ONTARIO SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
NEWMARKET COURT FILE NO.: S.C.A No. 11-05
DATE: 2013-08-15
BETWEEN:
Her Majesty the Queen
Respondent
— and —
Enver Ilyassov
Appellant
COUNSEL:
Jon Fuller for the respondent
Sonya Shikhman for the appellant
HEARD: January 11, 2013
H.K. O’Connell J.
REASONS FOR JUDGMENT
Background
[1] Enver Ilyassov was tried at Newmarket before Blouin J. on an information, alleging that on September 12, 2009, he operated a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood contrary to section 253.(1)(b) of the Criminal Code.[^1]
[2] At trial the Charter issue and the trial were conducted as a blended proceeding.[^2] The trial commenced and was completed on January 10, 2011. Justice Blouin remanded the case to February 25, 2011 for judgment. On February 25, 2011, the appellant was convicted.
[3] The appellant argues that the Crown failed to meet its onus of establishing that the breath samples were taken ‘as soon as practicable’ and reversed the burden of proof with respect to same; that the trial judge erred in law in failing to find a section 10(b) breach and did not properly assess the issue of the waiver of the right to counsel; and that the learned judge erred in failing to find that a ‘Prosper’ warning was required.
[4] I will now overview the evidence at trial and the submissions of counsel.
Evidence for the Crown at Trial
[5] The evidence for the Crown at trial consisted of that of the arresting officer, Officer Michael Di Pasquale. He has been a peace officer since 2002. He was on duty on Saturday September 12, 2009 driving an O.P.P cruiser. Just after 2:53 am he pulled over a vehicle on the 407 Highway near Dufferin Street. The appellant was the driver. In addition there were four occupants in the rear seat, one of whom, a female was sitting on the lap of another passenger.
[6] The officer spoke to the driver. The driver had red glassy eyes and a flushed face. Alcohol could be detected on his breath. The driver surrendered his driver’s licence and insurance on demand and without difficulty. He was identified as the appellant, Enver Ilyassov.
[7] One of the other occupants in the car was being confrontational with the officer and somewhat belligerent. The officer called for back-up after telling the other occupants of the car to get back in to the vehicle and wait.
[8] The appellant walked to the cruiser, upon demand, without difficulty. Just after 3:00 am the appellant was read the breath sample demand. I note here that at trial there was no issue with the wording for the demand, nor with the nature of the road side device. The officer had an approved screening device in his cruiser.
[9] At 3:01 am the officer blew into the device to demonstrate to the appellant how it worked. The appellant advised that he understood how to provide a breath sample. At 3:02 am the appellant provided a sample of his breath. The result was a ‘fail’. The officer testified that a fail would be registered when someone provided a sample that indicated 100 or more milligrams of alcohol in 100 millilitres of blood.
[10] The officer formed reasonable and probable grounds that there was more than 80 milligrams of alcohol in 100 millilitres of blood. The appellant was shown the device. The officer told him he was under arrest for over 80 contrary to section 253(1) (b) of the Criminal Code. The officer explained what the reading meant to the appellant, and also contacted his dispatcher to advise that he had a party under arrest. Constable Johnson was to be the Intoxilyzer technician at the Aurora O.P.P. detachment.
[11] The actual arrest occurred at 3:02 am. At 3:04 am, the appellant was read his rights to counsel. Defence counsel did not take issue with the wording of the rights to counsel at trial. At 3:05 am the appellant was read the caution. Once again there was no issue with the form of the caution. The officer said that the appellant appeared to understand his rights to counsel. He answered, “yeah, what do we do now” when asked if he understood his rights to counsel.
[12] At 3:05 am the breath demand was made. The officer indicated to the appellant:
I demand that you provide such samples of your breath as are necessary to determine the concentration of alcohol in your blood and that you accompany me for this purpose.
The appellant was asked if he understood, to which he responded: “yeah”
[13] After assisting a backup officer with the occupants who were in the vehicle that the appellant was originally driving, Officer Di Pasquale left with the appellant at 3:14 am for the Aurora O.P.P. detachment. The appellant did not say anything on the ride to the detachment. I note here that the delay relied upon by the appellant in his argument that the Crown failed to prove the ‘as soon as practicable’ element of the testing for alcohol content only rests upon the 18 minute period between 3:14 am and 3:32 am.
