COURT FILE NO.: CR-16-7000056-00AP CR-16-7000060-00AP DATE: 20170104 ONTARIO COURT OF JUSTICE SUMMARY CONVICTION APPEAL TORONTO REGION
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – MARTI MAYRHOFER-LIMA Appellant
Melissa Mandel, for the Crown Philip B. Norton, for the Appellant
HEARD: November 18, 2016
K.P. Wright J.
Introduction
[1] On June 7, 2016, after a trial in the Ontario Court of Justice, the appellant Marti Mayrhofer-Lima was convicted of Impaired Operation of a Motor Vehicle.
[2] The appellant appeals against the conviction and sentence. His appeal in broad strokes, is based on the following:
(1) The trial judge erred in not finding any Charter breaches; and (2) The trial judge failed to provide sufficient reasons.
[3] The appellant abandoned a third ground of appeal that related to an apprehension of bias.
[4] The Crown requests that the appeal be dismissed and also appeals against the sentence on the basis that it was demonstrably unfit.
Facts
[5] I will first give a brief overview of the facts. I will further develop the facts when necessary in my analysis.
[6] In the early morning hours of October 6, 2014, the appellant’s vehicle was involved in a single motor-vehicle accident. His vehicle crossed into the oncoming lane of traffic, hopped the sidewalk, and sheared off a fire hydrant. No one, including the appellant, was injured. A civilian witness who was first on scene called 911. Prior to the police arriving, a tow truck, fire trucks, and paramedics were on scene. When the police did arrive, the appellant was inside the ambulance. When Officer Sayedzadeh attended inside the ambulance, the appellant told the officer that he “had crashed the car”. The officer immediately cautioned the appellant that he did not have to say anything to him.
Trial Transcript, January 14, 2016, page 43, line 15
[7] After the caution, the appellant told the officer that he had been drinking at a bar, drove his car then “blacked out” while driving. The officer placed the appellant under arrest for impaired driving and “over 80”, and gave him his rights to counsel. The appellant was then transported to the police car and once again given his rights to counsel. The appellant reiterated the statement he gave to the police in the ambulance. The appellant was then transported to the police division where he provided samples of his breath into the intoxilyzer. He was charged with impaired driving and “over 80”.
[8] On January 14, 2016, the first day of trial, the appellant brought Charter applications under sections 7, 10(a), 10(b), 8, and 9 to exclude his breath readings and his statements.
[9] On January 15, 2016, at the close of its case, the Crown invited the Court to dismiss the over 80 charge because there was no evidence about the time of driving and, therefore, no ability to rely on the presumption of identity. The Court acceded to the Crown’s request.
[10] The Crown then went on to concede breaches under sections 8 and 9 of the Charter, but maintained that no evidence should be excluded under section 24(2). Defence counsel indicated that his client would be testifying on the Charter voir dire and the Court clarified that the appellant would be testifying on all Charter issues except sections 8 and 9.
Trial Transcript, January 15, 2016, p. 44, line 30
[11] On February 26, 2016, the appellant filed his factum relating to the remaining alleged Charter breaches, (sections 7, 10(a), and 10(b)).
[12] On March 2, 2016, the Crown filed its response factum. At para. 42 of that factum, the Crown conceded that the appellant’s section 10(b) rights had been breached when he was detained in the ambulance without being advised of his rights to counsel.
[13] On March 7, 2016, the matter was briefly spoken to and put over.
[14] On April 18, 2016, the trial judge, via email, made a request for additional submissions from counsel. In particular, the Court asked:
a. If the Officer, as conceded by the Crown, lacked reasonable and probable grounds to arrest this defendant, what is the effect of this admission of an unlawful arrest on the admissibility of the utterances of the defendant to the Officer? Can the utterances survive unlawful arrest?
b. Despite the Crown “statement/concession”, is the Court not required to look to the whole of the evidence and the law, exclusive of the utterances, to determine if there are reasonable and probable grounds to effect an arrest for Impaired Operation of a motor vehicle?
