COURT FILE NO.: SCA 26/15 DATE: 2016 08 31
ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – Jasvinder Shoker Appellant
COUNSEL: Liana Marcon, for the Respondent Stephen Price, for the Appellant
HEARD: August 19, 2016
[On appeal from the judgment of Pugsley J. dated May 2015]
Woollcombe J.
A. Introduction
1The appellant, Jasvinder Shoker, was stopped by police as he drove north on Airport Road in Caledon just after 11:00 p.m. on April 26, 2014. Shortly after being stopped, he was arrested for impaired driving, given his rights to counsel and taken to the police detachment.
2The appellant told the police that he wished to speak with his lawyer and the police placed a call to the telephone number he supplied. A voicemail message was left. The appellant told the police that if his lawyer could not be reached, he wished to speak with duty counsel. A further call was made to his lawyer but again the call was not answered. The appellant spoke with duty counsel before providing breath samples. His readings were each 160 mg alcohol in 100 mL of blood.
3The appellant’s trial for impaired driving and over 80 proceeded before Justice Pugsley in the Ontario Court of Justice on April 23, 2015. Oral reasons for judgment were delivered on May 28, 2015. The trial judge found the appellant guilty on both counts. A conditional stay was entered on the impaired driving count, and a fine of $1,200 and one year driving prohibition were imposed.
4Mr. Shoker appeals the finding of guilt on both counts. In relation to the impaired driving, the appellant argues that the trial judge misapprehended the evidence, took into account evidence that he should not have, failed to give sufficient weight to the absence of indicia of impairment, and failed to account for the inconsistencies in the officers’ evidence.
5In relation to the drive over 80, it is the appellant’s position that the trial judge made errors in his approach to the evidence that led him improperly to find no s. 10(b) Charter breach. Further, it is argued that had a breach been found, the breath samples should have been excluded under s. 24(2) of the Charter.
6For the reasons that follow, the appeal is dismissed.
B. Did the trial judge err in his assessment of the evidence relating to the impaired driving charge?
a) The Evidence of Impairment
7The evidence as to the appellant’s impairment came from both Constable Linton and Constable Kok. In addition, Constable Bucsis, the breathalyser technician, provided evidence about his interaction with the appellant. The video of the breath room was played for the trial judge.
8Constable Linton testified that while on regular patrol at 11:05 p.m. on Airport Road, he saw another vehicle travelling in the same direction ahead of him. He observed the other vehicle travel at inconsistent speeds between 60 kph and 70 kph in a posted 80 kph zone. Weather conditions were clear and dry and the visibility was clear. Constable Linton also observed the vehicle swerve over the fog line on the right side of the road and onto the shoulder twice in about 30 seconds. He decided to stop the car.
9Constable Kok, who was in the police car with Constable Linton, also testified. He observed the subject vehicle weave within its lane. He saw its wheels cross a foot to a foot and a half over the fog line for a second or two. The vehicle did not go as far on the shoulder as the gravel. His evidence was that the vehicle was travelling at 60 kph in a posted 80 kph zone, and that its speed was going up and down slightly.
10Constable Linton testified that once the car was stopped, he approached the driver’s side of the vehicle and noted that all of the windows were down and there was one lone occupant. As he approached the vehicle, he “immediately detected a very strong odour of alcoholic beverage emanating from the driver’s breath”. He observed the driver to have red watery eyes.
11Constable Linton asked the driver to produce his driver’s license, vehicle permit and proof of insurance. He observed that the driver moved his hands in a slow and deliberate manner taking “an inordinate amount of time”.
12Constable Kok testified that when he approached the passenger side door, he noticed that all of the vehicle windows were down, which he thought strange because it was a cool night. He noticed a strong odour of alcohol emanating from inside the vehicle. While he did not have a conversation with the occupant, when the appellant turned to him, he observed that his eyes appeared to be very bloodshot.
13Constable Linton believed that the driver was impaired by alcohol and so asked him to exit the car. He observed that he was steady on his feet but still believed he had grounds for the arrest. He arrested him for impaired operation of a motor vehicle, and placed him in the rear of the cruiser.
