Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 02 13 HAMILTON INFORMATION NUMBER: 20-8070

BETWEEN:

HIS MAJESTY THE KING

— AND —

RYAN SCHUSTER

Before: Justice M.K. WENDL

Heard on: January 6, 2023 Reasons for Judgement Released: February 13, 2023

Counsel: Z. Sethna, Counsel for the Crown Y. Obouhov, Counsel for R. Schuster

WENDL J.:

[1] Ryan Schuster is charged with having a blood alcohol level equal to or over 80 milligrams of alcohol in 100 milliliters of blood while operating a conveyance and impaired operation of a conveyance. The defence contends that Mr. Schuster’s 10(b) right was breached twice and that the breath readings should be excluded under section 24(2) of the Charter. Initially, Mr. Schuster argued that, in addition to two breaches of 10(b), his Section 9 rights were violated as well. The allegation of the section 9 breach was summarily dismissed by the Court for lack of compliance with the Criminal Rules of the Ontario Court of Justice.

[2] On the impaired charge, the defence argues that, based on the circumstantial evidence test in Villaroman, inferences other than impairment are available.

Facts

[3] On August 4th, 2020, at around 11:30 pm Officer Peaire was travelling westbound on Queenston Road in Hamilton. He observed a red Toyota which did not have its full headlighting system on. As he passed the vehicle, he further noted that the tail lights were not on, confirming his initial conclusion. Officer Peaire then began following the vehicle. He noted that the vehicle accelerated to 90 km in a 50 km zone. He determined the speed by pacing the vehicle. The red Toyota then turned into a parking lot at 210 Centennial Parkway and methodically and slowly pulled into a spot on the west side of the parking lot.

[4] Officer Peaire then initiated a stop under the Highway Traffic Act for improper headlighting and speeding. When the officer informed the accused of the reason for the stop, he attempted to put on the proper headlights and fumbled with the switch. The officer then asked Mr. Schuster if he consumed any alcohol and the accused acknowledged drinking two beers. Along with the admission of the consumption of alcohol Officer Peaire noted that his eyes were glossy.

[5] At this point, the officer then demanded that Mr. Schuster perform a standard field sobriety test [SFST] which Officer Peaire found he performed poorly. On the basis of the poor performance on the SFST and the other factors, Officer Peaire arrested the accused for impaired operation of a conveyance. After the arrest the accused became extremely belligerent for quite some time, according to Officer Peaire, calling the officers “retards”, “stupid”, “goof” and “pig”. In the car the Officer also noted the smell of alcohol emanating from him and the fact that his speech was slurred.

[6] Upon arrest he was given the breath demand and the right to counsel. The accused asked to speak to Zack Zivolak as his counsel of choice. At the station Officer Peaire called the Sumit Tangri law group where Zack Zivolak was employed and left a message. Mr. Zivolak did not call back and Mr. Schuster asked Officer Peaire to contact his girlfriend to obtain the name of another lawyer. The officer did so and obtained the name of Beth Bromberg. Mr. Schuster was asked and agreed to speak to Ms. Bromberg. Officer Peaire called both a primary and secondary number for Ms. Bromberg. She did not respond. When Ms. Bromberg did not call back, the Officer then reminded Mr. Schuster of duty counsel and asked him if he wanted to speak to them. He agreed and duty counsel was called.

[7] At 1:34 am Mr. Schuster spoke with duty counsel. The call ended at 1:38 am. He expressed dissatisfaction with the call. As a result, Officer Peaire called Mr. Schuster’s girlfriend again and was informed that she wouldn’t be able to contact the law group until morning and that she had no more information as to any other lawyers or any other contact information for the group. He did not ask Mr. Schuster himself if there was anyone else he wanted to speak to. As a result of Mr. Shuster’s expression of dissatisfaction and the lack of other information from Mr. Shuster’s girlfriend, Officer Peaire made the decision to see if either Mr. Zivolak or Ms. Bromberg would call back. At 1:48 am, a lawyer for Sumit Tangri Law Group whose name was Sean called back. Mr. Shuster agreed to speak to him. After the call, no expression of dissatisfaction was made to Officer Peaire by the accused, and he was placed in the breath room to provide samples. The samples were 191 milligrams of alcohol in 100 milliliters of blood and 196 milligrams of alcohol in 100 milliliters of blood. Although the breath samples were taken outside the two hours counsel conceded that the Court could read back the blood alcohol level pursuant to section 320.31(4) of the Criminal Code.

Summary Dismissal of Section 9 Breach Allegation

[8] At trial, after inviting submissions from both counsel on this point, I summarily dismissed the applicant’s allegation of a section 9 breach for want of compliance with the Criminal Rules of the Ontario Court of Justice. While the application contained a factual basis for the section 10(b) allegations, it was bereft of any factual foundation to support the section 9 breach allegation. To be clear, all that was pleaded in the Form 1 was a breach of section 9. No facts at all were plead to support it.

[9] Rule 2.1(2)(c) of the Criminal Rules of the Ontario Court of Justice requires the Form 1 to contain a detailed factual basis for the application. This was not done.

[10] The purpose of these rules is to provide the responding party and the Court with meaningful notice and alert the parties to the issues. As Justice Duncan stated in Francey at para 14:

Having regard to the wording of these Rules, the principles that should guide their interpretation, and the practices of this court, I suggest that counsel appearing before me be guided as follows:

1. The golden rule is that real and meaningful notice be given of the intended Charter application and that it be sufficiently detailed to alert the respondent and the court as to the issues that will be involved.
2. The applicant has a duty to place the relevant facts "necessary for a just determination of the issue" in his material in some manner (see below). While this phrase is found in the affidavit subrule, in my view it should equally be the standard that applies if applications without affidavits are to be permitted.