Respondent’s Supplementary Factum, Appeal Book, Tab 10, para 2
[15] On May 5, 2016, the appellant filed his written response for additional submissions.
Applicant’s Supplemental Factum (Submissions – re: Section 9 – Unlawful Arrest), Appeal Book, Tab 9
[16] On May 6, 2016, the Crown filed its written response for additional submissions.
Respondent’s Supplementary Factum, Appeal Book, Tab 10
[17] On June 7, 2016, the trial judge released written reasons finding the appellant guilty of impaired driving and dismissing his Charter applications. The trial judge then immediately proceeded with the sentencing hearing.
Issues and Analysis
[18] It is undisputed that the respondent conceded that PC Sayedzadeh breached the appellant’s section 8, 9, and 10(b) Charter rights in the ambulance. Despite these concessions, the trial judge concluded that the officer did not breach any of the appellant’s rights at any time throughout his interaction with him.
[19] The parties agree that it was within the trial judge’s purview to reject the Crown’s concessions that section 8, 9, and 10(b) had been breached.
Section 10(a) and 10(b)
[20] The appellant submits that the trial judge’s finding that there were no breaches under section 10(a) and 10(b) was unreasonable and inconsistent with the evidence at trial and, further, that the trial judge failed to give adequate reasons for his rejection of the concession in relation to section 10(b).
[21] It is important to note that it was only after the completion of the trial evidence that the Crown in its written submissions dated March 4, 2016, conceded that the appellant’s rights under section 10(b) of the Charter had been breached when he was detained in the ambulance.
[22] The entirety of the trial judge’s section 10(a) and 10(b) analysis is set out in paras. 6 through 10 of his written judgment.
Reasons for Judgment, Appeal Book, Tab 8, paras. 6-10
[23] In his reason, the trial judge makes no reference to the Crown’s concession of the section 10(b) breach. He does explain why he finds there is no section 10(a) or 10(b) breach. But, in my view, this explanation falls short of what was required under this unique set of circumstances. In my view, the trial judge was obliged to notify counsel that he was not going to accept the Crown’s concession on the Charter breach and give counsel an opportunity to make argument on the point. Unfortunately, this did not happen. Crown counsel argues that, even if the trial judge was in error, no prejudice flowed from it. The Crown points out that the concession was only made after the accused had testified and had completed their final written submissions. Be that as it may, the appellant was still entitled to be notified and given the opportunity to make argument on the point.
[24] The appellant also argues that the trial judge misapprehended the evidence in relation to his section 10(a) rights in the ambulance. The trial judge rejected the appellant’s evidence that he believed it was an ordinary traffic investigation. The trial judge accepted, in its entirety, the evidence of the investigation officer who testified that he gave the appellant a caution to the following effect immediately after the appellant stated he “crashed the car”:
Listen, I’m out here, there’s a car crash and we’re investigating this….you don’t have to say anything, but if you do, I’m going to write it down and it might be used against you later on… Do you understand?
Trial Transcript, January 14, 2016, p. 112
[25] The trial judge found in para.12 of his reasons, the officer’s caution under the circumstance to be a “clear indication that this was not an ordinary investigation, reporting a collision.”
[26] The law is clear that the main purpose of section 10(a) is to inform an individual of why he or she is being detained. Although there are no magic words that need to be said, the reason for the investigative detention must be communicated in clear and simple language. This information component directly feeds into an individual’s ability to make a meaningful choice about their right to silence and right to counsel under section 10(b).
R. v. Nguyen, 2008 ONCA 49, 232 O.A.C. 289. R. v. Kelly (1985), 17 CCC (3d) 419 (Ont. S.C. - C.A.). R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59
[27] A person is entitled to be informed of the reason why he or she is being detained, unless circumstances are such that he or she knows why.
Christie v. Leachinsky [1947] A.C. 573 (H.L.). R. v. Nguyen, at para 16.
