ONTARIO COURT OF JUSTICE DATE: 2021·06·11 NEWMARKET

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

EDISON BRITO

JUDGMENT

Evidence Heard: June 10, 2021. Submissions and Judgment: June 11, 2021.

Counsel: Ms. Alice Pan........................................................................................... counsel for the Crown Mr. Bruce Daley ................................................................................ counsel for the defendant

KENKEL J.:

Introduction

[1] Detective Constable Allison saw an Infiniti driving erratically while northbound on Jane Street. He first noticed the car when it was straddling the line between two lanes. Further observations led to a stop and arrest for impaired driving. At the station, breath tests led to a further charge of having a blood alcohol concentration in excess of the legal limit within 2 hours of operation (80+).

[2] The submissions of counsel identified three issues for decision:

• Whether the arrest of the accused and the breath demand were based on reasonable grounds.
• Whether the accused’s right to speak to counsel was violated when he expressed some dissatisfaction with duty counsel, but did not subsequently speak to another lawyer.
• Whether the Crown has proved the alleged impaired operation beyond a reasonable doubt.

[3] The matter was heard by way of a blended voir dire, keeping in mind the respective burdens of proof on each issue.

Reasonable Grounds

[4] DC Allision had ample grounds for the arrest and demand. He was right not to delay his investigation past the point of reasonable grounds by using the Approved Screening Device (ASD) in his vehicle.

[5] Detective Allision observed the accused’s erratic driving, his stagger when he walked a short distance from his vehicle, his slurred speech and several indicia (odour of alcohol, red and watery eyes) that led him to conclude that the accused’s ability to operate his vehicle was impaired by the effects of alcohol consumption. The officer’s subjective conclusion was objectively reasonable. The Crown has proved that there is no evidence of a s 8 or s 9 Charter breach.

Right to Counsel

[6] Mr. Brito was advised on arrest that he could call his own lawyer, he could call a friend or family member to obtain a referral to a lawyer, or he could speak to duty counsel. Mr. Brito told the officer he wanted to speak to a lawyer, but he didn’t know who to call. At the station there was further discussion with DC Allison. He said he had no lawyer and didn’t know anyone who could refer him to a lawyer. He elected to call duty counsel. The officer called duty counsel at 0226h and duty counsel was available immediately. Mr. Brito was finished at 249h and was turned over to the Qualified Technician for testing.

[7] The right to counsel issue arises from the conversation with the breath technician which was recorded on the video that was marked as Exhibit #3. That video is unusual in that there is a loud continuous hum that blocks most of the sound such that only certain words in the conversation are audible. That’s not typical of York Regional Police breath room videos, and it’s not plain what caused the issue on this recording. In this video it’s very difficult to make out more than a few words at a time and to get any sense of the context of the words that can be heard.

[8] I agree with the defence that the breath technician asked Mr. Brito whether he was satisfied with the duty counsel discussion. His answer sounds like, “Sure … I’m not really satisfied but …(inaudible). The next words that can be made out are from the breath technician, “Do you have another lawyer you would like me to call?”. Little of what follows on this point is audible. Later in the conversation the officer said several times, “I can’t give you legal advice”. He also cautioned the accused that when he asks standard questions the accused does not have to answer. The officer read a demand and it sounded like he read a formal secondary caution.

[9] Neither party called the persons who were involved in the conversation. The breath technician was an available witness at trial, but he was released. It was open to the accused to testify as to his recollection of the conversation on his application, but both parties relied on the video record.

[10] The defence submits that once the accused expressed dissatisfaction with duty counsel, the burden is on the Crown to show that the officer took appropriate action in response. The accused never spoke to a second lawyer so there is a breach of the implementation duty under s 10(b) of the Charter.

[11] The Crown submits that it’s not plain whether a right to speak to another lawyer was triggered in this case. Despite the accused’s second comment that he was not satisfied, the problems with this video record are such that no finding of a breach could be made without speculation.

[12] Mr. Brito was given every option to implement his right to counsel and he chose to speak with duty counsel. In this case duty counsel was immediately available and Mr. Brito had a 23 minute discussion with that lawyer. When the Qualified Technician asked him if he was satisfied with the discussion he said “Sure” but then said he was not really satisfied. We don’t know what was said next, but the officer’s response was an offer to call another lawyer. We don’t know what was said afterwards on this point, but no other lawyer was called.

