DATE: August 24, 2023 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

MARK GODWIN

Before Justice T. Lipson

Reasons for Judgment released on August 24, 2023

Mr. M. Brown ......................................................................................... counsel for the Crown Mr. B. Engel ................................................................ counsel for the accused Mark Godwin

LIPSON J.

Overview of Case

[1] Mark Godwin entered pleas of not guilty to charges of impaired operation and over 80 mg. The alleged offences occurred on June 18, 2022. The arresting officer, Cst. Berube, observed Mr. Godwin driving his vehicle on Walkley Road in Ottawa. Mr. Godwin’s vehicle was speeding and swerving. The officer conducted a traffic stop. He observed Mr. Godwin to exhibit signs of impairment, placed him under arrest and then transported him to the police station. Mr. Godwin provided two samples of his breath resulting in readings of 240 mg of alcohol and 230 mg of alcohol in 100 ml of blood.

Over 80 mg Charge

[2] I will first deal with the Over 80 mg charge. The defence alleges that the breath test results are not admissible because Mr. Godwin’s sections 8, 9 and 10(b) Charter rights were violated and should, therefore, be excluded pursuant to section 24(2).

The section 10(b) Charter right to counsel issue

[3] The defence submits that the police violated Mr. Godwin’s right to counsel, contrary to s. 10(b) of the Charter and seeks exclusion of the observations and breath samples provided by Mr. Godwin.

Summary of the relevant evidence

[4] On June 18, 2022, at 6:28 a.m., Cst. Berube arrested Mr. Godwin for impaired operation. At 6:32 a.m. the officer gave Mr. Godwin his rights to counsel of choice to which Mr. Godwin said he understood. Mr. Godwin informed the officer that he wished to speak to a lawyer but that he did not have one.

[5] At 6:54 a.m. Cst. Berube drove Mr. Godwin to Central Cells at the main Ottawa Police station. The officer directed Mr. Godwin’s attention to a list of Ottawa criminal lawyers as well as contact information for legal aid duty counsel. This list was taped to the door of a privacy booth. The officer explained that Mr. Godwin could choose from the list of lawyers or legal aid duty counsel. Mr. Godwin looked at the list and, after a few minutes, informed Cst. Berube that he could not find the name of a friend to pick him up from the station. The officer again explained to Mr. Godwin was looking at a list of criminal lawyers from which he could choose to call. Mr. Godwin again looked at the list for a few minutes and again said that he could not find the name of his friend. Cst. Berube repeated that this was a list of lawyers’ names, that he could obtain free advice and that “it was to his benefit to contact one”. The accused looked at the list and indicated he wanted “the top one”. Cst Berube thought he meant a name that was on top one of the columns of lawyers’ names. The officer also made it clear to the accused that he could not recommend a specific lawyer. Cst. Berube said that a special constable at the station also tried to explain the purpose of the list to Mr. Godwin. This explanation process took between 5-10 minutes. Cst. Berube believed that Mr. Godwin was intoxicated, confused and incapable of making a decision about contacting a lawyer. Mr. Godwin was unable to tell the officer to phone a particular lawyer or even point to a name on the list.

[6] The officer decided “it was best” for Mr. Godwin that he be put in touch with duty counsel.

[7] Mr. Godwin spoke with duty counsel at 7:37 a.m. Then duty counsel called Cst. Berube to advise that Mr. Godwin wished to speak to his uncle John Macera who is a lawyer. The officer searched the criminal lawyers list for Mr. Godwin’s uncle’s name and asked the defendant if Mr. Macera was a criminal lawyer. Cst. Berube could not recall Mr. Godwin’s response. The officer did a search for Mr. Macera’s name on CPIC and then a Google search. Mr. Macera’s name did come up as being employed in a patent and trademark firm called Moffat and Co. The officer phoned the general number, but the office was closed and the officer was unable to leave a voicemail. He inquired of Mr. Godwin whether he knew his uncle’s number or had it somewhere on his phone. Mr. Godwin responded that he did not. The officer could not recall whether the accused wished him to continue trying to contact his uncle. Constable Godwin asked him if he wanted to speak with anyone else but did not note the accused’s answer. The officer then put the accused in touch with duty counsel again. Const Berube said he “would most likely” have advised Mr. Godwin that he was doing this but did not make a note of doing so. At 8:10 p.m., Mr. Godwin had an eight-minute conversation with duty counsel and was then introduced to the breath technician. Prior to the testing, Mr. Godwin was asked if he was “satisfied” with the advice he had received, and the accused replied that he was.

