DATE : June 13, 2023 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
MALCOM LEE
Before Justice Michael Waby
Heard on 3rd and 4th May, 2023
Reasons for Judgment released on 13th June, 2023
Counsel: G. Meyers, for the Crown D. Holmes, for the Accused
Waby J.:
[1] Malcom Lee is charged with Impaired Operation of a motor vehicle and with operating a motor vehicle with a blood alcohol level in excess of 80 mg of alcohol in 100 ml of blood. The Crown proceeded summarily and Mr. Lee pleaded not guilty.
[2] Date, time, jurisdiction and identity are not in issue in this case.
[3] Defence counsel filed various Charter applications and initially sought the exclusion of evidence under s 24(2) of the Canadian Charter of Rights and Freedoms based upon alleged breaches of Mr. Lee’s section 7, 8, 9 and 10(b) Charter rights.
[4] At trial, on consent, a blended voir dire was conducted with the relevant and admissible evidence to be applied to the trial proper.
[5] At the conclusion of the evidence, and prior to submissions, Mr. Holmes advised that the only issues on which he wished to make submissions related to alleged breaches of Mr. Lee’s 10(b) Charter rights and that the defence was not pursing any additional Charter arguments.
Overview
[6] At approximately 3:37 am on 20th November 2021, Toronto Police Services received a 9-1-1 call from a driver who reported that he had been involved in a single-vehicle collision. At approximately 3:49 a.m., PCs Vo and Johnston arrived at the scene. PC Johnston observed that a black Ford Escape had knocked down a pole, the airbags of the vehicle were deployed, and there was significant damage to the front end of the vehicle. The Accused Mr. Lee was attended to by paramedics who had arrived on scene and was arrested for Impaired Operation of a motor vehicle and subsequently transported to hospital. After being medically cleared, Mr. Lee provided two suitable samples of breath to the QBT in attendance at the hospital. The readings of which were 153 and 154 mg of alcohol per 100 ml of blood.
[7] The case for the Crown is advanced through the viva voce testimony of Esther Schaff, the treating paramedic, PC Vo and PC Johnston, certain portions of video footage from body worn cameras and documentary evidence, including the Intoxilyzer test record, QBT Certificate and MTO records and a copy of the 9-1-1- recording. The Defence called Mr. Lee solely with respect to the alleged 10(b) Charter breaches on the blended voir dire.
Summary of Relevant Evidence
Evidence of Esther Schaff
[8] Ms Schaff is employed as a paramedic and attended at the scene of the accident in that capacity with her partner Craig Donison. She encountered Mr. Lee who identified himself as the driver of the black SUV that had struck a light pole at the scene. Ms Schaff treated the Accused in the rear of an ambulance. Ms Schaff testified that Mr. Lee told her that he had worked a night shift and was drowsy and that he had consumed several drinks prior to the accident. He denied any drug use and then advised her that he was coming from a wedding prior to the accident. Ms Schaff triaged Mr. Lee in the ambulance and gave evidence that when she asked the Accused if he was injured, he reported no medical complaints to her.
[9] In cross examination Ms Schaff testified that she clearly recalled asking the Accused whether he was the driver of the SUV when she arrived on the scene of the accident and that she didn’t identify any injuries following her ‘head to toe’ assessment of him. She testified that at certain points in her dealings with Mr. Lee in the rear of the ambulance uniformed police officers were also present and that she was aware that the officers body worn cameras were operating.
[10] Ms Schaff testified that her sole purpose in attending to Mr. Lee was for the purpose of providing medical care and that she has no involvement in the police process and at no point acted under their direction. She gave evidence that none of the questions that she asked the Accused were intended to assist the police investigation but were a necessary and routine part of her patient triage process. She gave evidence that the brief summary she provided to the police officers that was captured on their body worn camera was intended to bring everyone up to speed as to her engagement with Mr. Lee and to make the Accused aware that the officers were operating their body worn cameras. In re-examination Ms Schaff testified that that she had no legal training and no awareness of the police investigative processes.