14Constable Linton agreed under cross-examination that he had no recollection of the appellant slurring his speech and would have noted had he heard the appellant do so. He agreed that the appellant responded to him appropriately and that he was cooperative. He also agreed that the appellant did not fumble with his documents.
15Constable Kok also agreed that the appellant was very cooperative and that he spoke clearly.
16The breath technician, Constable Bucsis also testified. He said that he observed the appellant to have “very red, glossy eyes” and that he had detected an “overwhelming odour of alcohol” coming from his body.
17The trial judge watched the video of the breath room in which the appellant repeatedly stated that humans make mistakes and asked for the police officer’s help. The trial judge described him as “repetitive and mumbling”.
18The appellant testified that he had consumed some alcohol and then clarified that he had two one ounce drinks of rye whiskey. He said that the alcohol had no effect on his ability to drive. He thought he had been stopped in a posted 60 kph zone. He said that as he drove, he was watching behind him and that he could have gone to the left and right a little as he believed he was being followed. He asserted that he never crossed the fog line.
b) The Reasons for Judgment
19The trial judge carefully reviewed the evidence of Constables Linton, Kok and Bucsis, as well as the testimony of the appellant as to his alcohol consumption and its effect on him. He found that where the evidence of the officers and the appellant were different, he did not believe the appellant. It was his view that the appellant was not deliberately lying, but that he testified in a way that he wished events had happened.
20The trial judge recognized that the officers were testifying from notes and that the appellant had no notes and was testifying from memory. He found that the appellant was incorrect as to the speed limit in the area in which he was stopped. He noted that at one point the appellant said that he was weaving because he was being followed, and at another point he denied having weaved or crossing the fog line as the officers described. He found that the appellant was grossly inaccurate when he testified to having had two one ounce drinks. He found the video to depict a rambling monologue interspersed with requests for help and noted that at one point in the video, the appellant appeared to think that blowing through the unattached mouth piece was the actual breath test.
21Ultimately, while he acknowledged the application of R. v. W.(D.), the trial judge rejected the defendant’s bald assertion that he was fine to drive and exhibited no signs of impairment. Given what the trial judge described as the appellant’s “obvious intoxication”, he gave the appellant’s self-assessment no weight.
22The trial judge found as a fact that the appellant weaved over the fog line twice in thirty seconds. He exhibited an extreme level of alcohol odour and bloodshot eyes. He was rambling on the breath video and sought police help. The trial judge found that he demonstrated that he knew what he had been charged with, and why, and was “looking for a break”.
23While the trial judge recognized that there were some possible signs of impairment that the officers had not observed, he found that this did not assist the appellant. He was satisfied beyond a reasonable doubt that the evidence as a whole established the appellant was driving while impaired.
c) Analysis
24The law provides that if the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out: R v. Stellato, [1993] O.J. No. 18 (C.A) at para. 14; aff’d, [1994] S.C.J. No. 51.
25The appellant argues that the trial judge placed too much weight on factors that he should not have, and failed to consider the absence of other factors.
26More specifically, it is argued that the trial judge improperly took judicial notice of the fact that the appellant’s appearance on the video, which he described as “relatively lucid”, spoke to his level of alcohol tolerance. I agree that courts are not able to take judicial notice of whether a person’s physical traits reflect a high tolerance. But, I do not think this is what the trial judge did. I do not think that he made anything of the appellant’s lucidity or relied to any degree on the comment he made about the appellant’s tolerance.
27The trial judge, who viewed the video, concluded that the appellant appeared intoxicated on it. He observed that the appellant, while he may have been described by the police as cooperative, in fact engaged in a rambling monologue which appeared to include an acknowledgment that humans make mistakes. In other words, the trial judge did not conclude that the appellant was so lucid as to suggest that he was not intoxicated. Rather, what he was saying in the impugned comment, at the end of his judgment and after he had found beyond a reasonable doubt that the appellant was impaired, was that the appellant’s demeanour on the video did not take away from his conclusion as to the appellant’s impairment.
28The appellant also asserts that the trial judge improperly commented that the appellant was “grossly inaccurate” when he testified to only having consumed two one ounce rye whiskeys. I do not take this to be comment as to how the appellant would or should have appeared after two drinks. Nor do I take this to be a comment about the appellant’s credibility. Rather, I think it is a statement that when the appellant had a blood alcohol level of 160 mg of alcohol in 100 mL of blood, or twice the legal limit, he could not be correct that all he had consumed was two drinks. I see nothing improper about this.
