DATE: March 14, 2024 ONTARIO COURT OF JUSTICE

B E T W E E N :

HIS MAJESTY THE KING

— AND —

DEREK SOBCZAK

Before: Justice Berg

JUDGEMENT

Released: March 14, 2024

Counsel: Burns, counsel for the Crown R. Conway, counsel for the defendant

Berg J.:

[1] It is alleged that on February 18, 2023, Derek Sobczak, within two hours after ceasing to operate a conveyance, had a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood, contrary to s. 320.14(1)(b) Criminal Code. Mr. Sobczak has brought certain applications pursuant to the Charter of Rights and Freedoms. With the consent of both parties, the trial was conducted in a blended fashion. All the Crown evidence was applicable to both the trial proper and the Charter voir dire, while the defence evidence was only with respect to the Charter.

[2] The first witness was Zoe Prassoulis. On the day in question, she was in Ottawa visiting friends. She was driving on Highway 417 returning to her hotel when she made certain observations. She saw a motor vehicle lose control, turn, hit a concrete barrier with its left side, spin and then hit the barrier again but this time with its right side. As a result, Ms. Prassoulis called 911 and then drove over to the now stopped vehicle. She was concerned that someone might have been injured due to the impacts. While she was on the phone with 911, she observed a woman open the vehicle’s passenger side door. Ms. Prassoulis could see that the airbags had deployed inside. She asked the woman and the male if they were injured. She offered them shelter in her vehicle as it was very cold out, however, they indicated that they did not it as they had contacted CAA. Ms. Prassoulis identified Mr. Sobczak in court as having been the male whom she had seen in the vehicle’s driver’s seat. An ambulance arrived on scene and then the police. She advised the police that the driver of the vehicle was presently in the ambulance. She was present when Mr. Sobczak was arrested.

[3] The next Crown witness was Provincial Constable David Gobraeil. He testified that he was dispatched at 01:42 hrs. and arrived at the scene of the accident at 01:53 hrs. He observed that Mr. Sobczak’s vehicle was completely demolished. There was no one in it. He was told by Ms. Prassoulis that the driver was in the ambulance. He went there and spoke with Mr. Sobczak whom he identified in the courtroom. The constable noticed the strong odour of alcohol coming from the defendant’s breath when he spoke. Mr. Sobczak also displayed pressured speech and red, watery eyes. Mr. Sobczak denied having consumed any alcohol when asked. However, based on the presence of the odour of alcohol and the fact of the accident, the Constable made the Approved Screening Device (ASD) demand; this was at 02:00 hrs. At 02:01 hrs., the defendant provided a suitable sample of his breath into the properly functioning ASD and obtained a ‘Fail’ reading. He was immediately placed under arrest for the present offence at 02:03 hrs. and handcuffed and searched incident to arrest. His rights to counsel, cautions, and s. 524 warning were provided from 02:05 to 02:06hrs. Mr. Sobczak indicated that he understood and that he did not want to speak to a lawyer immediately. The breath demand was made by Mr. Gobraeil at 02:07 hrs. At 02:21 hrs., Constable Gobraeil began transporting the defendant to the Ottawa Police Service station located at 474 Elgin Street as that was where the closest qualified breath technician was to the scene of the accident. Between 02:07 and 02:21 hrs., the constable had had to deal with some friends of Mr. Sobczak who had arrived on scene and wished to take some items from the wrecked automobile. As well, he had had to arrange for towing while the other officer on scene took a statement from Ms. Prassoulis.

[4] Mr. Gobraeil and the defendant arrived at 474 Elgin at 02:26 hrs. He was processed and then provided with a list of lawyers from whom he could choose. At 02:46 hrs., he was placed in the phone booth. He attempted to reach three different lawyers to no avail. Finally, at 02:51 hrs., he was successful in contacting and speaking to Ms. Conway, his counsel at trial. At 02:55 hrs., Constable Gobraeil provided his grounds to the qualified breath technician, Constable Cousineau while the defendant was consulting with counsel. The witness testified that after Mr. Sobchak had spoken with Ms. Conway, the constable did not ask him if he was satisfied with the call. He transferred the custody of the defendant over to Mr. Cousineau at 03:08 hrs. Mr. Sobczak was returned to his custody at 03:47 hrs.

