ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-696

DATE: 2012-01-04

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – SARAH RUTTEN Appellant

L. Hall, for the Crown, Respondent.

J. H. Voss, for the Appellant. HEARD: January 20, 2012.

REASONS FOR JUDGMENT

Mcdermid, j.:

The Charges:

[ 1 ] The appellant was tried by the Honourable Mr. Justice McGrath of the Ontario Court of Justice who found her guilty on December 10, 2009 of:

a. having the care or control of a motor vehicle on February 7, 2009 while her ability to operate a motor vehicle was impaired by alcohol contrary to s. 253 (1) (a) of the Criminal Code of Canada , and of

b. having the care or control of a motor vehicle, on February 7, 2009, having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to sections 253 (1) (b) of the Criminal Code of Canada .

[ 2 ] McGrath J. stayed the charge under s. 253 (1) (a). He recorded a conviction on the charge under s. 253 (1) (b) and sentenced the appellant to pay a fine of $1,500 and imposed a 12 month driving prohibition. He waved payment of a surcharge.

The Facts:

[ 3 ] The respondent accepts as substantially correct the facts outlined in paragraph 5, 7, 9, 10, 12-23, 25-30, 34-39, and 40-59 of the appellant’s statement of facts. The respondent accepts that the entirety of paragraphs 6, 8, 24, 32, 33 are what the appellant testified to, but not what was accepted as fact. The respondent did not accept the facts set forth in paragraphs 11 and 31 of the appellant’s factum.

Grounds of Appeal:

[ 4 ] The appellant raises several grounds of appeal. Mr. Voss alleges that the trial judge erred in law:

a. By relying on inadmissible evidence, namely an admission of alcohol consumption, to find the appellant guilty of the s. 253 (1) (a) offence.

b. By relying on the appellant's admission of alcohol consumption as grounds for arrest for both offences and as a ground for the breath demand in s. 254 (3).

c. By failing to address the contradictions among the Crown witnesses on the issue of indicia of impairment and failing to address the contradictions between the Crown witnesses and the appellant on the same issue.

d. By relying on inadmissible evidence on the voir dire to make an adverse finding of credibility against the appellant on the trial proper for the charge under s. 253 (1) (a).

e. By finding that the arresting officer had the requisite grounds for the breath demand pursuant to s. 254 (3).

f. By finding that the appellant had waived her rights under s. 10 (b) of the Charter .

g. By failing to exclude the evidence of the results of the analysis of the appellant's breath samples pursuant to s. 24 (2) of the Charter on the basis of both, or either of, the alleged s. 8 and s. 10 (b) Charter breaches.

h. By misapprehending evidence relating to the rate of speed of the appellant's motor vehicle immediately before the motor vehicle accident and using the misapprehended evidence to make an adverse finding of credibility against the appellant and as evidence of impairment.

Chronology:

[ 5 ] Ms. Hallman, was pulled out of the way of the appellant’s motor vehicle by her boyfriend as she saw it drive onto the top of a snow bank on a traffic island. The motor vehicle was still running when she went to talk to the appellant to see if she was injured. The appellant was the only person in the vehicle and was seated in the driver seat. Ms. Hallman did not smell any alcohol but added that she did not get close to the appellant’s face. She testified that the police arrived about five minutes after she first saw the accident occur. No other motor vehicle was involved.

[ 6 ] The first officer on the scene was Officer Dwyer who arrived at about 1:40 a.m. He had been dispatched to another location and came upon the appellant alone in the vehicle, seated behind the steering wheel. The vehicle was still on top of a snow bank on a traffic island, which was what drew his attention to it as he was driving by it. He also noted a hazard marker that had been knocked down and was stuck in the snow bank on top of the island. He said the appellant's eyes were very glassy and bloodshot and she seemed to be staring blankly at him from the vehicle. Also, he found her speech to be deliberate and slurred. He asked her what happened and the only words he heard her say were, “I was changing gears.” He did not believe the motor vehicle was running.

[ 7 ] Officer Jackson, the second officer to arrive at the scene, attended at about 1:41 a.m. and found the appellant still seated in the driver’s seat of the motor vehicle. The appellant had the keys to the motor vehicle in her hand but the vehicle was not running.

