ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 5-55/14 SCA
DATE: 20151102
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
FRANCOIS JORDAaN
Appellant
Thaddeus James Ofiara, for the Respondent
Peter Copeland, for the Appellant
HEARD: September 14, 2015
Forestell J.
reasons for JUDGMENT
Background
[1] The Appellant was tried in a summary conviction proceeding in the Ontario Court of Justice on a charge of operating a vehicle after having consumed alcohol in such quantity that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.
[2] The Appellant brought an application at trial to exclude certain evidence pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (the “Charter”). The Appellant alleged breaches of his rights under sections 8, 9 and 10(b) of the Charter. Alternatively, he applied for a remedy pursuant to s. 24(1) of the Charter precluding the Crown from relying on the presumption of identity in s. 258(1) of the Criminal Code, R.S.C., 1985, c. C-46.
[3] The trial judge ruled that the Appellant’s rights under s. 8 of the Charter had been violated, but rejected the submission that his rights under s. 10(b) had been violated. The trial judge declined to grant a remedy under s. 24(2) of the Charter, but granted the alternative remedy under s. 24(1) of the Charter, precluding the Crown from relying on the presumption of identity.
[4] At trial, the Crown called expert evidence from a toxicologist who opined on the blood alcohol concentration of the Appellant at the time of driving based on his breath samples.
[5] On March 20, 2014 the Appellant was found guilty. On April 24, 2014 he was sentenced to thirty days’ imprisonment to be served intermittently and a two-year driving prohibition. He appeals against the conviction.
[6] The Appellant raises three grounds of appeal[^1]:
(1) That the trial judge misapprehended aspects of the evidence in a manner that tainted her conclusions on the Charter application. Alternatively, that the judge’s reasons on this issue are insufficient to permit appellate review;
(2) That the trial judge erred in her analysis of whether the Appellant’s right to counsel of choice was violated when the police put him in contact with duty counsel and did not clarify whether he wanted to contact his own lawyer; and,
(3) That the trial judge erred in accepting the expert opinion of the toxicologist.
[7] For the reasons that follow I would dismiss the appeal. The trial judge misquoted one part of the testimony of the Appellant, but the finding of the trial judge was justified and the mistake in quoting the evidence was not serious. It did not amount to a misapprehension of the evidence that tainted the conclusion. The reasons are thorough, comprehensive and more than sufficient to permit appellate review. I see no error in her analysis of the right to counsel issue or in her approach to the expert evidence.
1. Did the trial judge misapprehend the evidence?
Evidence on the Charter Voir Dire
[8] On the evening of January 14, 2010 P.C. Amantea and P.C. Halagian stopped the motor vehicle driven by the Appellant for a seatbelt infraction. During the course of his interaction with the Appellant, P.C. Amantea suspected that Mr. Jordaan had consumed alcohol. P.C. Amantea smelled alcohol on the breath of the Appellant and observed that the Appellant’s eyes were red and glossy and his speech slurred. P.C. Amantea advised his partner of what had occurred and P.C. Halagian requested over their radio that an approved screening device (“ASD”) be brought to the scene. P.C. Hayward spoke over the radio to P.C. Halagian and advised him that he would bring the ASD within five minutes.
[9] P.C. Amantea and P.C. Halagian both testified that they first stopped the Appellant at 11:09 p.m. When they stop a vehicle they create an ‘event’ on the computer system. This event began at 11:09 p.m. They testified that they made the request for an ASD at 11:15 p.m. and that P.C. Hayward arrived with the ASD at 11:20 p.m. P.C. Amantea was unsure of his source for the 11:15 p.m. time for the request, but testified that there was a computer that kept track of times. P.C. Halagian testified that he looked at the computer screen at the time of the request and later said that the time could have come from his partner or a printout of the I/CAD event. P.C. Hayward testified that the request for the ASD was made at 11:09 p.m. and that he arrived on scene at 11:20 p.m.
