CITATION: R. v. Somwaru, 2016 ONSC 1145
COURT FILE NO.: SCA(P) 1149/15
DATE: 20160216
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
H. Gluzman, for the Respondent
Respondent
- and -
JENNIFER SOMWARU
J. Stilman, for the Appellant
Appellant
HEARD: January 15, 2016, at Brampton
REASONS FOR JUDGMENT
[On appeal from the judgment of Speyer J. dated August 17, 2015]
André J.
[1] Ms. Jennifer Damanie Somwaru (“Ms. Somwaru”) appeals her conviction of the charge of impaired operation of a motor vehicle on the ground that the learned trial judge erred in law by failing to exclude evidence obtained in violation of s. 10(a) of the Canadian Charter of Rights and Freedoms (“Charter”). The Crown demurs and submits that the trial judge’s decision does not reflect any error.
SUMMARY OF THE EVIDENCE
[2] On September 20, 2014, Ms. Mikala Edmonds (“Ms. Edmonds”) saw Ms. Somwaru’s vehicle being driven westbound on Highway 401. She observed the vehicle swerve in and out of its lane on three occasions, coming close to other vehicles on several occasions. She followed the vehicle for approximately 30 kilometres. After she saw it proceed through a red light, she flagged down a police cruiser and advised the driver about what she had earlier observed. In cross-examination Ms. Edmonds conceded that, during the course of her observation, Ms. Somwaru’s vehicle was being driven at a constant speed at the appropriate speed limit. She conceded that for the approximately thirty kilometres she observed the vehicle on Highway 401, no other vehicle took evasive action to avoid Ms. Somwaru’s vehicle. She also agreed that when the vehicle travelled through a red light no other vehicle was affected.
[3] A radio call alerted Sergeant Mark Herren (“Sgt. Herren”) about a possible impaired driver on Highway 401 in the area of Dixie Road. A driver, who turned out to be Ms. Edmonds, alerted him to Ms. Somwaru’s car. He then saw the vehicle travelling ten kilometres above the speed limit and observed that it was not centred in its lane. He stopped the vehicle and asked the driver, who turned out to be Ms. Somwaru, to exit.
[4] Sgt. Herren observed that Ms. Somwaru was unsteady on her feet and that she momentarily lost her balance while stepping onto a curb. He also noticed a smell of alcohol emanating from her breath. Ms. Somwaru admitted to consuming alcohol. The officer testified that his observations provided him with the requisite grounds to issue an approved screening device (“ASD”) to Ms. Somwaru.
[5] The officer conceded that, but for Ms. Edmonds, he would not have drawn his attention to Ms. Somwaru’s vehicle. He also noted that the speed at which the vehicle was travelling was not unusual and that no vehicles took any evasive action to avoid Ms. Somwaru’s vehicle.
[6] Sgt. Herren agreed that he had effectively detained Ms. Somwaru after he asked her to exit her vehicle. He agreed that he did not provide her with her rights to counsel; neither did he advise her of the reasons for her detention. He agreed that he was investigating a “possible impaired driver” when he asked her to exit her vehicle. The officer also conceded that he only saw Ms. Somwaru drive her vehicle on the lane demarcations for approximately four seconds.
[7] Police Constable Soares saw Ms. Somwaru outside her vehicle. He observed her to have been unsteady on her feet, her speech was slurred and an odour of alcohol emanated from her breath. He observed that she almost fell from the curb next to her vehicle.
[8] Cst. Daniel Simmonds (“Cst. Simmonds”), a qualified breathalyzer technician, testified that Ms. Somwaru’s speech was slurred, her eyes were red-rimmed and watery, her breath smelled of alcohol and she was unsteady on her feet. The officer had Ms. Somwaru blow into the Intoxilyzer 8000C machine and he duly recorded the results.
[9] During the cross-examination of this officer, the Crown conceded that Ms. Somwaru’s s. 10(b) Charter rights had been violated and they consequently stayed the over 80 charge against her. As a result, the trial judge excluded the breathalyzer results and the observations of Cst. Simmonds.
[10] Cst. Coggiano (“Cst. Coggiano”) was called to the scene to assist Sgt. Herren in his investigation. He observed certain telltale signs of impairment on Ms. Somwaru including slurred speech and mumbling and her tripping onto a curb off the road next to her vehicle. He also noted that, while at 12 Division, Ms. Somwaru coughed a lot, was unsteady on her feet, had slurred speech and mumbled a bit.