29The appellant also asserts that the trial judge failed to take into account the fact that many of the sorts of indicia of impairment that are sometimes present were absent. Again, I do not agree.
30In his thorough review of the evidence, the trial judge recalled both Constable Linton’s evidence that the appellant’s walk was steady and Constable Kok’s description of the appellant as cooperative. He also specifically adverted to the fact that some indicia of impairment were absent, and observed that impairment is not a checklist that exists if you are able to tick off a certain number of boxes. In my view, the trial judge was alive to the fact that not all possible indicia of impairment were present and was not required to say more about the absence of some possible indicators of impairment.
31Further, even if the trial judge’s comments about the appellant’s tolerance and inaccurate statement of his alcohol consumption were improper, very little flows from them. I find that the trial judge’s findings about impairment flowed from the following factors, all of which legitimately support his conclusion that the appellant was impaired:
- The appellant travelled at inconsistent speeds and well under the posted speed limit;
- The appellant crossed over the fog line to the right of his lane twice;
- There was a strong odour of alcohol from the appellant when the police first approached him;
- The appellant’s eyes were described by the police as very red and watery;
- The appellant’s movements in obtaining his documents were described as slow and deliberate;
- The appellant was repetitive and mumbling on the breath room video; and
- The appellant appeared to believe that blowing through the unattached mouth piece was providing a breath sample.
32The appellant also says that the trial judge did not take into account the differences in the evidence of the two officers as to the appellant’s driving and that, especially when the appellant testified that he had not crossed the fog line and that his driving was fine, the trial judge ought to have found that the appellant’s driving was normal.
33I have carefully reviewed the evidence of the two officers. While it is true that there are very slight difference in their evidence, in my opinion, the trial judge properly accepted the core of what they both said: that the appellant was driving at inconsistent speeds below the speed limit in a posted 80 kph zone, and that he appears to have crossed over the fog line at the right side of the road twice in a short time period for no apparent reason. It was for the trial judge to say whether he believed the evidence of the officers or the evidence of the appellant. He was entitled to prefer the evidence of the officers and gave reasons for his conclusion. This is not a credibility finding with which I am entitled to interfere on appeal.
C. Did the trial judge err in concluding that there was no violation of the appellant’s s. 10(b) Charter rights?
34The appellant submits that the police breached his right to counsel of choice by contacting duty counsel and having him speak with duty counsel before Mr. Singh, his counsel of choice, had the opportunity to return the call that had been placed to him.
a) The Relevant Facts
35It is important to appreciate the evidence and the trial judge’s factual findings, which are subject to deference.
36Constable Linton testified that when advised of his right to counsel, the appellant made clear that he wished to contact his personal lawyer, Mr. Singh. The appellant provided, from memory, Mr. Singh’s telephone. Constable Linton made a call to that number at 11:32 p.m. and reached a voicemail. He testified that he left a message indicating that Mr. Shoker was in custody and that he wished to speak with counsel. The officer provided the contact information to reach the detachment.
37Constable Linton reported to the appellant that he had left a message. He said that the appellant told him that he wanted to speak with duty counsel if the police could not reach Mr. Singh. While the officer was challenged under cross-examination that the appellant had never said this, he was clear that this is what he recorded in the notes. He tried a second time unsuccessfully to reach Mr. Singh.
38Constable Kok testified that he overheard the conversation between Constable Linton and the appellant about duty counsel. He recalled Constable Linton asking the appellant whether, if the number he had given was not answered, he would be satisfied with speaking with duty counsel. He testified that the appellant indicated that this was fine. Constable Kok had no conversation with the appellant about his counsel.
39At 11:35 p.m., Constable Linton called duty counsel for the appellant. Duty counsel, Mr. Pye, returned the call at 11:45 p.m.. Constable Linton said that the appellant was removed from his cell at 11:46 p.m. and was placed in a private room in which he spoke to duty counsel for about two minutes. Constable Kok’s evidence was that the appellant was placed in the room to speak with duty counsel at 11:44 p.m. and that he was finished at 11:48 p.m..