[5] The next Crown witness was Provincial Constable Eric White. He was dispatched at 01:53 hrs. to the scene of the accident. Constable Gobraeil was already on scene when he arrived there. He assisted with protecting the people at the scene (e.g., setting flares), and searching Mr. Sobczak’s person after he was arrested. He noted that the arrest occurred at 02:02 hrs. He attended at 474 Elgin Street with his colleague and the defendant; he arrived at the same time as they did. The parading of their prisoner before the cell block sergeant occurred at 02:37 hrs. Mr. Sobczak was searched by special constables at 02:53 hrs. and then placed in the phone booth; I am cognizant of the differences between these times and those provided above by his colleague. The defendant’s conversation with counsel was over at 03:00 hrs. Mr. White testified that after the phone call, Mr. Sobczak was taken to the washroom prior to being handed over the QBT. The two Ontario Provincial Police officers then drove Mr. Sobczak to their detachment in order to be finger-printed. However, the scanner was not functioning and he had to be given a date to return there for that purpose.

[6] The final Crown witness was OPS Constable Cousineau. He was notified that his services as a QBT were required to assist the OPP. He attended at the OPS station at 474 Elgin Street, arriving at 02:29 hrs. He received Mr. Sobczak into his custody at 03:08 hrs. having already provided with the grounds by Mr. Gobraeil. He noted that Mr. Sobczak displayed certain indicia of impairment. He had the defendant provide two samples of his breath into the Intoxilyzer 8000c after he, Mr. Cousineau, had performed the quality assurance checks successfully. Mr. Sobczak first sample was at 03:19 hrs: a reading of 103 mg of alcohol in 100 mL of blood. The second sample was at 03:42 hrs.: 102 mg of alcohol in 100 mL of blood. Mr. Cousineau filled out the necessary documents and then returned custody of the prisoner to Mr. Gobraeil at 03:42 hrs.

[7] Ms. Conway questioned this witness about whether he believed that there had been a change in Mr. Sobczak’s legal jeopardy after he provided the first breath sample into the Intoxilyzer. His answer was in the negative. He did agree with defence counsel that the defendant had requested six times to speak again to her after he had provided the first sample and that there was a 17-minute pause required between the taking of the two samples of breath.

[8] That was the case for the Crown. The defence elected, as I have already mentioned, to call evidence only on the Charter application. That evidence was adduced by means of the affidavit of Mr. Sobczak as well as his viva voce testimony. In effect, he took the stand, reviewed and adopted his affidavit, then concluded with evidence to the effect that when he was not allowed to consult with Ms. Conway after providing the first sample of his breath at the police station, it affected him quite badly. He was quite confused while at the station.

[9] His affidavit provided me with the following evidence. He is presently 20 years old. He has no criminal record. He is a college student. He has been assessed with having a learning disability. As a result, the college he attends has allowed certain accommodations. He is supposed to take medication to help him study but had not taken it on the day of the present allegations as he did not have any classes. While at the police station.

[10] After the first breath test at the police station, he asked numerous times to be allowed to speak to the lawyer again, however, to no avail. The officer kept asking him questions and made him do another breath test. All this is borne out by the transcript of the recording from the breath room that is part of the affidavit. Mr. Sobczak stated in his affidavit that “I was frightened, my adrenaline was pumping, I was confused, and the breath technician was very pushy.” As well, he stated “I was confused by the whole process. I had already done a breath test and I needed to make sure if I was on the right track and if I needed to do it twice and if I had to answer the questions the officer kept asking. Those are the reasons why I needed to speak to a lawyer” and “Mentally I was not 100% there. My concentration was bad and I was not focused.”