[14] At 3:32 am the officer and the appellant arrived at the detachment. No stops were made between the scene of the arrest and the detachment at Aurora. The appellant’s property was lodged. The officer then asked “do you want to speak to a lawyer” and the appellant stated: “no it’s okay”.
[15] Between 3:45 am and 3:47 am, the technician, Officer Johnson, was advised by Officer Di Pasquale of his grounds for arresting the appellant.
[16] At 5:02 am the appellant was released from the station. He was given a “tow card” which indicated what towing company had his car. He was asked if the officer could call a cab for him. The appellant said he would make his own arrangements.
[17] A copy of the Certificate of a Qualified Technician produced by Constable Johnson was entered as Exhibit 1 at trial.
[18] In cross-examination the officer agreed that he had no notes of his original conversation with the appellant. The officer was asked if the smell of alcohol in the car was “emanating perhaps not from Mr. Ilyassov, but from the vehicle.” The officer answered “no”. The officer testified that the alcohol smell that he was concerned about “was emanating directly from his breath, just like I have written down in my notebook…..”
[19] The officer testified that when the appellant was asked if he understood his rights he said “yes”. The officer was asked about his understanding in relation to a person waiving their right to counsel. When asked by counsel if the officer had anything in his notes about the appellant waiving his right to counsel, he answered: “I forgot to write that down.” The officer agreed that he had no notation either way as to whether Mr. Ilyasov indicated that he wanted to speak to a lawyer, while he was in the cruiser. The officer indicated that he did not recall his answer and maybe he didn’t ask the question. The officer agreed that it was possible that Mr. Ilyasov wanted to speak to a lawyer.
[20] The officer agreed that it was possible that the appellant could have said that he wanted to speak to a lawyer during the roadside phase. The officer agreed that he knew of the necessity to hold off questioning if a right to counsel is requested.
[21] The officer said when he asked the appellant the second time about whether he wished to speak to a lawyer that his verbatim response was “no, its okay.”
Evidence for the Defence at Trial
[22] On consent the defendant’s evidence in chief was filed by way of affidavit. The Crown cross-examined Mr. Ilyassov on his affidavit as it related to the Charter issues.
[23] The appellant agreed that he had been drinking on the night in question. He agreed that one of the passengers started arguing with the officer. His criminal record was entered as exhibit A on the voir dire.
[24] He agreed that that the blood alcohol concentration analyzed from him when he was tested at the station was between 140-150 milligrams of alcohol per 100 millilitres of blood.
[25] The appellant testified that he had 4 beers and a shot of vodka after he started to drink at around 10:00 pm the evening before his arrest. He could not recall if he denied drinking when the officer first asked him if he had been. The appellant was taken to his statement in paragraph 3 of his affidavit where he indicated that he wanted to speak to a lawyer and asked the officer what we would do now.
[26] The appellant said he remembered that as “I wanted to call the lawyer and I wanted to find out – to find out what is going on, what will happen.”
[27] He was asked how he could remember that but not remember denying to the officer that he had been drinking.
[28] When it was put to the appellant that he never told the officer that he wanted to speak to a lawyer he answered: “Well whatever the officer was asking me, I was responding to his questions.”
[29] The appellant acknowledged that he had been arrested before. He had been in custody on three earlier occasions. He had been administered his rights to counsel in the past, had been taken into custody and taken to a police station.
[30] The appellant agreed that when he was investigated by Officer Di Pasquale, he knew he would have an opportunity to speak to a lawyer, and indeed knew even before he spoke to the officer that he could.
[31] The appellant said that he told the officer at the roadside that he wanted to speak to counsel. He denied that he never said that he wanted counsel. He agreed that he never told the officer that Ms. Shikhman was his lawyer at the time of his arrest.
[32] The appellant was referred to paragraph 5 of his affidavit, wherein he agreed that the officer asked him at the station if he wanted to speak to a lawyer, however he was somewhat confused as he had already said that he did at the roadside discussion.
