Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 08 22 COURT FILE No.: Scarborough 20 3500 1887 00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RENATA MIGDALSKI

Before: Justice R. Wright

Heard on: July 5, 6, and 7, 2022 Reasons for Judgment released on: August 22, 2022

Counsel: Kevin Pitt, counsel for the Crown Yaroslav Obouhov, counsel for the defendant Renata Migdalski

Reasons for Judgment

R. WRIGHT J.:

[1] Renata Migdalski stands charged with one count of impaired operation of a conveyance and one count of operating a conveyance within two hours of having a blood alcohol concentration of 80 milligrams of alcohol in 100 milliliters of blood or higher. A trial was held in which, by the end of the trial, the parties had narrowed the issues to two:

(1) whether Ms. Migdalski's right to counsel as guaranteed by section 10(b) of the Charter of Rights and Freedoms (“Charter”) was violated by the police and, if so, whether excluding the breath test results is the appropriate remedy; and,

(2) whether the Crown has proven that she was impaired by alcohol beyond a reasonable doubt when she operated her conveyance.

[2] I will deal first with the Charter issue and second with the count of impaired operation of a conveyance.

Undisputed Facts

[3] On May 7, 2020, police received a call reporting a motor vehicle collision near 76 Clappison Road, Toronto. PC Zsophie Balazs was the first officer on scene, arriving at approximately 2:09 PM — less than 9 minutes after the collision. When she arrived, she located a blue Honda in the middle of the road. The vehicle had front end damage to the front passenger side and was resting against a second parked motor vehicle. There was a female leaning against the passenger side of the blue Honda.

[4] The female (and driver of the motor vehicle) was the accused, Renata Migdalski. PC Balazs asked her if she required an ambulance, and then began investigating the collision. When she asked for the driver’s documentation, Ms. Migdalski walked around the front of the car and got in the driver’s seat where she rummaged around for a bit and then produced the vehicle permit and insurance, but not her driver’s license.

[5] By 2:12 PM a second police cruiser had arrived, this one containing PCs Brian Miller and Brendan McGhee. PC McGhee was a new officer, out on his second shift. PC Miller was acting as his coach officer.

[6] PC Miller had had previous involvement with Ms. Migdalski. He approached the driver-side door and began questioning her about her sobriety. He very shortly formed grounds to believe she had operated the vehicle in the preceding minutes while impaired by alcohol or by alcohol and drug (based on statements made about her medication), and at 2:15 PM he told her he was placing her under arrest for impaired operation.

[7] Ms. Migdalski refused to get out of the vehicle. After several demands, PCs Miller and McGhee forcibly removed her. PC Balazs performed a quick pat down search, and they placed Ms. Migdalski in the backseat of their cruiser.

[8] PC McGhee, under the instruction of the senior officers, read her rights to counsel. Ms. Migdalski did not reply when asked if she understood. When asked if she wanted to speak to a lawyer she said “yes.” PC McGhee provided the standard police caution. He then read the demand for samples of her breath into an approved instrument. Ms. Migdalski replied that he should “go away.”

[9] Ms. Migdalski was transported to 41 Division. She was booked into the station at 3:08 PM. Her right to counsel was explained again during the booking procedure. PC McGhee called duty counsel at 3:30 PM and at 3:40 PM Ms. Migdalski was placed in a private booth to speak to duty counsel. At 3:49 PM, Ms. Migdalski had hung up on that call and was attempting to place an outgoing call from the booth, which was unsuccessful. She provided her first breath sample at 4:08 PM.

[10] She provided a second sample at 4:35 PM. A third sample was required. Prior to taking that sample, the qualified breath technician PC Eric Poge asked if she wanted to speak to duty counsel again. She declined. A third breath sample was provided at 5:22 PM.

[11] A certificate of qualified technician was tendered into evidence. Two suitable samples were received from Ms. Migdalski into an approved instrument more than 15 minutes apart and within 20 mgs of each other (truncated), with the appropriate air blank and calibration test results: one at 4:35 PM truncated to 180 milligrams of alcohol in 100 milliliters of blood and one at 5:22 PM truncated to 160 milligrams of alcohol in 100 milliliters of blood.

[12] She was released from the station at 7:28 PM.

The Right to Counsel Issue

Positions of the Parties

[13] Ms. Migdalski submits that the police violated her ability to adequately exercise her rights to counsel by steering her to duty counsel and by not holding off on further investigation until after attempting to contact a third party, Ms. Migdalski's brother, to assist in locating counsel of choice. She submits that the breaches were serious and negatively affected her Charter-protected interests. She submits that excluding the breath test results is the appropriate remedy.

[14] The Crown submits that Ms. Migdalski has failed to establish that it is more likely than not that her right to counsel was violated. In the alternative, the Crown argues that even if Ms. Migdalski's right to counsel was breached, the breath test results should not be excluded from evidence.

