ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SCA 7492
DATE: 2012-11-16

BETWEEN:

Her Majesty the Queen Respondent – and – Brian Belanger Appellant

P. Moore, for the Respondent
J. Marentette, for the Appellant

HEARD: November 6, 2012

REASONS FOR DECISION

THE HONOURABLE MR. JUSTICE D.J. GORDON

1Brian Belanger appeals his conviction under section 253 (1)(b), operating a motor vehicle with a blood alcohol concentration over 80 mg. of alcohol per 100 ml. of blood.

2For the reasons that follow, the appeal is granted.

Background

3A motor vehicle collision occurred in the City of Kitchener on July 30, 2011, involving vehicles operated by Mr. Belanger and Ahmed Butt. Mr. Butt was proceeding through the intersection, on a green light. Mr. Belanger was turning left. A police officer was dispatched minutes later.

4Mr. Belanger was arrested and taken to the police station. He subsequently provided breath samples in the usual manner, such being the basis for the charge.

5Following a trial on January 26, 2012, Mr. Belanger was found guilty. A fine of $1,200 was imposed along with a one year driving prohibition.

6The trial proceeded on the defence Charter application. Subject to that application, all elements of the over 80 charge were conceded.

Issues

7The same issues are advanced on appeal as in the Charter application at trial, namely:

a) the police officer’s grounds for demand and arrest; and

b) the right to counsel.

Grounds for Demand

8When the police officer attended the accident scene, she observed the two damaged vehicles in the intersection. The officer spoke to a witness, Ben Broughton. Mr. Broughton reported removing the keys from Mr. Belanger’s vehicle as the motor was running and fluids were leaking. Mr. Broughton informed the officer he had observed Mr. Belanger exit his vehicle after the collision.

9The officer approached Mr. Belanger. She indicated there was an odour of alcohol and that Mr. Belanger’s pupils were small. She also said that Mr. Belanger was rambling on and avoiding face to face contact during their conversation. Mr. Belanger, in response to the officer’s inquiry, indicated consuming two beers earlier that day.

10The officer stated she formed the opinion that Mr. Belanger was impaired and that he had been operating a motor vehicle.

11At the police station, the officer advised the breathalyzer technician with her grounds for the demand, as above. She also reported Mr. Belanger’s eyes to be glassy and that he had been involved in an “at fault” accident.

12On this issue, the trial judge, at pp. 70-73 of the transcript, said:

… Dealing first with the grounds; grounds to make a demand do not have to meet a particularly high threshold. There are any number of cases to that effect. This not the same as having prima facie case let alone proof beyond a reasonable doubt or even proof on a balance of probabilities. And it has to be remembered what the demand is based on. This is not something to do with another offence. It has to do with the potential offence of impaired driving and Stellato and various cases have told us since the degree of impairment does not have to be high so not only are we dealing with a situation where the threshold for reasonable and probable grounds to make a demand is not particularly high in the first place but the level of impairment that has to be perceived does not have to be a high level of impairment either. It just has to be some impairment of the person’s ability to operate a motor vehicle.

In this case, I would infer from what the officer said, first that the evidence she concluded that this was an at-fault accident on his part – I would infer that she had some idea of what had happened in the accident before she made the decision to make the demand. That is an inference that I would draw under the circumstances. I would think some of that from the photographs that were placed in evidence would have been fairly obvious. It would have been fairly obvious from the damage to the vehicles and the direction the vehicles were in what type of accident this was and in all likelihood, she would have already asked some preliminary questions about that. She, for example, had a brief conversation with Mr. Broughton and it is more likely than not that he would have given her a description of what he saw and he did not see the accident but he was able to discern what had happened from seeing it afterwards. And I would think that she would have been in a position to do that. It would have been better if she had said what the basis was for her conclusion that it was an at-fault accident but in my view, the circumstances were such that she was in a position to draw that inference. And again, the standard for that is not one of absolute correctness or anything of the sort. It is, could someone objectively and subjectively, reasonably draw that conclusion at the scene and that may well be the case and I think it is more likely than not that if that is the test on that particular issue, that she would have concluded it was an at-fault argument.