[33] It was put to him that he never suggested to the officer that he wanted to speak to a lawyer. The appellant disagreed.
[34] The appellant denied that he did not remember what the officer said to him. The appellant agreed that he said in his affidavit that he believed that he asked for a lawyer, and yet testified that he was sure that he did. When asked why he didn’t say that he was sure in his affidavit, he testified: “I understand the question, yes. Well I don’t know. That’s what I’ve written.”
[35] The Crown then asked: “Okay. And I’m going to suggest to you, sir, when the officer asked you if you wanted to speak with a – to a lawyer, you said no it’s okay.” The appellant answered “I said it’s okay.”
Appellant’s Submissions on Appeal
The Right to Counsel Issue
[36] Counsel referenced the decisions in Regina v. Soules[^3], and R. v. Prosper[^4]. In particular Ms. Shikhman quoted the following extract from Prosper:
In circumstances where a detainee has asserted his or her right to counsel and has been reasonably diligent in exercising it, yet has been unable to reach a lawyer because duty counsel is unavailable at the time of detention, courts must ensure that the Charter protected right to counsel is not too easily waived. Indeed, I find that an additional informational obligation on police will be triggered once a detainee, who has previously asserted the right to counsel, indicates that he or she has changed his or her mind and no longer wants legal advice. At this point, police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had the reasonable – that reasonable opportunity. This additional informational requirement on police ensure that a detainee who persists in wanting to waive his right to counsel will know what it is that he or she is actually giving up.
Given the importance of the right to counsel, I would also say with respect to waiver that once a detainee asserts the right there must be a clear indication that he or she has changed his or her mind, and the burden of establishing an unequivocal waiver will be on the Crown. And it’s referred to in R. v. Ross. Further, the waiver must be free and voluntary and it must not be the product of either direct or indirect compulsion.
This court has indicated on numerous occasions that the standard required for an effective waiver of the right to counsel is very high.
[37] Counsel argued that there was a request, proven on the balance of probabilities, that the appellant did ask to speak to counsel at the roadside. This was borne out of a consideration of all of the officer’s evidence. If the court was not content with that argument, counsel submitted that the evidence of the appellant otherwise substantiated that he wished to speak to a lawyer.
[38] Counsel argued that even if there was a lack of diligence in attempting to exercise the right to counsel, there was nonetheless the need to ensure that Prosper was complied with. Finally Ms. Shikhman argued the section 24(2) post Grant analysis to assert why the evidence should not be received.
The ‘As Soon as Practicable’ Issue
[39] Defence counsel argued that the Crown had failed to establish compliance with section 258(1)(c)(ii) of the Code, to wit that the Crown failed to prove beyond a reasonable doubt that the breath test was taken ‘as soon as practicable’ after the arrest. Counsel asserted that there was a complete lack of evidence as to why the officer went to the Aurora detachment instead of a much closer detachment.
[40] The issue of time from the scene to the Aurora detachment was not the issue, but rather why the Aurora detachment was the station that afforded compliance with the ‘as soon as practicable’ analysis.
[41] Counsel argues that Justice Blouin took judicial notice that the station where the appellant was taken was not the closest station. In the absence of evidence from the Crown as to why this was so, the ‘as soon as practicable’ test was simply not met.
[42] Counsel candidly admitted that if the judge did not take judicial notice, then she had no sustainable argument, but if it was appropriate to take judicial notice, as she argued the trial judge did, then there was no way for the defence to test if the officer acted reasonably in the circumstances in taking the appellant to the Aurora detachment.
[43] Simply put there is a lacuna in the evidentiary record to justify why the Aurora detachment was the detachment picked, such that the ‘as soon as practicable’ test could be met.
Respondent Crown’s Submissions
[44] I will overview Mr. Fuller’s submissions as he presented them, which was to address the issue of the ‘as soon as practicable test’ first, then the issue of the Prosper warning.
The ‘As Soon as Practicable’ Issue
[45] Crown counsel argued that the trial judge did not take judicial notice of the existence of police stations closer to the scene of the original arrest at roadside. Rather the trial judge said that even if he accepted that there was a closer station, the total period of time that elapsed, 18 minutes, was not violative of the ‘as soon as practicable’ standard.
