ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA(P) 376/14
DATE: 20150924
B E T W E E N:
HER MAJESTY THE QUEEN
S. Doyle, for the Appellant
Respondent
- and -
ANDREINA AMAYA-RUIZ
No one appearing for the Respondent
Appellant
HEARD: September 21, 2015
REASONS FOR JUDGMENT
[On appeal from the judgment of Marshall J.
dated June 5, 2014]
André J.
[1] The Crown appeals the acquittal of Andreina Amaya-Ruiz, on a charge of Excess Blood Alcohol, after the trial judge found that Ms. Amaya-Ruiz’s s. 10(b) rights had been violated by the investigating officer. The Crown submits that the trial judge erred in law by failing to provide adequate reasons for excluding the breathalyzer results and failing to apply the appropriate legal test in doing so. The respondent failed to appear for the appeal hearing despite being personally served with the Crown’s notice of appeal and related documents.
SUMMARY OF THE EVIDENCE
[2] On November 26, 2012, Cst. Kozuska, a Peel Regional Police officer, stopped Ms. Amaya-Ruiz’s vehicle while he conducted a mobile R.I.D.E. patrol. Upon speaking to Ms. Amaya-Ruiz, the officer detected an odour of alcohol emanating from her breath. He formed a suspicion that she had alcohol in her body. As a result, he read her an Approved Screening Device (“ASD”) demand. Ms. Amaya-Ruiz blew into the ASD which registered a “Fail”. Thereupon, Cst. Kozuska arrested her for Excess Blood Alcohol and proceeded to read her rights to counsel and caution.
[3] By this time, Ms. Amaya-Ruiz had become emotionally distraught and was crying uncontrollably. After reading her rights to counsel and upon advising her of the availability of duty counsel, the officer asked Ms. Amaya-Ruiz whether she wished to call a lawyer. Ms. Amaya-Ruiz replied: “I don’t have a lawyer so I don’t want to call one.” During cross-examination, Cst. Kozuska testified that he believed that Ms. Amaya-Ruiz meant that she did not wish to speak to a lawyer.
[4] Ms. Amaya-Ruiz subsequently provided two samples of her breath into a breathalyzer machine at the Airport division. They registered truncated readings of 110 milligrams of alcohol in 100 millilitres of blood. Ms. Amaya-Ruiz called no evidence on her Charter application or the trial proper.
TRIAL JUDGE’S DECISION
[5] The trial judge concluded that Cst. Kozuska violated Ms. Amaya-Ruiz’s s. 10(b) Charter rights by failing to take additional steps to ensure that she fully understood her rights to consult with counsel. She noted that:
This is a woman, at night, she’s never been arrested before. She’s clearly upset. Now I’m not saying tears should count for that much but she doesn’t have a lawyer. She doesn’t know about contacting a lawyer, and I’m not satisfied that it was clearly explained to her about duty counsel and the 1-800, in the circumstances where she could appreciate what a waiver of that meant. That’s a very, that’s a very low bar. It’s a very low bar at the station where there is a phone to say, “look, you don’t have a lawyer. There’s a duty counsel. Do you want us to call on your behalf?” It’s a very low bar and it wasn’t met here.
Transcript of Proceedings, pp. 63-64.
[6] Upon finding that Ms. Amaya-Ruiz’s s. 10(b) Charter rights had been violated, the trial judge proceeded to exclude the breathalyzer results. She stated that:
And therefore I’m finding that there was an infringement on section Ten and, in all the circumstances, it would have been very simple to comply with that. She was apparently cooperative, um, and I’m not satisfied that, in the circumstances of this case, it’s appropriate to admit the readings. And, therefore, they are excluded and the charge is dismissed.
ANALYSIS
[7] Prior to analyzing the trial judge’s reasons for finding a s. 10(b) Charter violation in this case, it is necessary to briefly state the applicable standard of appellate review. Absent palpable or overriding error, an appellate court should extend a considerable degree of deference to factual findings made by a trial judge: see R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 at para. 20; R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52 at para. 49; R. v. Cresswell, 2009 ONCA 95, [2009] O.J. No. 363 (C.A.), at para. 14.
[8] A trial judge has considerable latitude in his or her appreciation of the evidence and the inferences to be drawn therefrom in his or her assessment of the credibility of witnesses. Accordingly, all factual findings are open to a trier of fact, except unreasonable ones: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 32, 33, 37 and 42.
[9] On the other hand, the standard of review for a trial judge’s findings of law is one of correctness: see R. v. Farrah, 2011 MBCA 49, at para. 7.
[10] Applying these principles to the facts of this case, it was open to the trial judge to find that Cst. Kozuska did not adequately explain to Ms. Amaya-Ruiz about the availability of duty counsel. Ms. Amaya-Ruiz had never been arrested before and had become very emotional following her arrest. In those circumstances, the officers should have done more to ensure that Ms. Amaya-Ruiz clearly understood what it meant to speak to duty counsel. Indeed, Cst. Kozuska could have easily called duty counsel on her behalf.
[11] It was open to the trial judge to doubt that Ms. Amaya-Ruiz fully understood her right to consult with counsel and to conclude that Cst. Kozuska violated the informational component of Ms. Amaya-Ruiz’s rights to retain and instruct counsel without delay, and to be informed of that right. To that extent, the trial judge’s factual finding that Cst. Kozuska failed to fully convey to Ms. Amaya-Ruiz her s. 10(b) Charter rights should be afforded a great deal of deference.
[12] Upon arriving at that conclusion, the learned trial judge was required, pursuant to s. 24(2) of the Charter, to consider whether or not the breathalyzer readings, if obtained in a manner that violated Ms. Amaya-Ruiz’s s. 10(b) Charter rights, should be excluded if it is established that, having regard to all the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute.
[13] In my respectful view, the learned trial judge committed two errors in her determination of this question. First, the reasons for the exclusion do not preserve or enhance meaningful appellate review of the correctness of the decision. R. v. Shepherd, 2002 SCC 26, [2002] S.C.J. No. 30, at para. 25. This is not merely a case where the trial judge did a poor job of expressing itself; the reasons given for the exclusion of the breathalyzer results amount to an assertion that the trial judge was not satisfied that it was appropriate to admit the reasons. In my view, the trial judge erred in law in that her reasons for excluding the breathalyzer results prevent meaningful appellate review of the correctness of the decision.
[14] The second error was in the trial judge’s failure to apply the tripartite test set out in R. v. Grant, 2009 SCC 32, [2009], S.C.J. No. 32. In that case, the Supreme Court of Canada stated that the exclusion of evidence, pursuant to s. 24(2), involves a consideration of the following lines of inquiry:
a) the seriousness of the Charter-infringing state conduct
b) the impact on the Charter-protected interests of the accused
c) society’s interest in an adjudication on the merits.
R. v. Grant, supra, at paras. 72-84.
[15] The Supreme Court of Canada concluded, at paragraph 85, that these three lines of inquiry “reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice.” The trial judge’s failure to do so in this case constitutes reversible error.
DISPOSITION
[16] The acquittal is set aide and a new trial is ordered. The matter is remanded to October 27, 2015, 9:00 a.m., Courtroom No. 104, Ontario Court of Justice, to be set for trial with a differently constituted court.
André J.
Released: September 24, 2015
COURT FILE NO.: SCA(P) 376/14
DATE: 20150924
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
- and –
ANDREINA AMAYA-RUIZ
Respondent
REASONS FOR JUDGMENT
André J.
Released: September 24, 2015