40After his call with duty counsel, the appellant made no further request of the police to speak with his lawyer. At no point did he express any dissatisfaction with his conversation with duty counsel or with the legal advice that he received.
41At 11:48, the appellant was taken into the breath room and provided breath samples at 11:59 p.m. and 12:21 a.m..
42The appellant testified that he advised the police officers that he wished to speak to his personal lawyer, Mr. Singh, and that he provided Mr. Singh’s number to them. He testified that he never asked to speak with duty counsel and that he did not know what was meant by the term duty counsel. He said that when Constable Linton asked if it was okay to call duty counsel, he had said that he preferred to call his lawyer. He then said that he did not recall the police officer asking that question, but that he had said that he preferred to have his own lawyer called. He also testified that when he had been told that his counsel had not answered, and that he would be given to duty counsel, he had said okay.
43The appellant said that he had spoken with duty counsel who had told him that his own lawyer was not available. The appellant said that he asked Mr. Pye whether he could google Mr. Singh or call him again and was told that Mr. Pye could not. The appellant said that the call had been around 30 or 45 seconds and that duty counsel “said he couldn’t help. You have to – you have no choice.”
44The appellant said that no one asked him whether he was satisfied with speaking to duty counsel or whether he had received any legal advice at all. The appellant agreed that he had not asked the police if he could speak with duty counsel again and had not told police anything to suggest to them that he was unsatisfied with the call.
b) The Reasons for Judgment
45The trial judge found that the appellant’s evidence, particularly that given during examination in-chief, was “laced with wishful thinking more than accurate evidence”. For instance, he claimed not to know who duty counsel was, but referred to duty counsel as the lawyer. However, the trial judge found that the appellant did not, in the end, disagree that he and Constable Linton had talked about the duty counsel option.
46The trial judge accepted the evidence of the police officers that the appellant agreed that if Mr. Singh did not answer the phone, the police should contact duty counsel for him. The trial judge held that the police had called Mr. Singh twice.
47The trial judge also noted that on the breath room video, he had seen Constable Bucsis, the breathalyser technician, ask the appellant if he had spoken to a lawyer in private and that the appellant had said, “Yes”. The trial judge found that this suggested that he understood that duty counsel was a lawyer. The trial judge observed that this conversation in the breath room was a perfect opportunity for the appellant to express to the police any lack of confidence he had in the exercise of his right to counsel. The trial judge held that his rapport with the breathalyser technician was such that there was no reason to believe that he was either unhappy with having spoken to duty counsel or not being able to reach Mr. Singh. The trial judge concluded that it was only after the fact, when he realized his jeopardy, that the appellant became unhappy with his legal advice.
48Noting that the police are not “mind-readers”, and cannot divine dissatisfaction that is not expressed, the trial judge found that the police communicated the appellant’s rights to him and properly implemented them. He held that the police contacted duty counsel after being unable to reach Mr. Singh and that they did so at the appellant’s request and then permitted his private consultation with duty counsel.
49The trial judge rejected the appellant’s evidence and accepted the evidence of the police on the application. He dismissed the application.
c) The Relevant Legal Principles
50I have been provided with a number of authorities that address the issues raised by the appellant about the facilitation of speaking with counsel of choice. While I will not review them all, I find a number of them are helpful in setting out the applicable principles.
51I begin with the Court of Appeal’s endorsement in R v. Littleford, [2001] O.J No. 2437 (C.A.). Like this case, it involved an accused arrested for impaired driving. When provided with his right to counsel, the accused indicated that he wished to speak to his own lawyer. That lawyer was called at 12:53 a.m.. When there was no answer, the officer left a number on his answering machine. The officer then immediately called duty counsel and told the appellant that duty counsel was on the phone for him. The accused spoke to duty counsel and then provided breath samples at 1:29 a.m. He made no complaints and made no further request to contact his own counsel.
