ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-13-70000034-00
DATE: 20140626

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ALIAMISSE O. MUNDULAI
Defendant

Lori Hamilton, for the Crown

Aliamisse O. Mundulai, on his own behalf

HEARD: June 20, 2014

r.f. goldstein j.

1On August 23 2011 at about 11:30 pm Mr. Mundulai was involved in a motor vehicle accident at O’Connor and Greenwood in Toronto. Mr. Mundulai hit a taxicab at the intersection, backed up, and hit the cab again. He was arrested at the scene and taken to the police station so that he could provide a sample of his breath. After speaking to duty counsel, he refused to blow into the Intoxilyzer machine. He said that he refused based on the advice of counsel. At trial he brought a Charter motion, arguing that the police had breached his right to counsel. The key issue was whether the police had failed to provide Mr. Munduai with access to a lawyer of his choice. Mr. Justice Horkins dismissed the motion and found Mr. Mundulai guilty of impaired driving and refusal to provide a sample of his breath.

2Mr. Mundulai appealed. He argued that Mr. Justice Horkins erred in not finding a Charter breach. I dismissed his appeal from the bench and indicated that reasons would follow. These are those reasons.

BACKGROUND

3Constable Goodwin arrived within about 8 to 10 minutes of the accident. She determined that Mr. Mundulai was the driver. He was walking around blocking traffic so she had to move him out of the way. She conversed with Mr. Mundulai. She noticed the smell of alcohol on him. He admitted to having consumed alcohol. She made a roadside screening demand. Mr. Mundulai provided a sample of his breath, blowing into an approved roadside screening device in her police car. He registered “fail”. Constable Goodwin then arrested Mr. Mundulai for impaired driving and “over 80”. She read him his rights to counsel and the standard caution. She then made a demand for a sample of his breath at 11:56 pm.

4Constable Goodwin then transported Mr. Mundulai to 41 Division. He was paraded before the booking sergeant and again given his rights to counsel. Constable Goodwin called duty counsel on behalf of Mr. Mundulai. Mr. Mundulai spoke to duty counsel from 12:30 to 12:35. He did not ask to be put in touch with a specific lawyer. He did not express dissatisfaction with duty counsel. In the breath room Mr. Mundulai refused to provide a sample and said that it was on the advice of counsel.

THE TRIAL JUDGE’S REASONS

5Mr. Mundulai argued that because he was not provided with “my lawyer”, in other words a specific lawyer, he was denied his right to counsel under s. 10(b) of the Charter.

6There was a conflict in the evidence as to whether Mr. Mundulai asked for “a lawyer” or “my lawyer” both at the scene and at the station. Constable Goodwin testified that although she made a note in her memo book that Mr. Mundulai asked for “my lawyer” as opposed to “a lawyer”, she had no recollection of making the note. She agreed that she must have made the note.

7Justice Horkins noted the fact that there was a variation between the standard checklist in Constable Goodwin’s memo book and her recollection of whether Mr. Mundulai asked to speak to “a lawyer” or “my lawyer” and the scene. It was unclear from the booking tape, which Justice Horkins observed, whether Mr. Mundulai asked for “my lawyer”. Constable Goodwin testified that Mr. Mundulai did not ask for “my lawyer” during the booking process. She was standing beside Mr. Mundulai at the time.

8Justice Horkins resolved the factual issue by finding that if the officer erred by failing to provide a specific lawyer as opposed to duty counsel, it was a good-faith error. He also found that it was not sufficiently brought home to the officers by Mr. Mundulai that there was a particular lawyer that he wanted to speak to, as opposed to duty counsel. He found that it was not an intentional ignoring of a request for counsel of choice on the part of the officers.

9Justice Horkins had no difficulty finding that the Constable Goodwin had reasonable grounds to make the roadside demand, and reasonable grounds to arrest for the purposes of the breathalyser demand. None of that was seriously contested by Mr. Mundulai at trial or on appeal.

10Justice Horkins did agree that there was a live s. 10(b) Charter issue regarding access to counsel of choice. In facilitating the call to duty counsel, however, Justice Horkins found that the police acted reasonably and in good faith. He found that Mr. Mundulai did not, at the station, ask for any particular lawyer or express any dissatisfaction with duty counsel. He noted that Mr. Mundulai was trained as a lawyer.

11He distinguished this case from those cases where counsel of choice was not available and so duty counsel was “pushed” at the accused. In all the circumstances he found that there was no breach of Mr. Mundulai’s s. 10(b) rights.

ANALYSIS:

12The only issue on appeal was whether Justice Horkins erred by dismissing the s. 10(b) Charter motion.