Evidence of PC Vo
[11] PC Vo testified that he has been a member of the TPS for some 23 years and attended at the scene of the accident in full uniform and in his marked scout car. He gave evidence that on his shift that night he was working with his colleague PC Johnston but owing to Covid protocols they were each operating their own police vehicle. PC Vo gave evidence that following a radio call he attended the scene. The information provided to PC Vo by the despatcher was that there was a PI accident that had been reported at the location by a male identifying himself as ‘Malcom’ and that this male was ‘not making any sense’ and may have been impaired. A phone number for the male and a licence plate of were also provided to the officers.
[12] PC Vo testified that that he attended at the scene at the same time as PC Johnston who arrived in his own police vehicle. Upon arrival PC Vo observed a Ford SUV that matched the description of the motor vehicle that he had been provided with which had front end damage to it and a light pole that appeared to have been struck and which had fallen to the ground by the motor vehicle. This was the only non-emergency vehicle at the scene and PC Vo testified that he saw the Accused standing by this motor vehicle and that he was the only non emergency service person at the scene of the accident.
[13] PC Vo testified that he approached the Accused to see whether he could smell alcohol on him and that he detected an odour of alcohol coming from him. He observed Mr. Lee being taken the short distance to the ambulance by the paramedic and noticed the Accused staggering en route. He gave evidence that he was present when PC Johnston spoke to Mr. Lee in the ambulance and that he was present for the arrest. PC Vo made arrangements for a qualified breath technician to attend at the hospital that Mr. Lee was being taken to and testified that that the Accused was taken to hospital as a precaution following the accident.
[14] PC Vo gave evidence that he was aware that the Accused spoke to duty counsel and that he remained at the hospital while the QBT performed the required breath testing of the Accused and then he served him with the relevant paperwork. Following Mr. Lee’s release from the scene on a Form 9, the officer drove Mr. Lee home to his mother. PC Vo gave evidence that when he drove the Accused home he observed Mr. Lee “sobering up compared to earlier.”
[15] In cross examination PC Vo gave evidence that he detected the odour of alcohol on the Accused as Mr. Lee walked past him to the ambulance and agreed that body worn camera footage showed him referring to Mr. Lee as ‘wasted’ after he had initially observed him and smelt the alcohol. PC Vo agreed that if the Accused had attempted to leave the ambulance he would not have been allowed to do so as he needed to be examined by the paramedic and the officers were investigating an impaired driving call.
[16] PC Vo agreed that PC Johnston did not provide Mr. Lee with his RTC as soon as he advised him in the rear of the ambulance that he was under investigation but that he did so very shortly afterwards. When asked by Defence counsel why he didn’t step in and provide Mr. Lee his RTC when his partner did not, PC Vo gave evidence that although there was an impaired investigation, at this point in time Mr. Lee was being also assessed by the paramedic in the ambulance and that there was an overlap of informational requirements between the police and paramedics at that particular point in time.
Evidence of PC Johnston
[17] PC Johnston testified that that he was on duty in full uniform in a marked scout car on the date of the alleged incident. As a result of the radio call he received he attended at the scene along with his partner PC Vo. The information he received indicated that the caller to police had reported an accident and the caller sounded impaired. Upon arrival he noticed a Ford Escape SUV with front end damage with a licence plate that matched the information in the radio call. There was a light pole lying on the ground nearby. The only other motor vehicles on the scene were emergency service vehicles. The driver’s door was open and the driver’s air bag had been deployed
[18] PC Johnston testified that he observed the Accused in the company of paramedics and observed him walking to the ambulance with them and that Mr. Lee appeared unsteady on his feet. PC Johnston checked inside the SUV for any other occupants and to establish the damage caused to the motor vehicle. He gave evidence that he then entered the rear of the ambulance to speak with Mr. Lee. Upon doing so the officer testified that he immediately noticed a strong odour of alcohol which he believed was magnified by the small space in the ambulance. He testified that the Accused had glassy eyes and slow, slurred speech and that his partner PC Vo asked Mr. Lee whether he had consumed any alcohol and that Mr. Lee indicated that he had consumed rum.
