R. v. Schaump, 2015 ONSC 3113
ONTARIO
SUPERIOR COURT OF JUSTICE
(Summary Conviction Appeal Court)
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
TREVOR SCHAUMP
Appellant
Sean Doyle, for the Crown
Douglas Lent, for the Appellant
HEARD: April 7, 2015 at Brampton
DECISION: May 19, 2015
REASONS FOR JUDGMENT
[On appeal from the Judgment of the Honourable
Justice Kelly, dated January 20, 2014]
ANDRÉ J.
1Mr. Schaump appeals his conviction of the charge of excess blood alcohol under s. 253(1) of the Criminal Code (“the Code”). He submits that the trial judge erred in law by failing to find that the arresting officer was an unreliable witness whose testimony should have been given little weight. He also submits that the trial judge erred in law by failing to find that the arresting officer violated the Appellant’s s. 10(b) Charter rights and in finding that pursuant to s. 258(1)(c) of the Code the breathalyzer tests were taken as soon as practicable. The Crown submits that the trial judge committed no error in law and that accordingly, the appeal should be dismissed.
BACKGROUND FACTS
2On July 17, 2012, Cst. Pallet, a member of the Peel Regional Police Force, stopped Mr. Schaump’s vehicle after seeing it leave a licenced establishment at about 1:20 a.m. The vehicle drove without headlights for up to three-quarters of a kilometre. Upon exiting his vehicle, Mr. Schaump was unsteady on his feet, his breath smelled strongly of alcohol, his face was flushed, his eyes were bloodshot, and he admitted to having consumed alcohol. Cst. Pallet arrested Mr. Schaump for impaired operation of a motor vehicle. Mr. Schaump’s specific request to consult with duty counsel was facilitated by the officer. Mr. Schaump was video-recorded during his conversation with duty counsel, however, he was unaware of this and did not express to the police any concerns relating to privacy. Additionally, Cst. Pallet who was nearby, did not hear Mr. Schaump’s conversation with duty counsel.
3Cst. Okposio, a qualified breathalyzer technician, analyzed two samples of Mr. Schaump’s breath. Based on the results of the two breath tests which were obtained within 65 and 88 minutes of the driving, the appellant’s blood alcohol concentration (“BAC”) was 130 mg. of alcohol in 100 ml of blood.
EVIDENCE AT TRIAL
Indicia of Impairment
4The trial proceeded over three days. The trial judge convicted Mr. Schaump of excess blood alcohol and acquitted him of impaired driving.
5Constable Pallet testified that he pulled over Mr. Schaump’s vehicle at 1:20 a.m. to perform a sobriety check after seeing it leaving a licenced establishment. He testified that Mr. Schaump’s eyes were bloodshot and watery and that Mr. Schaump was “swaying as he was standing” (Transcript of the Evidence, page 19, lines 1-6 and page 48, lines 15-25). After Mr. Schaump entered the police cruiser, Cst. Pallet detected an odour of an alcoholic beverage on Mr. Schaump’s breath, and he noticed that his face appeared flushed. Mr. Schaump admitted to consuming three beers.
6The officer admitted in cross-examination that Mr. Schaump’s ability to walk at the scene was “sure” and that he had no mobility problems. The officer also conceded that Mr. Schaump’s bloodshot and watery eyes could have been caused by factors other than alcohol consumption. At 1:24 a.m., Cst. Pallet formed the opinion that Mr. Schaump’s ability to operate a motor vehicle was impaired by alcohol.
7Cst. Okposio received custody of Mr. Schaump at 2:01 a.m. He testified that he detected an odour of alcohol on Mr. Schaump’s breath and observed that his face was flushed, and his eyes were red rimmed, watery, and bloodshot. He also testified that Mr. Schaump did not have any slurred speech and had no difficulty walking. A videotape of the breathalyzer room showed that Mr. Schaump had no mobility problems, and it revealed that Mr. Schaump’s speech was not slurred.
Rights to Counsel
8Cst. Pallet read Mr. Schaump his rights to counsel at 1:30 a.m. at the scene of the arrest. He then asked Mr. Schaump whether he wished to call a lawyer. Mr. Schaump replied, “Yes”. Cst. Pallet asked “Do you have a specific lawyer you would like to contact” and the Appellant responded “Haven’t decided” (Transcript of the Evidence, page 25, lines 26-28). Cst. Pallet left the scene at 1:38 a.m. and Mr. Schaump was taken to 22 Division Peel Regional Police, arriving at 1:43 a.m., for the purpose of providing breath samples. At 2:25 a.m. he produced a reading of 130 mg of alcohol in 100 ml of blood, and at 2:48 a.m. the second sample produced an identical result.