13Mr. Mundulai argued that the error, if that was what it was, by Constable Goodwin showed that she did not act in good faith. He says that her failure to provide him with the counsel of his choice, rather than duty counsel, was deliberate and designed to deprive him of his right to counsel. He argues that Justice Horkins thus misapprehended the evidence. That misapprehension, he says, led to legal errors in dismissing his arguments under sections 7, 8, 10(b), and 24(2) of the Charter.

14There is no merit to Mr. Mundulai’s argument, for five reasons:

15First, the finding of good faith by Justice Horkins depended on predicate findings of fact. Those finding of fact depended on an analysis of credibility. Justice Horkins conducted a detailed analysis of Constable Goodwin’s evidence and concluded that she was an honest and straightforward witness. He was entitled to make that finding. A trial judge is in the best position to determine the credibility of a witness. This court cannot interfere with a finding of fact – especially where it is based on a credibility assessment – absent a palpable and over-riding error: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, 207 C.C.C. (3d) 353. There was a solid basis in the evidence for Justice Horkins to find that Constable Goodwin was an honest and straightforward witness. He did not misapprehend her evidence in concluding that her error – if that was what it was – was made in good faith. Mr. Mundulai argues that Constable Goodwin could not have acted in good faith because she failed to acknowledge making an incorrect note in her memo book. I cannot accept that argument in the face of Justice Horkin’s findings. Mr. Mundulai also argues that Constable Goodwin could not have acted in good faith because she failed to apologize for refusing to provide him with counsel of choice. Mr. Mundulai never provided Constable Goodwin with the name of an alternative lawyer. He did not say anything when she put him in touch with duty counsel. That argument has no merit.

16Second, there was absolutely no evidence that Constable Goodwin deliberately sought to deprive Mr. Mundulai of his counsel of choice. Her evidence was that she would have facilitated a call to a specific lawyer if Mr. Mundulai had provided her with a name and a number. Mr. Mundulai did not. Before me, he argued that the police should have continued to question him about which lawyer he wanted to speak to. That was the same argument made to Justice Horkins. Justice Horkins rejected it.

17Mr. Mundulai argued that it was incumbent on the police officer to specifically question him as to which lawyer he wanted. I cannot agree with that submission. Mr. Mundulai did not provide a specific lawyer’s name. When the officer put him in touch with duty counsel it was incumbent on him to at least point out that he was asking for a specific lawyer. He never did. He simply did not say anything to the officer – who, it should be noted, steadfastly maintained throughout that Mr. Mundulai had actually asked for duty counsel.

18The police have a duty to provide an accused person with a reasonable opportunity to exercise the right to counsel and must cease efforts to obtain evidence from the accused until that opportunity has been exercised: R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, 92 C.C.C. (3d) 289. An accused person must, however, act with reasonable diligence: R. v. Richfield, 2003 52164 (ON CA), [2003] O.J. No. 3230, 178 C.C.C. (3d) 23, 175 O.A.C. 549 (C.A.). Mr. Mundulai did not do so. I can see no error by Justice Horkins in rejecting this argument.

19Mr. Mundulai’s position that the trial judge erred in dismissing his s. 10(b) argument simply boils down a disagreement with the trial judge’s decision. Mr. Mundulai was unable to point to a specific error of law by the trial judge. It is not my job sitting as a summary conviction appeal judge to re-try the case simply because I might have come to a different conclusion (not that I would have), which is, effectively, what Mr. Mundulai asks me to do.

20Third, Mr. Mundulai argues that the trial judge erred by refusing to entertain his argument that his rights under s. 8 of the Charter were breached. The s. 8 motion was made without notice. Justice Horkins was well within his discretion as a trial judge in refusing to entertain the motion, especially because it was obvious that there was no merit to it. Nothing was seized from the accused. Mr. Mundulai refused to provide a sample of his breath. The pat-down search conducted incident to arrest yielded no evidence. In order to exclude evidence that was seized illegally something actually has to be seized. Nothing was seized from Mr. Mundulai. There was nothing to be excluded from evidence.

21Fourth, Mr. Mundulai argues that the trial judge erred by dismissing his motion under s. 7 of the Charter. In his factum, and in oral argument, Mr. Mundulai mentioned a failure by the Crown to make full disclosure. There was no evidence at trial about a failure to make full disclosure. There was no evidence at trial regarding a failure of disclosure. Justice Horkins made no error in dismissing the motion.

22Fifth, and finally, even if Justice Horkins did err by finding that there was no breach of s. 10(b) it was a trivial breach. I do not see how Mr. Mundulai could have succeeded on a s. 24(2) analysis.

DISPOSITION

23The appeal is dismissed.

R.F. Goldstein J.

Released: June 26, 2014

COURT FILE NO.: Click and Type

DATE: 20140626

ONTARIO

SUPERIOR COURT OF JUSTICE

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