The Evidence on the Issue of Right to Counsel

PC Miller/Video

[15] PC Miller testified that he placed Ms. Migdalski under arrest at 2:15 PM. Several demands were made for her to exit the vehicle. She did not comply. He and PC McGhee took physical control of her by each taking an arm and physically removed her from the vehicle. After they had removed her from the vehicle her body went completely limp. She fell forward, but because they had her arms they were able to prevent her from striking the pavement. They stood her back up and she took some time to regain her balance. She was handcuffed to the rear. There was a quick pat-down/safety search. She was then placed in the back of the police cruiser so she could be given her rights, cautioned, an approved instrument demand could be made, and she could be transported to a breath technician.

[16] PC Miller was training PC McGhee and had him read the rights, caution and demand. All of the interaction between police and Ms. Migdalski once she was placed in the rear of the scout car was captured on audio and video from the in-car camera from PC Miller’s scout car. As of 2:17 PM she was in the rear of the car. PC McGhee can be heard reading her the standard rights to counsel from his memo-book. During the reading of the rights to counsel she is heard to be interrupting PC McGhee and asking him to close the door and indicating that she wants to go home. When asked “do you understand” her first response was “I want to go home.” When asked again “do you understand” she did not respond. PC McGee then asked, “do you want to call a lawyer” and her response was “yes.” She was then given the standard police caution. Shortly after 2:19 PM she was read the approved instrument demand. She was asked “do you understand” and responded, “go away.”

[17] While in the back of the cruiser, before police leave for the detachment, Ms. Migdalski can be heard on the in-car camera to ask several times for a phone call. She was told that a phone call would be facilitated when they were able to provide a place of privacy. She responded, “what, shut the fuck up” and then asked to be un-cuffed. She then began to repeatedly ask to be taken home for her medication prior to going to the detachment, where they are going, how long they will be there, and how she will get home after they are done. Part way through the drive to the station she began to complain that the police threw her on the ground during the arrest.

[18] Ms. Migdalski was booked starting at 3:08 PM. The booking was audio/video recorded, and that recording was entered into evidence. During the booking, her right to counsel was reiterated. She was told if she didn’t have a lawyer that she could have duty counsel for free legal advice. In the middle of the process, she said she needed to make a call and was told that reasonable access to the phone would be provided. Toward the end of the booking process, she was told that the officers would call duty counsel or a legal representative for her and PC Miller asked her if she had a lawyer. She said yes. DC Miller asked “who?” She responded, “I don’t remember.” She was told that if she remembered they would make that phone call, and if not, they would call duty counsel to make sure she speaks to a lawyer. She asked how long she would be there and was told it could be a couple of hours. She asked if she could make a phone call and was told she could have reasonable use of the phone. She then asked if she could call someone to pick her up and was told to focus on legal representation first. She can be heard to say that “everything is closed” (likely meaning due to the COVID-19 pandemic).

[19] During the booking video, she complained that the officers holding her were hurting her. She also complained that she had been thrown to the ground during the arrest and that her lawyer would contact police as a result of any injuries she suffered.

[20] PC Miller testified that Ms. Migdalski didn’t provide the name or number of a lawyer. She told him that her brother could be called for the number, but then told him that her brother wouldn’t have that information, so she agreed to speak to duty counsel. PC McGhee was tasked with fulfilling the implementation of her right to counsel and called duty counsel at 3:30 PM. Duty counsel called back and at 3:40 PM Ms. Migdalski was placed into contact with duty counsel.

[21] In cross-examination it was suggested to PC Miller that Ms. Migdalski did not want to speak to duty counsel, that she wanted her own lawyer. He agreed that she did say that, but she couldn't come up with a name or a number; his evidence was that if she had a name, he would have looked it up and made inquires to see if that person was a lawyer who could give counsel advice.

[22] PC Miller placed a call to Ms. Migdalski’s brother at approximately 4:13 PM (which was after she had provided her first breath sample). He left a voicemail. PC Miller was not asked to explain why he had called Ms. Migdalski’s brother at this time.

[23] PC Miller also facilitated a second call to duty counsel when it was determined that Ms. Migdalski would have to provide a third sample of breath. He called at 4:42 PM because after the second sample she indicated (when asked by the breath technician) that she wanted to speak to counsel again. He was not notified when duty counsel had called back so he made a further call at 5:04 PM and duty counsel returned the call to speak to Ms. Migdalski at 5:14 PM, but once he was able to have the phone call transferred, Ms. Migdalski declined to speak to duty counsel.

[24] PC Miller testified that Ms. Migdalski never complained about duty counsel or asked to speak to a different/non-duty counsel lawyer after speaking with duty counsel.

[25] PC Miller testified to difficulty communicating with Ms. Migdalski over the course of the arrest, booking, and her time at the station, until the time of release when she was much more cognizant and able to actively communicate. PC Miller believed that it was impairment that was causing Ms. Migdalski to have difficulty following the conversation and remaining focused. The in-car and booking videos show many conversations with Ms. Migdalski during which her comments are not particularly responsive to the questions or demands of the police.