[11] I note in passing that the transcript shows that Mr. Sobczak actually did at times refuse to answer questions posed by Mr. Cousineau. As well, I feel obliged to reiterate that Mr. Sobczak had consulted with counsel prior to being taken to the breath room and that he had not expressed any dissatisfaction with that consultation. The fact that Mr. Sobczak was frightened, adrenaline pumping and confused is hardly exceptional in the circumstances and does not at any rate equate with a dissatisfaction with the consultation that he had already had with Ms. Conway. I am not certain whether Constable Cousineau’s behaviour can be described as “pushy”, but if it was, I will merely remark that Mr. Cousineau was not a salesman attempting to convince a reluctant purchaser to close the deal. Mr. Sobczak was a prisoner in his custody and Mr. Cousineau was conducting a police investigation into a criminal matter.

[12] Most of the balance of the affidavit deals with Mr. Sobczak’s mental health in the months after he was charged with the present offence. With respect, as neither fitness to stand trial or s. 16 Criminal Code have been raised, those paragraphs are not relevant to either the trial or the Charter application. Neither are those paragraphs dealing with the reinstatement of his driving licence, and his present adherence to a regime of treatment and counselling.

[13] Mr. Burns cross-examined the defendant. He agreed that he had not told the police officers about mental health issues. He agreed that he could have asked the officers for clarification at various points but that it had not been on his mind at the time. He agreed that he could have spoken to Ms. Conway longer if he had wanted to do so. It was his evidence upon leaving the phone booth right after having spoken to Ms. Conway, he told an officer that he wished to speak to her again his request was denied. This interaction was between him and an officer who was not called upon to testify at these proceedings. It was open to the defence to call that officer and/or question the officers who did testify whether they had any evidence about this alleged interaction. As that did not occur, I cannot give this part of Mr. Sobczak’s evidence any weight: see the so-called Rule in Browne and Dunn.

The Charter

[14] Mr. Sobczak pleads that his rights pursuant to s. 10(b) Charter were violated when he was not allowed to speak to his lawyer again after he had provided the first breath sample. He seeks the exclusion of the results of the second breath test only. It is his position that he had never been in this position before and was confused, that he could have been allowed to recall Ms. Conway when he requested to do so right after he left the phone booth, and that he could have been allowed to recall her in the time between the two breath samples.

[15] The defence draws my attention to the decision of the Supreme Court of Canada in R. v. Sinclair, 2010 SCC 35. The overview of that decision was provided by McLachlin CJC [as she then was] and Charron J. at paragraphs 1 and 2.

This appeal and its companion cases are about the nature and limits of the right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms. The issue is whether a detainee who has been properly accorded his or her s. 10(b) rights at the outset of the detention has the constitutional right to further consultations with counsel during the course of the interrogation.

We conclude that s. 10(b) does not mandate the presence of defence counsel throughout a custodial interrogation. We further conclude that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognition of the right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient. The categories are not closed.

The test to establish a change in circumstances was referred to at paragraph 55 of the decision

The change of circumstances, the cases suggest, must be objectively observable in order to trigger additional implementational duties for the police. It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so.

[16] Mr. Sobczak spoke to counsel and then provided the first sample of his breath. He would then have to have provided a second sample after the required interval. Was the provision of the second breath sample a new procedure involving Mr. Sobczak? No it was not. The comments of the Ontario Court of Appeal in R. v. Tahmasebi, 2020 ONCA 47 at paragraph 24 are apposite here:

The first category in Sinclair does not apply because what occurred after the appellant was charged with impaired driving causing bodily harm and had his initial consultation with duty counsel -- namely, the DRE demand and, based on the result of the drug evaluation, the urine sample demand -- were procedures that were "within the expectation of the advising lawyer at the time of the initial consultation": …The procedures of a DRE demand and urine sample demand and the offence of impaired driving are integrally related. The procedures would be within the expectation of a lawyer advising a person charged with impairing driving. As the trial judge stated, "the advice given by counsel clearly should anticipate these probable outcomes": …

[17] Was the imminent second breath test a change in Mr. Sobczak’s jeopardy? No it was not. I can do no better than cite paragraph 35 of Tahmasebi:

The consequences of foreseeable investigative procedures in an impaired driving investigation -- the prospect that compliance with either a DRE demand or oral fluid or urine sample demand may yield evidence that incriminates the accused and that non-compliance may be an offence -- is not a new jeopardy arising from a new and more serious turn of events. It is not a discrete change in the purpose of the impaired driving investigation to an offence not contemplated at the time the appellant exercised his right to counsel. Just as the procedures themselves are foreseeable at the time of the initial consultation, the jeopardy arising from them is also foreseeable and within the expected subject matter of the initial consultation.