9While in the booking area at the police station, Cst. Pallet stated that he “confirmed with Mr. Schaump who he’d like to speak to lawyer-wise”, and that Mr. Schaump indicated that he wished to speak with duty counsel. (Transcript of the Evidence, page 28, lines 5-8). Cst. Pallet then advised Mr. Schaump that he would call duty counsel which he did at 1:46 a.m.
10Mr. Schaump spoke to duty counsel between 1:54 a.m. and 2:01 a.m. in a room at 22 Division, which was videotaped and monitored by other police officers/civilians at a front desk. This video was played during the trial.
11At 1:53 a.m., duty counsel called the station, at which time Mr. Schaump was brought to a room equipped with a wall-mounted telephone in the back corner. The only other furnishing in the room was a single chair next to the phone. A video camera was affixed to the ceiling corner inside the phone room, diagonally opposite the telephone. A live video feed from the phone room was sent to a monitor inside the station where uniformed and other police employees could watch the activities of detained persons while they were in the phone room. In addition to being able to watch in real time, the activities inside the phone room were recorded and preserved, and where charges are laid – disclosed. The phone room video which was played at trial captured the Appellant’s activities.
12Mr. Schaump finished his phone call with duty counsel at 2:01 a.m. He was brought to the breath room and subsequently turned over to Cst. Okposio for breath testing at 2:03 a.m.
ISSUE NO 1: Did the trial judge err in law in concluding that Cst. Pallet did not violate Mr. Schaump’s s. 8 Charter rights?
13In determining whether or not the trial judge erred in his conclusion regarding Mr. Schaump’s s. 8 Charter rights, the standard of review is one of appellate deference, absent “palpable and overriding error or findings of fact which include factual inferences that are clearly wrong, unreasonable or unsupported by the evidence”: R. v. Pham, 2005 44671 (ON CA), [2005] O.J. No. 5127-203 C.C.C. (3d) 326, (Ont. C.A.) at para. 31; Peart v. Peel Regional Police Service, 2006 37566 (ON CA), [2006] O.J. No. 4457-43 C.R. (6th) 175, (Ont. C.A.), at paras. 102-104.
14On the other hand, the standard of review on a question of law is one of correctness. This applies to the legal conclusions drawn by the trial judge from the evidence, including whether or not an officer had the requisite reasonable and probable grounds to arrest a motorist: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 at para. 20; R. v. Day, 2014 NLCA 14, 2014 NLCA14, [2014] N.J. No. 68, at paras. 8-9, affirmed 2014 SCC 74.
15Absent a search warrant, it is incumbent on the Crown, pursuant to s. 254(3) of the Code, to establish on a balance of probabilities that an arresting officer had the requisite reasonable and probable grounds to issue a breath demand. This assessment has an objective and subjective component: the arresting officer must honestly believe that a person is committing (or has, within the preceding three hours, committed) an offence under s. 253(1) of the Code, and the objective facts must reasonably support his opinion: R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254. 95 C.C.C. (3d) 193 (S.C.C.), at paras. 48, 63.
16Where an appellate court is required to review a trial judge’s conclusion as to whether the officer objectively had reasonable and probable grounds to arrest a motorist for impaired driving, the appellate court is required to show deference to the trial judge’s findings of fact, although the trial judge’s conclusion itself is a question of law reviewable on the standard of correctness: R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.) at paras. 47-48; references omitted.
17The formulation of reasonable and probable grounds should not be conflated with proof beyond a reasonable doubt: R. v. Censoni, [2001] O.J. No. 5189, [2001] O.T.C. 948 [Censoni] (Ont. S.C.J.) CarswellONT 4590, (SCJ), at para. 43. The latter imposes a higher evidentiary burden on the Crown than the former.
18Impairment may be established beyond a reasonable doubt where the Crown proves any degree of impairment from slight to great: R. v. Stellato, 1993 3375 (ON CA), 2013 ONCA 3375 [1993] O.J. No. 18, (Ont. C.A.) at para. 14. It follows that the formulation of reasonable and probable grounds is not an onerous evidentiary standard: Censoni at para. 43. Even if there may be an innocent explanation for an observation made of a detainee, such as bloodshot and watery eyes, this factor, along with others, may nevertheless be sufficient, from an objective and subjective basis, for the formulation of reasonable and probable grounds: Censoni at para. 47; references omitted.