[11] A lack of proper notice leads to the ineffective use of Court time, to the inability of the Respondent to properly respond, for the Court to properly prepare and, ultimately, the wasting of court time, the Respondent’s time, and judicial resources. Given the current 11(b) climate in the Ontario Court of Justice at Hamilton judicial resources cannot be wasted. Therefore, improper pleadings run the risk, as in this case, of being summarily dismissed.

[12] This is not new. As Justice Takach stated in Bosnjak at para 9 back in 2003:

I agree with Duncan, J. that an affidavit will only be necessary if no other material discloses the fact of a Charter breach. What is, in fact, important, however, is that there be some basis for the Charter breach other than bald statements or conclusions that are not based on the material filed. In my view, as in Duncan, J.'s view, in R. v. Franci, applications not meeting these minimal standards or failing to present a factual basis for a prima facie claim of a Charter infringement should be generally dismissed without a hearing. I agree that reasonable deviations from the notice and accompanying materials will not result in an outright rejection of the application. Any prejudice to another party, or to the Crown, more specifically, can be remedied by adjournments, or as noted in Franci by giving latitude in reply.

[13] Finally, I note that defence counsel’s Form 1 was filed late. It was served on December 25th, 2022, a statutory holiday, 11 days prior to the trial of January 6th, 2023. Again, this is not in compliance with the Criminal Rules of the Ontario Court of Justice, which require a 30-day notice.

Section 10(b)

[14] After much go between during submissions, counsel articulated the allegations with respect to the 10(b) breaches as follows:

(1) That the accused was not told he could wait for a call back from Ms. Bromberg or Mr. Zivolak before speaking with duty counsel. (2) That the accused was not asked who else he wanted to speak to after he voiced a dissatisfaction with his conversation with duty counsel.

[15] In relation to the first allegation that the accused was not told he could wait to speak to counsel, I find no breach. The facts on this issue are almost identical to the facts of the Supreme Court decision in McCrimmon and which is dispositive of the issue. In McCrimmon, the accused was arrested in relation to eight assaults committed against five different women over the course of the preceding two months. Upon being informed of the reasons for his arrest and of his right to counsel, he stated that he wished to speak to a lawyer. When the police failed to reach the particular lawyer he requested, the accused agreed to the police contacting Legal Aid and he spoke to duty counsel briefly. In these circumstances, the majority of the Supreme Court found no breach and that there was no obligation to advise the accused that he could wait for counsel to call back:

In this case, we agree with the courts below in rejecting Mr. McCrimmon's contention that he was denied the right to counsel of choice in a manner that contravened his rights under s. 10(b). While Mr. McCrimmon expressed a preference for speaking with Mr. Cheevers, the police rightly inquired whether he wanted to contact Legal Aid instead when Mr. Cheevers was not immediately available.

[16] In relation to the second issue, I, again, find no breach. On the facts of this case, I do not think the police were required to ask the accused who he wanted to speak to after he spoke with duty counsel. This is not mandatory. I agree with the comments of Justice Duncan in Wilson at para 34:

Is the above passage from the Court of Appeal a direction or a suggestion? I think it is the latter. No mandatory language such as "must" is used. Moreover mandating any particular step would be inconsistent with the Court's flexible approach that turns on the circumstances of the particular case. If it is merely a suggestion, failure to adhere to it does not constitute a Charter violation, provided that the other steps taken by the police to facilitate contact with counsel were reasonable -- and I have concluded above that they were.

[17] The ultimate issue is not whether the officer took the intermediate step of asking the accused who he wanted to speak to after he was dissatisfied with the advice from duty counsel, but whether the steps taken to contact counsel of choice were reasonable. Here they were. Officer Peaire called Mr. Schuster’s girlfriend after the call with duty counsel to ask for more phone numbers or the name of another lawyer. It was logical and reasonable for him to do so; she had been the source of information as to which counsel and their contact information throughout the evening. Moreover, when he could not get any new contact information, he waited for previous counsel to call back before administering the breath sample. In my view, Officer Peaire’s conduct was exemplary.

[18] Even if I am wrong about the allegations of breach, I would not exclude. Officer Peaire went to great lengths to try and obtain counsel for Mr. Shuster. If there is a breach, the state infringing conduct would not be serious, it would fall to the very low end of the spectrum. Mr. Shuster did not testify and I do not know what impact if any a breach of 10(b) would have had on him. Moreover, he spoke to two lawyers that evening before providing the breath samples and there is no evidence of complaint in relation to the conversation with the second lawyer. Therefore, any impact on the accused would be minimal. Finally, the breath samples are reliable evidence. Balancing all three factors under the Grant analysis strongly favor the admission of the evidence in this case.

Impaired Operation

[19] When evaluating the evidence of impairment, the court is required to assess the evidence in its totality and not approach it in a piecemeal manner. I find that on the totality of the evidence, the Crown has established beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol. First, I find that Officer Peari’s credibility was unassailed nor were any of the indicia of impairment undermined in cross-examination. Second, the accused’s headlighting system was not at the appropriate setting given the time of day, the short burst of speeding and the belligerency upon arrest demonstrate a significant lack of judgment which is a symptom of impairment. Third, he fumbled with the light switch. Fourth, his deliberate and slow parking at 210 Centennial Parkway. Fifth, the smell of alcohol emanating from him while in the back of the cruiser. Sixth, the glossy eyes and, seventh, the slurred speech.

[20] On the totality of these facts, there is no other inference I can draw but that of impairment. Therefore, the Crown has established beyond a reasonable doubt that Mr. Shuster's ability to operate a motor vehicle was impaired to some degree, from slight to great, by alcohol.

Released: February 13, 2023 Signed: Justice M.K. Wendl