[19] PC Johnston gave evidence that he formed his belief that the Accused was impaired by alcohol after making all of his own observations and hearing Mr. Lee’s responses to his partner’s and the paramedic’s questions. PC Johnston then provided a summary of Mr. Lee’s rights to counsel to him and testified that he did this because the Accused was still in the process of receiving medical attention from the paramedics and being spoke to by them. Approximately 2 minutes later, PC Johnston asked the paramedic Ms Schaff whether it was all right to speak again with Mr. Lee and after she indicated that it was he then arrested Mr. Lee for impaired operation of a motor vehicle and provided the Accused with his full rights to counsel which he read verbatim from his memo book.
[20] The interaction between PC Johnston and Mr. Lee was recorded on his body worn camera and the footage was played and subsequently entered as an exhibit. When asked whether he understood, Mr. Lee nodded and responded ‘yes’ and asked PC Johnston if he can call a lawyer’ in a couple of hours.’ PC Johnston made it clear to the Accused that he could call a lawyer at any time he wished. In response to questions from the officer, Mr. Lee indicated that he did not have his own lawyer. PC Johnston asked Mr. Lee if he wished to speak to duty counsel “for now” and Mr. Lee nodded his assent. The officer then clearly articulated to Mr. Lee on the video footage that there was no time limit on him contacting a lawyer.
[21] PC Johnston testified that he then attended the hospital with the Accused and that Mr. Lee was taken to hospital as a precaution following the collision. The officer remained with the Accused and waited for him to be medically cleared before Mr. Lee embarked upon the process of providing breath samples to the QBT. PC Johnston gave evidence that Mr. Lee was on a stretcher in a hallway at the hospital prior to being seen by medical staff and that he had asked staff at the hospital whether there was somewhere private for the Accused to speak with duty counsel he was advised that there was no private space currently available for such a conversation.
[22] The officer testified that that he was subsequently able to contact duty counsel for the Accused and arrange for Mr. Lee to speak with them in a ‘quiet room’ prior to providing his breath samples. The officer testified that Mr. Lee indicated that he was satisfied with the conversation he had had with DC. It was PC Johnston’s evidence that during his time with the Accused, Mr. Lee at no point indicated he had his own lawyer nor that the wished to contact someone to get one. When asked what he meant by arranging duty counsel ‘for now’ PC Johnston gave evidence that he wanted to arrange a lawyer for Mr. Lee as soon as possible and since Mr. Lee had said he didn’t have his own lawyer the officer wished to facilitate access to counsel at the earliest opportunity and that in the future if he had wished he could also have spoken to his lawyer of choice.
[23] When asked by the Crown, Ms Meyers, what he would have done if the Accused had subsequently given him the name of a lawyer the officer testified that he would have arranged a call for him and that at no point in his dealing with the Accused did he have any reason to believe Mr. Lee had any difficulty understanding any information he was given or anything else that they discussed. The officer gave evidence that at one point at the hospital the Accused fell asleep from 0522-0552 hrs and that as the night wore on Mr. Lee’s speech became clearer. After processing the Accused and serving him with the relevant paperwork, the officer then arranged for Mr. Lee to be driven home.
[24] In cross examination PC Johnston agreed that in hindsight he could have provided Mr. Lee with a caution and full rights to counsel at the point he initially formed his suspicions in the back of the ambulance and not two minutes later after the paramedic had completed her assessment of the Accused. Mr. Homes put it to the officer that after Mr. Lee had said he didn’t have a lawyer, the officer effectively proceeded on the basis that duty counsel was Mr. Lee’s only other option. PC Johnston gave evidence ‘no, he has the right to speak to any lawyer he likes and I also have to advise him as to his right to speak to duty counsel, and because I wanted to make sure that he had access to a lawyer I told him about duty counsel “
[25] The officer testified that the reason he had not canvassed ‘the third option’ of allowing Mr. Lee to contact someone to find him a lawyer is because the Accused indicated he didn’t have one and made no such request. When asked about the ‘deadline’ conversation, PC Johnston testified that he had made it clear to the Accused that there was no deadline to him contacting his own lawyer if he subsequently wished to do so and that pending this the officer wanted to provide Mr. Lee with access to a lawyer and so advised him of his right to duty counsel. When asked whether he had checked with Mr. Lee immediately prior to calling duty counsel PC Johnston testified that that it was possible but the had no clear recollection of doing so.
