Ontario Court of Justice
Date: 2021 10 01 Court File No.: 19-15004735 Toronto Region – Old City Hall
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
JOAO DASILVA MORIM
Before: Justice H. Pringle
Heard on: March 31, 2021; July 28, 2021; August 19, 2021 Oral Reasons for Judgment released on: September 29, 2021 Written Reasons for Judgment released on: October 1, 2021
Counsel: H. Lamourie, counsel for the Crown P. Patterson, counsel for the defendant
PRINGLE J.:
Overview
[1] On July 6, 2019, police found Mr. DaSilva Morim sleeping in the driver’s seat of a parked van and arrested him. Two samples of his breath were subsequently seized. The truncated blood alcohol content results were 130 mg in 100 ml of blood and 120 mg in 100 ml of blood.
[2] The defendant was charged with two Criminal Code offences: operation of a motor vehicle while impaired, and having a blood alcohol content (BAC) over 80 mg in 100 ml of blood within two hours of vehicle operation.
[3] At trial, there were three contested issues:
(i) was s. 8 of the Charter violated by the absence of reasonable grounds for the defendant’s arrest?
(ii) did police breach s. 10(b) of the Charter by failing to provide the defendant with a Prosper warning?
(iii) did the Crown discharge the burden of proof, on both counts, beyond reasonable doubt?
Evidentiary Summary
[4] Mr. DaSilva Morim attracted the attention of police because he was sleeping, slumped behind the wheel of a parked van, on the platform of a fire station. It was close to 4 a.m. A firefighter unsuccessfully tried to communicate with the defendant, who mumbled and then fell back asleep. The firefighter smelled alcohol. He took the vehicle keys, which had been sitting on the passenger seat of the van, and called police.
[5] Two police officers responded and investigated. PC Khatkevich found the defendant soundly asleep in the driver’s seat, with his leg resting outside an open window. The officer called out a few times. The defendant failed to wake. The officer detected the smell of alcohol from inside the car. PC Khatkevich squeezed the defendant’s shoulder muscle a few times.
[6] Mr. DaSilva Morim then awoke and the two spoke. During that conversation, PC Khatkevich observed some indicia of impairment. Based on those observations, the officer formed grounds to arrest Mr. DaSilva for impaired operation and did so. He then provided information about the right to speak with counsel.
[7] By the time he was being transported to the station in a police car, the defendant had clearly invoked that right and had a counsel of choice in mind. At the police station, when read his rights to counsel again, the defendant asked to call the 1-800 legal aid number. Moments later, he told the booker the full name of his counsel of choice and that counsel’s number might be in his cell phone.
[8] Either way, the defendant was still invoking his right to speak with counsel. While he appeared confused about other issues, such as how a person can be arrested for impaired operation when they were not driving a vehicle, he expressed no confusion about his s. 10(b) Charter right to retain and instruct counsel.
[9] At the end of the booking process, the booking officer told the defendant he would have reasonable use of the phone and would next be put into a room. What Mr. DaSilva Morim said next showed a clear change of mind about speaking with counsel:
Booker: We are gonna make a phone call for you, who are we calling? Anybody? Defendant: Don’t call anyone. Booker: You don’t want to call your lawyer – Defendant: (talking over booker) don’t call anyone Booker: you mentioned you wanted to talk to a lawyer… Defendant: I don’t want to call anyone Booker: you don’t want to call a lawyer? Defendant: No. Booker: Okay, if that changes at any time, let us know. Defendant Okay.
[10] When the defendant was taken to the breath room, the breath technician, Cst. Baus, similarly raised the defendant’s right to speak with counsel. He did this before starting the testing process. The pace of this conversation was slower than that with the booker. At no point did the defendant communicate any confusion. The two said:
Breath technician: Normally when someone is arrested they can speak to duty counsel it’s a free legal [ sic ] lawyer… Defendant (nods) Breath technician: or if you have your own lawyer, we can call them… Defendant: yes. Breath technician: … for you. And I understand from the officer you don’t need to talk to a lawyer right now. If that changes if anything happens at any point and you are like you know what, I think I should talk to a lawyer then just put your hand up or say hey stop hang on a second I want some legal advice. Defendant: (nods) Breath technician: Okay. So long as you understand that.
