ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 81/12

DATE: 20140819

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SEAN MARRIOTT

Lori Hamilton, for the Crown

Thomas M. Hicks, for Sean Marriott

HEARD: June 17, 2014

r.f. goldstein j.

[1] Early one morning Sean Marriott was stopped by police officers for speeding. The arresting officer approached Mr. Marriott’s vehicle. He suspected that Mr. Marriott was impaired. He called for another officer to bring an approved roadside screening device. According to the police officers, Mr. Marriott was uncooperative. The officers said that he refused a demand for a breath sample and became belligerent. When the officers tried to make an arrest, Mr. Marriott assaulted them.

[2] According to Mr. Marriott, he fully cooperated with the police but refused to provide a breath sample until he contacted his lawyer. He said that the police officers started grabbing him.

[3] Mr. Marriott was tried before Madam Justice Chapin of the Ontario Court of Justice on one count of impaired driving, one count of refusing to provide a breath sample, one count of assault with intent to resist arrest, four counts of assaulting a police officer, and one count of carrying a concealed weapon. He brought a Charter application, arguing that his right to counsel had been violated. Chapin J. dismissed the Charter motion and convicted him of all charges except the impaired driving count. In doing so she rejected Mr. Marriott’s evidence.

[4] Mr. Marriott appeals. His counsel argues that Chapin J. erred in dismissing the Charter motion and misapprehended the evidence of the officers. His counsel also argues that Her Honour’s reasons are inadequate.

[5] I disagree. I see no basis to interfere with Chapin J.’s decision. For the reasons that follow, the appeal is dismissed.

FACTS

[6] On May 22 2010 Mr. Marriott was travelling southbound on St. Helens Avenue when he drove past a police car sitting in a driveway. Constable Pikula and Constable Vanderburgh were in the police car. Constable Pikula testified that Mr. Marriott’s car was travelling at 80 to 90 km/h. The speed limit on St. Helens is 30 to 40 km/h. The police pursued Mr. Marriot. He slowed down at a stop sign but did not stop. The police eventually pulled him over. It was 2:13 am. Constable Pikula approached and demanded Mr. Marriott’s paperwork. Mr. Marriott told Constable Pikula that he was the general manager of Club Paradise just up the street. Mr. Marriott testified that he was speeding.

[7] Constable Pikula took Mr. Marriott’s licence and registration back to his police vehicle to run the usual checks. Although Constable Pikula told Mr. Marriott to stay in his car, while the checks were being run Mr. Marriott got out of his car and went to sit on a planter and drink water from a bottle he had taken from the car. Constables Pikula and Vanderburgh then approached Mr Marriott and asked him if he had been drinking. Mr. Marriott said only one shot. Constable Pikula then approached closer. Mr. Marriott had alcohol on his breath and his eyes were glossy.

[8] At 2:26 am another officer, Constable Fernandes, arrived with an approved roadside screening device. Constable Pikula demanded a breath sample from Mr. Marriott. He asked Mr. Marriott if he understood and Mr. Marriott said he did not and did not understand why he was being asked for a breath sample. Constable Pikula explained that he was suspicious that Mr. Marriott had been drinking. Mr. Mariott was on the phone at the time, using a Bluetooth device in his ear. Constable Pikula told him to get off the phone. Mr. Marriott ignored him at first but eventually hung up. Mr. Marriott testified that he had had nothing to drink that evening. He said he drank water with ice. He also said that employees at Club Paradise are not permitted to drink while on duty. He says that he told the officers that he had not even had one shot. He allowed customers to buy him drinks but he says that he only allowed the alcohol to touch his tongue in order to humour them. He admitted in cross-examination that he told the police officers that he was the general manager of Club Paradise in order to curry favour with them.

[9] Constable Pikula then told Mr. Marriott to go to Constable Fernandes who had the screening device. Mr. Marriott told him to bring the device to him. Constable Fernandes explained that it had to be hooked up to the car for power. Mr. Marriott denied this in cross-examination. The officers described Mr. Marriott as belligerent. Constable Pikula had the impression he wanted to fight.