[46] Counsel further argues that the law is clear that ‘as soon as practicable’ must be read to “mean nothing more than that the tests were taken within a reasonably prompt time under the circumstances.” The issue is a factual one to be left to the trial judge.
[47] Citing the decision in R. v. Seed,[^5] the respondent notes that the ‘as soon as practicable’ requirement does not impose, “…an evidentiary burden on the prosecution to account for every minute between the time of arrest and the administration of the first test, rather than focusing on whether the police had acted reasonably, and expeditiously, in the circumstances.”
[48] Crown counsel also referenced the decision of the Court of Appeal in R. v. Carey, [2006] O.J. No. 3821, where the court referred to their earlier decision in R. v. Letford[^6], and noted:
Goudge J.A. observed that, to meet the soon as practicable requirement, the police did not have to organize themselves to have a breathalyzer technician available at every detachment at all times or to otherwise organize themselves to have breath samples taken as soon as possible.
[49] Counsel submits that the trial judge’s findings on the ‘as soon as practicable’ issue are sound and entitled to deference on review.
The Charter Issue
[50] Counsel argues that diligence was a live issue in this case. The learned trial judge found that the appellant did not act diligently. Whether an accused is diligent is a fact driven exercise. Prosper is not applicable to the case at bar. An assertion of the right to counsel and reasonable diligence in its exercise are companions. In the case at bar, after his arrival at the station, the appellant declined the offer to speak to counsel. That decision was the appellant’s to make, but it illustrates that he failed to exercise diligence in the exercise of his right to counsel.
[51] The trial judge made factual findings that are detailed and succinct and amply support, says the Crown, the finding of the trial judge that the appellant would not have been under any misapprehension of his right to speak to counsel.
[52] The Crown further argues that the answer “no, its okay” at the station, constituted an unequivocal waiver, as was found to be so by the trial judge.
REASONS
The Standard of Review on Appeal
[53] Section 822(1) of the Criminal Code, incorporates the provisions of s. 686(1). Section 686(1) allows an appellate court to grant an appeal where:
i) the verdict is unreasonable or not supportable on the evidence,
ii) where the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or,
iii) on any ground where there was a miscarriage of justice.
[54] This appeal engages 686(ii), says the appellant.
[55] It is trite that an appellate court owes deference to findings of fact made by the trial judge and must not simply interject its own reading of the facts into the equation. The appellate court is entitled to review, examine and reweigh the evidence but only to determine if it reasonably supports the trial judge’s conclusions. In other words if the trial judge could reasonably have reached the conclusion on the evidence before the trial court, appellate intervention is not warranted.
Justice Blouin’s Reasons
[56] The reasons are detailed and succinct.[^7] Within those reasons the learned judge was alive to the issues advanced at trial, referenced the evidence and made findings in relation to the facts that he found. There is no issue on this appeal that the trial judge erred in his recitation of the evidence or that the reasons are not sufficient for appellate review.
Section 258(1)( c) (ii) of the Criminal Code: ‘As soon as Practicable’
[57] I will deal with the argument that the Crown did not discharge its onus on the ‘as soon as practicable’ standard. In his reasons, the trial judge referenced the seminal case of R. v. Vanderbruggen, 2006 9039 (ON CA), [2006] O.J. No. 1138 (C.A.) and found that the police acted reasonably promptly in discharging the ‘as soon as practicable’ requirement.
[58] In this regard, the trial judge noted:
…although it might well have been quicker to attend another station, the test is not ‘as soon as possible.’ The officer testified that he took the defendant to the detachment where a qualified technician was setting up for the breath test and did so reasonably promptly.
[59] I find that the trial judge did not take judicial notice of the locale of a more proximate station. Moreover the evidence at trial established that the time that elapsed from the scene of the arrest to arrival at the station for the tests, was 18 minutes. In addition the officer made no stops along the way. There was no time gap in the case at bar.
[60] In addition I find the decisions in Carey and Letford to be helpful. It is not realistic to assume that the police will have available at every conceivable detachment a breath technician, unless circumstances would otherwise suggest that the ‘as soon as practicable’ requirement would be rendered hollow without the availability of a breath technician at a particular detachment in the particular circumstances of a case.