[11] The breath technician testified that he knew the defendant had not spoken with counsel. Accordingly, he wanted to reiterate that right and tell Mr. DaSilva Morim that if he changed his mind, the process could be stopped so he could speak with counsel. But the defendant, at no point, told the officer he wanted to speak with counsel. Accordingly, the breath samples were seized.
Evidentiary Findings and Framework of Issues
[12] At trial, the Charter evidence was blended with testimony of the trial proper. Aspects of the evidentiary record, such as hearsay information and utterances upon detention, were admissible solely to assess grounds for arrest. The Crown called the arresting officer, PC Khatkevich, and the breath technician, Cst. Baus. The defence elected to call no evidence on either voir dire or trial proper.
[13] Credibility and reliability were not seriously contested, although parts of PC Khatkevich’s testimony were mildly problematic. One example was his description of the van being parked slightly on the driveway, in a manner that would interfere with emergency vehicles entering and exiting. The ICC video, meanwhile, showed a large fire truck successfully backing into the fire station lot without any problems whatsoever.
[14] PC Khatkevich also appeared to have little independent recall of events not reduced to writing in his notes. That said, his testimony on material aspects was frequently corroborated by the scout car audio/video and the booking video. For example, the timeframe of waking the defendant up was quite short, but the video confirmed that during that short timeframe, the officer was able to call out to the defendant a number of times. I did accept PC Khatkevich’s evidence about his observations which prefaced arrest.
[15] I should add that, respectfully, I disagreed that testimony about the defendant’s red eyes should be rejected as improbable. There was no evidence that the defendant turned away from PC Khatkevich and towards his escort’s flashlight at any time. Further, there were obviously moments when the defendant must have been facing PC Khatkevich. For example, the defendant handed PC Khatkevich his trade certificate. That would have enabled PC Khatkevich to see the defendant’s eyes, especially since his escort’s flashlight would have generally illuminated the vehicle’s interior.
[16] On the impaired count, because the defendant was found in the driver’s seat, the presumption of operation in s. 320.25 applied and went unchallenged. However, the question of proving impairment beyond a reasonable doubt remained a contested issue.
[17] The Charter applications were determinative of the count of Over 80 BAC. If the breath certificates were admitted, this count was conceded proven to the requisite standard.
Were there reasonable grounds to arrest for impaired?
[18] The defendant submitted that the arresting officer lacked objectively reasonable grounds for his arrest. The onus of establishing the existence of reasonable grounds rests upon the Crown: R. v. Haas (2005), 2005 ONCA 26440, 76 O.R. (3d) 737 (C.A.), leave ref’d [2005] S.C.C.A. No. 423.
[19] The applicable test is subjective and objective. The officer must have honestly believed the person committed an impaired driving-related offence. That belief, moreover, must be supported by objectively reasonable grounds: R. v. Wang, 2010 ONCA 435, at para. 14, R. v. Bernshaw, [1995] 1 S.C.R. 254, 1995 SCC 150, at para. 48.
[20] The latter aspect means, as per R. v. Wang, supra, at para. 17:
….where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not be established. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the officer’s subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see R. v. Stellato [cite omitted].
[21] Put otherwise by the Court of Appeal, in R. v. Bush, 2010 ONCA 554, at para. 37, “Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds.” At para. 46, the Court added “It (this standard) must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom”.
[22] The officer, and thus the reviewing court, is permitted to rely on hearsay in this assessment. Further, the presence of multiple explanations for factors the officer relied upon does not “eliminate the indicia or render them unreliable”: Bush, supra, at para. 58.