[10] The Appellant testified on the Charter voir dire. He testified that he was not wearing a wristwatch on the night that he was arrested. He did not look at his cellphone while he was at the roadside. In his affidavit filed on the Charter application the Appellant said that the ASD arrived “after some time had passed”. In cross-examination he was asked if it was five minutes and he responded, “it seemed more like 15 minutes to me.” Later in cross-examination he said, “Exactly how many minutes, I couldn’t tell you, but if you ask me how long I – I think it was, I would say 15 minutes.” He later agreed that it could be a minute more or less than 15 minutes or 14 to 16 minutes. He said that it was 14 to 16 minutes “from the time that the car was pulled over.” Finally, in cross-examination it was put to the Appellant that he waited for a “period of minutes” for the device to arrive and he agreed.
[11] When the ASD arrived, P.C. Hayward tested the device to be sure that it was working. The roadside demand was read to the appellant by P.C. Amantea. P.C. Hayward then administered the test to the appellant. The testing resulted in a ‘fail’ and P.C. Amantea arrested the Appellant at 11:28 p.m. After arresting the Appellant, P.C. Amantea read the Appellant his right to counsel and asked if he understood. The Appellant said “yes.” P.C. Amantea asked the Appellant, “Do you wish to call a lawyer now?” The Appellant replied, “Yes I would like one.” P.C. Amantea concluded that the Appellant wished to call duty counsel. P.C. Amantea then read the approved instrument demand.
[12] The Appellant was transported to 22 Division. He was paraded before the Sergeant at 11:43 p.m. Although the booking process is usually recorded, it was later discovered that the equipment was not functioning and there is no recording of the Appellant’s booking.
[13] The ‘Record of Arrest’ form for the Appellant shows the Appellant’s signature in a box with the words, “I have been informed that I may make reasonable use of the telephone.” P.C. Amantea testified that this reflects what the Sergeant would have asked the Appellant. P.C. Amantea could not say whether he heard the question and answer. P.C. Halagian testified that the question is part of the standard booking procedure and is always mentioned. He testified that the Record of Arrest would be signed by an accused at the time of release. The Appellant testified that he signed the form at the time of booking.
[14] It is agreed on appeal that the form could not have been signed at the time of booking and had to have been signed at the time that the Appellant was released which was after he spoke to duty counsel and provided breath samples.
[15] P.C. Halagian called duty counsel and left a message. Duty counsel called back and spoke to the Appellant at 12:13 a.m. After the conversation with duty counsel the Appellant provided samples of his breath.
[16] The Appellant testified that when he was advised of his right to counsel by the officer at the roadside and said “yes I would like one”, he wanted to speak to a specific lawyer – Jonathan Rosenthal. He did not tell the arresting officers that he wished to call Mr. Rosenthal. He did not tell the booking sergeant that he wished to speak to Mr. Rosenthal. The Appellant testified that he was doing what the officers told him to do. He assumed that he could only speak to duty counsel.
Ruling of the Trial Judge
[17] The Appellant argued that his s. 10(b) Charter rights were violated when the police failed to advise him of his right to counsel as they waited for the ASD. The Appellant also argued that the police failed to perform the ASD test ‘forthwith’, thereby violating his s. 8 Charter rights.
[18] The timing of the request for and arrival of the ASD was central to the determination of these issues. The evidence of P.C. Amantea and P.C. Halagian put the time at five minutes. The evidence of P.C. Hayward put the time at 11 minutes. The testimony of the Appellant put the time at “about 15 minutes” from the time that the car was stopped.
[19] The trial judge carefully outlined the evidence. She did not find the time estimate of the Appellant to be reliable. She found that he did not give a consistent account of the delay and she found that his memory of the evening was not consistently reliable.
[20] In her summary of the testimony of the Appellant on the timing, the trial judge wrote as follows: “He recalled that after being pulled over, he spoke with P.C. Amantea and ‘after some time had passed’, a period of time he estimated was closer to 15 than 5 minutes (although characterized in cross-examination as “a few minutes”).” [emphasis added]
[21] The Appellant did not, in cross-examination or elsewhere, characterize the delay as “a few minutes”. Counsel for the Appellant submits that the trial judge rejected the evidence of the Appellant because she relied on the incorrectly quoted “a few minutes” as an inconsistency. He submits that her rejection of the evidence of the Appellant was thereby tainted with error.
[22] In addition, the Appellant submits that the trial judge erroneously relied on the Record of Arrest as evidence that the Appellant was told that he could make reasonable use of the telephone when he arrived at the station. The trial judge pointed out in her reasons that the Appellant was adamant that, upon arriving at the station he was not advised that he could make reasonable use of the telephone. She wrote, “As is evident by the contents of Ex. 2, his Record of Arrest, he is mistaken on that point.” The Appellant argues that this was also a misapprehension of the evidence that tainted the trial judge’s conclusion that the Appellant was not a reliable witness.