[26] Mr. Holmes asked PC Johnston what he would have done if Mr. Lee had asked to be allowed to look up a lawyer. PC Johnston testified that “if he’d expressed any interest in doing so I would have used my officer connected phone to do so or he could have used his own phone or he could have called someone to facilitate it but he didn’t make any such request.”. In re-examination PC Johnston reiterated this answer and gave evidence that there were no security concerns relating to Mr. Lee and that he would certainly have been allowed to make an internet search on his phone or to speak to a friend to get him a lawyer if he had wished to do so.
Evidence of Malcom Lee
[27] Mr. Lee testified solely on the voir dire and with respect to the Charter application before the court. He gave evidence that he had never previously contacted a lawyer and didn’t know what to do in these circumstances. When it was put to him by Mr. Holmes that the officer had offered him a free lawyer and that this was a good offer, Mr. Lee testified that ‘in a sense it was’. When asked by defence counsel whether he had other options open to his at the time Mr. Lee testified ‘not at that moment, no, I wanted to weigh my options.’
[28] Mr. Lee agreed that he was not in a hurry to call a lawyer and testified that he wanted to calm his nerves following all that had happened. When asked by Mr. Holmes whether he was anxious to find his own lawyer, Mr. Lee gave evidence “no, not immediately” and that if the officer had provided him with a phone book he would not have used it right then to look for a lawyer. The Accused gave evidence he had a cell phone with him and did not ask to use it to call anyone as he knew everyone would be sleeping at that hour of the day. He testified that when he asked the officer how long he could wait for a lawyer he was asking how far out he could push that decision and agreed that that the officer told him he could call duty counsel ‘for now.’
[29] When asked whether the officer said to him that he could only use duty counsel Mr. Lee testified that ‘no, he didn’t use those words’. When cross examined by the Crown on his Affidavit, Mr. Lee agreed that nothing the officer said to him led him to believe that duty counsel was his only option but he testified that he had never been in trouble before and that is why he asked questions. The Crown suggested to the Accused that if there was any confusion in his mind it was because of the state that Mr. Lee was in that night and not because of anything the officer said, Mr. Lee testified “Yes, possibly.”
Law and Analysis
[30] In assessing each witness’ testimony, I must consider the credibility and reliability of the account provided. In assessing the credibility and the reliability of the evidence of the witnesses, I have distinguished between credibility and reliability. Credibility relates to a witness’ sincerity, whether he/she is speaking the truth as she believes it to be. Reliability relates to the actual accuracy of his/her testimony. In determining this, I must consider his/her ability to accurately observe recall and recount the events in issue. A credible witness may give unreliable evidence. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.
[31] The credibility and reliability of a witness must be “tested in the light of all the other evidence presented”. R. v. Stewart, [1994] O.J. No. 811 (C.A.) at para 27.
[32] As I assess a given witness’ testimonial account, I am mindful that I may accept some, none, or all of their account.
[33] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.
[34] Although not specifically the subject of an admission by the parties it is clear from the evidence before me that Mr. Lee was the driver of the motor vehicle at the time of the accident and that he was the caller who contacted the 9-1-1- despatcher following the accident. The evidence of the paramedic, the officers, the 9-1-1- recording of Mr. Lee’s call and the MTO documents all satisfy me of this beyond a reasonable doubt.
[35] There are two live issues in this case. First, was there a breach of Mr. Lee’s 10(b) Charter rights and, in the event that any such breaches occurred, should the evidence of the breath test readings should be excluded under s 24(2) of the Charter.