[8] Mr. Godwin then provided a sample at 8:26 am with a result of 244 mg /100ml of blood. The second sample taken at 8:48 am registered a result of 237 mg/100 ml of blood.

[9] Mr. Godwin testified that upon being arrested, he wanted to call his uncle. He did not communicate this to Cst. Berube at the time. Later at the station, he said he looked at a list of names but wasn’t aware that it was a lawyers’ list. When he realized it was a lawyers list, he didn’t know any of the names and asked to speak to the “top one”. Const. Berube told him he couldn’t pick a lawyer for him. He was then put in touch with duty counsel. Mr. Godwin advised duty counsel to call his uncle. Duty counsel then advised the office of this request. Mr. Godwin agreed that the officer did a Google search and made an unsuccessful attempt to reach Mr. Macera. Mr. Godwin said that he knew of a way of reaching his uncle through other family members but did not inform the officer of this. Mr. Godwin testified that he kept repeating to the officer that he wanted to speak with his uncle. He was then put in touch with duty counsel. Mr. Godwin said that he felt his only options were to speak to either a lawyer on the list or duty counsel.

Positions of the parties

[10] Counsel for Mr. Godwin submits that that the police violated Mr. Godwin’s right to retain and instruct counsel of choice. First, Mr. Engel says that Mr. Godwin was hurried by Cst. Berube to select from a list of criminal lawyers posted on the door of the privacy booth. He further submits that Cst. Berube did not make sufficient efforts to facilitate Mr. Godwin’s request to reach his uncle Mr. Macera. Further steps should have been taken, such as allowing Mr. Godwin to call another family member or the use of a phone directory to locate a residential phone number for his uncle. Counsel also submits that the police “funnelled” Mr. Godwin to duty counsel rather than let him decide or even ask him whether he wished to speak to duty counsel or other counsel.

[11] Crown counsel submits that Mr. Godwin was promptly informed of his right to counsel of choice without delay. Mr. Brown submits that once at the station, Cst. Berube spent considerable time with Mr. Godwin in to facilitate a call with counsel. Mr. Godwin was put in touch with duty counsel because he was too intoxicated to choose either duty counsel or a name from the lawyer’s list. He submits that once Cst Berube was informed that Mr. Godwin wished to speak with his uncle, a lawyer, he took sufficient positive steps to locate Mr. Macera’s contact information. He then attempted unsuccessfully to reach counsel of choice but provided Mr. Godwin with the opportunity to speak with duty counsel.

Analysis

[12] The central issue is whether the police met their implementational requirement under s.10(b) of the Charter.

[13] Section 10(b) provides that everyone with the right upon arrest or detention to retain and instruct counsel without delay and to be informed of that right. The police have an obligation to facilitate a detainee’s exercise of that right.

[14] There is no dispute that Cst. Berube promptly and fully informed Mr. Godwin upon arrest of his right to counsel. At the station, Cst. Berube spent considerable time with Mr. Godwin in order to facilitate his request to speak with counsel. The officer directed Mr. Godwin to a list of Ottawa criminal lawyers as well as contact information for duty counsel. Mr. Godwin was confused and thought he would find on this list the name of a non-lawyer friend to pick him later from the police station. Even after receiving further instruction from the officer, Mr. Godwin again tried to find the name of a friend to call. Eventually Mr. Godwin indicated he wanted “the top lawyer”. Cst. Berube properly advised that he could not recommend a specific lawyer. A special constable also tried to explain the purpose of the list to Mr. Godwin.

[15] I accept the evidence of Cst. Berube that Mr. Godwin was intoxicated, confused and unable to decide whether to contact a lawyer. He was unable to even point to a name on the lawyers’ list. I am satisfied that, in these circumstances, it was appropriate and fair for Cst. Berube to put Mr. Godwin in touch with duty counsel for legal advice.

[16] When duty counsel informed Cst. Berube that Mr. Godwin wished to speak with his uncle John Macera, a lawyer, the officer took positive steps to locate the uncle’s contact information. Cst. Berube attempted, unsuccessfully, to reach Mr. Godwin’s counsel of choice.

[17] The issue is whether Cst. Berube was reasonably diligent in his effort to contact Mr. Godwin’s uncle. Cst. Berube checked the police information data bank on CPIC. He then did a Google search and located the office number in the patent and trademark firm where Mr. Godwin’s uncle practiced. He called the general office number and, likely due to the hour of the day, the office was closed and did not provide an answering service or voicemail option. He asked Mr. Godwin if he had the number on his phone or knew it by heart.

