Her Majesty The Queen v. James Caron, 2019 ONSC 2491

COURT FILE NO.: 103-17AP DATE: 20190429

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen Andrea Camilletti, for the Crown, Respondent

• and -

James Caron Laura Joy, for the Appellant

HEARD: April 23, 2019

REASONS FOR DECISION – SUMMARY CONVICTION APPEAL

Sproat J.

I. Introduction

[1] Mr. Caron was found guilty of impaired driving and driving with a blood alcohol level in excess of the legal limit and a conviction was entered on the latter offence. The Appellant filed a Charter Application, seeking to exclude the breathalyzer results on the basis of a breach of his ss. 7 and (10)(b) Charter rights, which was dismissed.

[2] The grounds of appeal and my reasons are as follows.

II. Ground One – Evidence to the Contrary

[3] The Certificate of an Analyst, relating to the alcohol standard solution that was used in the Intoxilyzer, identified the standard as,...”Lot No. 20766 having dates of manufacture and expiry of 2014/03 and 2016/03/31 respectively”.

[4] In her cross-examination of P.C. Book (the breath technician) defence counsel, referring to this Certificate, stated that it, “had an expiry date of 2014-03 and 2016-03 respectively”. This was obviously factually incorrect. The Certificate referred to “dates of manufacture and expiry” not simply to dates of expiry. (It is not clear from the transcript whether P.C. Book had the Certificate in front of him when he was being questioned.) Shortly thereafter it was suggested to P.C. Book that part of the lot expired in March of 2014 and he agreed. P.C. Book went on to say that when he changed the alcohol standard he would have to enter the expiry date of the actual solution that he used.

[5] The appellant argued that this constituted “evidence to the contrary”. The trial judge, however, stated:

I disagree with counsel and Book. The scientist signed the Certificate on March 20, 2014. Using basic grammar skills the word “respectively” means that the manufacture date was March of 2014 and the expiry date for this lot of solution is on the 31st of March, 2016. It would make no sense to analyze and certify a lot of alcohol standard solution on the 20th of March 2014 and send it out to be used already expired. While PC Book seemed to accept Ms. Joy’s suggestion he was mistaken in accepting that suggestion.

[6] I think the trial judge was entitled to, and correct, to find that the alcohol standard expired on March 31, 2016, long after the offence date of July 19, 2014. That is simply giving the words of the Certificate of Analysis their ordinary meaning. This to me also accords with common sense. It make no sense to me that you could have one lot with portions of the lot having different expiry dates. In addition, the agreement of P.C. Book that part of the lot was expired was based on the mis-statement of defence counsel as to the wording of the Certificate. In any event, P.C. Book testified that he had to enter the expiry dated and it makes little sense to think he would enter an expiry date that had already passed.

[7] This ground of appeal, therefore, fails.

III. Ground Two – Delay in Advising of the Right to Counsel

[8] P.C. Nellis observed the Appellant’s vehicle travelling southbound on Highway 6 and 10 when it passed another vehicle which forced a northbound vehicle on to the shoulder of the road. P.C. Nellis turned her vehicle around, activated her emergency flashers and followed the Appellant’s vehicle and observed it repeatedly crossing the centre line. After Mr. Caron stopped his vehicle P.C. Nellis observed him to have glazed red eyes and an odour of alcohol. She also testified that he exhibited erratic mannerisms that appeared to her to be aggressive or belligerent such as waving a folder containing his vehicle documents at her while talking non-stop.

[9] The stop was made after dark on a rural highway. The appellant was approximately 70 lbs. heavier, and 7 inches taller, than P.C. Nellis.

[10] P.C. Nellis testified that she was concerned about her safety and the Appellant’s safety if she immediately placed him under arrest and asked him to get out of his vehicle. Specifically, she was concerned that his erratic behavior would escalate if informed that he was under arrest. She, therefore, called for back-up and waited for approximately 20 minutes until another officer arrived. With the other officer standing by she placed the appellant under arrest and advised him of the reason for his arrest and advised him of his right to counsel.

[11] The reasoning of the trial judge was as follows:

[59] Nellis had a duty to advise the defendant why she was detaining him once she determined she was going to arrest him for impaired operation of a motor vehicle. She also had a duty to advise him of his right to speak to counsel. It is only in exceptional circumstances that police can delay giving this information. Officer safety is one of those situations. R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 at paragraph 42.

[60] The stop was at 9:59 pm. There was interaction between Nellis and the defendant and in that period of time she formed her grounds to arrest the defendant for impaired operation. She had sufficient grounds to do so. There is no section 8 Charter challenge.

[61] It was a breach of the defendant’s right to know immediately that he was being arrested and of his right to speak to counsel. The issue is whether there should be a remedy granted under section 24(2) of the Charter.