PC McGhee

[26] PC McGhee testified that he read Ms. Migdalski her rights to counsel in the rear of the scout car. There was no response to “do you understand” but when he asked if she wanted to call a lawyer she said “yes.” He read the caution, to which she did not respond. He read the breath demand and she told him to “go away.”

[27] He initially testified that PC Miller had made the first call to duty counsel. After being directed to his notes, PC McGhee’s memory was refreshed, and he recalled he had called duty counsel. He placed Ms. Migdalski in the private booth to speak to duty counsel at 3:40 PM. At 3:49 PM she was off the phone with duty counsel.

[28] In cross-examination, PC McGhee agreed that Ms. Migdalski had provided the number for her brother to PC Miller at 3:30 PM. According to his note, he called duty counsel at 3:34 PM. At 3:49 he had a second note, that Ms. Migdalski had attempted to dial out from the phone after speaking to duty counsel, but the phone does not allow that. She did not tell him who she was trying to call, nor did he ask. PC McGhee testified that Ms. Migdalski never complained of duty counsel or asked to speak to a different/non-duty counsel lawyer after speaking to duty counsel.

Qualified Breath Technician, Police Constable Eric Poge

[29] PC Poge testified that he was the qualified breath technician who took samples from Ms. Migdalski. He testified that it was his common practice to offer a further call to counsel when a third sample of breath has to be taken—this is because detainees are told that they have to provide two samples, and when he makes them provide a third, he doesn’t want confusion.

[30] He believed he had raised the issue in order to ease her mind – he suggested she could speak to duty counsel again, and she initially accepted. However, when she came in for the third sample, Ms. Migdalski indicated she had already spoken to duty counsel one time, “what is the point of speaking to them again?” She then indicated what she wanted was pictures of her hand from when police had dragged her out of the car.

Ms. Migdalski

[31] Renata Migdalski testified on the Charter application. She said she had wanted to speak to a lawyer who was a friend of her brother’s. She wanted her own lawyer, “a lawyer she could trust.” She was placed on the phone with duty counsel and did speak to duty counsel.

[32] She did not remember telling the officers that her brother wouldn’t have the information for a lawyer but agreed that it was possible.

[33] When it was suggested to her that she hadn’t told the officers she was dissatisfied with duty counsel, she said she “was dissatisfied” and that she tried to call her brother from the phone. When challenged again that she had not told the officers this, she said she kept on asking for a lawyer, not duty counsel. She believed that they called her brother because she had complained that she wanted a different lawyer. According to Ms. Migdalski, there had been another conversation with the police constables about this. When challenged that she told the officers her brother wouldn’t have the information for a lawyer she said that he would have been able to get it. She agreed it was possible she had told the officers that he wouldn’t have the contact info.

[34] Ms. Migdalski did not testify that she suffered any harm or prejudice in speaking to duty counsel rather than her own lawyer. She acknowledged her memory was not as good two years later at the time of testimony and that there were things she could not remember clearly.

Legal Principles

[35] This issue involves a consideration of the scope of the duty of police to provide a detainee with a reasonable opportunity to access a third party to provide contact to a lawyer where the detainee has expressed a wish to get legal advice and where the police control the means of access to counsel.

[36] I rely on the following principles set out by binding appellate courts in addressing the duties of the police for implementing a detainee's right to counsel:

(1) Where the police assist the detainee or control the means of exercising her rights to counsel, the police must be reasonably diligent, which is the same standard to which the detainee is held if implementing her rights on her own: R. v. Wilding, 2007 ONCA 853, [2007] O.J. No. 4776 (C.A.); R. v. Vernon, 2015 ONSC 3943, [2015] O.J. No. 4157 (S.C.J.), leave to appeal refused 2016 ONCA 211; R. v. O'Shea, [2019] O.J. No. 1178 (S.C.J.).

(2) While police must be reasonably diligent in assisting the detainee in exercising her rights to counsel, they are not required to exhaust all reasonable means for the detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288, [2010] O.J. No. 952 (S.C.J.) paras. 46 - 67; R. v. Sharma, [2004] O.J. No. 2991 (S.C.J.).

(3) Having consideration for the circumstances of each case, the test is not whether the police could or should have done more, but whether police provided the detainee with the necessary information and assistance to allow her to exercise her rights: R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.) at para. 24; R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.) at paras. 23 - 24, and 29; R. v. Antoninas, 2014 ONSC 4220, [2014] O.J. No. 5226 (S.C.J.) at para. 93; and R. v. Vernon, 2015 ONSC 3943, [2015] O.J. No. 4157 (S.C.J.).