[18] Mr. Engel submits that the officer could have done more. He could have looked at a telephone directory for a residential number of Mr. Macera. He could have asked Mr. Godwin if he knew another relative who would know how to reach Mr. Macera.

[19] In this regard, it is important to note that the law does not require the police to do everything and anything that detainees might do for themselves to contact counsel. R. v. Gardner, 2021 ONSC 4700 is a summary conviction appeal decision from this jurisdiction. Justice Aitken reviewed the relevant caselaw and stated that the standard is whether the police took all steps that were reasonable in the circumstances. At para. 51, Justice Aitken stated:

In my view, the assertion that police officers are obliged to meet some elevated standard of conduct when they are the ones controlling the telephone, initiating the calls to counsel, and possibly leaving messages with call centres or on answering machines, is contrary to jurisprudence from the Supreme Court of Canada and the Ontario Court of Appeal: see Willier, at paras. 24, 28, 33-35; R. v. Bartle, 1994 SCC 64, [1994] 3 S.C.R. 173, 23 C.R.R. (2d) 193, at p. 192; R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at paras. 17-19; R. v. Canavan, 2019 ONCA 567, 46 M.V.R. (7th) 181, at paras. 16-17; R. v. Richfield (2003), 2003 ONCA 100, 175 O.A.C. 54, 178 C.C.C. (3d) 23 (C.A.), at para. 6; and R. v. Littleford (2001), 2001 ONCA 300, 147 O.A.C. 123, 86 C.R.R. (2d) 148 (C.A.), at para 8.

[20] A detainee is also required to be reasonably diligent in the pursuit of his rights: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 (S.C.C.) at para. 35. Where a detainee wants to call a specific lawyer or a third party to access counsel, he has a duty to tell the police who he wants to call and why: R. v. Williams, [2014] O.J. No. 2559 (C.A.) at para. 39. Mr. Godwin did not offer the name and number of a relative who could provide contact information for Mr. Macera.

[21] Cst. Berube testified that he asked Mr. Godwin whether he wanted to call anyone else but did not note Mr. Godwin’s answer. He also testified that he would likely have told Mr. Godwin that he was going to put him in touch with duty counsel again. I am satisfied that Mr. Godwin made no further requests to speak with another counsel and was content to speak to duty counsel. I am satisfied that Mr. Godwin did not indicate that he wanted to speak with another lawyer or call a third party to access one.

[22] I do not accept Mr. Godwin’s evidence that he continued to insist on speaking to Mr. Macera, even after Cst. Berube could not reach him. When he was in the breath room, Mr. Godwin never mentioned wanting to speak with his uncle. In fact, he told the officer that he was satisfied with his call with duty counsel.

[23] I find that Mr. Godwin has not established a section 10(b) Charter breach on a balance of probabilities.

The section 8 Charter issue

[24] Mr. Engel also argued that Mr. Godwin’s breath samples were not taken as soon as practicable, thereby “negating the grounds to seize the samples contrary to section 8 of the Charter.”

[25] I do not agree. Mr. Godwin was arrested at 6:28 a.m. and arrived at the police station at 6:54 a.m. He was being processed at the station and Cst. Berube was facilitating his right to counsel between 6:54 a.m. and 8:18 a.m. At 8:18 a.m. he was transferred to the breath technician and the breath samples were taken shortly thereafter. In all the circumstances, I am satisfied that the breath samples were taken as soon as practicable and no section 8 Charter breach occurred.

The section 9 Charter issue

[26] Mr. Engel submits that Mr. Godwin was arbitrarily detained for six hours and 27 minutes after he completed his second breath sample at 8:47 a.m.

[27] There was no direct evidence adduced as to why Mr. Godwin was detained for this period after he completed the breath tests. However, it must be noted that Mr. Godwin’s breath readings were almost three times the legal limit – 240 mg of alcohol in 100 ml of blood and 230 mg of alcohol in 100ml of blood, respectively. There is also the evidence of Cst. Berube who observed the accused to be intoxicated and confused at the police station. Mr. Godwin told the breath technician that on a scale of 1 (sober) to 10 (the most intoxicated he had ever been), he would put himself at a “6 ½”. Decisions such as R. v. Sapusak, [1998] O.J. No. 3229 (Sup Ct) and R. v. Kavanaugh, 2017 ONSC 637 are binding summary conviction appeal decisions which hold that high blood alcohol readings are on their own constitute sufficient reason for continued detention.