[36] Second, has the Crown led sufficient evidence in respect of the Impaired driving count to meet the necessary threshold of proof beyond a reasonable doubt. I shall turn first to the alleged 10 (b) Charter breaches.
Position of the Defence
[37] Mr. Holmes submits that the manner in which PC Johnston provided Mr. Lee with his rights to counsel was deficient both in terms of the informational component and the implementational requirements. Specifically, it is submitted that PC Johnston initially provided inadequate rights to counsel to Mr. Lee upon forming his reasonable and probable grounds to believe the Accused was arrestable for the offence of Impaired driving. It is further submitted that in his engagement with the Accused PC Johnston effectively steered Mr. Lee solely towards duty counsel and presented a false binary choice between named counsel of choice and duty counsel and that the officer provided no opportunity to Mr. Lee to contact a third party or access resources to help him identify a named counsel of choice.
[38] Mr. Holmes does not allege any bad faith on the part of the officers but submits that PC Johnston effectively ‘jumped the gun’ by steering Mr. Lee towards duty counsel and that the importance of rights to counsel and the optics around accessing counsel of choice are such that the evidence of the breath readings should be excluded under s. 24(2).
[39] Finally, Mr. Holmes submits that the Crown has not met it’s onus in respect of the impaired Driving count and that the indicia of impairment are equally as consistent with someone who is very tired and had recently had a collision in their motor vehicle.
Position of the Crown
[40] Ms Meyers for the Crown acknowledges that the 10(b) rights of an accused person are sacrosanct and submits that on the evidence before the court there was no ‘steering’ of the accused to duty counsel in this case. It is submitted by the Crown that PC Johnston was diligent in his duties and that the video evidence, the officers’ evidence and Mr. Lee’s evidence on the voir dire all clearly show that the Accused was, at best, indifferent to exercising his counsel of choice after his rights to counsel had been provided to him.
[41] Ms Myers submits there was no breach of the implementational requirements and that if the officer had not acted as he did, as a result of Mr. Lee’s responses, the Accused would not have been given access to nor spoken with any lawyer. The Crown submits that an accused is required to be reasonably diligent in the exercise and pursuit of counsel of choice and that it is clear in this case that there was no such diligence exercised by Mr. Lee.
[42] Ms Meyers further submits that if I find a breach of the Accused 10(b) rights the seriousness and impact of any such breaches is minimal and is attenuated by the Accused speaking with duty counsel and that the public interest militates in favour of admitting the evidence of the breath results.
[43] Lastly, it is the position of the Crown that there is ample evidence before the court to support the charge of Impaired driving. Ms Meyers submits that the law is clear that the offence is made out by impairment to any degree and that the observations made by the officers at the scene, in conjunction with the evidence of the unexplained collision of the vehicle Mr. Lee was driving and an absence of any injuries on the part of the Accused all suffice to meet the necessary evidential threshold.
[44] I shall turn first to the alleged 10 (b) Charter breaches.
Alleged 10(b) Charter Breaches
Informational
[45] Importantly, the right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, [1989] 2 S.C.R. 138, at pp. 154-55. Furthermore, the rights guaranteed by s.10(b) may be waived by the detainee, although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit: Clarkson, at pp. 394-96; Manninen, at p. 1244; Black, at pp. 156-57; Brydges, at p. 204; and Evans, at pp. 893-94.
[46] It is critical that the informational component of the right to counsel be comprehensive in scope and that it be presented by the police in a “timely and comprehensible” manner: R. v. Dubois, [1990] R.J.Q. 681 (C.A.), (1990), 54 C.C.C. (3d) 166, at pp. 697 and 196 respectively.
[47] Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed decisions about whether or not to contact counsel, nor whether to exercise other rights, such as their right to silence, R. v. Baig, [1987] 2 S.C.R. 537.