[61] In the case at bar the arrest occurred shortly after 3:00 am. Officer Di Pasquale was directed to the Aurora detachment by his dispatch. Given the 18 minute travel time, the fact that the officer proceeded directly to the station, and the compliance by Officer Di Pasquale as to where to take Mr. Ilyasov for the testing, reasonable promptness was established.[^8] In short, reasonable promptness in the circumstances of the case at bar, was proven by the Crown.
[62] As a result this ground of appeal as it relates to section 258(1)(c)(ii) and the ‘as soon as practicable’ test, is dismissed.
The Charter Issue
[63] The trial judge was very much alive to the argument of counsel at trial. Indeed the transcript reveals his engagement with the Crown on the topic. In his reasons the trial judge referenced the decisions in R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236 and R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37. The trial judge concluded:
In this case, Mr. Ilyassov, even if he indicated that had wanted to speak to counsel when given his rights at the roadside, and I find that he probably did, thereafter did nothing that evidenced a desire to speak to counsel. He did not assert that right during a silent ride to the police station lasting 18 minutes. When he reached the police station, and was asked about speaking to counsel, he declined. In my view, the defendant did not act diligently in pursuit of an opportunity to consult counsel. Consequently, I conclude that this is not a Prosper warning situation.
[64] The trial judge’s ultimate finding that the appellant was given a reasonable opportunity to access counsel before he was required to offer up a sample of his breath at the station, and the trial judge’s findings of fact in support of that conclusion are anchored in the evidence.
[65] That evidence included the trial judge’s reference to the appellant’s evidence at trial, inclusive of the fact that the appellant:
…had been arrested before and that September 12, 2009 was not the first time his rights to counsel had been read to him. He also admitted that he knew he would have an opportunity to speak to a lawyer, even before he spoke with Di Pasquale, After responding, upon arrest, that he wished to speak to a lawyer, the defendant never told the police officer thereafter that he wanted to speak to a lawyer, even though he had one (Ms. Shikhman) on his cell phone.
[66] To be sure the mere fact that someone has been arrested before could not operate as a pass on an obligation to ensure that a person under arrest is provided their section 10(b) right. Rather in the context of this particular individual and the issue of Prosper, it was a pertinent consideration having regard to the admissions of the appellant in his evidence inclusive of the fact that he had counsel available to him, via entry of her number in his cell phone database, had he exercised diligence.
[67] Finally at the station when Mr. Ilyasov was advised that he could speak to counsel, he clearly indicated he did not need to speak to counsel. He stated: “no, it’s okay”.
[68] The trial judge found:
In my view, Mr. Ilyasov was given a reasonable opportunity to access counsel. Detainees must exercise diligence in pursuing that opportunity. The defendant did nothing to exercise the right and, as a result, has failed to establish a breach of his right to counsel on a balance of probabilities.
[69] This finding was open to the trial judge to make. Appellate intervention is not warranted.
[70] As a consequence under all of these circumstances there is no reason for this court to interfere with the learned trial judge’s ruling on the Charter issue.
[71] The appeal with respect to the alleged section 10(b) violation is therefore likewise dismissed.
[72] The appeal is therefore dismissed in its entirety.
The Honourable Mr. Justice Hugh K. O’Connell
DATE RELEASED: August 15, 2013
[^1]: Criminal Code, R.S.C. 1985, Chap. C-46.
[^2]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[^3]: [2009] O.J. No. 6022 (O.C.J.)
[^4]: R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236
[^5]: R. v. Seed, 1998 5146 (ON CA), [1998] O.J. No. 4362 (C.A)
[^6]: 2000 17024 (ON CA), [2000] O.J. No. 4841 (C.A)
[^7]: Appeal Book, Tab 5.
[^8]: In R. v. Phillips (1988), 1988 198 (ON CA), 42 C.C.C. (3d) 150 (Ont.C.A.) the court noted that the phrase as soon as practicable means nothing more than that the tests were taken within a reasonably prompt time under the circumstances.