[28] I am satisfied that Mr. Godwin’s detention was lawful and not arbitrary.

[29] In the result, I find that Mr. Godwin’s breath test results are admissible. I am satisfied beyond a reasonable doubt that he is guilty of the Over 80mgs charge.

The impaired operation charge

[30] The Crown has presented a compelling case that Mr. Godwin’s ability to operate a motor vehicle was impaired by the consumption of alcohol. I accept the evidence of Cst. Berube that Mr. Godwin’s vehicle was speeding westbound on Walkley Road at approximately 80 km in a 50 km zone. I accept the officer’s testimony that, at times, Mr. Godwin’s vehicle was either drifting or swerving between lanes. When Mr. Godwin pulled his car into a Wendy’s parking lot in response to the traffic stop, he parked his car in what the officer described as “a very crooked way”. I accept the officer’s evidence that Mr. Godwin seemed confused and had an “empty stare” and that Mr. Godwin’s speech was slurred at the time of the investigation. The accused also had difficulty turning off the vehicle’s motor. There was a case of beer on the passenger-side floor and an open can of beer in the centre console. When he stepped out of the vehicle, Mr. Godwin lost his balance. To stop from falling, Mr. Godwin had to support himself by putting both of his hands on the vehicle that was parked next to his. His breath smelled of alcohol and there was the smell of alcohol coming from Mr. Godwin’s vehicle. Mr. Godwin seemed confused and kept turning around to face the officer while he was being searched. Later at the police station, Mr. Godwin’s confused state continued. Despite being told that he was looking at a list of lawyers, the accused looked for the name of a non-lawyer friend’s name on that list. Cst. Berube described the accused as being intoxicated and confused. I accept the officer’s characterization of Mr. Godwin’s condition.

[31] In his testimony, Mr. Goodwin did not dispute most of the observations made by Cst. Berube but provided an innocent explanation for most indicia of impairment observed by the officer. He admitted drinking the night before but not after he woke up that morning and prior to driving. He admitted that he was speeding because he has a “tendency” to drive over the speed limit. Mr. Godwin admitted “swerving a little bit back and forth”. That occurred when he would look down at his phone to change the music he was playing in his car Mr. Godwin explained his crooked parking in the Wendy’s lot. He prefers to always park on an angle on purpose as a protective measure. Mr. Godwin admitted to the open can of beer in the console but that he had taken a sip from the can the night before. He also said it that it was a “commemorative can” of beer that he was taking home as a memento. Mr. Godwin denied losing his balance as he got out of his vehicle. Mr. Godwin conceded that he may have had an empty stare and appeared confused because he was nervous and confused. He denied losing his balance as he exited his car. He said he closed the door and simply leaned against the neighbouring vehicle. At the station, Mr. Godwin admitted trying to find a name of a non-lawyer friend from the lawyers list. He claimed he did not know it was a list of lawyers.

[32] Mr. Godwin acknowledged telling the breath technician that on a scale of one to ten (one for sober to ten being the most intoxicated he’s ever been) that he was a “6 ½”. Yet Mr. Godwin also claimed that when he was on the road approximately two hours earlier, he was sober enough to drive.

[33] I do not believe Mr. Godwin that he was sober enough to drive when he was operating his motor vehicle. I reject his assertion and accept the evidence of the officer that Mr. Godwin was intoxicated and that his ability to operate a vehicle was impaired by alcohol. Nor does Mr. Godwin’s testimony that he was not impaired by the consumption of alcohol raise any reasonable doubt. He did not dispute the observations of the officer as to his driving. His excuses for the poor driving were, in my view, contrived and not credible. I accept the evidence of Cst. Berube that Mr. Godwin could not properly park his vehicle, had trouble turning off his vehicle, stumbled as he exited the vehicle, slurred his speech, smelled of alcohol and had open alcohol in his driver’s console.

[34] Even in the absence of the breath readings, the Crown has established beyond a reasonable doubt that Mr. Godwin’s ability to operate a motor vehicle was impaired by alcohol. Although the breath test results alone cannot support a finding of impairment, they can be used to support a finding based on other evidence. Mr. Godwin’s very high breath readings of 240 and 230 mgs in 100 millilitres of blood support a finding of impairment based on the ample evidence presented in this case.

[35] Mr. Godwin is also guilty of impaired operation.

Released: August 24, 2023 Justice T. Lipson