[62] The first consideration is the seriousness of the Charter-infringing state conduct. It is serious to fail to advise someone of their right to speak to counsel and to know why they are detained. This was a good faith exercise of judgment where officer safety and possibly the safety of the defendant were in issue. While Nellis waited for Book to arrive she did not question the defendant or illicit any additional evidence from him. The defendant remained in his own truck while Nellis remained in her cruiser. The period of delay was not used to collect additional evidence against the defendant. Immediately upon Book’s arrive al scene the arrest occurred and rights to counsel followed shortly. This factor favours admission of the evidence.

[63] The second consideration is the impact on the defendant’s Charter-protected interests. The interest in question is the right of the defendant to make an informed choice to speak to the police and cooperate with them. Nellis did not attempt to obtain more evidence against the defendant and when back up arrived she provided rights to counsel. This factor favours admission of the evidence.

[64] The third consideration is society’s interest in an adjudication of the case on its merits. The truth seeking function of the court would be better served by the admission of the evidence than its exclusion. This is the type of situation contemplated in Suberu.

[65] When I balance the factors on this breach the admission of the evidence would not bring the administration of justice into disrepute. The evidence is admissible.

[12] The trial judge’s weighing of the Grant factors is entitled to deference. In any event, I agree with it. The appellant’s vehicle was stopped at the side of a highway with an 80 km per hour speed limit. Common experience reflects that many drivers regard this as, in practical terms, a 90 or 100 km per hour speed limit. P.C. Nellis had a good reason to believe that the appellant’s physical abilities were impaired. As it turned out when he was arrested and removed from the vehicle he was unsteady on his feet. A small percentage of drivers stopped by police conduct themselves in an erratic, aggressive or belligerent manner, as did the Appellant. It was entirely reasonable for P.C. Nellis to be concerned about safety in all of the circumstances.

[13] I agree with the Crown that in circumstances such as this it is appropriate to bear in mind the comment of Moldaver J.A. (as he then was) in R. v. Wight, 2007 ONCA 318, at para. 54, as follows:

…when it comes to officer safety and preserving the integrity of their investigation, police officers should be given a good deal of leeway and second guessing should be avoided.

[14] There being no error in principle in the Grant analysis this ground of appeal is dismissed.

IV. Ground Three – Blended Voir Dire

[15] Given that I have dismissed the first two grounds of appeal, the remaining ground of appeal may not be of great significance to the Appellant. If the blended voir dire was unfair, it was because the Appellant had received the Charter ruling prior to electing to call evidence, he might have decided to not testify. In that event, however, he would have still been found guilty of driving with a blood alcohol level in excess of the legal limit.

[16] The trial commenced on March 20, 2017. Prior to the plea the trial judge noted the age of the case given the offence date of July 19, 2014. The Crown indicated that she believed the intent was to have a blended proceeding.

[17] After the plea was entered defence counsel indicated that she would prefer to have a decision on the Charter application before calling evidence on the trial. The trial judge indicated:

No, I do blended proceedings here, because of time efficiency. And this is so old, I would prefer to do a blended proceeding.

[18] The trial judge then explained that by blended proceeding she proposed that witnesses be sworn both on the voir dire and on the trial proper. The Crown would call all of its evidence. The Appellant would then make a choice as to whether to testify and, if he testified, whether he testified on the Charter application exclusively or in addition on the trial proper. Defence counsel appears to have at least acquiesced in this procedure. The Crown case was completed on March 20, 2017 and the case was adjourned to July 17, 2017.

[19] At the outset of the trial continuation there was further discussion about the blended hearing. Defence counsel indicated her understanding that she would get a ruling on the Charter application and then make a decision as to whether to call evidence. This was, however, clearly not what had been discussed on March 20, 2017. The trial judge indicated that she generally did not do that and reminded counsel that this had been discussed at the outset of trial. The trial judge indicated a willingness to hear additional submissions as to the process being followed. The trial judge indicated that she generally reserved and issued written judgments. As such if the Charter issue was to be decided first it would necessitate a further adjournment. This had practical significance in that the Appellant and his counsel were from Windsor.

[20] The judge indicated that she would recess if defence counsel wanted to speak to her client on this issue. Defence counsel made the comment, “but you’re not letting me do it another way, Your Honour, right?”. The trial judge then indicated that if defence counsel could convince her in light of Jordan that it would be in the public interest or her client’s interest to have her reserve on the Charter she would do so. Defence counsel then said, “I’m happy to do it the way Your Honour is saying”.

[21] The Appellant has cited R. v. Phoenix, [2006] O.J. No. 2581 (Ont.S.C.J.) which was an appeal taken from a trial decision which used the same type of blended proceeding at issue on this appeal. I am in complete agreement with the reasoning of Stinson J as follows:

[7] In my respectful view, the trial judge erred by declining the defence request to entertain the s. 10(b) application before calling on the defence to present its case.

[8] In essence, the trial judge conducted the entire proceeding as a blended voir dire and trial. Such a procedure has been described as "unusual" but it does not necessarily impact a trial unfairly: see R. v. Bujtor, [2003] O.J. No. 4595 (C.A.). There are situations where it is appropriate to defer rulings on Charter motions, where, for example, the complaint is based upon allegations of lost or destroyed evidence that impairs the right to make full answer and defence. In such a situation the trial judge can usually only assess the impact of the missing evidence once all of the case has been heard; then the appropriate remedy, if granted, will be a stay. See R. v. La (1997), 116 C.C.C. (3d) 97 (S.C.C.).

