ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA(P)2283/12
DATE: 2013-10-09
B E T W E E N:
HER MAJESTY THE QUEEN
John Kingdon, for the Crown
Appellant
- and -
GEMMA BACALZO
Adam Little, for the Respondent
Respondent
HEARD: September 13, 2013
REASONS FOR JUDGMENT
[On appeal from the judgment of Zivolak J. dated October 4, 2012]
Fragomeni J.
1On October 4, 2012 the Respondent, Gemma Bacalzo was acquitted of the single count of failing or refusing to comply with a demand for breath samples pursuant to s. 254(5) of the Criminal Code.
2The Crown appeals the verdict of acquittal on two grounds:
That the learned trial judge erred in finding that Bacalzo had made out the defence of officially induced error;
The learned trial judge erred in finding that the police had a duty to give Bacalzo legal advice by correcting Bacalzo’s misunderstanding of the law.
Summary of the Facts
3The Respondent Bacalzo accepts as substantially correct the Crown’s summary of the facts as set out in his factum at paragraphs 3 to 19. Those paragraphs set out the following:
During the early morning hours of Monday September 5, 2011, P.C. Rick Freitas of the Ontario Provincial Police was on patrol on the Queen Elizabeth Way in Mississauga along with P.C. Rallion Gentles, both in the same fully marked police vehicle. While between Dixie Road and Cawthra Road, he observed a blue BMW motor vehicle swerving within and between lanes and driving significantly below the speed limit. He pulled the vehicle over at 3:40 a.m. and approached it. The Respondent was the driver of the motor vehicle, which also contained two female passengers.
P.C. Freitas observed that the Respondent had a strong odour of alcohol coming from her breath, as well as glossy eyes. He formed a suspicion that she was operating a motor vehicle with alcohol in her body. He escorted her to the rear of the police vehicle and read an approved screening device demand to her. She indicated that she understood.
P.C. Freitas demonstrated the approved screening device to the Respondent, who then refused to blow, saying “I don’t want to blow. I don’t know how.” P.C. Freitas explained the functioning of the device to her, after which she continued to refuse to blow. P.C. Gentles, who was P.C. Freitas’ coach officer at the time, also attempted to persuade her to provide a sample, likewise without success.
During the course of refusing to provide a sample, the Respondent made the following utterance: “I was told once before never to blow. You won’t have evidence. I just want to go to jail. It’s okay if I go to jail. Then I can just talk to a lawyer.”
P.C. Freitas and P.C. Gentles continued to attempt to persuade the Respondent to provide a sample. P.C. Gentles conducted another demonstration of the device. At one point, they permitted the Respondent to speak to one of the passengers from her vehicle. The Respondent was warned that if she refused to provide a sample, she may be charged criminally. She persisted in refusing. At 4:10 a.m., P.C. Freitas arrested the Respondent for refusing to provide a sample.
During the course of these interactions, the Respondent made additional statements to the officers, including “I don’t want to blow into the machine. I don’t understand the law. I just want to go to jail. I want to speak to a lawyer.” Following the final warning from the officers, the Respondent stated “I was told never to blow.”
Throughout his dealings with the Respondent, P.C. Freitas was of the opinion that she had no difficulty communicating in English.
Following the vehicle stop, P.C. Gentles stayed with P.C. Freitas during the initial conversation with the Respondent. He then interacted briefly with the other two occupants of the motor vehicle, who identified themselves as Judy Taylor and Upneet Sagoo. He was then advised by P.C. Freitas that the Respondent was refusing to provide a breath sample.
P.C. Gentles assisted by explaining the test and the results, and demonstrating the approved screening device. During their interactions, the Respondent told him that “I am not blowing. I was advised never to blow into the machine.” After further explanations by P.C. Gentles, she further stated “Take me to jail. I won’t – take me to jail. I do not want to blow.”
P.C. Gentles advised the Respondent that failing to provide a sample is a criminal offence; that it would result in the automatic suspension of her license for 90 days; and that she would face the same penalty as for an “over 80” charge. When the Respondent continued to refuse, she was permitted to speak to Ms. Sagoo. This was unsuccessful. P.C. Gentles again cautioned the Respondent that if she refused, she “will be charged criminally”. After her final refusal, she was arrested.
