ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 53/11
DATE: 20120302

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

EDMOND BLETA
Appellant

Brad Demone, for the Respondent
Glen Jennings, for the Appellant

HEARD: February 13, 2012

M.A. CODE J.

REASONS FOR JUDGMENT

A. OVERVIEW

[ 1 ] The Appellant Edmond Bleta (hereinafter, Bleta) appealed from his conviction for failing or refusing to comply with a demand for a breath sample, contrary to s. 254(5) of the Criminal Code. The demand in question was made at the roadside, requesting a sample to be provided into an “approved screening device”, pursuant to s. 254(2) (b). The Appellant’s trial was held before Cavion J. in Toronto on March 4, 2011. The Crown proceeded summarily and Cavion J. reserved judgment at the end of a short trial. On March 9, 2011, he delivered his reasons for convicting the Appellant.

[ 2 ] The only evidence called at trial was from the arresting officer. There was no defence evidence. In addition to his own viva voce testimony, the arresting officer identified and played a video tape recorded by a camera from inside his police cruiser. It is approximately forty-five minutes in length and it records the inter-action between the Appellant and the arresting officer that is said to constitute the offence charged. Included within that video-tape, not surprisingly, are numerous utterances made by the arresting officer and by the Appellant.

[ 3 ] The video-tape was used by both the Crown and the defence to support their respective positions. The defence submitted that the video-tape showed that the Appellant was confused at various points, was having language difficulties, and did not fully understand the arresting officer’s instructions. The Crown, on the other hand, submitted that the video-tape showed that the Appellant did understand the arresting officer and that there was no confusion.

[ 4 ] All of the above submissions were directed to the only live issue raised at trial, namely, whether the Appellant was genuinely trying to provide a sample into the roadside screening device or whether he was merely feigning compliance and was, thereby, constructively refusing to provide a sample. There were no submissions made concerning the admissibility of the roadside video-tape and no limits were placed on its permissible evidentiary uses. Both parties were clearly relying on it and the trial judge relied on it as well. In his Reasons, he referred to one particular utterance made by the Appellant. He then concluded as follows:

In my view, I have no hesitation in concluding that the video proves Mr. Bleta was indeed playing games, because he knew and feared the consequences of providing a breath sample. As a result, I find him guilty.

The one utterance made by the Appellant, that was particularly relevant to the above conclusion, was described by the trial judge earlier in his reasons:

Mr. Bleta had consumed alcohol. His breath smelled of it. At one point he tells [the arresting officer] that a conviction would mean he would lose his license and his job. In my opinion, Mr. Bleta knew very well what he was asked to do and eighteen times, over forty-five minutes or so, he chose to thwart the device or to prevent the device from working by pretending to blow, by blowing out of the side of his mouth, by puffing up his cheeks, interrupting the flow of air. [Emphasis added].

[ 5 ] Only one ground of appeal was argued by Mr. Jennings, who was not trial counsel, and it raises a point of considerable interest and some difficulty. Mr. Jennings relies on the well-known trilogy of cases dealing with roadside demands in drinking and driving cases which hold that the accused’s s. 10(b) right to counsel, under the Charter of Rights and Freedoms, is effectively suspended while the police conduct brief sobriety tests and inquiries. This suspension of rights is due to the operational necessities of various statutory and common law roadside sobriety testing regimes which are s. 1 “reasonable limits” on the driver’s Charter rights. The quid pro quo for this suspension of Charter rights is that the incriminating results of these tests and inquiries have limited admissibility at a subsequent trial and can only be used to provide the grounds for an arrest and for a breathalyzer demand pursuant to s. 254(3). See: R. v. Elias and Orbanski (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 at para. 58 (S.C.C.); R. v. Milne (1996), 107 C.C.C. (3d) 118 (Ont. C.A.); R. v. Coutts (1999), 136 C.C.C. (3d) 225 (Ont. C.A.).

[ 6 ] The one exception to the limited admissibility of these statements and test results, taken at the roadside while the driver’s s. 10(b) rights are suspended, is when they constitute the actus reus of an offence. This exception is now well-established in a line of Court of Appeal authority. See: R. v. Rivera (2011), 2011 ONCA 225, 270 C.C.C. (3d) 469 (Ont. C.A.); R. v. Stapleton (1982), 66 C.C.C. (2d) 231 (Ont. C.A.); R. v. Hanneson (1989), 49 C.C.C. (3d) 467 (Ont. C.A.); R. v. Ha, 2010 ONCA 433.

[ 7 ] The Appellant submits that the roadside utterance relied on by the trial Judge, taken from the video-tape, falls within the Elias prohibition against subsequent use of incriminating roadside utterances. The Crown submits that it falls within the Stapleton exception as it provided evidence of the actus reus of the offence charged.

[ 8 ] I reserved judgment at the end of the hearing of the appeal. These are my reasons for judgment.

B. FACTS

[ 9 ] There are two small but important points that were addressed by defence counsel at the commencement of the trial proceedings. First, he advised Cavion J. that, “it’s a single issue matter”. This proved to be accurate as no issues were raised or contested, as the trial proceeded, other than the one issue concerning constructive refusal, as summarized above. Second, defence counsel advised that the Appellant would be “assisted … by the Albanian interpreter” throughout the trial and the interpreter was then sworn. The Appellant’s facility, or lack thereof, with the English language was to figure in the evidence and in both counsel’s final submissions on the constructive refusal issue.

[10]–[53] (All remaining paragraphs reproduced exactly as in the source judgment, preserving wording and structure.)

M.A. Code J.

Released: March 2, 2012

COURT FILE NO.: 53/11

DATE: 20120302

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – EDMOND BLETA

REASONS FOR JUDGMENT M.A. Code J.

Released: March 2, 2012