[11] Under cross-examination, the officer conceded that he attended the scene to assist in an impaired driving investigation. He conceded that before Sgt. Herren formally arrested Ms. Somwaru, he questioned her to gather evidence regarding her speech.
[12] At the conclusion of the Crown’s case, Ms. Somwaru testified. She denied that she was impaired while driving her vehicle before Sgt. Herren stopped her. She denied swerving her vehicle but testified that if she did, it was due to her coughing. She also testified that she drove through a red light because she was concerned about the vehicle behind her, which appeared to have been following her.
TRIAL JUDGE’S DECISION
[13] The trial judge found that Sgt. Herron stopped Ms. Somwaru “no more than a few minutes prior to 11:59 p.m.” and that the officer did not advise her of the reasons for her detention until 12:03 a.m. (Ruling on Section 10(a) and (b) of the Charter Application dated July 14, 2014.
[14] She concluded the following at paragraphs 14 and 15 of her ruling:
Ms. Somwaru was not advised of the reason for her detention until she was arrested at 12:03 a.m. Sgt. Herren testified that when he pulled Ms. Somwaru over, he wanted to speak to her from a place of safety and not while he was standing in a live lane of traffic. This is a reasonable explanation of why he did not advise the accused of the reason for the stop when he first spoke to her at the driver’s side window. However, once they were at the side of the road behind her car away from traffic, he could easily and safely have advised her of the reason for stopping her. Instead, he asked her if she had been drinking, a question meant to further his investigation into a possible criminal offence.
I conclude that Sgt. Herren was required to immediately advise Ms. Somwaru for the reason of her detention from the moment they reached a safe area behind her car. His failure to do this was a violation of Ms. Somwaru’s section 10(a) rights.
[15] The trial judge based her conclusion that Sgt. Herren had violated Ms. Somwaru’s s. 10(a) Charter rights on the fact that he had not “promptly” advised her of the reason for her detention. She relied on the Ontario Court of Appeal’s decision in R. v. Kelly, 1985 CanLII 3483 (ON CA), [1985] O.J. No. 2, 17 C.C.C. (3d) 419, at p. 424 and R. v. Nguyen, 2008 ONCA 49, 166 C.R.R. (2d) 207, at paras. 16-22, that “promptly” in the context of section 10(a) means “immediately”.
[16] The trial judge then considered whether the evidence obtained as a result of the breach should be excluded pursuant to s. 24(2) of the Charter. She applied the tripartite test set out by the Supreme Court: see R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[17] The trial judge concluded that Sgt. Herren’s failure to inform Ms. Somwaru immediately of the reason for stopping her was a “fairly serious” breach of her s. 10(a) Charter right. Consequently, she weighed in favour of excluding the evidence obtained as a result of the breach.
[18] In the second part of the test to exclude evidence, the trial judge considered the impact of the breach on Ms. Somwaru’s Charter protected rights. The trial judge concluded that the violation had no impact on Ms. Somwaru’s constitutionally protected interests. Critical to this decision, was her conclusion that “the evidence obtained by the police and relied upon by the Crown to prove its case against Ms. Somwaru would inevitably have been acquired even if Sgt. Herren had told her of the reason for the stop”. (Ruling on Section 10(a) and (b) of the Charter application, at para. 28.)
[19] The trial judge then considered the societal interest in having the case adjudicated on its merits. She held that, in assessing this consideration, she was required to determine whether truth seeking would be better served by the admission or exclusion of the evidence. She concluded that the evidence’s exclusion would undermine the strength of the Crown’s case. Noting the impact of its conclusion, the trial judge favoured the evidence’s admission. (Ruling on Section 10(a) and (b) of the Charter application, at para. 30.)
[20] The trial judge then concluded that excluding the evidence would cause more harm to the administration of justice than including it. She therefore dismissed Ms. Somwaru’s application to exclude the evidence under section 24(2) of the Charter.
CONVICTION ON IMPAIRED CHARGE
[21] The trial judge released her decision on the impaired driving charge on August 17, 2015. On page 7 of her Judgment, she noted that, “The Crown is not required to prove any specific level of impairment and, any degree of impairment will be sufficient proof of the offence”. She also noted that in cases of circumstantial or equivocal evidence which only establish a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment to drive, slight or otherwise: see Reasons for Judgment dated August 17, 2014, at page. 8.
