CITATION: R. v. Michael, 2017 ONSC 4579

COURT FILE NO.: CR-16-00000090-00AP

DATE: 20170728

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

PETER MICHAEL

Martin Sabat, for the Crown, Appellant

Heather Spence, for Peter Michael, Respondent

HEARD: June 13, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT

1On July 14, 2016 Mr. Michael, the Respondent, was in a one-vehicle car accident. He was clearly very drunk. He drove over a median and hit a light standard. He was charged with “over 80”. The trial judge, Madam Justice Bloomenfeld of the Ontario Court of Justice, found that the investigating officer failed to administer the approved screening device “forthwith”. Thus, the breath samples were taken in violation of s. 8 of the Charter. The trial judge also found that the officer had failed in implementing Mr. Michael’s right to choice of counsel. That was a violation of s. 10(b) of the Charter. She found that the cumulative effect of the two Charter violations required excluding the evidence under s. 24(2). She dismissed the charges. The Crown appeals.

2Respectfully, I find no error in the trial judge’s analysis. The trial judge did not misapprehend the evidence. She also did not err in her analysis of the s. 10(b) violation. For the reasons that follow, the appeal is dismissed.

BACKGROUND

3At about 2:20 am on July 14, 2016 Shomari Hasley, a TTC driver, saw the Respondent’s car pass him going “super-fast”. The Respondent’s car flipped over the median and hit a light post. The roads were clear and dry. Constable Fabiszewska arrived on scene at 2:25 am. She saw the Respondent leave his vehicle. The Respondent told her that he had been drinking. His eyes were flushed and glossy. She went to her police car to get a roadside screening device. An ambulance arrived shortly after that. The Respondent went into the ambulance where paramedics treated him. At 2:38 am Constable Fabiszewska made the approved screening device demand but told him that the first priority was to “get him checked out”. She also read him the caution and told him that he had the right to speak to a lawyer. The police officer then said that she would take the sample of his breath at the hospital. Mr. Michael arrived at the hospital at 2:53 am. Constable Fabiszewska did not have an opportunity to administer the test at the hospital until 3:15 am. The Respondent failed. Constable Fabiszewska smelled the odour of alcohol coming from the Respondent’s breath while she administered the test. She arrested him at 3:17 am.

4The Respondent told Constable Fabiszewska that there was a particular lawyer he wanted to call. He looked in his cell phone but could not find the number. She then asked him if he wanted her to call duty counsel. He did.

5At trial, the Respondent testified on the voir dire. He testified that he told the officer that his lawyer’s name was David Goodman. He could not find the number in his phone. He knew how to look up phone numbers on his phone and that Constable Fabiszewska did not prevent him from doing so. He had his phone with him in the ambulance. He had used it to call his mother. In cross-examination he stated that he had 10 shots to drink but couldn’t remember where he was drinking because alcohol had affected his memory. Constable Fabiszewska called duty counsel for the Respondent at 3:23 am. Duty counsel returned the call at 3:51 am. The Respondent spoke to duty counsel until 3:54 am.

6At 2:54 am Constable Clifford arrived at the hospital. He is a qualified breath technician. An Intoxilyzer machine was brought to the hospital so that he could administer a test. That machine malfunctioned. The police brought a second machine but at 5:10 am a doctor came and ordered x-rays. The Respondent was taken for x-rays and was back in his hospital room at 5:44 am, when the first sample was taken. A second sample was taken at 6:16 am. The Respondent’s blood alcohol content was 160 mg of alcohol in 100 ml of blood, and 150 mg in 100 ml of blood.

REASONS OF THE TRIAL JUDGE

7The trial judge found that Constable Fabiszewska’s efforts at the scene of the accident to manage all the competing requirements was appropriate and laudable. The officer had to manage the scene, conduct an investigation, and ensure that Mr. Michael received proper medical care. The trial judge did not fault her for not administering the approved screening device at the scene. The trial judge, however, found that Constable Fabiszewska failed to administer the screening device at the hospital when she had an opportunity to do so. After the hospital triaged Mr. Michael they waited 20 minutes until he could be installed in a private room. Constable Fabiszewska did not administer the test at that point because it was not private. Privacy, the trial judge found, was not a priority. The approved screening device was not administered “forthwith”. Therefore, the breath sample was not lawfully obtained. That meant that the subsequent arrest and seizure of breath samples was a violation of s. 8 of the Charter.

