS GARBATY: I would invite Your Honour to withdraw or dismiss the other counts.

THE COURT: Right. The evidence was agreed to apply to the Highway Traffic Act offences. On the invitation of the Crown I dismiss the Highway Traffic Act charges.

Is the Crown alleging a record?

MS GARBATY: No record, Your Honour.

THE COURT: Crown position on sentence?

...REMAINDER OF PROCEEDINGS NOT REQUESTED FOR TRANSCRIPTION AT THIS TIME

...WHEREUPON THIS PROCEEDING WAS ADJOURNED

Certification

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Kendra Kelly certify that this document is a true and accurate transcription of the recording of R. v. Jose A. Dominguez in the Ontario Court of Justice held at 10 Louisa Street, Orangeville, ON. taken from Recording No. 0611_101_20210304_090810_6_PUGSLEB.dcr, which has been certified in Form 1.

(Date) (Signature of authorized person)