52On appeal, it was argued that there was a s. 10(b) violation because the accused asked to speak to his own counsel and was not given a reasonable opportunity to do so. The officer agreed that beyond leaving a message, he took no other steps to assist the accused in contacting counsel. In dismissing the appeal, the Court of Appeal held at para. 8:
The difficulty with the appellant’s position in this case is that he did speak to duty counsel before taking the breathalyzer test. He neither raised any concern at the time, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights. The trial judge made a finding that speaking to duty counsel “seemed to satisfy him at the time”. There is no basis on the record to disturb that finding.
53The appellant relies on the decision or R. v. Vernon, 2015 ONSC 3943, [2015] O.J. No. 4157 (S.C.J.) in which the Crown appealed from an acquittal on an over 80 charge following a finding of a s. 10(b) Charter breach. The accused in that case was arrested for impaired driving and indicated that he wished to speak with his own lawyer. On arrival at the police station, the arresting officer called the lawyer and left a message. A minute later, the officer called duty counsel and left a message. Thirteen minutes later, duty counsel called back and the accused was told that his lawyer had not returned the call, and that he could speak with duty counsel. He did so, after which he expressed no concerns. He then provided breath samples.
54At trial, the accused testified that he would have liked to speak with his own lawyer and that the officer gave him very little time to decide whether to speak with duty counsel. The trial judge concluded that there was a s. 10(b) breach because the officer failed to inform the accused that he had the right to wait a reasonable amount of time for his counsel of choice to call back before providing a breath sample. He also found that the officer failed to wait a reasonable length of time before contacting duty counsel and failed to take all reasonable steps necessary to contact counsel of choice. The trial judge accepted the accused’s evidence that he felt he had no choice but to speak with duty counsel.
55The summary conviction appeal court judge dismissed the appeal, holding that the trial judge made no error in concluding that the police failed to provide the accused with a reasonable opportunity to speak with counsel of choice because the accused felt he had to speak with duty counsel rather than await a call back from his lawyer. The appeal court judge also held that the trial judge made no error in finding that the police failed to facilitate contact with counsel of choice and by failing to wait a reasonable period before asking the accused whether he wished to speak with duty counsel.
56The appellant also points me to the summary conviction appeal decision in R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.) in which the appeal court concluded that there has been a violation of the accused’s right to counsel of choice. In this case, the accused told the police that he wished to speak with a specific counsel. The officer immediately called duty counsel. There was no evidence that the accused agreed to speak with duty counsel, although he did so. The accused then told the intoxylizer technician that he had spoken to duty counsel but wished to speak to his own personal lawyer. He told the technician that his friend had the lawyer’s telephone number and that he wanted to call the friend.
57In his decision, Durno J. reviewed the law relating to the issue of counsel of choice. He held that in the vast majority of cases, when a detainee expresses a desire to speak with counsel, police must facilitate this, including with counsel of choice. This obligation exists whether the counsel of choice’s telephone number is readily available or not. In this case, the appeal court judge found that the police had used duty counsel as a short cut to circumvent the accused’s right to counsel of choice.
58The Crown points to Justice Durno’s decision in R. v. Neziol, [2001] O.J. No 4372 (S.C.J.). In that case, the accused was given his rights to counsel and said that he would have to call home to get his lawyer’s number. At the station, he was offered the opportunity to call home and declined to do so given the time of night (which was around 4:00 a.m.). The officer asked if the accused wished to speak to duty counsel and he agreed. The accused argued on summary conviction appeal that there had been breaches of the police duties relating to the informational and implemental duties under s. 10(b).
59Durno J. noted that once police comply with the informational component of s. 10(b), what they are required to do is fact-specific and depends on the detainee’s response. If the detainee indicates a desire to speak with counsel, the police must facilitate contact by providing a reasonable opportunity for contact.
60While agreeing with the appellant that the police could have done more, Justice Durno held that the police were not required to do so in this case. The accused spoke to duty counsel and there was an evidentiary basis upon which the trial judge could have concluded that he had waived his right to counsel of choice, having regard to the lack of complaint about the advice he received and his evidence that he would deal with his own counsel in the morning.