In cross-examination, P.C. Gentles did not recall the Respondent mentioning speaking to a lawyer. He disagreed with the suggestion that he told the Respondent that she “may” be charged criminally rather than “will” be charged criminally.
The Respondent testified that after the vehicle stop, she was asked by an officer whether she had had anything to drink. She replied in the negative, believing that the drinks she’d had around 8 p.m. the prior evening would have left her system.
After being asked to provide breath samples, the Respondent testified that she asked to speak to someone and obtain professional advice. She had “heard before” that if the police pulled you over, you have the right to have counsel. She further indicated that she had been confused by the police telling her that “you may be charged”.
The Respondent indicated that she asked to speak to someone, and was told that she couldn’t because she hadn’t been charged yet. She told the police that she would not blow because she wasn’t comfortable and that she didn’t have any advice. She indicated that if she’d been told that she “will” be charged, she would have blown, but that she was confused because she was told that she might or might not be charged.
In cross-examination, the Respondent acknowledged that she understood what the officers wanted her to do; that the police had explained and demonstrated the functioning of the approved screening device to her; that she was in no doubt that the demand was being made by police officers; and that she understood why the demand was being made of her, namely because of suspicion of alcohol being in her body.
The Respondent agreed that she understood that there was a risk that she could be charged, which she characterized as “fifty-fifty”.
The Respondent testified that she believed that if she refused, she would be taken back to the station where she would be permitted to speak to someone and then be given a chance to blow. However, that belief was not based on anything said to her by the police officers.
4The Respondent also relies on the following additional facts:
Prior to the time that the Respondent was arrested, P.C. Freitas told the Respondent: “if she really wants to speak to a lawyer, we were going to take her to the detachment to speak to a lawyer, to duty counsel, or a lawyer of her choice.” (See Transcript of Proceedings, October 4, 2012, at pg. 22); and
After the Respondent was arrested she was read her right to counsel and a caution. At 4:33 a.m. The Respondent was transported in police cruiser to the detachment arriving at 4:39 a.m. While the Respondent was at the detachment she had an opportunity to speak to Duty Counsel. At 6:00 a.m., the Respondent was released from the detachment on a promise to appear. The Respondent indicated that after she spoke to Duty Counsel, she was not given an opportunity to provide a breath sample. (See Transcript of Proceedings, October 4, 2012, at pgs. 15 and 52)
Issue: The Defence of Officially Induced Error
Reasons of Trial Judge
5In her reasons for judgment the trial judge identified the one issue that had to be dealt with. The trial judge noted that “There is one issue. And that is whether or not the defence of officially induced error has been made out.”
6The trial judge accepted that the defence had been made out for the following reasons:
There is the ongoing issue of the fact that the defendant’s first language does not appear to be English, but was Tagalog and is Tagalog. And though all conversations were only in English with the police, it was noted that she spoke with an accent. I say this more as a backdrop, but it is also included in the reasons.
Officer Gentles, the coach officer, maintains that he used the words, “will be charged”, and I will refer to him as recruit officer, although he was not identified necessarily as such, Officer Freitas, would have, at that time, been present and observing and had the notation of, “may”, in his notebook.
7The trial judge found as a fact that Officer Gentles used the word “may” as opposed to “will be charged”.
- Asking to go to jail, saying she did not know the law and wanting to speak to the lawyer, although not accepted that this was somehow unusual language for a defendant to use at a roadside stop, the officer’s action was inconsistent to the point that the coach officer became involved. And that even after the coach officer was involved, the unusual steps of asking someone to come from a car, where the officer has indicated there was a strong odour of alcohol emanating from the other females, as well as marijuana, to have someone from that car then explain the roadside demand and the ramifications of such, focuses for me that clearly, even the officers believed something just is not right here, something is not being understood.
8As the Crown points out in his factum, in order to make out the defence of officially induced error an accused must prove six elements:
That an error of mixed law and fact was made;
That the person who committed the act considered the legal consequences of his or her actions;
That the advice obtained came from an appropriate official;
That the advice was reasonable;
That the advice was erroneous;
That the person relied on the advice in committing the act.
9The Crown argues that the Respondent failed to make out the fifth and sixth of these elements.
10With respect to the fifth element the Crown submits that even with the judge’s finding that the word “may” was used instead of “will” be charged, that was not erroneous. Police officers always retain discretion whether or not to charge a person.