8The trial judge also found that Mr. Michael’s right to counsel of choice was violated. Mr. Michael wished to contact David Goodman, a lawyer he had dealt with in 2008. He was very drunk that night, as Constable Fabiszewska described and the trial judge accepted. There were concerns about his reliability. When Mr. Michael could not find Mr. Goodman’s number in his phone, Constable Fabiszewska moved simply to calling duty counsel for him. She did not search the number, or call on the police radio, or ask Mr. Michael’s mother for assistance, as she was present.

9The trial judge then analyzed the Grant factors: R. v. Grant, 2009 SCC 32. She found that the breaches individually were not enough to exclude the evidence. The cumulative effect, however, made the Charter violations more serious. She excluded the evidence.

ANALYSIS

10The Crown argues that the trial judge misapprehended the evidence of the 20-minute delay at the hospital; and second, that she erred in finding that Constable Fabiszewska’s failure to assist Mr. Michael in locating his lawyer’s number violated his right to counsel of choice.

11I disagree that the trial judge misapprehended the evidence regarding the delay in administering the approved screening device. I also disagree that the trial judge erred in violating Mr. Michael’s right to counsel, of choice. I do think that the violations were minor, but the trial judge’s overall conclusion was not unreasonable. Her decision to exclude the evidence is entitled to deference.

(a) Did the trial judge err in finding that the officer had failed to administer the approved screening device as soon as practicable?

12The Crown argues that the trial judge misapprehended the evidence by finding that the 20-minute wait at the hospital provided an appropriate opportunity for the officer to administer the approved screening device. The officer and Mr. Michael were simply waiting in the hallway for a private room. The officer could easily have conducted the test at that point. By not doing so, the trial judge found that the sample was not taken “forthwith”.

13I respectfully disagree. In my view, there was no misapprehension of the evidence. The trial judge made no error.

14A misapprehension of the evidence must go to the substance of the material parts of the evidence and lead to an error in the reasoning process: R. v. Morrisey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.). An appellate judge ought not to microscopically examine the trial judge’s reasons.

15In this case, the trial judge found that there was a 20-minute wait at the hospital where Constable Fabiszewska simply sat with Mr. Michael while he was triaged and waited for him to be taken to a private room. She noted that the officer had not wanted to administer the test because she wanted Mr. Michael to have privacy and did not want the test interrupted. In other words, she found that there was an opportunity for the officer to have administered the test during that 20-minute time frame.

16The officer testified as follows:

Q: Okay, but is there a period of time where you are just sort of waiting there waiting to hear which room you are going to go to?

A: Yes, because we haven’t been assigned a room yet.

17The officer then explained that she may not have required privacy, but she did not feel comfortable setting it up in the hallway. She did not feel it was the proper environment or place.

18I do not see any misapprehension of the evidence. The trial judge found that in fact what had happened was that the police officer had the opportunity to administer the test and did not do so because she prioritized privacy higher than she prioritized the statutory imperative to administer the test “forthwith”. That was not a misapprehension of the evidence. It was a legal conclusion.

19In my view, that legal conclusion was open to the trial judge, based on the facts as she found them. The demand must be made forthwith. Forthwith means a prompt demand and an immediate response to the demand: R. v. Woods, 2005 SCC 42 at paras. 43-44. In R. v. Quansah, 2012 ONCA 123 LaForme J.A. stated that courts must consider five things when determining whether the “forthwith” requirement has been met under s. 254(2) of the Criminal Code at paras. 45-49:

In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met. This result is extremely unfortunate. In effect, the police officer (who was rightly lauded by the trial judge rightly for her management of the situation) is penalized because of her excessive deference to Mr. Michael’s right to privacy and an obviously drunk driver escapes criminal liability.

20Ironically, had the officer administered the test in a hallway of the hospital Mr. Michael’s counsel would, no doubt, have strenuously argued that she violated his right to privacy. It is scarcely a wonder that police officers (including capable and conscientious officers like the one in this case) are often frustrated to find that they can never do anything right in impaired driving cases. That said, the trial judge’s findings of fact were open to her on the evidence and there was no error in her legal analysis. Privacy, while surely important, does not trump the “forthwith” requirement. There is no basis for this Court to intervene.

(b) Did the trial judge err in finding that the officer violated Mr. Michael’s right to counsel of choice?

21The Crown argues that the trial judge failed to consider whether Mr. Michael had acted with due diligence. The trial judge, he argues, failed to consider the fact that Mr. Michael had his phone, that he used it to call his mother. By making duty counsel available, and trying to assist Mr. Michael, the officer complied with the implementation aspect of the s. 10(b) right to counsel.