[ 8 ] She testified at trial that she came to rest on top of the snow bank as a result of changing gears and then having an asthma attack, which caused her to cough a lot and then become unfocused and confused.

[ 9 ] Officer Jackson asked for her identification. The appellant replied that she did not have it with her. It was then that he smelled an odour of alcohol on her breath and asked if she had consumed any alcohol. She confirmed that she had had two drinks. He also noted that her eyes were extremely red and glassy and that her speech was slurred. At that time, Officer Jackson testified he formed the opinion that her ability to have care and control of the vehicle was impaired by alcohol. He then placed her under arrest at about 1:44 a.m. and escorted her to the back seat of his cruiser. He did not recall her swaying or being unsteady on her feet.

[ 10 ] Officer Dwyer testified he told Officer Jackson about his observations. After Officer Jackson escorted the appellant from the vehicle, Officer Dwyer noted she was "unsteady on her feet and she was swaying from side to side". When Officer Jackson had the appellant empty her pockets, Officer Dwyer observed a beer bottle cap that had been in her pocket. Officer Dwyer also observed a beer bottle on the driver’s side seat of the vehicle and Carling lager beer bottles on the front passenger floor. He believed they were empty.

Reasonable Grounds and s. 8:

[ 11 ] Mr. Voss submits that there was no evidence to establish the time at which the appellant drove the vehicle onto the top of the snow bank and, therefore, Officer Jackson lacked reasonable grounds to believe that the appellant had committed an offence under s. 253 within the preceding three hours. Accordingly, he submits that the taking of breath samples from the appellant breached her rights under s. 8 of the Charter .

[ 12 ] Section 258 (1) (a) of the Criminal Code establishes a rebuttable presumption that a person found to be occupying “the seat or position ordinarily occupied by a person who operates a motor vehicle … shall be deemed to have had the care or control of the vehicle.” McGrath J. observed in his reasons that Officer Jackson testified he found a strong odour of alcohol on the appellant’s breath, that her eyes were extremely red and glossy and that she displayed slurred speech.

[ 13 ] Having read the transcript of the appellant’s testimony, I see no evidence capable of rebutting the presumption. Officer Jackson found the appellant in care and control of the motor vehicle and also observed several well known indicia of impairment resulting from the consumption of alcohol. In other words, he found her actually committing the offence of having care and control of a motor vehicle while her ability to do so was impaired by alcohol. Moreover, the evidence establishes objectively that he arrived at the scene approximately five minutes after the appellant drove her motor vehicle onto the snow bank.

[ 14 ] I find that McGrath J. did not err in law in finding that Officer Jackson had reasonable grounds to believe that the appellant had committed an offence under s. 253 within the preceding three hours of his attendance at the scene and in finding that there was no breach of the appellant's rights under s. 8 of the Charter .

Section 10(b):

[ 15 ] After arresting the appellant, Officer Jackson informed her of her right to retain and instruct counsel without delay by reading to her the standard script from his Duty Book, including the “1-800” number for Legal Aid and cautioned her.

[ 16 ] After Officer Jackson informed the appellant of her right to counsel at about 1:50 a.m. and asked if she wished to call a lawyer her reply was either, “I don’t know my lawyer”, which is Officer Jackson’s version, or, “I don’t know any lawyers”, which is the appellant’s version. At trial, the appellant testified that she was “scared, nervous and just wanted to cooperate”, that she could not understand the significance of the 1-800 number because it was read so quickly, and did not understand the significance of speaking to a lawyer while in police custody. She had a cell phone with her but no one asked her if she did and she did not ask to use it.

[ 17 ] Officer Jackson took the appellant to the police station and paraded her before the cell sergeant, Sergeant Fair. She was then taken to Officer Mitchell, the breath technician, who took samples of her breath for analysis.