[23] In the case at bar, and despite Mr. Patterson’s able submissions, I concluded there were objectively reasonable grounds for his client’s arrest. The following factors, when considered as a constellation, reasonably justified the officer’s subjective belief that he had grounds to arrest:
- The defendant was sound asleep on the platform of a downtown fire station;
- The location where he fell asleep was not a logical place to take a nap and evidenced poor decision-making;
- The defendant had no legitimate reason to be sleeping on the premises of that fire station, given the firefighters’ call for police investigation;
- The vehicle was parked close to the driveway where it could, potentially, make the coming and going of emergency vehicles more difficult;
- The defendant was sleeping in the driver’s seat;
- The arresting officer was told a firefighter found the vehicle keys on the passenger seat;
- The defendant was alone in the van, leading to a fair inference that he had driven there;
- The defendant did not initially respond to the officer repeatedly calling out to him to wake up;
- The defendant did not initially respond to the officer squeezing his shoulder muscle;
- The smell of alcohol which the officer initially detected as coming from inside the car;
- The smell of alcohol coming from the defendant himself, which the officer detected once he awoke and started talking;
- The defendant’s red, bloodshot eyes;
- The initial denial of alcohol consumption followed by an admission of “not too much” alcohol being consumed;
- The provision of a trade certificate in lieu of his driver’s licence, and;
- The defendant’s confirmation, when asked, that the trade certificate was indeed his driver’s licence.
[24] Each of these factors, picked apart in isolation, may reasonably be explained by other causes such as extreme fatigue, or mistaking the premises for a public parking lot, or confusion after waking up from a deep sleep. They can also be reasonably explained by impairment.
[25] The officer was not required to reduce his observations down to one single available inference before he could lawfully make an arrest. The absence of some of the ‘typical’ indicia, such as slurred speech, did not render his belief unreasonable either.
[26] In this case, “a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest”: R. v. Bush, supra, at para. 38. There were objectively reasonable grounds for the defendant’s arrest and the s. 8 Charter application must therefore be dismissed.
Were police required to provide a Prosper warning?
[27] The defence submitted the defendant’s s. 10(b) constitutional right was breached because police failed to provide him with a Prosper warning. More specifically, because the defendant invoked his right to counsel and then changed his mind, the requirement for a Prosper warning was triggered. Police should have advised the defendant, as part of ensuring a fully informed waiver, that they were required to stop obtaining evidence from him until he spoke with counsel, if he indeed wished to do so.
[28] Both parties agreed the burden to prove an informed and unequivocal waiver rested on the Crown. The Crown submitted that the defendant unequivocally, clearly, waived his right to speak to counsel during booking. When he changed his mind, he knew what he was giving up, and he expressed no confusion or uncertainty.
[29] Further, the Crown argued the law requires Prosper warnings only apply to limited factual circumstances. Those circumstances, a change of mind prefaced by diligent but unsuccessful attempts to speak with counsel, were not present here. In the alternative, the Crown submitted, if a Prosper warning was required, the defendant received the equivalent of one from the breath technician.
[30] The defence argued the defendant was scared, vulnerable, and was rushed through the provision of his constitutional right to counsel. In all of these circumstances, including the absence of a Prosper warning, the Crown failed to prove his change of mind about contacting counsel was a valid waiver of that Charter right.
[31] Moreover, Mr. Patterson compellingly observed that Prosper applied to the factual circumstance where a detainee was allowed to search a phone book, himself, for lawyers that he could personally call. Limiting the application of a Prosper warning to the “duly diligent but unsuccessful” circumstance would exact inequity in Ontario, where police control every single aspect of a detainee’s access to counsel.
[32] While I have considered all of the evidence, the events most pertinent to this issue occurred during the booking process and in the booking room. By the time he reached the booking desk, the defendant had indisputably invoked his right to speak with counsel. His conversation with the booker about counsel was somewhat rushed, but, to be fair, the defendant often answered questions before the booker finished asking them.