[9] In the present case, however, the effect of the trial judge's ruling was to require the appellant to elect whether or not to call evidence or otherwise to commit to a course of action, prior to knowing the result of a voir dire that would determine the scope of the case against him. As well, because the appellant was forced to testify at the trial proper instead of the s. 10(b) voir dire, he was subject to unlimited cross-examination, which would not have been the case had a focused s. 10(b) voir dire been held. When the trial judge finally came to make his ruling on the appellant's s. 10(b) application, he did so in the wake of that broad cross-examination and the credibility findings that he made, based upon it.

[10] In light of the foregoing, in my view, the procedure adopted by the trial judge in relation to the appellant's s. 10(b) application was unfair. That issue should have been the subject of a voir dire and ruling before the appellant was called upon to respond to the Crown's case. Defence counsel did not acquiesce in this procedural irregularity. In this respect this case is distinguishable from R. v. Mewhort, [1996] B.C.J. No. 41 (B.C.S.C.).

[11] I therefore conclude that the appeal must be allowed and a new trial ordered.

[22] Ms. Camilletti did not take issue with the principles enunciated in Phoenix.

[23] In accordance with this reasoning, I do not believe that there was any onus on defence counsel to convince the judge that it was in the public interest or the Appellant’s interest to have a decision on the Charter application prior to deciding whether to call evidence on the trial.

[24] The first question is, therefore, whether the defence agreed to in the blended proceeding.

[25] At trial Ms. Joy indicated a preference for a ruling on the Charter prior to deciding whether to call evidence on the trial. Ms. Joy did not, however, give any indication that she could not properly advise her client whether to testify without the Charter ruling.

[26] It may well be that this argument was not advanced because the admissible Crown evidence was such that the Appellant concluded he had to testify. The Crown evidence was that the Appellant’s driving was erratic. When he testified at trial he sought to explain at least an aspect of this by testifying that he swerved on one occasion because he bent down to pick up his cell phone when it fell on the floor. The Crown evidence was that the Appellant was unsteady on his feet. He testified about being tired from working long hours on a construction project. He testified about getting out of his vehicle and repeated earlier evidence that he had recently twisted his knee and he was also wearing comfortable “Croc” footwear. The Crown evidence was that the Appellant was acting in a belligerent, aggressive and erratic manner. The Appellant testified that he customarily speaks in a loud voice which the officer might have misinterpreted as belligerent.

[27] In summary, the Crown put forward substantial evidence of impairment and the Appellant, as he testified to, led evidence to rebut the Crown evidence of physical impairment.

[28] As such, I am satisfied that the defence made an informed choice to agree to the blended proceeding and cannot now take objection.

[29] In any event, the blended proceeding did not prejudice Mr. Caron. This is not a case in which the evidence on the Charter application was distinct and different from the trial evidence. As such, the concern of possible prejudice in the accused being subject to “unlimited cross-examination” as referred to by Stinson J. in Phoenix does not arise. The Charter application would necessarily involve P.C. Nellis testifying as to the erratic driving and Mr. Caron’s belligerence as that was relevant to her decision to not arrest him immediately. In turn it would have been relevant for Mr. Caron to give the evidence he did as to his driving, perceived belligerence and unsteadiness on his feet. In other words, this is not a situation in which Mr. Caron could logically argue that the blended proceeding allowed the Crown to attack his credibility on grounds that could not have been possible had he been allowed to testify on the Charter application alone.

V. Ground Four - Did Mr. Caron Waive His Right to Counsel

[30] While neither I nor the Crown appreciated that this was an issue until it was raised in oral argument I will address it. Ms. Joy submitted that there was no express waiver of the right to counsel at the police station. The trial judge, however, is entitled to deference as to the findings of fact and she stated:

The issue is whether the defendant made a free and voluntary waiver when he told the police no he wanted to go ahead with the test. The evidentiary onus rests solely with the crown. The standard for an effective waiver of counsel is high.

I am satisfied that the defendant’s waiver was free and voluntary. In his case the defendant did change his mind about speaking to counsel. He refused to tell Nellis who he wanted to speak to and then he initially told Book he did not want to speak to a lawyer. Then he said he did and then it was “if” he wanted one it would be Mr. Ducharme. Book told the defendant twice after that that he would stop the tests and they would arrange to call a lawyer for him. The defendant said no let’s get on with this and the second time he said no let’s move on.

The defendant was not reasonably diligent in asking for a lawyer once back at the detachment. When he did so Book cautioned the defendant twice telling him they would stop the testing procedure and they would contact a lawyer for him before proceeding. That caution amounted to a Prosper warning.

[31] I, therefore, do not accept this argument as it flies in the face of the findings at trial.

VI. Conclusion

[32] The appeal is, therefore, dismissed.

Sproat J.

Released: April 29, 2019