61I was also referred to R. v. Winterfield, 2010 ONSC 1288, [2010] O.J. No. 952 (S.C.J.), in which the summary conviction appeal court considered whether the trial judge had erred in finding no s. 10(b) breach. Following his arrest for impaired driving, the accused told police he wished to speak with a specific counsel. The officer gave him his cell phone to use and he looked for counsel’s number without success. The accused never spoke to his counsel, but did speak with duty counsel. At trial, he said he had been dissatisfied with the advice from duty counsel and that he had told the police he was not happy about not speaking to his lawyer. The police denied that he said this to them.
62In dismissing the appeal, the appeal court judge noted at para. 58 that there is no automatic breach of s. 10(b) if a detainee speaks with duty counsel after unsuccessfully seeking to contact their own counsel. The appeal court judge also observed that the test is not whether the police could have done more, but rather whether the police provided the accused with the information required to assist in contacting counsel and facilitated that contact.
d) Analysis
63There is no doubt that a person detained by police must be provided with a reasonable opportunity to exercise the right to counsel. When the right to a particular counsel is asserted, the police must facilitate this. If a detainee asks to speak with a specific counsel, and then speaks with duty counsel, rather than counsel of choice, before providing a breath sample, a determination of whether there has been a breach of s. 10(b) depends on the particular facts of the case.
64In my view, the trial judge in this case made no error in concluding that there had been no s. 10(b) breach.
65The police officers both testified that the appellant told Constable Linton that if they were unable to reach Mr. Singh, he wished to speak with duty counsel. While there is some minor inconsistency between the descriptions of the conversation provided by Constables Linton and Kok, both were unequivocal and unshaken that the appellant agreed to speak to duty counsel if Mr. Singh could not be reached. The trial judge accepted this evidence and found as a fact that the appellant agreed to and did speak with duty counsel. In my view, this is a critical fact that distinguishes the case from Vernon and Kumarasamy.
66The appellant submits that the police defaulted to duty counsel too quickly and that they could not require him to forego speaking with counsel of choice until waiting for a reasonable period of time for Mr. Singh to call back. It is argued that the police should have told him that he had the right to wait a reasonable period.
67As was noted in a number of the authorities, the question to ask is not whether the police could have done more. I accept that they could have. They could have asked him if he wished to look for another number for Mr. Singh. They could have told him that they would wait a period of time before placing a call to duty counsel. They could have asked him whether there was another lawyer he wished to contact.
68But, the critical difficulty with the appellant’s position is that there was a finding by the trial judge that if Mr. Singh could not be reached, he was agreeable to speaking with duty counsel. He did so. He chose to express no concerns at all to the arresting officers or to the breath technician about his conversation with duty counsel, or about not being able to speak to Mr. Singh.
69I accept that the trial judge made a mistake about the evidence when he said that Mr. Singh never called back. Both counsel agree that there was no evidence as to whether Mr. Singh called back. But, I do not find this to be of any real significance. Ultimately, whether or not Mr. Singh called back did not seem to play a role in the trial judge’s s. 10(b) analysis. Nor should it have.
70In my view, while the authorities suggest that if a detainee wishes to speak with a specific counsel the police must facilitate access to that counsel, nothing precludes the police asking whether a detainee would be prepared to speak with duty counsel if counsel of choice cannot be reached. It the police ask that question, and the detainee appears agreeable, I do not think that the police are required to hold off trying to set up a conversation with duty counsel. That is what happened here.
71Had the appellant here said anything to the police to suggest that he wished to give Mr. Singh more time, that he still wished to speak with Mr. Singh, or that he was unhappy with his conversation with duty counsel, his argument would be on a very different footing. But, he chose to say nothing, leading the police to reasonably believe that he was content to speak with duty counsel and with his conversation with duty counsel. As the trial judge commented, the police are not expected to be mind-readers.
72I think this case is similar to Littleford, although in that case the detainee made a specific objection to speaking with counsel and here the appellant agreed to do so. However, the analysis is applicable and, like the Court of Appeal in that decision, I find that there is no basis on the record to interfere with the trial judge’s conclusion that the appellant seemed to be satisfied with speaking to duty counsel at the time.
73Having found no breach of s. 10(b), I decline to consider whether, had there been a breach, the evidence would have been admitted or excluded under s. 24(2). It is not necessary to do so given the s. 10(b) conclusion.
D. Conclusion
74The appeal is dismissed.
Woollcombe J.
Released: August 31, 2016