[33] Still, it was clear Mr. DaSilva Morim changed his mind about contacting counsel at this point:
Booker: We are gonna make a phone call for you, who are we calling? Anybody? Defendant: Don’t call anyone. Booker: You don’t want to call your lawyer – Defendant: (talking over booker) don’t call anyone Booker: you mentioned you wanted to talk to a lawyer… Defendant: I don’t want to call anyone Booker: you don’t want to call a lawyer? Defendant: No. Booker: Okay, if that changes at any time, let us know. Defendant Okay.
[34] In the breath room, the defendant was clearly following what the breath technician was telling him. He communicated no confusion, and both nodded and substantively responded at times. The pace was slower and the breath technician’s manner calm. What occurred in the breath room was, I found, the equivalent of a Prosper warning:
Breath technician: Normally when someone is arrested they can speak to duty counsel it’s a free legal [ sic ] lawyer… Defendant (nods) Breath technician: …or if you have your own lawyer, we can call them… Defendant: Yes. Breath technician: … for you. And I understand from the officer you don’t need to talk to a lawyer right now. If that changes if anything happens at any point and you are like you know what, I think I should talk to a lawyer then just put your hand up or say hey stop hang on a second I want some legal advice. Defendant: (nods) Breath technician: Okay. So long as you understand that.
[35] This exchange took place before the seizure of any breath samples. Again, at no point before or during the breath sample process did the defendant say he wanted to speak with counsel.
[36] The resolution of this issue is entirely controlled by the summary conviction appeal decision of R. v. Lobo, 2015 ONSC 6673. In that case, the appellant invoked her right to speak with counsel and then quickly waived it. This waiver, the trial judge found, was informed and unequivocal. On appeal, MacDonnell J. held at paras. 12 and 13 that the requirements of a Prosper warning were functionally met:
In R. v. Prosper, [1994] 3 S.C.R. 236, 1994 SCC 65, Chief Justice Lamer cautioned that where a detainee has asserted his or her right to counsel, has been diligent in exercising it, but has been unable to speak to a lawyer because duty counsel is unavailable, courts must ensure that the right to counsel is not too easily waived. In those circumstances, he held, "the police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up".
The obligations imposed by Prosper are not to be interpreted in a mechanistic or artificial fashion: R. v. Smith and Stacey (1999), 1999 ONCA 3713, 134 C.C.C. (3d) 453, at para. 26 (Ont. C.A.). When the appellant told Norman that she no longer wished to speak to counsel, he made it clear to her that the breath testing process could wait until she had the opportunity to speak to duty counsel. Subsequently, when duty counsel did call, while the appellant was walking to the breath room, Norman told her that she could speak to duty counsel "right now". While he did not say explicitly that the police were under an obligation to delay the taking of breath samples, it was manifest that they would do so if she wished to exercise her right to counsel. That is, it was implicit in what Norman said that her right to speak to duty counsel would take precedence over the breath testing process. That is substantially what Prosper required the police to convey to the appellant. In my opinion, the requirements of Prosper were met in this case.
[37] I found no factual or legal basis to distinguish Lobo. In my view, the breath technician made clear that, as in Lobo, “the breath testing process could wait” if the defendant decided to get legal advice. He communicated this message before any breath samples were taken. He made it clear that it applied “at any point” in the process.
[38] What Prosper requires, whenever it is required, is that a detainee understands the evidence-gathering process will stop if he wants to exercise the right to counsel. This was the functional equivalent of a Prosper warning and, if one were indeed legally required, I find the defendant received it.
[39] But I must go one step further here. Appellate law binds me to conclude that a Prosper warning is only required in the limited circumstances described in R. v. Kamal, 2020 ONCA 213. While I appreciate Kamal was an appeal endorsement, and that endorsements are generally intended to apply to the specifics of their case, they still retain precedential value and the language of the Court was quite clear that:
In our view, as this court held in R. v. Fountain, [ cite omitted ], at para. 27 a Prosper warning is needed only if ‘a detainee has asserted the right [to counsel] and then apparently change[s] his mind’ after reasonable efforts to contact counsel have been frustrated…
[ emphasis added ]
[40] In an earlier case, R. v. Dolbear, 2019 ONCJ 286, I found a Prosper warning was required where the defendant expressed great confusion about how to implement her wish to speak to counsel and then changed her mind about doing so. Restricting the application of Prosper to cases of the ‘duly diligent but failed’ detainee, even when police had not given the detainee the chance to be duly diligent was, I thought, inconsistent with an expansive, purposive approach to interpreting 10b rights. Further, the language in Prosper was unclear, in my view, about what precisely triggered the requirement for a Prosper warning.