[28] In Evans, the Supreme Court explained that what Section 10(b) requires of the police will depend on the circumstances:
When considering whether there has been a breach of s. 10(a) of the Charter, it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).
R. v. Evans, [1991] 1 S.C.R. 869, at para. 30 see also R. v. Evans, [2015] O.J. No. 2907 (Ont. C.J.)
[29] In this case, the trial judge found that the appellant understood why he was being investigated by virtue of the circumstances, his utterance that he “crashed the car”, and the content of the caution given by the officer. He found that, under these circumstances, the appellant would have appreciated that this was not an ordinary traffic investigation.
[30] With the greatest of respect and deference to the learned trial judge, I cannot agree. The caution given by the officer under the circumstances fell short of what was required of him under section 10(a) of the Charter. The appellant was entitled to know that the officer was engaging in a criminal investigation as opposed to a traffic investigation. Only once possessed of that knowledge could he appreciate the full extent of his jeopardy and make meaningful choices in regard to rights to counsel and silence. There is nothing in the evidence to support a finding that the appellant appreciated that this was anything other than a traffic accident investigation.
Section 9
[31] At the conclusion of its case, Crown counsel conceded that the officer lacked the required reasonable and probable grounds (RPG) to arrest the appellant for impaired operation and therefore made an unlawful arrest. The Crown conceded that the appellant’s section 8 and 9 Charter rights had been breached.
[32] In his written reasons, the trial judge rejected the Crown’s concession and relied on the test set by the Ontario Court of Appeal in R. v. Bush in finding that the officer did have the requisite grounds to make a lawful arrest.
R. v. Bush (2010) 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.).
[33] The appellant submits that that the trial judge erred in:
(1) his interpretation of the test for RPG as set out in R. v. Bush; (2) his application of the test as set out in R. v. Bush; and (3) failing to give counsel an opportunity to make submissions on the interpretation and application of R. v. Bush.
[34] The trial judge, in his reasons, found that Bush stands for the proposition that a collision combined with the odor of alcohol on a person’s breath may constitute reasonable grounds to arrest that individual for impaired operation of a motor vehicle.
Reasons for Judgment, Appeal Book, Tab 8, para. 14
[35] The appellant argues that the trial judge applied a lower and incorrect standard when he found that a collision as opposed to an unexplained collision was the test. I disagree. I am not convinced that Bush requires that only unexplained collisions can inform grounds for arrest. In my view, the court in Bush did not set down such a definitive and restrictive test. Quite the opposite, the court recognized that each case will turn on its own unique facts and instructs that a flexible approach be taken in the assessment. The court in Bush references both accidents and unexplained accidents in the judgment and, in my view, allows for both scenarios to be factored in to the RPG assessment. Again, it is very much a fact-driven assessment. As such, I find that the trial judge’s reference to a collision as opposed to an unexplained collision is of no moment. For these same reasons, I find no merit to the appellant’s argument that evidence of consumption of alcohol, even when combined with an unexplained accident, is insufficient to satisfy RPG. The appellant argues that consumption requires more than once indicia of impairment and the smell of alcohol on breath is not enough.
[36] The appellant argues that, even if the trial judge applied the correct test, the evidence does not support a finding that the officer had reasonable grounds to arrest.
[37] I disagree. The test for RPG is not an onerous one. Although the evidence upon which the trial judge based his findings was minimal, I find it was nonetheless sufficient.
[38] I find no error in the trial judge’s interpretation or application of R. v Bush.
Turning to the Final Ground of Appeal
[39] The appellant takes the position that the trial judge failed to give the appellant adequate opportunity to respond to the trial judge’s interpretation of R. v. Bush. The appellant states that at no point did the trial judge alert him that he was going to be referring to or relying on R. v. Bush, which turned out to be the pivotal case upon which the trial judge’s rejection of the Crown’s concessions was based.