[48] The pivotal function of the initial information component under s. 10(b) has already been recognized by the courts. As McLachlin J. stated in R. v. Evans “a person who does not understand his or her right cannot be expected to assert it”. In Evans, it was held that, in circumstances which suggest that a particular detainee may not understand the information being communicated to him or her by state authorities, a mere recitation of the right to counsel will not suffice. Authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(b) rights. It has been stressed on previous occasions that, before an accused can be said to have waived his or her right to counsel, he or she must be possessed of sufficient information to allow him or her to make an informed choice as regards exercising the right: R. v. Smith, [1991] 1 S.C.R. 714, at pp. 724-29, and Brydges, at p. 205.
[49] PC Johnston was a relatively new officer to the TPS at the time of the incident and indicated that this case was only the 3rd or 4th drink driving case he had been involved with. He testified in an honest and forthright manner and was not evasive or equivocal in his evidence. Indeed, I found the overall tenor of his evidence to reflect that of an earnest officer seeking to ensure that he did what was right and what was required of him and he was a credible and reliable witness. This extended from his initial dealing with the accused to the point where he facilitated a ride home for Mr. Lee. My conclusions and his evidence are supported by the video evidence that is available to me from the officer’s body worn camera.
[50] On the evidence before me it is clear that PC Johnston formed his grounds to arrest Mr. Lee at the point in time that the Accused was simultaneously being spoken to and triaged by Ms Schaff the paramedic. As a result of this, and to ensure that he did not significantly interrupt or interfere with the medical attention of the paramedics the officer provided a brief summary to Mr. Lee in which he advised him that the officer was conducting a criminal investigation and that Mr. Lee had the right to speak with a lawyer. PC Johnston accepted that this was only a brief summary of Mr. Lee’s rights to counsel and that he then left the paramedic to minister to the Accused.
[51] It is clear that approximately 2 minutes later, PC Johnston returns to the ambulance and after checking with the paramedic that is it medically permissible to do so, he then arrests the Accused for Impaired operation and reads him his full rights to counsel verbatim from his memo book. Mr. Lee is shown indicating that he understands. There is no issue at this trial with the sufficiency of the information that PC Johnston provides upon arrest. At no point in the intervening period between his initial communication with Mr. Lee and his arrest do the officers engage with the Accused or seek to elicit any information from him.
[52] Mr. Holmes submits that there is a breach of the informational requirement required by 10(b) of the Charter at the point when PC Johnston forms his grounds for arrest and the officer only provides a short summary of rights to counsel to Mr. Lee and that this creates confusion on the part of Mr. Lee and that the officer should have provided Mr. Lee with his full rights to counsel at the outset and not 2 minutes later. I disagree.
[53] I find that on the evidence before me it is clear that PC Johnston rightly prioritised the wellbeing of the Accused and his ongoing medical attention for a brief and necessary period of approximately 2 minutes after forming his ground for arrest. The officer’s provision of a short summary was a legitimate and well-intentioned attempt to reconcile the complementary needs of the police investigation and the paramedic’s work. To have formulaically recited the rights to counsel at this point would have had little obvious value and likely would be subject to justifiable criticism were an officer to administer rights to counsel to an accused person following a collision while he was being assessed by medical professionals. Having paused for a very brief, but appropriate time frame, the officer then obtained permission from the paramedic to speak to Mr. Lee. At this point the officer arrested the Accused and provided his rights to counsel in their entirety. Mr. Lee clearly indicates that he understands what he is told.
[54] Accordingly, I do not find that there was a breach of the informational requirement in respect of the Accused rights to counsel. In the event that I am wrong, I would still admit the evidence pursuant to 24(2) for the reasons I subsequently provide.
10(b) Implementational Breaches
[55] It was clear from the evidence of PC Johnston as well as that of Mr. Lee that following his arrest Mr. Lee expressed no wish to contact his own counsel nor did he make any request to contact a 3rd party nor to access any resources in order to obtain contact information for a lawyer rather than to speak with duty counsel.