[ 18 ] On cross-examination, the appellant admitted that when:

a. Officer Jackson asked her whether she understood what he had read to her about her right to counsel, she replied, “Yes”;

b. Sergeant Fair, the booking or cell Sergeant, asked her if she wanted to call any local lawyers for free legal advice or if she wanted him to call the 1-800 number for her she said, “No”;

c. Officer Mitchell, the breath technician, confirmed with her that she had been informed of her right to retain and instruct counsel without delay and had declined to call a lawyer, he then told her that if she decided to change her mind at any point she could call a lawyer and just needed to tell him, she told him that she understood.

[ 19 ] In my opinion, there was ample evidence to support the conclusion that the appellant's rights under s. 10 (b) of the Charter were fully explained to her and that she understood them, despite the many excuses she provided at trial for not asserting her rights.

[ 20 ] Mr. Voss submits McGrath J. erred in law in failing to find that the appellant’s rights under s. 10 (b) of the Charter were breached and in finding that she waived her s. 10 (b) rights. As I understand the thrust of Mr. Voss’s argument, it is that the officers did not go beyond a mere “mechanical recitation” of her right to retain and instruct counsel without delay and failed to do what was required to facilitate the exercise of that right.

[ 21 ] Paragraphs 21 to 36 and 42 to 51 and 58 of the appellant's factum comprise a fair résumé of the evidence upon which the appellant relies to support her position that the police officers with whom she came into contact should have done more to facilitate the exercise of her right to counsel.

[ 22 ] Mr. Voss submits that when the appellant was paraded before the cell sergeant, Sergeant Fair, he did not point to out to the appellant the booth from which she could place a telephone call to a lawyer or offer to help her find her lawyer or any other lawyer. He also asserts that Sergeant Fair did not tell her the consequences of not speaking with a lawyer before going into the breath room. The following questions and answers from Sergeant Fair and the appellant at trial are relevant to this issue:

Q. Have you been advised of your rights to counsel?

A. Yes.

Q. Do you wish me to make a call to a lawyer?

A. Oh, yeah, he did tell me that.

Q. What I asked you is, do you wish for me to make a call to a lawyer?

A. Um, I do not wish at – that…

Q. Do you not wish at this point?

A. Cause I don't know any lawyer … lawyers.

Q. OK Sarah, this is your opportunity to call a lawyer. We have a list of local lawyers that you can call for free legal advice, or there is a 1-800 number I call and they call back. Who [inaudible]. Do you want to call either of them?

A Um, no.

[ 23 ] All of this occurred before she was asked any questions by Officer Mitchell respecting her consumption of alcohol and before she was asked to give samples of her breath. Officer Mitchell noted the odour of an alcoholic beverage present, a flushed face, glassy and bloodshot eyes and "fair" speech. She was polite and cooperative but crying and coughing.

[ 24 ] There is no challenge to the accuracy of the readings obtained from the analysis of her two breath samples: 2:48 and 2:41 – over three times the statutory limit of .08.

[ 25 ] Mr. Voss’s position is that the appellant never waived her right to counsel as McGrath J. found she did. In my opinion, the appellant was properly and fully advised of her right to counsel and for whatever reason chose not to assert it. As far as the officers were concerned, the appellant understood what they had told her and she chose not to call a lawyer. They are not required to be mind readers. In the absence of a request from the appellant to contact counsel either herself or with assistance from the police, there is evidence to support the conclusion that the police acted reasonably, gave the appellant a reasonable opportunity to exercise her right to counsel, and were not required to do more than they did to facilitate the exercise of that right.

[ 26 ] In my opinion, this is a very different case from R. v. Prosper [1] upon which Mr. Voss relied. In Prosper , the appellant asserted his right to counsel but was unable to exercise it because he could not afford to retain counsel other than through Legal Aid, and no Legal Aid counsel was available outside normal office hours. In this case, the appellant did not assert her right to counsel.

[ 27 ] Contrary to the appellant’s assertion, there is evidence to support the conclusion that she had all the information necessary to make an informed choice about contacting counsel. She chose not to do so. I find McGrath J. did not err in law in concluding that her s. 10(b) rights were not infringed.