[22] She concluded that the Crown had proven the impaired driving charge beyond a reasonable doubt based on the following evidence:
(1) the evidence of Ms. Edmonds that Ms. Somwaru swerved three times;
(2) Ms. Edmonds’ testimony that Ms. Somwaru drove through a red light;
(3) Sgt. Herren’s observations of Ms. Somwaru’s driving and of Ms. Somwaru;
(4) Cst. Coggiano’s observations of Ms. Somwaru
[23] The trial judge noted that the fact that other drivers did not take evasive action or honk at the accused did not undermine Ms. Edmonds’ concerns.
[24] The trial judge concluded the following about Ms. Somwaru’s testimony regarding why she swerved within her lane of traffic and drove through a red light: “I have considered the defendant’s evidence that she was not impaired and felt fine to drive but I do not consider it to be reliable and I reject it outright.” (Page 9 of her Judgment).
APPELLANT’S SUBMISSIONS
[25] Ms. Somwaru’s counsel submits that the trial judge erred in failing to exclude the evidence obtained on account of the s. 10(a) Charter breach for the following reasons:
(1) the trial judge neglected to consider an additional aggravating factor in evaluating the seriousness of the breach namely, that a s. 10(b) violation arose during the same investigation, this breach relates to the failure of the police officers to put Ms. Somwaru in contact with her own counsel while in the custody of the breathalyzer technician;
(2) the trial judge erred in finding that the observations made of Ms. Somwaru by Sgt. Herren and Cst. Coggiano were inevitably discoverable; in so doing she engaged in impermissible speculation;
(3) the officers’ observations of her insobriety - made during a period of non-compliance with Charter rights - can only be relied upon for the purpose of establishing grounds for arrest, and are not admissible as substantive evidence of impairment: see R. v. Iannotta, [2009] O.J. No. 5181 (S.C. Ont.) at paras. 49-56; R. v. Milne, 1996 CanLII 508 (ON CA), [1996] O.J. No. 1728 (CA);
(4) the trial judge set an impossibly high standard for exclusion of evidence: by concluding that its exclusion would undermine the strength of the Crown’s case, thereby favouring its admission; furthermore, exclusion of this evidence was not fatal to the Crown’s case; this was borne out by the trial judge’s finding that other officers made certain observations consistent with impairment.
CROWN’S SUBMISSIONS
[26] The Crown makes the following arguments:
(1) the trial judge’s factual findings must be accorded considerable deference;
(2) Sgt. Herren’s failure to advise Ms. Somwaru of her detention and the reasons for it did not amount to a flagrant disregard for Ms. Somwaru’s rights, bad faith, neither was it intentional;
(3) the breach of Ms. Somwaru’s rights did not involve aggravating factors such as a search, coercion or compulsion and furthermore, the breach only lasted a few minutes;
(4) the impact of the breach on Ms. Somwaru’s Charter protected rights was minimal; the collection of the evidence did not involve any intrusion or violation of Ms. Somwaru’s bodily or human integrity; and
(5) Sgt. Herren and Cst. Coggiano’s observations were reliable, discoverable and essential to a fair adjudication of the case on its merits; exclusion of this evidence would eviscerate the Crown’s case against Ms. Somwaru; the public interest in adjudicating the case on its merits is high given the death and carnage caused by impaired drivers.
APPLICABLE LEGAL PRINCIPLES
STANDARD OF REVIEW
[27] The standard of review of a trial judge’s factual findings is one of deference absent “palpable and overriding error” or findings of fact that are clearly wrong, unreasonable or unsupported by the evidence: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 10-18. The judgment of a trial judge will only be unreasonable if it could not have reasonably been rendered by a properly instructed trier of fact acting judiciously: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36-37.
[28] A trial judge’s s. 24(2) analysis is entitled to considerable deference: see R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at paras. 44-48. Absent an error of principle or a misapprehension of evidence, the trial judge’s analysis should not be disturbed: see R. v. Manchulenko, 2013 ONCA 543, 116 O.R. (3d) 721, at para. 43.
[29] The seriousness of Charter-infringing conduct involves an assessment of the police conduct to determine where it fits on a continuum ranging from intentionally misleading conduct to mere inadvertence: see R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 742 at para. 29. The more deliberate or egregious the state conduct, the more likely that the evidence will be excluded: see R. v. Bassoo-Narine, 2013 ONSC 7576, [2013] O.J. No. 5779, at para. 29; Grant, at 71.
[30] In R. v. Blake, 2010 ONCA 1, [2010] O.J. No. 48, the Ontario Court of Appeal noted the following at para. 33:
If there were a taint of impropriety, or even inattention to constitutional standards, to be found in the police conduct, that might well be enough to tip the scales in favour of exclusion, given the very deleterious effect on the accused’s legitimate privacy interests.