[41] I have re-visited these conclusions through the lens of R. v. Surhoff, 2016 ONSC 2244, a summary conviction appeal decision brought to my attention by Ms. Lamourie. In Surhoff, Code J. squarely addresses the issue I struggled with in Dolbear, and resolved it at paras. 60 throughout 66. While I had a different interpretation of the cases he used to resolve this question, at paras. 62-63 his resolution squarely considered the inconsistency that troubled me about Prosper’s application. I am bound by Justice Code’s thorough analysis and apply it in the case at bar.
[42] Mr. DaSilva Morim made no attempts to contact counsel. The booking officer clearly intended to try and facilitate the defendant’s wish to speak to counsel. Before that could happen, the defendant changed his mind of his own volition and without interference, suggestion, or confusion. He did not fall into the category of a detainee who had been duly diligent but unsuccessful in contacting counsel. The facts of the defendant’s case therefore did not trigger the need for a Prosper warning to be given at all.
[43] When I look at all the evidence, the Crown has clearly proven the defendant’s waiver of the right to speak to counsel was informed, voluntary, and unequivocal. The defendant’s s. 10(b) application must therefore be dismissed. Mr. Patterson properly conceded that if the breath samples were admitted into evidence, the defendant must be found guilty of the offence of having over 80 mg of alcohol in 100 ml of blood within two hours of being in care and control of a motor vehicle.
[44] I am acquitting the defendant, however, of operating a motor vehicle while impaired by alcohol or drug. The defendant was found in the driver’s seat and the statutory presumption of vehicle operation applies. However, Mr. Patterson persuasively argued that impairment had not proven to the requisite standard. Here he succeeds.
[45] While the level of impairment can fall on a scale of slight to great, the burden of proving impairment still rests on the Crown to the standard of beyond reasonable doubt. As per Bush, supra, at para. 47, “[s]light impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47”.
[46] I have a reasonable doubt here, when I considered the admissible evidence as a whole. There are reasonable alternate explanations for some of the defendant’s physical indicia at the roadside. It was late. He had just awoken, which prompts a state of confusion in most. He may have stumbled a bit, getting out of the van, because he had been sleeping in a vehicle with his leg sticking out of the window.
[47] My observations of his behaviour while on video at the police station revealed no unusual physical behaviours. Where the video contents differed with the description of officers, I could discern no stumbling, or slurring, or aberrant behaviour or physicality. The defendant has an accent, which the arresting officer may have taken for slurred speech. I have no evidence of driving whatsoever, which of course is not singularly determinative but remains a factor I may take into account.
[48] Proof of impairment is, of course, not confined to assessing a person’s physical motor skills. Judgment and decision-making also play a role. Here, the defendant made the bizarre choice to take a nap in the lot of a fire station. But I was in a state of doubt about how that came about.
[49] I do not know what the fire station looked like, given the scout car video camera was not pointed in any useful direction. It is possible the defendant was unfamiliar with the area, and in the dark mistook the fire station for a closed place of business or a public parking lot.
[50] The blood alcohol levels were not so high that impairment was an irresistible conclusion. I had no expert evidence of the impact, if any, of these BAC levels on a person’s ability to operate a motor vehicle.
[51] When I consider the evidence, and the absence of evidence, all together in combination, a reasonable doubt was raised in my mind on the essential element of impairment. Therefore, the defendant must be acquitted on the impaired operation count.
Released: October 1, 2021 Signed: Justice H. Pringle