[10] Mr. Marriott walked over to the police car with the screening device but did not provide the breath sample. According to the police, Mr. Marriott said: “I am not doing this”. Mr. Marriot testified that Constable Pikula made a breath demand but he said he would not do so until he spoke to his lawyer. In his testimony Mr. Marriott agreed that he refused to go over to the police car. Constable Fernandes told him he would be arrested. According to the police, Mr. Marriott told them to arrest him. The police officers obliged him. Mr. Marriott testified that since he was under arrest he asked to call his lawyer.

[11] As Chapin J. put it, from that point things escalated. The officers tried to arrest Mr. Marriott. They testified that he put up a considerable struggle. Several officers tried to get control of him. Four were injured. Mr. Marriott is a very large man – 6’2” and 250 lbs. He also, apparently, has some kind of martial arts training and experience with fighting. Eventually several officers succeeded in subduing Mr. Marriott and taking control of him.

[12] Mr. Marriott testified that he asked the officers not to arrest him, and asked them to cuff him to the front as he had a childhood trauma about being cuffed to the rear. He also did not like the loss of control. He testified that he locked his hands while the officers rained blows down on him.

[13] The police intended to have Mr. Mariott’s car towed to the station. One officer conducted an inventory search. He found an expandable baton in a compartment of the driver’s side door.

[14] Mr. Marriott was placed in Constable Paul’s scout car for transport. At 2:40 am Constable Paul gave Mr. Marriott his rights to counsel as he was unsure if another officer had done so. Mr. Marriott indicated he wanted to speak to Gary Clewley, a prominent Toronto criminal defence lawyer. Constable Paul informed him that he could do so after the booking procedure. Constable Paul and his partner could smell an odour of alcohol from Mr. Marriott as they transported him. He fell asleep in the back of the scout car. When Mr. Marriott was paraded he was very argumentative. Chapin J. viewed the booking video during the trial. Her Honour indicates in her reasons that Mr. Marriott was very angry and verbally aggressive. The police took Mr. Marriott to a hospital. They were concerned about his injuries.

[15] Mr. Marriott was charged with one count of impaired driving, one count of refusing to comply with a breath demand, one count of assault with intent to resist arrest, four counts of assaulting a police officer engaged in the execution of his or her duty, and one count of carrying a concealed weapon (the expandable baton).

TRIAL AND REASONS FOR JUDGMENT

[16] Mr. Marriott brought a Charter application on the basis that his right to counsel under s. 10(b) was violated. Chapin J. found that Mr. Marriott was detained when the demand was made for a breath sample. Mr. Mariott’s s. 10(b) rights were then engaged. Chapin J. determined, however, that in this case there was no reasonable opportunity for Mr. Marriott to consult with counsel until after the altercation. Chapin J. did not believe Mr. Marriott’s evidence that he told the officers that he agreed to provide a breath sample but wanted to speak to counsel first. She found that the officers had a well-founded safety concern and it was reasonable to delay providing counsel.

[17] Mr. Marriott also argued that excessive force was used during the course of the arrest. He argued that this constituted a violation of his rights under s. 7 and s. 12 of the Charter. Her Honour found Mr. Marriott not to be a credible witness in his description of the altercation. She accepted the evidence of the officers. She was not satisfied that the police used excessive force.

[18] On the actual trial issues, Chapin J. found that there was insufficient evidence to sustain a conviction for impaired driving. Having rejected Mr. Marriott’s evidence, she then analyzed the evidence of the officers and found Mr. Marriot guilty of the other charges.

ISSUES

(1) Did the trial judge provide adequate reasons?

(2) Did the trial judge err in dismissing the Charter motions?

(3) Did the trial judge err in finding that the police had grounds to demand a breath sample?

ANALYSIS

[19] Although I have tried to frame the issues in this case in discrete legal terms, in reality this case is about the trial judge’s findings of fact and analysis of credibility. In essence, the defence raises the spectre of unreasonable verdict based on a misapprehension of the evidence. The defence argues that the trial judge’s dismissive analysis of Mr. Mariott’s evidence led her into that error.