The rambling is one aspect of things and the fact that somebody is running off at the mouth or however you want to describe it after an accident might be one piece of evidence she could rely on but in my view and the evidence that I have heard, a substantial portion of her opinion would have been based on her perception, which was clear from her evidence, that this man was trying to avoid having a face-to-face discussion with her and in particular, that she was trying to get into a position to smell his breath and he was maneuvering in a way that she was having some difficulty doing that notwithstanding her request that he stand still.

It is again implicit in her evidence that she would conclude that there was some consciousness of guilt here; that he was trying to avoid her having an opportunity to smell the odour of an alcoholic beverage on his breath. Again, this is not something that is subjected to proof beyond a reasonable doubt or anything like that. It is a factor that formed part of her conclusion. So we have what she perceives as an at-fault accident; we have the odour of an alcoholic beverage; we have some irregularity in the eyes – something unusual about the eyes – and we have the conduct where he really does not want her to get a good smell of h is breath. Any given the threshold, I think that there is – and I am not holding this out as ideal or exhaustive – but given the relatively low threshold, both with respect to degree of impairment and with respect to her reasonable and probable grounds, I am satisfied on a balance of probabilities that she had a basis for making her demand.

13The appellant complains that the ruling is not supported by the evidence. In particular, it is said the trial judge had no basis to draw the inferences he did.

14With respect, I disagree. The officer’s evidence was poorly presented, perhaps due to deficient notes. Nevertheless, the trial judge is entitled to consider the whole of the evidence in a contextual manner. Here, there was sufficient indicia, subjectively and objectively, to meet the threshold test: see, for example, R. v. Bush , 2010 ONCA 554 , 259 C.C.C. (3d) 127. The trial judge, in my view, was entitled to draw those inferences from all of the evidence.

15I am not persuaded there is merit to this ground of appeal.

Right to Counsel

16This issue is problematic.

17On arrest, the officer read the standard rights to counsel and asked Mr. Belanger if he understood. The response was “no – sorry – not really – why?”

18The officer next reported saying to Mr. Belanger “do you understand that you can call counsel and the reasons for your arrest”. Mr. Belanger’s response, the office said, was “no – I had two beers – my boss’ son is a cop”.

19The officer then said to Mr. Belanger “do you want a lawyer”. He replied “yes”.

20At the police station, the officer called duty counsel. Her explanation for so doing was that Mr. Belanger did not specify the name of a lawyer, at least no name was recorded in her notes. The officer stated she automatically calls duty counsel in such circumstances.

21Mr. Belanger spoke to duty counsel. Breath samples were then provided.

22Mr. Belanger did not make any further request of the officer to speak to a lawyer, nor did he indicate any dissatisfaction with the advice from duty counsel.

23Mr. Belanger did not testify.

24On this issue, at pp. 73 -76, the trial judge said:

Dealing with the right to counsel argument, we have an informational component which is not as extensive as is encountered in other jurisdictions. The perhaps gold standard would be some detailed evidence about making clear that he understood that he had the right to speak to any lawyer of his choice, even though that is right in which she is reading to him. He wants to talk about something else, apparently that he ought not to be charged in the first place and that he knows somebody who who is a policeman. And he says he doesn’t understand but there is a matter of acquiescence by conduct. The fact of the matter is this man did speak to a lawyer and the entire application has to be seen in that respect. Another aspect is that while generally speaking, there is no duty on the accused to establish anything in the course of a criminal prosecution and particularly the court is not allowed to advert to any failure to testify on his part, this is a Charter application and I don not know whether his saying that he didn’t understand was accurate or not. He has not been subjected to cross-examination with respect to that. He has not testified, nor is there any other information as to whether in fact he did have a lawyer that he would have called, so I have no evidence that in fact there was any real consequence to any deficiencies in the informational aspect of the rights to counsel in this case.

Again, it is preferable that more exhaustive information be given in this context but I have to consider that I am dealing here with somebody who did speak to counsel, who chose to speak to counsel and apparently made no complaint of it afterwards and I have absolutely no evidence as to whether he would have behaved at all differently had the officer been more comprehensive or more aggressive in determining that he was aware he could call any lawyer of his choice.

Finally, the overall context of this is that he spoke to somebody whose not just a lawyer but somebody who was trained to answer the questions of people who are in this situation and I appreciate that the Supreme Court of Canada has said on a number of occasions that we cannot speculate about what advice would have been given by a lawyer in a particular situation but this has to do not with whether you speak to the police or not at all; not whether you exercise your right to silence but whether you comply with the statutory obligation, which is to provide breath samples in these circumstances.