[23] The Appellant submits that the finding of the trial judge, that his memory was not consistently reliable, is founded on a misapprehension that the Record of Arrest was signed by the Appellant upon arrival at the station. The time on the form makes it clear that the form was signed when the Appellant was being released.
Analysis
[24] Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential role in her reasoning process, the conclusions reached cannot be said to be founded on the evidence (R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639 at para. 93).
[25] In my view, the trial judge was not mistaken as to the substance of the material parts of the evidence. The trial judge summarized the evidence of the timing of the arrival of the ASD without setting out every statement of the Appellant with respect to the timing. Her finding that the Appellant’s estimate of time was not consistent was well-founded on the evidence. Her misstatement of the precise words of the Appellant as being “a few minutes” in her summary of the evidence did not appear in her statement of her findings. She was not obliged to set out every statement of the Appellant about the timing in setting out her findings.
[26] The trial judge found that the Appellant was told that he could make reasonable use of the telephone and that he was mistaken when he said that he was not told this. There is no reason to conclude that the trial judge’s conclusion that the Appellant was told that he could make reasonable use of the telephone was based on the assumption that the Record of Arrest was signed by the Appellant upon arrival at the station. The evidence of P.C. Halagian was that the Record of Arrest was signed upon release, but that the Appellant would have been told about the use of the telephone when he was booked. The finding of the trial judge that the Appellant was mistaken was grounded in the evidence of the Record of Arrest and the evidence of P.C. Halagian. I find that there was no misapprehension of the evidence.
[27] I also find that the reasons of the trial judge are sufficient. The reasons clearly set out the reasoning process of the trial judge and permit appellate review.
[28] I would not give effect to this ground of appeal.
2. Did the trial judge err in her analysis of whether the Appellant’s right to counsel of choice was violated when the police put him in contact with duty counsel and did not clarify whether he wanted to contact his own lawyer?
[29] The Appellant submits that the trial judge erred in her analysis of whether the Appellant’s right to counsel of choice was violated when she considered the Court of Appeal’s endorsement in R. v. Zoghaib, [2006] O.J. No. 1023 in support of a broad principle that “appellate courts are unprepared to impose a positive obligation on the police to take the initiative to clarify whether an arrestee, who wants to speak with a lawyer, wishes to contact private counsel, as opposed to duty counsel, in the face of mere silence by the arrestee on the point.”
[30] The trial judge made no error in her thorough analysis of the right to counsel issue. The endorsement of the Court of Appeal in Zoghaib was only one of the several authorities considered and analyzed by the trial judge. She correctly observed that she was bound by the Zoghaib Summary Conviction Appeal decision and by the affirmation by the Court of Appeal. The trial judge applied the law correctly.
[31] I would not give effect to this ground of appeal.
3. Did the trial judge err in accepting the expert opinion of the toxicologist?
Evidence
[32] The trial judge ruled that there was a violation of the Appellant’s s. 8 rights and that the remedy under s. 24(1) of the Charter was that the Crown could not rely on the presumption of identity. As a result, the Crown filed an affidavit of a toxicologist Inger Bugyra on the trial. The Crown also called a witness, Betty Chow, who adopted the opinion of Ms. Bugyra and was cross-examined by counsel for the Appellant.
[33] The opinion expressed by Ms. Bugyra in the affidavit was that the projected blood alcohol concentration (“BAC”) of the Appellant at approximately 11:09 p.m. was 100 to 135 milligrams of alcohol in 100 millilitres of blood. The range was stated to be independent of the gender, height, weight and age of the individual, but was stated to be dependent on the following factors:
(1) A rate of elimination of alcohol from the blood ranging from 10 to 20 milligrams of alcohol in 100 millilitres of blood per hour;
(2) Allowance for a plateau of up to two hours;
(3) No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident; and
(4) No consumption of alcoholic beverages after the incident and before the breath test. The affidavit also stated the for a male weighing 100 kilograms to have the results detected, but be 80mg/100ml at the time of driving, the individual would have to have consumed between 2 and 2-3/4 standard alcoholic beverages within approximately 15 minutes prior to the driving or between the driving and the breath tests. The affidavit also stated that breath testing typically underestimates an individual’s BAC. Overestimation is rare and is highly unlikely to exceed 10 per cent.