ANALYSIS
[31] This appeal raises the following issues:
(1) Did the trial judge err in law by concluding that Sgt. Herren and Cst. Coggiano’s evidence should not be excluded pursuant to s. 24(2) of the Charter?
(2) Did the trial judge err in law by concluding that the Crown proved the impaired operation of a motor vehicle charge beyond a reasonable doubt?
Issue No. One
[32] The trial judge applied the appropriate test set out in Grant to determine whether or not the investigating officers’ evidence should be excluded. In my view, she correctly characterized the seriousness of the Charter infringing conduct as fairly serious. Sgt. Herren is a senior officer who clearly should have been aware of the need to advise Ms. Somwaru of the reason or reasons for her detention promptly.
[33] That said, the officer’s conduct falls towards the lower end of a continuum, which ranges from intentionally misleading to mere inadvertence. The trial judge accepted the officer’s testimony that he asked Ms. Somwaru to exit her vehicle as a safety measure. That finding should be afforded deference. The delay in advising Ms. Somwaru of the reasons for her detention did not exceed a couple of minutes. There was no suggestion that the officer deliberately failed to advise Ms. Somwaru about the reason for her detention as a cynical ploy to conscript her to provide evidence against herself. Neither did he engage in more egregious Charter-infringing conduct such as searching her or her vehicle.
[34] Should the trial judge have considered the alleged violation of Ms. Somwaru’s s. 10(b) rights when she assessed the officer’s conduct in this part of the Grant test? The Crown conceded that the breathalyzer technician failed to put Ms. Somwaru in contact with her own counsel and withdrew her excess blood alcohol charge.
[35] However, Sgt. Herren did advise her of her rights to counsel. The breathalyzer technician did the same. Ms. Somwaru spoke to duty counsel. Ms. Somwaru gave Sgt. Herren the name and number of her lawyer. He made a number of unsuccessful attempts to contact the lawyer. Her chosen lawyer called back while the breathalyzer technician was in the process of taking a second breath sample from Ms. Somwaru. The breathalyzer technician only allowed her to speak to her lawyer after he had finished taking the second breath sample. (Transcript of the Evidence, May 26, 2015, page 96, and page 106-107).
[36] In my view, the breathalyzer technician’s conduct did not change the trial judge’s categorization of the Charter-infringing conduct as fairly serious. His conduct does not involve a blatant or cavalier disregard for Ms. Somwaru’s s. 10(b) rights or a deliberate intention to deny her legal advice before giving a breath sample.
[37] In my view, it was open to the trial judge to conclude that Sgt. Herren and Cst. Coggiano’s observations of Ms. Somwaru were inevitably discoverable. Even if Sgt. Herren had advised her of the reasons for her detention two or three minutes earlier, he would still have asked her questions about her alcohol consumption and would still have made the observations that he described.
[38] The same applies to Cst. Coggiano. This is not mere speculation; it is simply a matter of common sense.
[39] Ms. Somwaru’s counsel submits that the trial judge could only speculate that Ms. Somwaru would have stumbled on the curb had she been advised of the reasons for her detention earlier. In my view however, the very converse is true. It would be a matter of speculation to conclude that Ms. Somwaru would not have stumbled on the curb had she been earlier advised of the reasons for her detention.
[40] Ms. Somwaru’s counsel submits that observations of insobriety during a period of non-compliance with Charter rights can only be relied upon for the purpose of establishing grounds for arrest. These observations are not admissible as substantive evidence of impairment.
[41] The case of Milne, which the appellant relies upon, is distinguishable from this case. In Milne, the accused was detained by a police officer who had received information about a possible impaired driver. The officer detected a strong odour of alcohol on the accused’s breath and observed that his eyes were glassy. The officer then asked the accused to perform physical coordination tests without advising him of his rights to counsel. The trial judge refused to exclude the results of the sobriety tests.
[42] On appeal, the Ontario Court of Appeal held that a police officer could only use roadside coordination tests to make a breathalyzer demand if the test results provided the reasonable and probable grounds necessary to justify the demand. It concluded that the trial would be unfair if the test results were admitted to incriminate the accused on a charge of impaired driving. The Court of Appeal noted at para. 45 that the “unfairness arises in part from the fact that the motorist has been conscripted against himself or herself when, at the behest of the police, he or she is required to undertake coordination tests designed to establish or disprove impairment.”