11With respect to the sixth element the Crown submits that the evidence is clear that the Respondent did not rely on the advice.
12With respect to the fifth element the Respondent submits that by using the word “may” the information being provided to the Respondent was misleading as it undermined the notion of absolute legal compulsion to blow. The Respondent submits that the only correct advice would have been for the police to tell the Respondent if she refused to provide a breath sample she “would” be charged. Anything else would be erroneous.
13With respect to the sixth element, the Respondent submits that the evidence, when read as a whole, supports the Respondent’s position that she relied on this advice.
14I agree with the position of the Crown with respect to the fifth element and even with the court’s finding that the word “may” was used, that was not erroneous.
15It is important to consider the entirety of the evidentiary record when assessing this issue. During their initial interaction with the Respondent, it was clear to them that the Respondent was not going to blow. The Respondent, in no uncertain terms, made it clear to the officers that she was told once before never to blow. Despite that the officers continued to attempt to persuade her to provide a sample, without success. The Respondent maintained her position that she did not want to blow and that she was told never to blow.
16When the evidentiary record is read as a whole it would have been clear to the Respondent that she was not acting in a lawful manner. The Respondent acknowledged that it was a 50 -50 chance that she could be charged. She knew that a charge was a possible outcome of not providing a sample.
17The Respondent acknowledges that the position advanced by the Crown with respect to the fifth element is technically accurate. In other words, it is true that the police always retain a discretion with respect to charging a person. The Respondent submits, however, that in this case that is a fiction. In all cases the police will lay a charge.
18In R. v. Halloran, [2010] O.J. No. 3346 Justice Sproat sets out the following at paras. 4 to 9:
Taken at its highest, the position of Mr. Halloran is that he knew that in refusing to blow he was acting contrary to the law but that he decided to do so because the police officer told him that the consequence of refusing to blow was a 90 day driver's licence suspension whereas he knew that a conviction for having a blood alcohol level in excess of the legal limit would result in a 12 month licence suspension. In other words, the position of Mr. Halloran was that, from a tactical perspective, it was better to break the law by refusing to blow than risk conviction for breaking the law for having a blood alcohol level in excess of the legal limit.
In my opinion the defence of officially induced error has no application to this fact situation. In my opinion, R. v. Smith, [2001] O.J. No. 5925 (O.C.J.), which holds that this fact situation can give rise to the defence of officially induced error, is wrongly decided. In my opinion R. v. Brown, [2006] O.J. No. 438 (O.C.J.), is correct on this point.
I will elaborate. In R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55, Chief Justice Lamer discusses the authorities on officially induced error. Chief Justice Lamer was the only member of the Court who found it necessary to address these legal principles. In my opinion it is clear from the authorities cited by Chief Justice Lamer, and his reasons, that officially induced error is available as a defence to prevent morally blameless individuals, who believe they are acting in a lawful manner, from being convicted.
In this regard I refer to the following:
(a) At paragraph two Chief Justice Lamer refers to the principle as providing an exception "which ensures that the morally blameless are not made criminally responsible for their actions".
(b) (b) At paragraph seven, Professor Stuart is quoted discussing the defence in terms of whether "the accused can demonstrate that he was socially responsible, not lawless and not blameworthy."
(c) (c) At paragraph 10, Chief Justice Lamer cites an article by Justice Kastner which discusses the defence in terms of the "offender in good faith is duly diligent in attempting to guide his conduct by the law as stated by 'a party in the know'".
(d) (d) At paragraph 15, there is reference to the fact that it would be considered unjust for the government to prosecute an individual for an offence that it had already assured him was not an offence.
Ms. Lonergan cited the decision in R. v. Pea, 2008 89824 (ON CA), [2008] O.J. No. 3887 (C.A.). It is correct that in that case there is no reference to the requirement, which I find exists, that the person claiming the defence of officially induced error must have believed they were acting in accordance with law. I do note, however, that Justice Gillese is simply quoting the trial judge as to the legal principles. The issue that I am focused on in this appeal is not an issue that appears to have been raised at all before Justice Gillese. As such, I do not view Pea as in any way inconsistent with the conclusion which I have reached.