(4) The detainee is required to be reasonably diligent in the pursuit of her rights: R. v. Leclair and Ross (1989), 46 C.C.C. (3d) 129 (S.C.C.) at p. 135; R. v. Littleford, [2001] O.J. No. 2437 (C.A.); R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Clarke, [2005] O.J. No. 1825 (C.A.) at paras. 31-33; R. v. Van Binnendyk, [2007] O.J. No. 2899 (C.A.).

(5) Where a detainee wants to call a specific lawyer or a third party to access counsel, she has a duty to tell the police who she wants to call and why: R. v. Williams, [2014] O.J. No. 2559 (C.A.) at para. 39; R. v. Johnston (2004), 2004 BCCA 148, 183 C.C.C. (3d) 157 (B.C.C.A.); R. v. Antoninas, 2014 ONSC 4220, [2014] O.J. No. 5226 (S.C.J.); R. v. Cheema, 2018 ONSC 229, [2018] O.J. No. 121 (S.C.J.) at para. 31; R. v. Mumtaz, [2019] O.J. No. 229 (S.C.J.) at paras. 25 - 28.

(6) Unless the detainee expresses to the police dissatisfaction with the legal advice received, she is not entitled to Charter relief: R. v. Neziol, [2001] O.J. No. 4372 (S.C.J.); R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.); R. v. Cairns, [2004] O.J. No. 210 (C.A.); R. v. Burley (2004), 181 C.C.C. (3d) 463 (Ont. C.A.); R. v. Clarke, [2005] O.J. No. 1825 (C.A.) at paras. 31-33; R. v. Traicheff, [2008] O.J. No. 4361 (S.C.J.), aff'd [2010] O.J. No. 5355 (C.A.); R. v. Shoker, [2016] O.J. No. 4563 (S.C.J).

[37] In the summary conviction appeal decision R. v. Ferose, 2019 ONSC 1052, [2019] O.J. No. 845 (S.C.J.) at para. 73, Woodley J. provided a helpful digest on this issue:

In accordance with the reasoning of the Court of Appeal for Ontario in R. v. Richfield, 178 C.C.C. (3d) 23 (Ont. C.A.), R. v. Littleford, 86 C.R.R. (2d) 148 (Ont. C.A.), and the decisions of Charney J. in R. v. Hudson, 2016 ONSC 5582, Fragomeni J. in R. v. Zoghaib, 69 W.C.B. (2d) 166, affirmed [2006] O.J. No. 1023 (Ont. C.A.) and Durno J. in R. v. Antoninas, 2014 ONSC 4220, 323 C.R.R. (2d) 1, where a detainee:

(a) does not request specific counsel and/or such specific counsel is unavailable;

(b) is afforded an opportunity to speak to specific counsel and/or duty counsel (if specific counsel not requested and/or not available) in a private setting;

(c) does not express any complaint or raise any issue as to the advice provided either after speaking to counsel or at any later date including the voir dire; and

(d) does not claim any harm/prejudice as a result of the advice provided,

it is unlikely that any breach of the detainee's s. 10(b) interests will be found, and if any such breach is found, the impact of such breach will be minimal.

[38] The burden of proof in establishing a breach of her s. 10(b) Charter rights rests with Ms. Migdalski on a balance of probabilities.

Application

[39] The legal principles that govern are not really in dispute between the parties. Ms. Migdalski submits that she complained to police and wanted to speak to her own counsel, facilitated through her brother. The Crown submits that she did not tell police this, that she told them her brother wouldn’t have the contact information, agreed to speak to duty counsel, that she did not complain to them after speaking to duty counsel or diligently assert a right to speak to her own lawyer. As such, this Charter application is determined by my factual findings.

[40] The booking video makes it clear that, at the station, Ms. Migdalski indicated that she wanted to contact a lawyer. She did not know a name or number. She also stated that she thought things would be closed.

[41] PC Miller testified that she asked to contact her brother, but then changed her mind and felt that her brother would not have contact information. After that she wanted duty counsel. PC Miller’s evidence on this point was not effectively challenged in cross-examination. PC Miller agreed that she had initially said she did not want to speak to duty counsel, but she didn’t know the name or number of a lawyer to call. He agreed that he did not call her brother to facilitate contact with a lawyer, but he explained that this was because she had said her brother would not have the contact information and had agreed to speak to duty counsel.

[42] PC McGhee testified that she was in the private booth with duty counsel from 3:40 to 3:49 PM. She never complained after the call about duty counsel or asked to speak to another lawyer.

[43] Police are required to allow reasonable access to counsel of choice through a third party. What the police are not required to do is to read the mind of a detainee. I accept the evidence of PC Miller on this point, that Ms. Migdalski changed her mind about contacting her brother and agreed to speak to duty counsel. This makes sense. It accords with the nature of her conversation as recorded on the in-car camera and booking videos, and in particular with the recorded conversation at the end of the booking when she expresses that she doesn’t think anything will be open. It accords with her acknowledgement that she may have said this to PC Miller, and her acknowledgement that her memory was not as good at the time of her testimony. PC Miller made a specific note of it. It makes sense that duty counsel was called because Ms. Migdalski had indicated she didn’t think her brother would have the number and that she wanted to speak to duty counsel.