Section 24(2):

[ 28 ] If I am wrong in coming to this conclusion, I go on to consider the applicability of s. 24(2) of the Charter . Mr. Voss objects that McGrath J. equated the officers' politeness with "good faith" and that, therefore, he failed to apply the law correctly. In my opinion, there was no evidence of a lack of good faith on the part of the officers and McGrath J. correctly, although quite briefly, considered the three-part test set forth in R. v. Grant [2] . Applying that test, I find he did not err in law in concluding that the evidence of the analysis of the appellant's breath samples should not be excluded.

Insufficiency of Reasons:

[ 29 ] Mr. Voss has also complained that the reasons of McGrath J. are deficient in several aspects as set out in his factum. It is widely acknowledged that judges in the Ontario Court of Justice are required to deal with a very high volume of cases. Therefore, they do not always have the luxury of extended periods of time for reflection upon and refinement of their reasons. In my opinion, the reasons are sufficient for meaningful appellate review and indicate clearly the path to judgment that McGrath J. took.

Inadmissible admissions:

[ 30 ] Mr. Voss submits that the appellant's admission to Officer Jackson that she had been drinking in response to his question was inadmissible, ought not to have been considered by the trial judge as direct evidence going to the issue of impairment or as grounds for arrest or for a breath demand and constituted a breach of the appellant's rights under s. 7 of the Charter .

[ 31 ] The rationale for this proposition is that the appellant's admission was statutorily compelled and was therefore inadmissible as a breach of her s. 7 right against self-incrimination. However, in R. v. White [3] the court considered when a driver's answers to police questioning cease to be protected by the use immunity provided by s. 7 of the Charter. The question is explored in paragraphs 74 to 80 of the judgment.

[ 32 ] At paragraph 75, the court states :

In my view, the test for compulsion under s. 61 (1) of the Motor Vehicle Act is whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given.

[ 33 ] At paragraph 81, the court states as follows:

Thus, where an accused seeks to argue that the admission of a statement into evidence will violate the principle against self-incrimination under s. 7 because he or she was compelled to make the statement by the terms of a provincial statute, it is the accused who must establish on the balance of probabilities that the statement was compelled. There cannot be any controversy about this point.

[ 34 ] There is no evidence in this case to which I was referred to support the proposition that the appellant held an honest and reasonable belief that she was required by law to report the accident to Officer Jackson. Accordingly, McGrath J. did not err in law in admitting the evidence as being relevant to the issues of the grounds for the officer's arrest and for the breath demand.

[ 35 ] The Crown concedes that the roadside admission of drinking is not admissible on the issue of impairment. However, admissions of drinking are admissible, if voluntary, if the declarant first has been advised of her right to retain and instruct counsel without delay and has been cautioned about giving a statement. In this case, she made such an admission to Officer Mitchell, after previously being advised of her right to retain and instruct counsel and after previously being cautioned. At page 195 of the transcript, McGrath J. states, "We have the accused indicating that on the night in question, after a lot of drinking, that she was in an automobile accident.” There was properly admitted evidence before McGrath J. from which he could draw that conclusion and therefore he did not err in law or misapprehend the evidence relating to this issue.

Contradictory Evidence:

[ 36 ] It is true that the officers who came into contact with the appellant may not have made exactly the same observations of her with respect to indicia of impairment. However, it was open to McGrath J. to accept none, part, or all of the testimony of any particular witness. In my opinion, it cannot be said that there was no evidence upon which he could come to the conclusion that:

a. The appellant had the care and control of the motor vehicle when Officer Jackson encountered her;

b. That the appellant had the care and control of the motor vehicle while her ability to operate it was impaired by alcohol;

c. That Officer Jackson lacked reasonable grounds to believe that the appellant had committed an offence contrary to s. 253 as a result of the consumption of alcohol at anytime within the preceding three hours.

[ 37 ] The appellant admitted during a voir dire that she had had a lot of alcohol to drink that evening. Although Mr. Voss objects to its use because her admission was, in his opinion, improperly extracted from her on a voir dire , counsel at trial agreed to treat the evidence given on the voir dire as though it had been given at trial. As such, McGrath J. was entitled to consider it.