[40] The path from the point of the Crown’s concession to judgment is a convoluted one, in large measure due to the fragmented way in which this case proceeded. This in no way should be interpreted as a criticism of the trial judge - quite the opposite. I am mindful of the volume of cases that pass through the Ontario Court of Justice on a daily basis and the pressure that my brother and sister judges shoulder in their efforts to provide justice.
[41] In this case, the Crown conceded at the conclusion of its case that the appellant’s section 8 and 9 rights had been breached. The trial judge articulated his awareness of and accession to that position when he clarified that the appellant would be testifying on the voir dire about all Charter issues except sections 8 and 9.
Trial Transcript, January 15, 2016, p. 44, line 30
[42] At the end of the evidence, the Court again confirms that sections 8 and 9 are not on the table.
Trial Transcript, January 15, 2016, p. 69, line 26.
[43] In February 2016 and early March 2016, both counsel tendered final written submissions for the Court’s consideration. When they returned on April 8, 2016, the Court for the first time referenced R. v. Bush. The following exchange took place:
MR. NORTON: The other thing is that, you know, I appreciate Mr. Giovinazzo’s point about the subjective versus objective grounds to arrest, but he’s conceding that this officer didn’t have reasonable and probable grounds to arrest Mr. Lima for impaired operation, and it’s not, obviously, dispositive on you, but I think it’s a point that you can consider, that if the evidence doesn’t go in, that officer, in his mind, has the same information as you do, accident/driver/drinking, and Mr. Giovinazzo saying, based upon that, the officer made an unlawful arrest. He didn’t have grounds to make the arrest. So how do you – and I don’t throw the gauntlet down to you, Your Honour –
THE COURT: No, but I have got the Court of Appeal decision. I never understood Mr. Giovinazzo’s position on that. Bush seems to suggest, in the Court of Appeal, that if you have a collision and you have evidence of drinking, that’s RPG.
MR. NORTON: Well, we’re not – you know, I appreciate it was – Justice Durno had said –
THE COURT: I know. Mr. Giovinazzo has already conceded it, so I understand your point.
Trial Transcript, April 8, 2016, pp. 15 and 16.
[44] On April 18, 2016, the trial judge requested further written submissions from counsel. The request, as I understand it, was made through email. I have not seen the request, but understand one of two questions asked by the trial judge to be as follows:
- In particular, the Court asked: a. If the Officer, as conceded by the Crown, lacked reasonable and probable grounds to arrest this defendant, what is the effect of this admission of an unlawful arrest on the admissibility of the utterances of the defendant to the Officer? Can the utterances survive unlawful arrest? b. Despite the Crown “statement/concession”, is the Court not required to look to the whole of the evidence and the law, exclusive of the utterances, to determine if there are reasonable and probable grounds to effect an arrest for Impaired Operation of a motor vehicle?
Respondent’s Supplementary Factum, Appeal Book, Tab 10, p. 1.
[45] It is abundantly clear from this request that the trial judge was grappling with the Crown’s concession of the section 9 Charter breach. He did not, however, reference the case of R. v. Bush and nor do either counsel in their written responses. Counsel for both sides were only made aware of the case when the trial judge handed down his written reasons on June 7, 2016.
[46] The question is: should the appellant have been given an opportunity to make submissions about R. v. Bush?
[47] The answer to that question has to be yes.
[48] The next question is, did the failure of the trial judge to do so put him into reversible error?
[49] The answer to that question has to be yes.
[50] The Crown argues that, even if it were an error, there is no prejudice that flows from it. I disagree. The concession was made prior to the appellant’s election to call evidence on the voir dire and/or the trial proper. I accept that the appellant made tactical and strategic decisions based on that concession, and that if he knew that the concession would be rejected, those strategic decisions would likely have been different and may have impacted the outcome of the trial.
Conclusion
[51] For the above stated reasons, the conviction will be set aside and a new trial will be ordered.
K.P. Wright J. Released: January 4, 2017