[44] Police cannot be expected to read a detainee’s mind that that they are unsatisfied with the advice received. According to PCs Miller and McGhee, Ms. Migdalski did not complain after speaking to duty counsel or make further request for a lawyer. The defence asks me to accept Ms. Migdalski’s evidence that such a conversation did occur, and submits that PC Miller’s call at 4:13 PM to Ms. Migdalski’s brother tends to confirm that Ms. Migdalski had complained.

[45] Ms. Migdalski was cross-examined on this point. She said she was dissatisfied and that she tried to dial out to her brother from the private booth. She said she kept on asking for a lawyer, not duty counsel. She said she asked them to call her brother, but they called duty counsel, and that she believed she asked again for a lawyer and that is when they left the message for her brother.

[46] This stands in contrast to the evidence of PC Miller that she never complained about the advice she had received from duty counsel or asked for further counsel. It stands in contrast to the evidence of PC McGhee that she never complained about the advice she had received from duty counsel or asked for further counsel. It also stands in contrast to the breath room video where she was offered a further call to duty counsel and stated she had already spoken to them, why call them again, but did not in any way indicate dissatisfaction or ask for a different lawyer of choice. It also doesn’t make sense. The police here facilitated multiple calls to duty counsel. PC Miller did call her brother. There is nothing to suggest any lack of diligence or willingness to place multiple calls on the part of the police to facilitate access to counsel. I accept PC Miller’s evidence that if she had provided a name, he would have made efforts to facilitate contact with that person.

[47] Ms. Migdalski’s evidence that there was further conversation in which she expressed dissatisfaction with the advice she had received and reiterated a request to have her brother called for access to counsel is suspect. She acknowledged her memory of events that day was imperfect. She can be seen on the various videos to have less-than-perfect recall, at points even seeming to forget where she is in the middle of the transport. Given her acknowledged memory issues and her behaviour on the videos, and the inconsistency between her evidence and that of the police officers, I am not prepared to accept her evidence that this conversation occurred.

[48] Ms. Migdalski’s evidence two years later that she believes that she asked again for a lawyer is contrary to the totality of the rest of the evidence. I do not accept it. I do not agree that it is confirmed by the fact that PC Miller did place a call to her brother at 4:13 PM. This call was placed was after she had provided her first sample of breath. She had asked for phone calls a number of times during her interaction with police, including to secure a ride home and in relation to her medication. I am unable to infer on the record before me that the call to her brother was an attempt to get information to locate other counsel.

[49] I accept it is possible that in her mind she may have wanted to contact a different lawyer. But what was communicated to police was:

(1) That she didn't know the name of lawyer (2) That her brother may be able to assist (3) But that she didn't think her brother would have a number (4) That she was content to speak to duty counsel given those circumstances (5) She the spoke to duty counsel, in the private booth, for approximately nine minutes (6) At the end of that she attempted to place an outgoing call (7) She did not tell police who she had been trying to call or why (8) She did not complain to the police about counsel

[50] In my view, this is not a s. 10(b) breach. The police acted reasonably in accord with the changing statements made by Ms. Migdalski. They facilitated contact with duty counsel, and that contact was not complained about after. Ms. Migdalski got legal advice before participating in the breath test procedure. I find that the situation in this case complies with paragraph 73 of Ferose because (a) she did not request to speak with a particular lawyer and did not request to look for one; (b) spoke to a lawyer in private; (c) did not complain then or now (except to baldly state she “was dissatisfied”) about the advice she got; and (d) did not claim any harm or prejudice as a result of the advice she received.

[51] For these reasons, I find that Ms. Migdalski has not demonstrated that it was more likely than not that the police breached her right to counsel.

[52] If I am wrong and her right to counsel was violated, I would not exclude the breath test readings in this case pursuant to s. 24(2) of the Charter. Balancing the factors described by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, I find that the exclusion of reliable breath sample evidence needed to establish the serious offence with which Ms. Migdalski is charged will do more harm than good to the administration of justice and that the reputation of the justice system would suffer if the breath sample evidence were excluded.

[53] First, if there was a breach, it was not at the serious end of the scale. The officers acted in good faith throughout. Ms. Migdalski made no efforts to be diligent in the pursuit of her rights. There was no suggestion of any systemic problems or attitudes of the police that would lead a reasonable person to think that the detainee in this case was treated unfairly. If there was a breach in this case the minimal seriousness of it does not favour exclusion of evidence: R. v. Du, [2009] O.J. No. 3194 (S.C.J.) aff'd [2010] O.J. No. 4494 (C.A.); R. v. Persaud, [2017] O.J. No. 1180 (O.C.J.); R. v. Reyes, 2018 ONCJ 561.