19Applying the law to the facts of this case, the trial judge concluded that his decision regarding whether or not Mr. Schaump’s s. 8 Charter rights had been infringed was a “close call”: Reasons for Judgment, para. 51. Of the legal standard, he observed that reasonable and probable grounds:
…sits on a continuum of standards of proof. It has been described as a reasonable probability, a reasonable belief, or the point where credibly-based probability replaces suspicion. It is less than a prima facie case for conviction, proof on a balance of probabilities, or proof beyond a reasonable doubt. It is more than a guess, a hunch based on experience, or reasonable grounds to suspect…”
Reasons for Judgment, para. 12 (references omitted).
20In explaining any discrepancy between Cst. Pallet’s observations and the videotaped evidence called by the Crown, the trial judge concluded that he could find that human beings in similar situations could intentionally eliminate signs of impairment from the time of arrest at the scene to the attendance at the police station: Reasons for Judgment, para. 33.
21The trial judge properly described the law as it relates to the formulation of reasonable and probable grounds. It is more than a mere hunch or suspicion and less than a prima facie case for conviction. It is also significantly less than proof beyond a reasonable doubt.
22In my view, the judge’s conclusion that Cst. Pallet had the requisite reasonable and probable grounds was supported by the evidence. The officer observed Mr. Schaump’s vehicle driving over a distance of three quarters of a kilometre without its night lights on. Upon stopping the vehicle, the officer testified that Mr. Schaump’s eyes were noticeably bloodshot. Mr. Schaump’s face was flushed and Mr. Schaump was swaying on his feet after he exited his vehicle. Furthermore, the officer detected an odour of an alcoholic beverage emanating from Mr. Schaump’s breath and the latter admitted to consuming three beers.
23Even if Mr. Schaump did not have any mobility problems, or slurred his speech, or drive erratically, the combination of Cst. Pallet’s observations were sufficient, both on an objective and subjective basis, to have given him the requisite reasonable and probable grounds to arrest Mr. Schaump. The ability to drive not only includes the ability to drive the vehicle within a designated lane and observe traffic signs but also to activate the safety features on the vehicle such as it’s night running lights. Even if Mr. Schaump had innocently forgotten to activate those lights, Cst. Pallet was entitled to rely on this omission, along with the other indicia of impairment he had observed, in forming the requisite grounds to arrest Mr. Schaump. As Justice Hill observed in Censoni at para. 47:
Furthermore, it must be remembered that slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, regard for the rules of the road, and the like.
24To that extent, this ground of appeal must fail.
ISSUE NO 2: Did the arresting officer violate Mr. Schaump’s s. 10(b) Charter rights?
25Section 10(b) guarantees every individual the right to retain and instruct counsel without delay and to be informed of that right.
26This constitutional guarantee places an obligation on an arresting officer to provide an accused with a reasonable opportunity to consult with counsel and to refrain from eliciting evidence from an accused until that opportunity has been afforded: Bartle v. The Queen, 1994 64 (SCC), [1994] 3 S.C.R. 173, 92 C.C.C. (3d) [Bartle] 289 at paras. 18-19. Furthermore, the duty on the police includes an obligation to provide an opportunity to contact a lawyer within a reasonable time, alone with the privacy to facilitate an accused’s consultation with counsel: R. v. Burley, 181 C.C.C. (3d) 463, 2004 9437 (Ont. C.A.) [Burley] at para. 10.
27However, the right of an accused to be afforded a reasonable opportunity to exercise his rights to consult with counsel of his choice carries with it certain responsibilities. For example, an accused must be reasonably diligent in exercising his s. 10(b) Charter rights: Bartle at para. 19. Second, upon being afforded an opportunity to consult with counsel of his or her own choice, an accused should be reasonably expected to bring any concerns he or she may have about a lack of privacy to the attention of any police officer present: Burley at para. 21.
28In determining whether or not an accused was afforded a reasonable degree of privacy in consulting counsel, the totality of the circumstances should be examined: Burley at para. 24. Even where there was no actual invasion of privacy, an accused may still be able to prove, on a balance of probabilities, that his or her s. 10(b) rights were infringed by establishing that s/he believed that s/he could not retain and instruct counsel in private and that such a belief was reasonable in the circumstances: R. v. Cairns, 2004 17588 (ON CA), [2004] O.J. No. 210, 115 C.R.R. (2d) 373 (Ont. C.A.) at para. 10.
29Furthermore, the mere presence of a video camera is insufficient to find a s. 10(b) Charter breach in fact or to establish a reasonable belief in a breach by an accused.
30Applying these principles to the facts of this case, I find that the trial judge correctly concluded that Mr. Schaump’s s. 10(b) rights were not infringed. The officers did not eavesdrop on the conversations between Mr. Schaump and duty counsel. There was no evidence adduced at trial that Mr. Schaump believed that he could not retain and instruct counsel in private and that such a belief was reasonable in the circumstances.