[18] Do I find that I have a reason to believe that the first information provided to Mr. Sobczak by his counsel was deficient? I do not. While I am certain that his experience at the police station was stressful for a variety of reasons, it is clear from the evidence that the defendant understood his lawyer’s advice. For example, his refusal to answer questions. There is no evidence before me from which I can reasonably infer that Ms. Conway’s advice to him was in any way insufficient.

[19] In Sinclair, the Supreme Court allowed that there may be other circumstances that come to light that would require an accused person to have a further consultation with their lawyer. I see no such circumstance in the present case at bar.

[20] In conclusion, I find that there has not been a breach of Mr. Sobczak’s Charter rights. I turn now to the trial proper.

The Trial

[21] The defence has conceded that absent one element, the Crown has proven its case against Mr. Sobczak. The element in question turns on a requirement that the Crown prove when the defendant was driving vis-à-vis the time that the breath samples were taken. It is submitted that this arises from the very wording of s. 320.14(1)(b) Criminal Code:

Everyone commits an offence who

(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

[22] The defence points out that there is no evidence before me as to the time that Mr. Sobczak was driving his vehicle and had the accident. The evidence before me is that Ms. Prassoulis was driving, observed the accident and contacted the police. Constable Gobraeil testified that he was dispatched to the scene at 01:42 hrs. and arrived there eleven minutes later. Mr. White was dispatched to the scene at 01:53 hrs. There is no direct evidence before me as to the exact time the accident occurred or that the call to 911 was made nor is there any indirect evidence from which I could infer same (e.g., I contacted 911 and the police arrived ten minutes later). Both officers testified that Mr. Sobczak was not in his vehicle when they arrived. In response, the Crown takes the position that it does not have to prove the exact time of the impugned driving and that it also has recourse here to s. 320.31(4) which reads:

For the purpose of paragraphs 320.14(1)(b) and (d), if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) or (2), as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.

[23] I agree that the Crown does not have to prove the exact time of the driving. See, for example, R. c. Jérôme, 2023 QCCS 2018 at paragraph 13 where, in dealing with a summary conviction appeal, the court adopted earlier jurisprudence and stated “it was possible to infer beyond a reasonable doubt the time of the driving by means of circumstantial evidence without necessarily requiring the prosecution to prove the precise time of the driving” [translation].

[24] I am of the opinion, however, that the evidence at trial must establish directly or indirectly whether the first breath sample was taken either within two hours of an accused having ceased to operate their conveyance or not. It is not sufficient to submit that it must be one scenario or the other. The Crown must still satisfy the evidentiary requirement of proving when the time that the driving ceased in order to have recourse to s. 320.31(4). The presumption in the sub-section is not an automatic default available to the Crown where that requirement was not satisfied at all (see, R. v. Joyal, 2023 MBPC 22 at paragraphs 81-85 where the Crown apparently conceded this point. See R. v. Panech, 2022 ONCJ 25 at paragraphs 71-73 where O’Marra J. found on the specific facts of that case that the presumption was available to the Crown. As well, there is the same justice’s decision in R. v. Chevalier, 2022 ONCJ 109 at paragraph 69).

[25] As the Crown has not proven the time of the driving in question, it has not satisfied its onus under s. 320.14(1)(b) and, as I have just stated, it cannot seek to rely on the presumption under s. 320.31(4). Therefore, the case against Mr. Sobczak has not been proven against him beyond a reasonable doubt and I dismiss the charge.

Released: March 14, 2024 Signed: Justice Berg