[54] Second, the impact on Ms. Migdalski’s Charter protected rights was minimal. She spoke to a duty counsel lawyer before the breath test procedure and did not express any dissatisfaction with the advice she received. She had a legal obligation to comply with the valid breath demand made by the officer. The breath testing procedure was minimally intrusive to her privacy, bodily integrity, and basic dignity of the person: R. v. Jennings, 2018 ONCA 260, [2018] O.J. No. 1460 (C.A.) at paras. 27 - 32.

[55] Third, and finally, there is a compelling societal interest in dealing with drinking and driving offences on their merits: R. v. Alex, 2017 SCC 37. Evidence of breath testing is highly reliable and necessary as part of the prosecution's case. This militates strongly in favour of inclusion.

[56] In sum, even if there was a breach of the Ms. Migdalski’s s. 10(b) Charter right, exclusion of the breath test results would be inappropriate in the circumstances of this case.

The Impaired Operation of a Conveyance Issue

Positions of the Parties

[57] The Crown, who bears the burden on the standard of proof beyond a reasonable doubt, submits that it has been proven that Ms. Migdalski was impaired by alcohol or combination of alcohol or drug while operating her conveyance on May 7, 2020. The Crown’s submission is that the inference of impairment is the only available inference on the totality of the evidence.

[58] Ms. Migdalski submits that the evidence does not meet the standard of proof beyond a reasonable doubt.

The Evidence on the Issue of Impairment

Arthur Tarala

[59] Arthur Tarala testified that on May 7, 2020, he was working in his garage. He heard a big crash. He opened his garage door, which took between 10 and 15 seconds, and he saw a vehicle had hit his son-in-law's car which was parked at the bottom of his driveway on the street. He proceeded down his driveway, and the car had begun to pull away. He was banging on her window right before she almost hit another car parked in front of his residence, this belonging to his daughter. After he banged on the window the female driver got out of the car and he said, “you just hit the car.” The driver looked at his daughter's car saying, “I didn't hit the car” and he told her “not that car, the other car.”

[60] He described her as slurring her words and stumbling around; she could walk but one could easily push her over as she wasn't stable on her feet. Before police arrived, she was trying to get in her car to leave and he just tried to keep her occupied. He was telling her not to leave but didn't believe she would comply. She had got back in the car and was in the driver's seat when police arrived.

Police Constable Zsophie Balazs/Video

[61] PC Balazs responded to the radio call, arriving at approximately 2:09 PM. A blue vehicle was mostly in the middle of the roadway near another vehicle it had collided with. Ms. Migdalski was leaning against the passenger side of the blue motor vehicle.

[62] The in-car camera from PC Balazs' vehicle was entered as Exhibit 6. On it, PC Balazs approached and asked if Ms. Migdalski had any injuries or needed an ambulance. She declined. PC Balazs then asked if she was the registered owner of the vehicle, and Ms. Migdalski can be seen walking around the hood of the vehicle to the driver’s side and getting in the driver's seat of the vehicle. Further questions can be heard from the officer about whether she requires emergency services, what occurred in the collision, and whether there are any medical conditions that the officer needs to be aware of. At 2:12:35 PM PC Miller's police cruiser appears on scene and PCs Miller and McGee can be seen exiting the vehicle and beginning their investigation.

[63] PC Balazs testified that, up to this point, Ms. Migdalski was slow to respond and unsteady on her feet. She had detected only the faint odour of an alcoholic beverage, and she wanted to rule out whether there were injuries or whether what she was observing was due to the collision or medical issues.

[64] Ms. Migdalski can be seen to stand up out of the driver's seat of the vehicle and maintain her feet for several seconds before appearing to sit back in the driver's seat. At 2:15 PM on the video, PCs Miller and McGhee can be seen to pull Ms. Migdalski out of her vehicle. She appears to go limp going down to her knees on the pavement, but the two officers prevent her from falling all the way to the pavement. They then lift her up, assist her to their car, place her against the side of the car, and handcuff her to the rear.

[65] In cross-examination, it was suggested that Ms. Migdalski had no difficulty when she walked around her vehicle, which PC Balazs disagreed with saying she had her left hand on the hood of the car to steady herself. When looking for documents, Ms. Migdalski had some difficulty locating them and rummaged in the vehicle for some time and was unable to find her driver's license. She further noted that Ms. Migdalski was wearing pyjamas and the bottoms were on backward, and that the outfit in total with the shoes was not appropriate for the weather.

PC Miller/Video

[66] PC Miller testified that he has been a Toronto police service officer for more than 13 years. He has investigated more than 100 impaired driving cases. He arrived on scene at 2:12 PM to assist. He observed a blue 2 door Honda Civic which had appeared to him to be in a collision. The vehicle had front end damage, which appeared to him to be fresh, and it was stopped in the middle of the road.