31In R. v. Farquharson; R. v. Miller; R. v. Hume, 2014 ONSC 6641 [2014] O.J. No. 5727 or para. 43, I indicated that:
As the Court of Appeal noted in Cairns, the mere presence of a video camera is insufficient to find a Charter breach. There must be some evidence regarding the impact of the video on the accused and the extent to which the presence of the video impaired the accused’s ability to retain and instruct counsel.
These comments are equally appropriate in this case.
32Mr. Schaump further submits that the trial judge erred in concluding that there was no breach of s. 10(b) of the Charter because the arresting officer failed to inquire as to whether Mr. Schaump had a lawyer of choice or wished to speak to a relative or friend to obtain the name of a lawyer of choice. He urges this court to find that the arresting officer was under such an obligation.
33Upon being advised of his rights to counsel, Mr. Schaump never requested to speak with counsel of his choice or to any other person. At the police station, he specifically requested to speak with duty counsel. He was afforded an opportunity to do so. He never expressed any dissatisfaction with the information he received from duty counsel. On the contrary, he expressed his satisfaction with his conversation with duty counsel. Therefore, I conclude that Mr. Schaump has failed to establish that the trial judge erred in finding that Mr. Schaump’s s.10 (b) rights had not been infringed.
ISSUE NO 3: Were the breathalyzer tests taken as soon as practicable, pursuant to s. 258(1)(c)(ii) of the Code?
34The test for determining whether or not the breathalyzer tests were taken as soon as is practicable is one of reasonableness. The question to be answered is whether the officer acted reasonably in the circumstances of the case or whether he or she devoted an unreasonable amount of time to a task that was unrelated to the investigation. R. v. Vanderbruggen, 2006 9039 (ON CA), [2006] O.J. No. 1138, 208 O.A.C. 379 (Ont. C.A.) at paras. 13-14.
35In R. v. Singh, 2014 ONCA 293 [2014] O.J. No 1858, at para. 15, the Ontario Court of Appeal noted that:
It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused’s blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose...
36While the question of whether the breathalyzer tests took place as soon as practicable is a legal test, reviewable on a standard of correctness, the factual basis underlying this determination is entitled to deference absent palpable and overriding error: R. v. Beharry, 2014 ONSC 848 [2014] O.J. No. 603 (S.C.J.) at paras., 16-17; R. v. Cargill, 2014 ONSC 3897, [2014] O.J. No. 3078 (S.C.J.) at paras. 11-13.
37In this case, Cst. Okposio testified that the intoxilyzer machine used during the investigation had been left in a standby mode and hence there was an additional delay of 30 to 40 minutes in starting the machine. He testified that he did not inquire as to the availability of an intoxilyzer machine that could have performed the tests much sooner.
38Mr. Schaump submits, through his counsel, that this delay was unreasonable in the circumstances of this case and that the trial judge erred in law when he concluded otherwise.
39In deciding this issue the trial judge concluded at paragraphs 72 and 74 of his reasons for judgment that Cst. Okposio “performed the preparatory tests as soon as reasonably possible once the instrument was ready”. He further noted that:
[T]he police conduct with regard to instrument preparation and operation was reasonable. In any event, the performance of the preparatory checks in the breath room did not cause any meaningful delay in the taking of the breath samples when one looks at the whole of the record under the principles in Vanderbruggen.
Reasons for Judgment, paragraph 74.
40Cst. Pallet stopped Mr. Schaump’s vehicle at 1:20 a.m. The first test was taken at 2:25 a.m. while the second was taken at 2:48 a.m. Both tests were therefore taken within one hour and thirty minutes of the stopping of Mr. Schaump’s vehicle.
41There is no evidence that Cst. Okposio’s action in waiting for the intoxilyzer machine to start up were unreasonable. It is unknown whether another was available sooner to perform the tests. The officer would certainty have had to travel to another division to perform the tests assuming that another machine was available.
42The trial judge, in the circumstances of this case, did not err in his conclusion that the breathalyzer tests were taken as soon as practicable. The taking of the tests comes within the time limits set out in section 258(1)(c) of the Code. To that extent, this ground of appeal must fail.
DISPOSITION
43The appeal is dismissed. The stay of the driving prohibition imposed by the trial judge is vacated.
André J.
Released: May 19, 2015
CITATION: R. v. Schaump, 2015 ONSC 3113
COURT FILE NO.: SCA(P) 110/14
DATE: 20150519
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
TREVOR SCHAUMP
Appellant
REASONS FOR JUDGMENT
André J.
Released: May 19, 2015