[ 38 ] I find that McGrath J. did not err in law by failing to exclude the evidence of the results of the analysis of the appellant's breath samples pursuant to s. 24 (2) of the Charter on the basis of both, or either of, the alleged s. 8 and s. 10 (b) Charter breaches.

Misapprehension of Evidence:

[ 39 ] There is one area in which McGrath J. may have misapprehended a portion of the evidence. At page 192 of the transcript, he indicated in his reasons that there was "… civilian evidence that the car was travelling very fast before going into this median". At page 195, he states, "… a civilian observer observed her driving at a high rate of speed". At page 196, he states, "… and the accident she endeavours to explain through an attack of asthma and the switching of gears, does not explain the high rate of speed that a pedestrian saw". He then stated,

I didn't find her evidence helpful. She obviously, as she said, had a lot to drink and very little credibility can be attached to her evidence or her explanation. Her evidence didn't raise a reasonable doubt with regard to any issue of proof by the Crown. So, on both the counts I'm satisfied, beyond a reasonable doubt, the Crown has proven its case.

[ 40 ] The civilian to whom McGrath J. referred was Ms. Hallman who was asked at page 101 of the transcript if she knew at what speed the vehicle with travelling to which she replied, "No, if it was going fast, I don't – I can't guess." There was no other testimony specifically about the speed of the vehicle.

[ 41 ] Ms. Hallman did testify that her boyfriend had to pull her away from the car as it approached from behind them and that if he hadn't it was possible she might have been hit. In cross-examination, she testified she "just heard the squealing of tires and then it smashed." She saw it hit the snow bank. She recalled that the road conditions "were pretty dry" and that she did not notice any snow on the road. However, there is no indication that McGrath J. inferred speed from this evidence.

[ 42 ] Mr. Voss submits that as a result of believing that the appellant was driving her vehicle at a high rate of speed McGrath J, rejected her explanation for the accident, namely that she was changing gears and had an asthma attack, and found her not to be a credible witness. In passing, I note her explanation is relevant to the charge under s. 253 (1) (a) and constitutes an admission that she was operating the motor vehicle immediately before it landed on top of the snow bank.

[ 43 ] In my opinion, even without the evidence relating to the speed of the motor vehicle, there was an abundance of evidence from which McGrath J. could reasonably conclude, as he did, that the appellant had the care and control of the motor vehicle, that her ability to operate a motor vehicle was impaired by alcohol, and that the concentration of alcohol in the appellant's blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. McGrath J. was not mistaken as to the substance of the material parts of the evidence and did not misapprehend the evidence about speed to the extent that the appellant did not receive a fair trial. The speed of the vehicle was a peripheral issue and did not play an essential part in the reasoning process that resulted in a conviction. McGrath J. did not err in his appreciation of the evidence in a manner that affected the outcome of the trial or that deprived the appellant of a fair trial. [4] Even if the "accident" was caused as a result of the appellant having an asthma attack while changing gears, this does not mean that she was not guilty of the offences in question. There was ample evidence to support McGrath J.'s findings of guilt on both charges.

Conclusion

[ 44 ] In summary, I find that McGrath J. did not commit any palpable or overriding error with respect to any of the issues raised by Mr. Voss on behalf of the appellant. Accordingly, for the reasons given, the appeal is dismissed. The findings of guilt on both counts are affirmed. The conviction on the charge relating to s. 253 (1) (b) and the conditional stay of the charge relating to s. 253 (1) (a) are affirmed, as is the sentence, from which there was no appeal.

“ Justice D. R. McDermid ”

Mr. Justice D. R. McDermid

Released: February 3, 2012

Footnotes

[1] (1994), 1994 SCC 65 , 92 C.C.C. (3d) 353 (S.C.C.)

[2] (2009), 2009 SCC 32 , 245 C.C.C. (3d) 1 (S.C.C.)

[3] 1999 SCC 689 , [1999] 2 S.C.R. 417

[4] See: R. v. Lohrer (2004), 2004 SCC 80 , 193 C.C.C. (3d) 1 at p. 25 (S.C.C.); R. v. Morrissey (1995), 97 C.C.C. 193 at pp. 220 to 222 ( Ont. C.A.)