[67] He approached the vehicle and observed Ms. Migdalski slumped forward in the driver’s seat with her head tilted slightly down. He observed her eyes to be droopy and heavy like she was struggling to keep them open. He detected the light odor of alcohol coming from her breath. He also detected a slight slurring of her speech. He asked her to exit the vehicle to speak to her and she complied, but then stumbled slightly and sat back down in the vehicle; in his view, she was unable to maintain her balance. Based on the odor of alcohol, the droopy eyes, and her speech when she was talking, which was slow and delayed, he believed she was impaired by alcohol or a combination of alcohol and drugs.

[68] He asked her to exit the vehicle to place her under arrest. She would not comply. He asked several times and then he and PC McGhee took physical control of her by each taking an arm and physically removed her from the vehicle. Her body went completely limp. She fell forward but because they had her by the arms, they were able to prevent her from striking the pavement. They stood her back up and she took some time to regain her balance.

[69] The video for the in-car camera for PC Miller's car commenced at 2:13:28 PM when Ms. Migdalski was placed in the rear of his car. Prior to this, on the audio recording, PC Miller can be heard to ask Ms. Migdalski to step out of the car. He told her she was very unsteady on her feet and delayed in her actions and that he believed her to be impaired by alcohol or drug, and was going to be placed under arrest.

[70] PC Miller left the scene with Ms. Migdalski at approximately 2:30 PM. In the audio recording between 2:15 and 2:30 PM there is conversation between the officers and Ms. Migdalski at the roadside. In this period of time, it appears that Ms. Migdalski has difficulty focusing. She makes repeated requests for her medication. She seems to have difficulty following the conversation. On the drive from the scene to the division, Ms. Migdalski can be seen in the back of the police cruiser. She repeatedly asks for her medication. It seems she is having difficulty following the conversation. She also slumps over several times, has trouble sitting up straight, and seems disorganized or confused. A number of times she repeats the question “where are we going” even though she has been repeatedly told. Several times, she seems surprised suddenly that they're not going to her residence but are instead going to 41 division.

[71] They arrived at 41 division at approximately 2:48 PM. There is a 10-minute delay between their arrival and when Ms. Migdalski is removed from the car just before 3:08 PM. PC Miller indicated that during this time in the sallyport he exited the scout car to go in and speak to the booking officer to tell them who the person under arrest was, get a report number, allow them to pull up the cameras and start the booking process, and call the officer in charge. Ms. Migdalski continues to be recorded during this time and frequently shouts out at officers, asks again for her medication, asks if she can have a phone call, and utters a number of derogatory comments about the police.

[72] The booking video commenced at 3:08 PM. It shows Ms. Migdalski’s level of responsiveness to the booking officer, her speech, and her balance. It shows her response to a pat down search. She continues to ask for her medication, pleading with the booking officer for it. During this procedure, Ms. Migdalski complains that the officers threw her to the ground during the arrest (it is clear from the scout car video of PC Balazs that this is not accurate).

[73] Ms. Migdalski was released at 7:28 PM. Her release was also video recorded. PC Miller described her behavior during the release procedure (which can be seen on video) as a much better state, appearing to him that the alcohol had gone through her system and that she was much more sober. She wasn't as unfocused or slurring. She was able to maintain her balance. He described this as an overall better display rather than the impairment he had seen at the start of his interaction with her.

PC McGhee

[74] PC McGhee testified that when they arrived going northbound on Clappison, he observed a car on the road with damage to the front passenger side. It was a blue Honda, facing southbound, with a female in the driver seat speaking with an officer who had arrived prior to him. The female driver showed obvious signs of impairment. She was not able to form sentences, she was slurring words, and there was a pungent odor of alcohol coming from in the car. He formed grounds to believe that she was impaired and had been operating a conveyance.

[75] When she was asked to get out of the car, she stood up but couldn't stay on her feet so sat back down. Several verbal commands were given for her to get out to be placed under arrest, but she wouldn't. The two officers took hold of her to get her out safely. Once out of the car she lost her balance and fell forward, and they had to hold her up to stop her from hitting the pavement. He believed that the cause of her fall was her impairment and inability to gain steadiness on her feet to hold herself up.

[76] During transport to the station, he observed that she was non-responsive or slow in her communication.

Qualified Breath Technician, Police Constable Eric Poge

[77] PC Poge described noting a weak odour of alcohol on Ms. Migdalski's breath in his dealings with her, watery eyes, slurred speech, and unsteadiness on her feet. He believed her to be under the influence of alcoholic beverage.

Legal Principles

[78] Criminal impairment of the ability to drive is the impairment by drug or alcohol of one's judgment and/or the decrease in one's physical abilities. Any degree of impairment is sufficient, provided the Crown proves that the driver was impaired to the required criminal standard, which is proof beyond a reasonable doubt: R. v. Stellato, [1994] S.C.J. No. 51, aff'g 1993 ONCA 3375.