[34] Ms. Chow was cross-examined on the report by Ms. Bugyra which was adopted by Ms. Chow. She acknowledged the ‘analytical variability’ and the possibility of overestimation of up to 10%. Ms. Chow also testified that the Intoxilyzer5000C was set up on the basis that every part of alcohol in a person’s breath equals 2,100 parts of alcohol in the person’s blood. If a person had a ‘blood to breath’ ratio of 2,000 to 1, the machine would overestimate that person’s blood alcohol concentration. Ms. Chow testified that the setting of 2,100 to 1 was based on an earlier understanding that 2,100 to 1 was the average. More recent studies show that the average is 2,300 to 1 and therefore the use of the 2,100 to 1 ratio underestimates the blood alcohol concentration for most people. Ms. Chow was asked what percentage of the population has a blood to breath ratio of less than 2,100 to 1. She testified that this is rare and that a meta-analysis concluded that the figure was .5 of 1%. She testified, however, that the figure is a rough estimate.
[35] Ms. Chow was cross-examined on the statement that the range was dependent on there having been no consumption of ‘large’ quantities of alcoholic beverages within approximately15 minutes prior to the time of driving. Ms. Chow testified that ‘large quantities’ meant more than a sip or enough to change the projected blood-alcohol concentration.
[36] Several hypothetical scenarios were put to Ms. Chow based on a blood to breath ratio of less than 2,100 to 1. Ms. Chow agreed that if the Appellant’s blood to breath ratio was 2,000 to 1, depending on the weight of the Appellant, as little as 3/4 of a standard drink consumed within approximately 15 minutes of the driving would change the projected blood-alcohol concentration at the time of the driving to 80 milligrams of alcohol in 100 millilitres of blood or less.
Findings of the Trial Judge
[37] The trial judge defined “bolus drinking” as “a drinking scenario involving a quantity of alcohol ingested within 15 to 30 minutes prior to the impugned driving that, if true, is capable of supporting the inference that the accused’s blood-alcohol concentration at the time of driving is below the legal limit, notwithstanding that, at the time of testing it is above the legal limit.”
[38] The trial judge observed that the trier of fact is entitled to consider the inherent likelihood of the scenario having regard to common sense and common knowledge about how people behave.
[39] The trial judge found that there was no reliable evidence of any hypothetical pre-driving scenario consistent with bolus drinking. She reviewed the evidence that in her view supported the inference of the absence of bolus drinking (paragraph 41).
[40] The trial judge also found that the Crown did not have to prove, as part of its case, that the Appellant fell within the parameters of the assumption that the average person has a blood to breath ratio of 2,300 to 1. The trial judge found that, as with assumptions about plateau and elimination, the assumption regarding blood to breath ratio is a matter of science upon which the expert is entitled to rely. There was no air of reality to the suggestion that the Appellant fell outside the parameters of the assumption.
Analysis
[41] The Appellant argues that the trial judge could not draw the common sense inference that the Appellant did not engage in bolus drinking in light of the reasonable hypothetical that as little as one drink could have affected the projected blood-alcohol concentration. This hypothetical depended on the Appellant falling outside the parameters of the blood to breath ratio. The trial judge correctly found that there was no air of reality to this suggestion. The assumption of the ratio was based on scientific information upon which the expert was entitled to rely.[^2] The finding that there was no bolus drinking was therefore a finding that the Appellant did not drink 2 to 2-3/4 standard drinks within approximately 15 minutes of driving. This finding was fully supported by the evidence which is set out in the detailed and thorough reasons of the trial judge.
[42] I would not give effect to this ground of appeal.
Conclusion
[43] The appeal is therefore dismissed.
Forestell J.
Released: November 2, 2015
COURT FILE NO.: 5-55/14 SCA
DATE: 20151102
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
FRANCOIS JORDAaN
reasons for decision
Forestell J.
Released: November 2, 2015
[^1]: A fourth ground of appeal based on a breach of s.9 of the Charter was abandoned in oral argument.
[^2]: R. v. Paszczenko 2010 ONCA 615 paras. 23-26