[56] Mr. Lee testified in a thoroughly candid and open manner and it is to his credit that he clearly made no attempt to tailor his evidence in any way. His evidence was clear and unambiguous. He was clear that understood the information he was given and significantly, he agreed that he made no request to speak to a lawyer of his choosing nor did he ask to contact a 3rd party to facilitate any such access. Mr. Lee made it clear that he wished to defer any such decision to some future, unspecified, point of his choosing.
[57] Mr. Lee was realistic about the limited prospects of contacting any 3rd party at that hour of the day and did not seek to do so despite having access to his cell phone.
[58] On the evidence before me, no investigative concern was identified or articulated that would have compromised any aspect of this particular investigation if Mr. Lee had sought to contacted a third party to obtain the details of a lawyer of choice and PC Johnston made it quite clear that he would have facilitated any such request by the Accused had one been made. The officer sought to facilitate a private conversation with duty counsel upon arrival at the hospital but was advised no private space was available. Subsequent efforts by the officers later revealed that such space had become available and he made the necessary arrangements for that conversation to occur.
[59] It is obvious on the evidence of the officers and of Mr. Lee himself that no request was made by Mr. Lee to call a specific lawyer nor a third party in order to access counsel and at no point did he express a desire to do so. As the Courts have made clear, police are only able to respond to information provided by the accused and “cannot be held to a standard of clairvoyance.” R. v. Valleau, 2018 ONCJ 280 para 17.
[60] An accused’s unexpressed desire to speak with his or her own lawyer cannot result in a breach of 10(b) – R. v. Zoghaib, [2006] O.J. No. 1023 (C.A.).
[61] As previously indicated, in the event that I am incorrect in my finding that Mr. Lee’s 10(b) Charter rights were not breached by the 2 minute delay I would admit the breath reading under s. 24(2) pursuant to the following analysis
Section 24(2) Analysis
[62] Section 24(2) of the Charter reads as follows:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[63] Whether the admission of the evidence would bring the administration of justice into disrepute is governed by the test first articulated in the Supreme Court's decision in R. v. Grant, 2009 SCC 32 at para. 71:
Whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
See R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12
The Seriousness of the Breach
[64] It is my view that, in the particular circumstances of this case, if there was any breach with respect to Mr. Lee’s rights to counsel it falls very much at the minor end of the spectrum. While he was receiving medical attention the officer briefly interjected to advise Mr. Lee that he was conducting a criminal investigation and that Mr. Lee had the right to speak with a lawyer. The officer then left the back of the ambulance and there was no engagement with Mr. Lee before the officer returned 2 minutes later.
[65] Upon the officer’s return there is no is no dispute that the officer provided Mr. Lee with his rights to counsel verbatim using the approved wording from the rear of his memo book after he had confirmed with the paramedic that it was permissible to engage with Mr. Lee. There is also no issue that Mr. Lee understood his rights to counsel upon being given them in full in the rear of the ambulance.
[66] In some cases, affording the accused the opportunity to speak to duty counsel may mitigate alleged breaches of 10(b) rights. Despite my findings, if a 10(b) breach occurred it is clear that this is such a case. In the clear absence of any request being made by Mr. Lee, the officer advised the Accused that he would be able to contact duty counsel ‘for now’ and that in the event Mr. Lee expressed a desire to speak to counsel of choice or a 3rd party it is clear that the officer would have facilitated this and that his words and actions conveyed this to Mr. Lee.
[67] The officer was diligent at the hospital in seeking to make the necessary arrangements and after the call occurred Mr. Lee expressed no dissatisfaction with the advice he had received.
[68] Furthermore, the officer’s evidence make it clear that he considered it important and necessary to connect Mr. Lee with a lawyer following his detention and subsequent arrest. Given the responses of the Accused the officer’s decision to connect Mr. Lee with duty counsel was not only prudent but was a necessary consequence of the options remaining to him. Simply put, the officer either pursued the course he did or denied Mr. Lee access to any form of legal advice.