[79] It is the ability to drive that must be proven to be impaired by the consumption of alcohol or drug. Where the Crown attempts to establish proof of the impairment of the ability to drive by observation of the accused and her conduct, those observations must indicate behaviour that deviates from “typical behaviour” to a degree that the required onus of proof be met. Deviation from a norm or “typical conduct” is a useful tool in assessing the evidence. Where the evidence indicates that a driver's ability to walk, talk and perform basic motor functions or tasks of manual dexterity was impaired by alcohol, the logical inference may be drawn that the driver’s ability to drive was also impaired: in most cases, if the conduct of the driver was a slight departure from normal conduct, it would be unsafe to conclude beyond a reasonable doubt that her ability to drive was impaired by alcohol: R. v. Andrews, [1996] A.J. No. 98 at paras. 23, 19-20, 29 (C.A.), leave refused [1996] S.C.C.A NO. 115; R. c. Belle-Isle, 2021 QCCA 600 at para. 24.

[80] The Crown must also show that impairment was due to alcohol or drug. Symptoms of impairment that are not proven to be a result of the consumption of alcohol or drug are not sufficient: R. c. Jobin, [2002] J.Q. No. 575 (C.A.) at para. 53.

[81] The manner of operating the vehicle may be evidence of the condition of the driver, but it is not required. Evidence of bad driving is not an essential element, but it may be one of the indicia from which a trial judge may conclude that the driver was impaired: R. v. Grant, 2014 ONSC 1479.

[82] In many cases, the question of whether the driver was impaired by alcohol while operating the conveyance is a question of inference. In order to find the accused guilty of impaired driving, the Court must be satisfied that guilt is the only available inference to be drawn on the basis of the totality of the evidence accepted. Where there are other conceivable inferences, the Court must determine whether another proposed alternative way of looking at the case is reasonable enough to raise a doubt: R. v. Villaroman, 2016 SCC 33 at paras. 55-56.

Application

[83] Nearly the entirety of Ms. Migdalski’s interaction with police was video recorded. The recordings confirm the evidence of PCs Miller, McGhee and Balazs as to how Ms. Migdalski appeared. They confirm her manner of speech to be slow and slurred. They confirm unsteadiness on her feet.

[84] The evidence of the three officers who observed Ms. Migdalski at the scene is also consistent. Each described very similar behaviour, which corroborated the evidence of the others. This evidence is also confirmed by that of the independent civilian witness, Mr. Tarala. Mr. Tarala saw Ms. Migdalski operating the vehicle.

[85] I accept the evidence of these witnesses. The minor inconsistencies which were explored in cross-examination are precisely the small differences in choice of wording or of opinion as to level of impairment that are common between different individuals who have observed the same event. There was no inconsistency on any major points.

[86] The defence submitted that there were issues with the evidence of Mr. Tarala — I disagree. His mistaken recollection of the weather that day, which was inconsistent with the other testimony and the video, is on a minor peripheral point. It causes no doubt about accepting his evidence as to observing Ms. Migdalski behind the wheel, attempting to drive away, and his description of her indicia of impairment. His belief that she was not “cooperative” with him is not inconsistent with what he described of her behaviour — she stayed to wait for police, but that was because he continued to try to keep her there. There is no inconsistency in his evidence on this point.

[87] I have also considered the submission that no one saw the accident. Mr. Tarala heard the accident. He immediately went outside. He saw damage to Ms. Migdalski’s vehicle and his son-in-law’s. Police were called and the vehicles remained until they arrived. There is no other reasonable inference than that Ms. Migdalski collided with his son-in-law’s vehicle in the seconds before he observed her driving.

[88] It was submitted that the videos from the day were inconsistent with the evidence of the officers as to how Ms. Migdalski presented. I respectfully disagree. In my view, she slurs her words and speaks slowly, has trouble maintaining her balance, appears disorganized in her thoughts, and frequently responds to officers in inappropriate ways. The video supports the evidence of PCs Miller, McGhee and Balazs that she was impaired. All three smelled the odour of alcoholic beverage from her breath. That Ms. Migdalski was impaired by alcohol (or combination of alcohol and drug) is the only available inference on the totality of the evidence. PC Poge’s evidence from later during breath testing, which suggested less impairment, does not cause me any doubt that she demonstrated significantly more impairment at the scene of the accident.

[89] The evidence clearly demonstrates that her ability to walk, talk and perform basic motor functions or tasks of manual dexterity was quite impaired by alcohol. I am satisfied based on the level of impairment I have found and the evidence of her driving, which includes hitting a properly parked motor vehicle, that the only available inference is that her ability to drive was impaired by alcohol. The Crown has proven beyond a reasonable doubt that Ms. Migdalski was operating her motor vehicle while impaired by alcohol.

[90] In conclusion, I find Ms. Migdalski guilty of both offences as charged. The count of over 80 is conditionally stayed.

Released: August 22, 2022 Signed: Justice Robert Wright