SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-14-10000139-00AP

DATE: 20151030

RE: HER MAJESTY THE QUEEN, Respondent

AND:

JUSTINE LOBO, Appellant

BEFORE: MacDonnell, J.

COUNSEL: Ted Ofiara, for the Respondent

Stephen Menzies, for the Appellant

HEARD: October 21, 2015

appeal book ENDORSEMENT

[1] On October 14, 2014 the appellant appeared before Justice Lloyd Budzinski in the Ontario Court of Justice in Toronto and was arraigned on an charge that on or about the 18th day of August, 2013, at the City of Toronto, she operated a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in her blood exceeded 80 milligrams of alcohol in 100 milliliters of blood. The Crown elected to proceed by way of summary conviction and the appellant pleaded not guilty.

[2] There was no dispute at trial that the appellant was stopped for investigation while operating a motor vehicle on the Gardiner Expressway at approximately 4:00 a.m. on August 18, 2013, that Police Constable Norman formed a reasonable suspicion that the appellant had alcohol in her body, that the appellant registered a “Fail” on an approved screening device, that P.C. Norman had reasonable grounds to make an Intoxilyzer demand, and that in due course, at the police station, the appellant provided two samples of her breath, the analyses of which revealed blood/alcohol concentrations in excess of the legal limit.

[3] The only live issue before the trial judge was whether the results of the Intoxilyzer tests should be excluded pursuant to s. 24(2) of the Charter on the basis that they were obtained in a manner that infringed the appellant’s rights under s. 10(b). The position of the defence, as stated by counsel at the outset of the trial, was that this was “a case where duty counsel was called and my friend’s position is that at some point she waived her rights and declined the call. My position will be it didn’t amount to a waiver and is thus a breach. That will be for Your Honour to decide”. In the course of final submissions, defence counsel reiterated that position: “There’s only one relevant question in my respectful submission, for you sir, and that is has the Crown proved to you a final, informed, unequivocal waiver on the evidence you have heard? That is the only issue you need to decide…right now; final, clear, unequivocal and informed. Can you be satisfied with the evidence of the arresting officer that there was ever such a waiver from this woman…”

[4] At the time he arrested the appellant, prior to transporting her to the police station, P.C. Norman read her rights to counsel to her directly from his memo book. The appellant indicated that she understood. When asked if she wanted to speak to a lawyer, the appellant responded that ‘she did not want to hear it right now’. After being booked into the police station, the appellant was placed in an interview room. At that point, P.C. Norman again asked her if she wanted to call a lawyer. He noted that “she asks for counsel, but is wavering if she wants it”. He testified that he could not get a direct answer from her about what she wanted to do. In light of the uncertainty, he placed a call to duty counsel.

[5] While waiting for duty counsel to call back, the appellant remained in the interview room and P.C. Norman continued with his paperwork. After a while, the appellant knocked on the door to get his attention and told him “she just wanted to get on with it.” He told her that duty counsel had been called “and we can wait for a little while longer” but “she said that she just wanted to get on with it. So we started heading towards the breath room and at that time the phone rang and another officer answered the phone and told me that duty counsel was on the phone for her. So we were …walking through the office at the time and I told her that…the lawyer’s on the phone right now, we can talk to him right now and she said ‘no, let’s just get on with it’. So the other officer said ‘no, thank you’ to duty counsel and we headed down to the breath room and began the first breath test”.

[6] In cross-examination, it emerged that prior to trial, in response to a query from the Crown in relation to the circumstances in which the appellant had declined duty counsel, P.C. Norman had stated that he had been the Intoxilyzer technician and that someone else was the arresting officer. He explained that at the time he received the query he got this case confused with another with similar facts. He maintained that the events had transpired as he had described in his examination-in-chief.

[7] What occurred in the breath room was audio and video recorded. At the outset of the process the following exchange occurred between the Intoxilyzer technician and the appellant:

Christine, do you understand why you are here this morning? (appellant nods). Basically, I know you have declined duty counsel (appellant nods)…we did call for you, you did not want to speak to them, that’s fine (appellant nods), we have to give you the option. Okay. Basically what you are required to do is to provide samples into this instrument…

[8] The trial judge interpreted the appellant’s conduct in nodding her head as indications of agreement with what the Intoxilyzer technician was saying. That interpretation was reasonably open to the trial judge.

[9] The trial judge found as a fact that at some point while she was at the station, before the breath tests were conducted, the appellant did indicate that she wanted to speak to counsel. However, relying on the evidence of P.C. Norman, he concluded that the Crown had established that she had subsequently waived her right to counsel.

[10] The core submission of the appellant is that the trial judge erred in finding that the Crown had established a clear, informed and unequivocal waiver. She submits that the evidence on which the trial judge relied – the testimony of P.C. Norman – was too unreliable to reasonably support that finding.

[11] The trial judge gave reasons for his conclusions in relation to the credibility and reliability of the witnesses, and in particular P.C. Norman. He considered the officer’s prior mistaken recollection of the circumstances surrounding the appellant’s decision not to speak to duty counsel. He concluded that Norman had simply been confused as to the case he was being asked about. It was open to the trial judge to accept Norman’s explanation, and open to him to find that Norman’s interaction with the appellant in relation to this issue occurred in the manner Norman described. It is not the function of this court to retry those matters.

[12] In R. v. Prosper, 1994 65 (SCC), [1994] 3 S.C.R. 236, Chief Justice Lamer cautioned that where a detainee has asserted his or her right to counsel, has been diligent in exercising it, but has been unable to speak to a lawyer because duty counsel is unavailable, courts must ensure that the right to counsel is not too easily waived. In those circumstances, he held, “the police will be required to tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity. This additional informational requirement on police ensures that a detainee who persists in wanting to waive the right to counsel will know what it is that he or she is actually giving up”.[^1]

[13] The obligations imposed by Prosper are not to be interpreted in a mechanistic or artificial fashion: R. v. Smith and Stacey (1999), 1999 3713 (ON CA), 134 C.C.C. (3d) 453, at paragraph 26 (Ont. C.A.). When the appellant told Norman that she no longer wished to speak to counsel, he made it clear to her that the breath testing process could wait until she had the opportunity to speak to duty counsel. Subsequently, when duty counsel did call, while the appellant was walking to the breath room, Norman told her that she could speak to duty counsel “right now”. While he did not say explicitly that the police were under an obligation to delay the taking of breath samples, it was manifest that they would do so if she wished to exercise her right to counsel. That is, it was implicit in what Norman said that her right to speak to duty counsel would take precedence over the breath testing process. That is substantially what Prosper required the police to convey to the appellant. In my opinion, the requirements of Prosper were met in this case.

[14] The appellant has not demonstrated any error that would justify appellate intervention. Accordingly, the appeal is dismissed.

MacDonnell, J.

Date: October 30, 2015

[^1]: At paragraph 43