ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 13-15 AP
DATE: 2014-06-24
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Levent Ozdemir
Respondent
Brian J. Bencze, for the Appellant Crown
John Struthers, for the Respondent
HEARD in Parry Sound: June 6, 2014
REASONS ON APPEAL
O’NEILL, J.:
[1] I conclude that in this matter a new trial is warranted for two reasons.
[2] I begin with the learned trial judge’s conclusion set out at 116 of the transcript where he stated:
“… I have a serious concern that the evidence falls short of being sufficient for the reasonable grounds required to effect the arrest at that time, and it’s of my considered view that the arrest in these circumstances was premature, and in that interpretation, and in these events as I understand them to have unfolded, that is a matter that’s fatal to both charges that are before the court.”
[3] The decision as to whether in this case Constable Marshall had reasonable and probable grounds (the objective component of such grounds) to arrest the appellant and make a breath demand, is a question of law reviewable on a standard of correctness.
[4] Any findings of fact made by the trial judge in considering and assessing the evidence are entitled to deference. See R. v. Wang 2010 ONCA 435, [2010] O.J. No. 2490 at para. 18.
[5] I concur with the appellant’s submission set out in paragraph 22 of the factum that the trial judge accepted six facts in relation to assessing both Constable Marshall’s subjective and objective grounds for arrest. See transcript at p. 115 - lines 1-30.
[6] At p. 116, the trial judge stated:
The matters which drew her [Constable Marshal’s] attention to the vehicle being operated by the accused, the observations that she made, the observations of the accused person when the vehicle had stopped, parked, when she approached the vehicle and its driver, are consistent with impairment, but they’re not exclusively consistent with impairment, and I have a serious concern that the evidence falls short of being sufficient for the reasonable grounds…
[7] In my view, the trial judge fell into error. In this regard, I reproduce paragraph 17 from the Wang decision, supra:
17 In short, Shepherd explains that where a court is satisfied that the officer had the requisite subjective believe, the sole remaining issue is whether that belief was reasonable in the circumstances. The text is not an overly onerous one. A prima facie case need not be established. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the officer’s subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see R. v. Stellato (1993), 1993 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff’d 1994 94 (SCC), [1994] 2 S.C.R. 478.
[8] Further, I reproduce paragraph 38 from the decision R. v. Bush, 2010 ONCA 554, [2010] O.J. NO. 3453:
38 Reasonable and probable grounds have both a subjective and objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254 at para. 51. The officer’s belief must be supported by objective facts: R. v. Berlinski, 2001 24171 (ON CA), [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 at p. 250.
[9] In my view, Constable Marshall’s observations as summarized by the trial judge supported her subjective belief that she had reasonable and probable grounds for arrest.
[10] The appeal must also succeed because in any event, having found that the officer lacked reasonable and probable grounds, the trial judge failed to carry out a s. 24 analysis under principles outlined in the decision R. v. Grant, [2009] 1 S.C.R. 353.
[11] I am unable to accept the respondent’s position that the trial judge’s reasons demonstrated that he conducted an implicit analysis of s. 24 (2).
[12] The issue of the s. 10(b) right to counsel was clearly before the trial judge. It encompassed a good portion of the submissions made by both counsel at trial. In his reasons, the trial judge did not analyze or review the s. 10 (b) issue likely because he had already concluded that Officer Marshall lacked objective reasonable and probably grounds to effect the arrest. Having now found that the trial judge erred in relation to the arrest component, the s. 10(b) issue now assumes greater importance in this case. In this respect, having regard to the transcript as well as to the submissions on appeal, I note the following:
i. The appellant made a specific request to speak with counsel of his own choice, someone he knew well. While Constable Marshall was from a different police force, I am unable to accept that a directory assistance call to locate a Toronto lawyer, in the absence of a computer search or a Google search, gives due credence to the important principles underlying s. 10(b) of the Charter.
ii. It was not explained on appeal why another OPP officer in the detachment could not assist with a cursory computer search or Google search to locate the telephone number of the Appellant’s counsel in Toronto.
iii. The Charter must be given a purposive interpretation. It forms part of the Constitution of Canada, which is this country’s supreme law. Clearly it is in the interest of justice and in the public interest that charter rights be vigilantly upheld.
iv. In this case, not having the opportunity to speak personally with his own lawyer, albeit having the opportunity to speak with duty counsel, the appellant had a serious decision to make when deciding to give or withhold a breath sample. Either decision could bring legal consequences.
v. In an environment where smart phones and computers are accessible to virtually everyone, the Court must be wary to accept that a directory assistance call, without anything more, meets the spirit and interest behind the provision in s. 10(b) of the Charter.
[13] Accordingly, for these reasons, the appeal is granted and a new trial is herein ordered. However, the decision to proceed or not with a new trial is a matter that rests in the discretion of the Crown. In addition to the issue with respect to s. 10(b) of the Charter, the Crown will also likely consider the evidence at the first trial, the fact of the appellant’s mandatory licence suspension, the passage of time and the costs incurred by all during the past two years.
[14] Order to go accordingly.
The Honourable Mr. Justice J.S. O’Neill
Released: June 24, 2014
COURT FILE NO.: CR 13-15 AP
DATE: 2014-06-24
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Levent Ozdemir
Respondent
REASONS ON APPEAL
O’NEILL J
Released: June 24, 2014