In this case it is clear on the evidence that Mr. Halloran understood that in refusing to blow he was not acting in accordance with his legal obligation. As a matter of elementary common sense any person would understand that if their licence is being suspended, if their vehicle is being impounded, and if they're required to go to court to face some further sanction, that they're doing something that is not in accordance with law. To extend the defence of officially induced error to someone like Mr. Halloran would, in my view, be unjustified on any public policy basis.
19I am satisfied on a review of the record as a whole that the Respondent understood that in refusing to blow she was not acting in accordance with her legal obligations.
20However, even if my analysis on the fifth element of the test is in error, I am satisfied that the Respondent has failed to establish that the sixth element has been met. The following exchange at trial in the Crown’s cross-examination is relevant on this point:
MR. KINGDON: Q. All right. So you agree that you understood that there was a risk that you would be charged? It’s something that might happen or might not happen?
A. Fifty-fifty.
Q. Well what – what about the police officer’s answer suggested to you that it was fifty-fifty?
A. When – when he said that if I will not blow – if you don’t lie – they said if you don’t lie, that we going to arrest you. And I said okay, take me to jail, because at least, I – I could have advice from legal aid before I could blow.
Q. And you told my friend in evidence before lunch, that you thought you understood that they’d take you back to the station and that you would blow there after speaking to someone?
A. Yes. Bit I was not given the chance for me to blow, that I’m there. During the time that I was able to talk to the legal aid, after that one – I was not given the chance to blow.
Q. You mean at the station?
A. Yes.
Q. But you – you told your lawyer when he was asking you questions before lunch, that you believe that you would be taken back to the station, be permitted to talk to someone and then be given a chance to blow?
A. Yes.
Q. What, if anything, did the police say to you, that made you believe that?
A. All I know is that if I would be there, it depends on the lawyer whatever he or she would tell me.
Q. What I’m asking is, did the police say anything to you, that led you to believe that you would be given a chance to blow back at the station?
A. No.
21The Respondent clearly and unequivocally states that there was nothing the police said to her that led her to believe that she would be given a chance to blow back at the station.
22The Respondent’s testimony as set out on this issue is never reconciled or dealt with by the trial judge in her reasons. In her reasons for judgment the judge sets out the following at pages 58 and 59 of the transcript:
So in the end, as referenced in the case of Halloran, did the defendant articulate, “I believe I was acting in accordance with the law?” No. She never articulated that specifically. But what did she testify to and what was her understanding, that she had the option of going to the station, speaking to legal aid and would have a chance to blow then or there.
In my mind, it was the conversations with the police that led to that belief on her behalf, if not substantially and solely, at least significantly such that the offence of officially induced error is made out.
23The trial judge does not deal with the Respondent’s own testimony that the police did not say anything to her that led her to believe that she would be given a chance to blow back at the station. That is a serious concern that points to a new trial. The trial judge’s conclusion on the sixth element is contrary to the Respondent’s own testimony.
Issue: Police Duty to Give Legal Advice
24The Respondent acknowledges that the police are not legally required to give a person legal advice or correct a person’s misapprehension of the law. The Respondent submits, however, that the trial judge, in her reasons, did not impose such a duty on the officers.
25The Crown argues that the trial judge did impose such a duty and by doing so she substantially broadened the elements of the defence of officially induced error. In her reasons the judge states:
They never testified that they told her that is just wrong or it does not matter what somebody told you. And it cannot be counted out or discounted that the lack of clarification in that regard, again, could not have had an impact on her not understanding correctly what her options were and what the consequences would have been, in short, to the confusion that she has testified to repeatedly.
If not corrected, the inference remains that that would have been right and that option would have existed.
26In reading this passage of her reasons, it is my view that the trial judge did impose an obligation on the police to correct a misapprehension that she found may have existed in the Respondent’s mind. As acknowledged by the Respondent, the police do not have a duty to give legal advice or correct such misapprehensions on the law.
Disposition
27For all of these reasons the appeal is allowed and the acquittal is set aside. The matter is remitted back to the Ontario Court of Justice for a new trial before a differently constituted Court.
Fragomeni J.
Released: October 9, 2013
COURT FILE NO.: SCA(P)2283/12
DATE: 2013-10-09
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
GEMMA BACALZO
REASONS FOR JUDGMENT
Fragomeni J.
Released: October 9, 2013