[20] I respectfully disagree. The trial judge’s reasons were long and detailed, and she gave very clear reasons for rejecting Mr. Marriott’s evidence and accepting the evidence of the officers. I disagree that she misapprehended the evidence. In reality, the defence simply takes issue with the trial judge’s findings of fact and characterization of the evidence. The credibility of all witnesses was central. A trial judge’s findings of fact based on credibility are entitled to great deference: R. v. Biniaris, 2000 SCC 15, [2001] 1 S.C.R. 381, 143 C.C.C. (3d) 1. Where unreasonable verdict is alleged, my role is limited to reviewing the evidence to determine whether it is reasonable capable of supporting the trial judge’s conclusions: R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, 89 C.C.C. (3d) 193; R. v. Quercia, 1990 2595 (ON CA), [1995] O.J. No. 2063, 75 O.R. (2d) 463, 60 C.C.C. (3d) 380 (C.A.). In this case, I find that all of Her Honour’s findings were open to her based on the evidence. Furthermore, were I to adopt the approach advocated by the defence I would fall into the error described by Doherty J.A. in R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639, 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.): dissecting the trial judge’s reasons into small pieces in isolation as if they described a legal principle applied by the trial judge. The reasons must be read as a whole.

[21] I turn to the main discrete issues raised by the defence.

1. Did the trial judge provide adequate reasons?

[22] The defence argues that the trial judge’s reasons for rejecting Mr. Mariott’s evidence were insufficient. The defence says that the trial judge failed in her duty to explain why she rejected his evidence and why his evidence did not raise a reasonable doubt.

[23] I agree with the defence that the accused must know the reasons why his evidence was rejected. I disagree that Chapin J.’s reasons do not pass that test. A trial judge has a duty to give reasons: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, 210 D.L.R. (4th) 608, 162 C.C.C. (3d) 298. The reasons must be capable of supporting meaningful appellate review. The following comment by the Court of Appeal in R. v. Newton, [2006] O.J. No. 1008, 29 M.V.R. (5th) 11, 2006 CarswellOnt 1535 (C.A.) at paras. 3 and 4 applies here:

Attacks on the adequacy of trial judges' reasons have become routine on appeals in criminal matters. Many of these challenges proceed on the premise that if counsel for the appellant can point to any piece of evidence that may have assisted the accused, or any inference that may have assisted the accused, or any legal argument that may have assisted the accused which was not specifically alluded to by the trial judge, it follows that the reasons are inadequate. This premise could not be more wrong. Reasons for judgment must clearly tell the losing party why he or she lost and must provide for meaningful review. If those ends are met, any shortcomings in the reasons are not per se cause for reversal.

There is no obligation on the trial judge to answer each and every argument made by counsel in reasons for judgment. This was a simple, factual case which turned exclusively on the credibility of three witnesses, the two complainants and the appellant. The trial judge's reasons amply demonstrate that she understood the significance of the credibility issue, fully addressed the relevant evidence, and made the necessary credibility findings. She also expressly referred to and applied the correct burden of proof.

[24] In her reasons Chapin J. first dealt with the Charter application and then the elements of the offences. She was very clear as to the reasons why she disbelieved Mr. Marriott on the Charter motion: his evidence was not believable when compared to the evidence of the officers and the objective facts. Obviously there was overlap, but it is noteworthy that the trial judge was then careful to instruct herself on the principles set out in R. v. W.D., 1991 93 (SCC), [1991] 1 S.C.R. 742 when she dealt with Mr. Marriott’s evidence on the substantive offences. There is simply no basis for finding that the reasons were inadequate or that the trial judge erred in her application of W.D.

2. Did the trial judge err in dismissing the Charter motions?

[25] The defence argues that Chapin J. erred in her finding that the police had not violated Mr. Marriott’s right to counsel. The defence also argues that Chapin J. erred by finding that the police had not used unreasonable force. The defence argues that because the trial judge failed to give due consideration to the inconsistencies in the version of events given by the Crown witnesses, she misapprehended the evidence and fell into error.