22I respectfully disagree with the Crown. The police have a duty to implement the s. 10(b) rights of an accused person. As the Supreme Court of Canada noted in R. v. Willier, 2010 SCC 37 the police have several duties when an accused person chooses to exercise his or her s. 10(b) rights. Those duties include:

• Facilitating a reasonable opportunity to contact counsel;

• Facilitating a reasonable opportunity to contact counsel of choice where a detained person has specified a particular lawyer;

• Refraining from questioning the detainee until they have facilitated that opportunity;

• Waiting for a reasonable time for the counsel of choice to respond.

23A detained person has corresponding rights and obligations including:

• Using reasonable diligence to contact counsel;

• Refusing to speak to duty counsel and waiting a reasonable time for counsel of choice to respond.

24A police officer has a duty to facilitate counsel of choice, or to permit a phone call to a friend or relative to obtain the number for counsel of choice. If counsel of choice is not immediately available, an officer must not “short-cut” the right to counsel of choice by using duty counsel: R. v. Kumarasamy, [2002] O.J. No. 303 at paras. 29-30 per Durno J.

25In essence, the trial judge found that the officer took the short-cut described by Durno J. in Kumarasamy. In my view, the findings of fact that led to this conclusion of law were open to the trial judge on the evidence. The officer agreed in cross-examination that she did not do enough to facilitate counsel of choice by Mr. Michael. The trial judge found as a fact that the officer did not take the necessary steps to discharge her obligations to facilitate the right to counsel of choice. She also found as a fact that only six minutes elapsed between Mr. Michael’s arrest and the call to duty counsel. She further found that Mr. Michael felt no choice about speaking to duty counsel.

26Thus, the trial judge did not misapprehend the evidence on this point.

(c) Did the trial judge err in her analysis under s. 24(2) of the Charter?

27Crown counsel argues that the trial judge failed in her s. 24(2) analysis in three respects. First, she failed to consider the seriousness of the breach under s. 8 and s. 9: R. v. MacMillan, 2013 ONCA 109. Second, she failed to address whether the s. 10(b) breach actually prejudiced Mr. Michael. And third, although the trial judge stated that the s. 8 and s. 9 breaches exacerbated the seriousness of the s. 10(b) breach, she failed to explain how.

28I respectfully disagree. A trial judge’s s. 24(2) analysis is entitled to a great deal of deference where that judge has considered the proper factors: MacMillan, at para. 43; Grant at para. 86.

29The trial judge found that the “driving force” behind the exclusion of the evidence was the s. 10(b) violation. She found that the s. 10(b) breach, while not committed in bad faith, was serious. As she put it, the “overarching theme” of the officer while at the hospital was to “prioritize expediency over rights.” That led her to treat Mr. Michael’s rights perfunctorily.

30I might not have reached the same conclusion but, respectfully, the trial judge’s decision to treat the officer’s actions as a serious violation of s. 10(b) is entitled to deference. The conclusion that the breach was serious is premised on the trial judge’s evaluation of the officer’s actions. I do not see any basis to intervene on the first of the Grant grounds.

31The second factor was the impact on Mr. Mitchell. The trial judge found that the s. 10(b) violation was significant because he did not have access to the lawyer he knew and trusted. She found that to be important. That also addresses the prejudice argument made by the Crown: the prejudice was self-evident. I must respectfully disagree with the Crown on that point.

32Finally, the trial judge made no error in balancing of the factors. She noted that the breath samples were real evidence. Little interference with bodily integrity was occasioned by their seizure. That militated in favour of admission. On the other hand, she noted, the admitting the breath readings would jeopardize the fairness of the trial. She ultimately found that the Court’s need to disassociate itself with the disregard for Mr. Michael’s s. 10(b) rights outweighed society’s interest in a trial on the merits. Again, I might not have come to the same conclusion but in the absence of any error of principle, her conclusion is entitled to deference.

33Moreover, once a trial judge has found that admitting evidence would risk the fairness of a trial, that finding is probably enough to justify the exclusion of the evidence. Fair trials are the cornerstone of our judicial system. Our society and our judicial system can tolerate mistakes and legal errors. We cannot tolerate unfairness. That would undermine the public’s confidence in the rule of law.

34It is true that the trial judge did not explain in detail how the s. 8 and s. 9 breaches exacerbated the seriousness of the s. 10(b) breach. The Crown has a valid point, but again I must respectfully disagree. I think the trial judge’s reasoning was obvious and did not require elaboration.

DISPOSITION

35The appeal is dismissed.

R.F. Goldstein J.