[13] The video record is not sufficient to determine what exactly was said between the breath technician and Mr. Brito on this issue. All we know is that after an expression of dissatisfaction, the officer immediately offered to call another lawyer. Even considering the words that can be heard, there is no way to assess their context.

[14] An applicant alleging a Charter violation bears the burden of proof to establish, on the balance of probabilities, the infringement of the constitutional right – R v Collins , [1987] SCJ No 15. I find the evidence on this application is not sufficient to make any determination in relation to a s 10(b) breach, or to consider a s 24(2) remedy even if a breach were found. I find the applicant has failed to prove the breach alleged.

Impaired Operation

[15] DC Allison’s attention was first drawn to Mr. Brito’s vehicle when it was straddling the line between the two northbound lanes on Jane. He testified that the car then swerved to the far-right side of the lane, then corrected again. The car stopped for a light at Highway 7, and the officer pulled his marked vehicle right along the driver’s side and looked over at the driver. After the light turned green, the officer pulled back into the lane behind Mr. Brito’s car. He signalled for the car to stop. Mr. Brito put his turn indicator on but didn’t stop. His car swerved at one point toward the middle of the road. It slowed but drove along not stopping on the available shoulder before moving to the right then swerving away from a curb. It came to a stop in the middle of a right turn lane.

[16] DC Allison spoke with the driver Mr. Brito and observed that his speech was slurred, his eyes were bloodshot and watery almost as if he’d been crying. He asked Mr. Brito for his license and he saw the accused reach around for his wallet when it was plainly visible in the console. Mr. Brito was asked to step out of the vehicle and walk to the front of the police car. Mr. Brito was unsteady on his feet and he staggered once to the right as he walked that short distance.

[17] DC Allison was sober and acting in a professional capacity when he made his observations. He recorded the details in contemporaneous notes and his vehicle was equipped with an in-car camera (ICC – Exhibit 2) which recorded the accused’s driving and his interaction with the officer at the roadside. DC Allison’s evidence is credible and reliable and I find is consistent with the objective external evidence of the ICC video.

[18] Mr. Brito was unable to perform the most basic of driving tasks – keeping his vehicle centered in a lane. He straddled the dividing line between two lanes, unable to perceive the distinct lane line on a major roadway, driving down the middle of the road until he suddenly corrected. He overcorrected and swerved to the right, ending up on the far-right side at the edge of the road, again failing to centre within the lane. Driving errors, including a delayed response to the police lights, continued to the point of the stop.

[19] While Mr. Brito was able to perform some driving functions such as stopping at the Highway 7 intersection, the driving evidence overall shows significant impairment in perception, judgment, reaction and ability to control his vehicle.

[20] Not only could Mr. Brito not drive in a straight manner, he was unable to walk in a straight manner. There was a slur to his speech. While he did not fall or collapse, he displayed several physical and mental signs of intoxication.

[21] There is no evidence of any external cause. The ICC shows the road was dry and the officer had no problem maintaining a true course on the same road. The officer’s observations and the ICC video shows that the accused’s mental and physical impairment is reasonably attributable only to alcohol consumption.

Conclusion

[22] The arresting officer had reasonable grounds for the arrest and the breath demand. There’s no evidence of a s 8 or s 9 Charter breach. The applicant has not proved the s 10(b) breach alleged.

[23] Section 320.14 prohibits operation of a motor vehicle where the driver’s ability to operate the vehicle is impaired “to any degree” by alcohol. That test does not mean that slight evidence will necessarily prove impairment – R v Andrews, 1996 ABCA 23 , [1996] AJ No 8, leave refused [1996] SCCA No 115. The burden is on the Crown to prove impairment “to any degree” beyond a reasonable doubt.

[24] Considering the evidence as a whole, I find that the Crown has proved that the accused’s ability to operate his vehicle was impaired by alcohol consumption as alleged. I can find no credible evidence or circumstance which reasonably could leave a doubt in that regard.

[25] There will be findings of guilt on both counts. The parties may make submissions as to which count should be stayed pursuant to R v Kienapple , [1974] SCJ No 76.

Delivered: 11 June, 2021. Justice Joseph F. Kenkel