[26] I respectfully disagree. As noted, Mr. Mariott’s evidence was that he was willing to provide a breath sample provided he was able to speak to counsel. Chapin J. rejected that evidence. She found that he was belligerent and uncooperative. That finding was open to her on the evidence.

[27] The police have a duty to inform a detainee of his or her s. 10(b) Charter rights immediately, but that duty must be seen in context. The police may delay the implementation of a Charter right where there are legitimate public safety concerns: R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33, 245 C.C.C. (3d) 112 at para. 42; R. v. Learning, 2010 ONSC 3816, [2010] O.J. No. 3092, 258 C.C.C. (3d) 68 (Ont.Sup.Ct.) at para. 75.

[28] The trial judge drew the legal conclusion that the police could delay the implementation of Mr. Mariott’s 10(b) rights. That legal conclusion was based on her evaluation of the evidence and her findings of credibility. As noted, there is no basis for this Court to interfere with those findings. Given the fluidity of the situation, her conclusion is unassailable.

[29] The trial judge’s conclusions regarding the use of force are equally unassailable. She took into consideration the evidence of the police officers, the potential inconsistencies, and the injuries received by Mr. Mariott. The nature of the situation was that it was fluid, violent, and quick. Situations of this nature always give rise to inconsistencies that a trial judge must resolve in order to come to a conclusion. That was what Chapin J. did, in detailed fashion. What the defence characterizes as a misapprehension of the evidence in places was, in my respectful view, an attempt by the trial judge to resolve these factual issues. Given that her conclusions ultimately required her to make evaluations of credibility tested against some objective facts (such as the photographs of injuries), and given that her conclusions were open to her on the record, I see no basis to interfere. This is a case where deference to a trial judge on factual findings is in order.

3. Did the trial judge err in finding that the police had grounds to demand a breath sample?

[30] The defence argues that the trial judge erred in finding that the police had grounds to demand a breath sample.

[31] I disagree. The Criminal Code sets out two steps for making breath demands. The first step is the roadside demand. Pursuant to s. 254(2)(b) of the Code, where a peace officer has reasonable grounds to suspect that that a person has consumed alcohol and operated a motor vehicle within the previous three hours he or she may demand that the person provide a breath sample for an approved screening device. The second step is the breath demand to determine blood alcohol concentration. Pursuant to s. 254(3)(a)(i), where a peace officer has reasonable grounds to believe that a person has committed an offence under s. 253 of the Code (the impaired section) he or she may make a demand for a breath sample in order for a technician to determine blood alcohol concentration. The Code does not mandate this two-step process, but that is the usual sequence of events where a police officer suspects impaired driving. What is striking is that the Code requires that a police officer only have “reasonable grounds to suspect” the presence of alcohol in order to make a roadside demand. The presence of alcohol, as indicated by the roadside device, may give rise to “reasonable grounds to believe”, which is obviously a higher standard. In this case, the police were only at the stage of “reasonable grounds to suspect”, not the higher standard.

[32] The defence argues that the trial judge erred in finding that the police were correct in their evaluation that there were grounds to make a roadside demand. I disagree. This issue is also about the assessment of the evidence by the trial judge. In my view, there was ample evidence to support her finding that there were reasonable grounds to suspect the presence of alcohol in Mr. Mariott’s body:

• The police observed Mr. Marriott driving at a very high speed. The defence admits that the police had a basis to investigate him at that point;

• Police officers observed a “rolling stop” at a stop sign;

• The investigating officer who made the demand noticed a strong smell of alcohol on Mr. Mariott’s breath and noted that his eyes were glassy.

• According to the police, Mr. Mariott indicated that he had had one shot. On Mr. Mariott’s own evidence he had “pretended” to have a shot.

[33] I see no error by the trial judge.

DISPOSITION

[34] The appeal is dismissed.

R.F. Goldstein J.

Released: August 19, 2014

COURT FILE NO.: 81/12

DATE: 20140819

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SEAN MARRIOTT

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

R.F. Goldstein J.