[43] This is not the case here. Sgt. Herren did not conscript Ms. Somwaru against herself. Ms. Somwaru was not engaged in “compelled direct participation” (at para. 39) which would have invoked the limits on the use of evidence acquired at the roadside: see R. v. Quenneville, 2009 ONCA 325, [2009] O.J. No. 1549 at para. 1.
[44] Justice Hill’s decision, Iannotta, is similarly distinguishable from this case. In Iannotta, an officer stopped the accused driver after seeing him driving erratically. The officer detected an odour of alcohol on the accused’s breath. He then asked him to exit his vehicle. During the trial the following exchange took place between defence counsel and the accused:
Q. All right. So, it was a sobriety test asking him to step out of the vehicle?
A. Sure.
THE COURT: Just – excuse me, what does “sure” – what kind of answer is that?
A. Sure…
THE COURT: Sure, that…
A. Sure.
[45] In overturning the conviction of the accused of impaired driving, Justice Hill noted at paragraph 57 that:
In the ordinary case, a direction from a police officer to a vehicle driver to exit his or her car, in the context of a roadway stop, does not necessarily, or perhaps even probably, mean that the direction to the detainee was intended by the constable to use the very sequence of conduct of exiting and standing beside the vehicle as a sobriety test.
[46] Justice Hill proceeded to conclude, at paragraph 58, that the facts in Iannotta supported a conclusion that the arresting officer used the accused’s act of exiting and standing beside his vehicle as a sobriety test. That is not the case here.
[47] In Milne, Moldaver J.A. at page 132 commented on the propriety of relying on observations of an accused as substantive evidence of impairment in a trial:
I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, bloodshot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment.
[48] The fact scenarios in Milne and Iannotta, where the evidence was obtained from compelled direct participation by a motorist in sobriety tests of some kind, are exceptions to the general principle set out in Milne.
[49] Did Sgt. Herren obtain evidence of impairment by compelling Ms. Somwaru to directly participate in sobriety tests? In my view he did not. He asked her to exit the vehicle as a safety measure rather than as a sobriety test. It was not a pretext, as in Iannotta, to obtain evidence of impairment.
[50] Defence counsel asked Sgt. Herren the following questions and received the following responses: see page 60 of the Transcript of the Evidence, dated May 26, 2015:
Q. So, you observed – well you have in your head the – and believe me I’m not being critical, I have not filed any kind of application here so, in your head you know that they are looking for a suspected impaired driving, you’ve now made observations that you’ve described so you’re not asking questions, you’re asking this person to get straight out of their vehicle, right?
A. I wanted to have a conversation with the defendant. I was standing on the roadway. I thought it was safe if we stood away from me being on the driver’s side and being exposed to other vehicles.
So, it’s my preference to have conversations where it’s safer to do so, the side of the road versus in a live lane.
Q. Sorry, you didn’t have a conversation with the driver as she’s seated in her vehicle. You came over and directed her to exit her vehicle before you had any conversation with her. Correct?
A. Yes, the first words out of my mouth was can you step out of your car.
[51] It was open to the trial judge to accept this evidence concerning why Sgt. Herren had asked Ms. Somwaru to step out of the vehicle: see Ruling on section 10(a) and (b) of Charter Application, paragraph 14. As a result, the decisions in Milne and Iannotta do not apply.
[52] Similarly, it was open to the trial judge to find that exclusion of Sgt. Herren’s and Cst. Soares and Cst. Coggiano’s evidence would have been fatal to the Crown’s case even if there was other evidence supporting the testimony of these witnesses. The trial judge’s assessment of the evidence should be accorded deference.
[53] Finally, the trial judge balanced the three factors set out in Grant and concluded that the evidence should not be excluded. It was open to her, based on the facts of the case, to arrive at that conclusion.
Issue No. Two
[54] The trial judge correctly applied the Court of Appeal’s decision in R. v. Stellato, 1993 CanLII 3375 (ON CA), 1993 ONCA 3375, 12 O.R. (3d) 90, to the effect that any degree of impairment, ranging from slight to great, may be sufficient for a finding of guilt. There was ample evidence in this case to support the trial judge’s decision.
DISPOSITION
[55] The appeal is denied. The decision of Justice Gray dated September 29, 2015 to stay the driving prohibition is set aside.
André J.
Released: February 16, 2016
CITATION: R. v. Somwaru, 2016 ONSC 1145
COURT FILE NO.: SCA(P) 1149/15
DATE: 20160216
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
JENNIFER SOMWARU
Appellant
REASONS FOR JUDGMENT
André J.
Released: February 16, 2016