So considering all of those factors and considering the lack of any evidence in this proceeding beyond the officer’s evidence about what he said and the lack of any evidence that there would have been any different behavior but for some confusion on his part about whether he could call his own lawyer, what I have is acquiescence by conduct. He spoke to a lawyer, he did not complain about it and now he comes to court and says through counsel that he should have been given a chance to speak to the lawyer of his choice at 8:00 on Saturday evening.

So, I do not find that any deficiency in the informational conduct resulted in any behavior on his part that would have been different if the informational conduct had been different and so the burden for him to establish on a balance of probabilities that his rights were violated has not, in my view, been met and if I am wrong in that respect, again he chose to speak to duty counsel in the circumstances and made no complaint about it. There is no evidence of any diligence on his part and what came about as a result of it – the evidence that was generated by it – was evidence that he was under a statutory obligation to provide, not a confession of guilt that he was under no obligation to make.

In my view, it is best in these particular circumstances to go back to the original words of the Charter having to do with bringing the administration of justice into disrepute and I would think the average member of the public would not be outraged that someone chose to speak to duty counsel and then wished to complain that he had not been given adequate information to make a choice about speaking to somebody else. That would be my impression but I just conclude by saying that I am not famous for giving police officers free rides and I have a fairly low threshold for some outrage myself and there is nothing that offends me in this particular case with respect to the rights of counsel.

He got to speak to a lawyer. There is no evidence either that he made any effort to inform the police that he had somebody else that he wanted to talk to. There is no evidence before me that he did not understand the particular aspect that he could call somebody of his choice and there is no evidence that there was anybody of his choice other than duty counsel. So I would dismiss the 10 (b) application and I would also dismiss with respect to section 8 on the issue of reasonable and probable grounds, which I would think….

25Although Mr. Belanger did not testify, it must be recognized the presumption of innocence applied. The right to silence was engaged. Hence, the issue may only be decided on the evidence tendered and, in this regard, it is the officer who reports Mr. Belanger not to understand.

26The officer offered nothing further. She did not suggest Mr. Belanger did understand, fore example, or that he was being obstructionist.

27Mr. Belanger indicated on two occasions that he did not understand. The officer did nothing further, although she is required by law to make reasonable efforts to explain the rights to Mr. Belanger. Hence, the informational component, under section 10 (b) of the Charter , was clearly not met.

28The trial judge, in these circumstances, cannot find “acquiescence by conduct”. The implementation stage is not reached until the informational component is successfully met. The finding of the trial judge, in my view, is an error in law.

29The informational component is critical. If an accused person does not understand his rights, an informed decision cannot be made. The officer is obliged to explain the rights and that the accused comprehends: see R. v. Bartle , 1994 64 (SCC) , [1994] 3 S.C.R. 173 (S.C.C.), at paras. 20 and 28 .

30The fall back position of calling duty counsel cannot overcome the Charter breach. Speaking to duly counsel was not the informed decision of Mr. Belanger. It was solely the decision of the officer. The informational component was not met and, in result, Mr. Belanger cannot be said to have full knowledge as it pertained to his rights, speaking to counsel, to duty counsel or to waiver: see, for example, the discussion in R. v. Bartle , supra , at paras. 38 and 39 .

31The three part test under section 24 (2) of the Charter is clearly identified in R. v. Grant , 2009 SCC 32 () , [2009] 2 S.C.R. 353 (S.C.C.), at paras. 108-110 . However, R. v. Bartle , supra , although decided some years prior, engaged in a similar discussion at paras. 65-68.

32As I understand the principles, a breach of the informational component differs from that at the implementational stage. Breach of the former means you do not get to the latter or consideration of other matters, again as noted in para. 28 in R. v. Bartle . The seriousness of the breach is overwhelming in this sense.

33Hence, I conclude the breach prohibits introduction of the breath sample evidence at trial.

34In result, the appeal is granted, the conviction and sentence are set aside and an acquittal is entered.

D.J. Gordon J.

Released: November 16, 2012

COURT FILE NO.: SCA 7492
DATE: 2012-11-16

ONTARIO SUPERIOR COURT OF JUSTICE
Her Majesty the Queen Respondent – and – Brian Belanger Applicant

REASONS FOR DECISION
D.J. Gordon J.

Released: November 16, 2012

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