The Impact of the Breach on the Charter-protected Interests of the Accused
[69] Mr. Lee’s rights to counsel were clearly explained to him and understood by him 2 minutes after the officer had initially and briefly summarised his right to a lawyer while Mr. Lee was being triaged. His liberty interests were infringed over a period of time; however, this was predominantly as a result of Mr. Lee being taken to hospital following the collision of the car he was driving following an initial assessment by paramedics at the scene of the accident.
[70] In my view of the facts before me any breach is also significantly mitigated by the non-invasive nature of the taking of his breath samples. I conclude that if any breach occurred in this case it had a minimal impact on Mr. Lee’s Charter-protected interests.
Society’s Interest in the Adjudication of the Case on its Merits
[71] The Supreme Court in Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at paras. 33 and 34, deals with this factor and the court considers factors such as the reliability of the evidence and its importance to the Crown’s case: “The evidence obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. …” Drink driving continues to take a considerable toll on the lives and safety of road users in Canada. The readings in this case were almost twice the legal limit.
[72] The third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public's interest in having the case adjudicated on its merits.
Balancing the three Grant Factors
[73] The Supreme Court in Harrison, supra, at para. 36 explains the proper approach to balancing the three Grant factors.
[74] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. “The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.” R. v. Koralov, supra.
[75] I find that if there was a breach of Mr. Lee’s 10(b) Charter rights any such breach was fleeting and trivial and had a minimal impact on his rights. I do not find any basis to conclude that the admission of the breath readings in this case would bring the administration of justice into disrepute nor is there any conduct on the part of the police from which the court should seek to disassociate itself.
Impaired Driving Count
[76] The Criminal Code does not prescribe and special test for determining impairment. However, the law is well-settled. If the evidence of impairment establishes any degree of impairment ranging from slight to great the offence is made out. R. v. Stellato (1993), 78 C.C.C. (3d) 380, 18 C.R. (4th) 127 and subsequently affirmed by the Supreme Court.
[77] It cannot be assumed that consumption of alcohol automatically equates to impairing a person’s ability to operate a motor vehicle. However, an accused may be convicted of this offence although his impaired condition is partly due to fatigue and partly due to the consumption of alcohol R. v. Pelletier (1989).
[78] On the evidence before me it is clear that Mr. Lee had consumed alcohol. It was apparent from the audio of the 911 call that Mr. Lee made following the collision that his speech was stilted and his conversation with the 911 operator was ponderous and laboured. I do not find that this was attributable to any after effects of the car accident on Mr. Lee but was due, at least, in large part to his consumption of alcohol.
[79] His breath readings of 154 and 153 were almost twice the legal limit. There was an unexplained single motor vehicle collision in good weather conditions of the vehicle that Mr. Lee was driving that resulted in an electric pole being knocked over. The officers made observations of Mr. Lee’s unsteadiness while walking unaccompanied from his vehicle to the ambulance having suffered no apparent injuries following the collision. They also noticed a strong odour of alcohol emanating from Mr. Lee. PC Johnston also described Mr. Lee as having glassy eyes and slow, slurred speech that improved over the course of time prior to his release from the hospital.
[80] I am satisfied on the totality of the evidence before me that the Crown has met it’s onus in respect of proving a necessary degree of impairment on the part of Mr. Lee.
Conclusion
[81] The burden of proof in a criminal trial always rests with the Crown. The burden of proof is a heavy one. It is proof beyond a reasonable doubt in relation to each of the offence’s essential elements. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence.
[82] To be clear, it is not sufficient that, on the whole of the evidence that I am satisfied that Mr. Lee is probably guilty.
[83] I find that Mr. Lee has not established on a balance of probabilities there was a breach of his 10(b) Charter rights and the evidence of the breath tests is admitted. In the alternative, and as I have indicated, if there was a breach of Mr. Lee’s 10(b) Charter rights I find that following my s 24(2) analysis the evidence of the breath tests would still be admissible.
[84] Having considered all of the evidence and the absence of evidence, I find that the Crown has proven beyond a reasonable doubt that Mr. Lee committed the offences of Over 80 and Impaired operation of a motor vehicle.
Released 13th June, 2023
Justice Michael Waby