ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Scott Hargreaves
Appellant
– and –
Her Majesty the Queen
Respondent
Edwin Boeve, for the Appellant
A. Rajna, for the Respondent
HEARD: May 2, 2019
Leitch J.
On Appeal from the Decision of the Honourable Mr. M. Edward Graham
on January 24, 2018
1The appellant was convicted of the charges of operating a motor vehicle while his ability was impaired by alcohol contrary to s. 253(1)(a) of the Criminal Code of Canada and refusal to provide breath samples contrary to s. 254(5) of the Criminal Code of Canada by Graham J. on January 24, 2018.
2In his Notice of Appeal, the appellant gave notice of his intention to appeal both his convictions and his sentence. However, by the time the appeal was heard, the appellant had filed a Supplementary Notice of Appeal outlining only an appeal against his convictions. In his Supplementary Notice of Appeal, the appellant alleged a number of errors made by the trial judge that raised the issues that I will outline below.
Background facts
3The facts were outlined in the appellant’s factum and the respondent generally agreed with that factual outline.
4Referencing the appellant’s factum, I note that the trial commenced on March 27, 2017.
5Sergeant Peterman, the investigating officer, testified that Woodstock Police Service had received a call from the appellant’s parents about a possible suicidal male. The police were given a description of a vehicle, which sergeant Peterman saw driving through a parking lot. Sergeant Peterman testified that the vehicle stopped and the driver tilted his head back on the head rest. When the officer approached the vehicle, she noted liquor bottles located on the passenger seat. The driver of the vehicle had his eyes closed. The driver exited the vehicle and Officer Peterman noted an odour of alcohol on his breath.
6Officer Peterman placed the driver of the vehicle, the appellant, under arrest. He was read his rights to counsel, cautioned, and a breath demand was made.
7At the police station, Sergeant Peterman provided grounds for the appellant’s arrest to P.C. Geerts, the breath technician. Sergeant Peterman then left the breath room approximately five minutes after she entered. This interaction between Sergeant Peterman and P.C. Geerts, in the presence of the appellant, was videotaped.
8The interview between P.C. Geerts and the appellant was also videotaped.
9The Crown wished to introduce the video as part of the evidentiary record. As the trial judge noted, “the alleged failure or refusal is captured on video.” Appellant’s trial counsel objected to the admissibility of the video recording because P.C. Geerts, the qualified breath technician, was “unavailable to testify”. He indicated that he did not think that the Crown could “overcome the basic issue that Officer Geerts is not present to testify, nor could he testify.”
10The trial judge conducted a voir dire with respect to the admissibility of the videotape on March 27, 2017.
11The video was essential to the Crown’s case and was also relevant to the defense given that the appellant’s right to counsel argument, which I will discuss below, was based in part on comments he made to Officer Geerts that suggested he was not satisfied with the assistance he received from duty counsel.
12As the trial judge outlined, the video is nearly 70 minutes long and covers almost the entire interaction between Office Geerts and the appellant, save and except for a brief five-minute period when they were outside of the breath room conducting coordination tests.
13On May 1, 2017 the trial judge ruled in relation to the admissibility of the video evidence and stated his conclusion that the video was admissible.
14The appellant’s counsel raised certain other points in argument following the May 1, 2017 ruling. As a result, the trial judge provided supplemental reasons on May 10, 2017. The trial judge addressed more fully the issue of whether the probative value of the video outweighed its prejudicial impact. The trial judge also provided further analysis respecting the “funnelling” to duty counsel and the s. 10(b) argument.
First ground of appeal – the trial judge erred in admitting the video into evidence
15The appellant argues that the trial judge erred in admitting the video because there was no evidence presented at the voir dire conducted in relation to the video’s admissibility to establish that it was necessary for the evidence to be produced in that manner, as opposed to the evidence being presented through the testimony of Officer Geerts. As a result, the appellant argues that the respondent did not establish that the out of court testimony was necessary, as described in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R 531, R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, and R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787.
16The appellant also submits that the video was not admissible because the respondent failed to establish the accuracy and reliability of the video recording. The appellant argues that the reliability of the videotape – that it had not been altered or changed – was not established, as set out in R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197.
17Further, the appellant argues that the respondent did not prove the voluntariness of the appellant’s statements made on the video.
18Finally, the appellant argues that the trial judge was obliged to consider the probative value of the evidence on the video balanced against its prejudicial effect, and whether the appellant could receive a fair trial in light of the inability of the appellant to cross-examine Officer Geerts.
19It is correct that the evidentiary record does not specifically address the reason why Officer Geerts was not called to testify. However, appellant’s counsel appropriately and fairly pointed out, as I previously noted, that the appellant’s trial counsel observed that “Officer Geerts is not present to testify, nor could he testify.” I note also that during his ruling in relation to the voir dire, the trial judge stated that “as the local justice in this jurisdiction, I know that the officer is no longer able to testify due to medical reasons.”
20However, more importantly, and in any event, I agree with the respondent’s submission that the video was not presented as a substitute for testimony, but was presented as a piece of direct evidence – that is, to reveal the appellant’s response to the breath demand and his behaviour.
21In other words, hearsay dangers are not present in relation to the admission of this evidence.
22The respondent is not offering Officer Geerts’ out of court statements to prove the contents of those statements. His statements are offered as proof that the statements were made (for example, his demand for a breath sample).
23There are no “hearsay dangers” or “hearsay concerns” in relation to this evidence.
24The reliability of Officer Geerts’ statements is not in issue.
25Putting it another way, Officer Geerts’ statements need not be tested by cross-examination or otherwise tested by the trier of fact for the appellant to receive a fair trial.
26The video was used to observe the appellant’s demeanour and actions during the interaction with Officer Geerts as seen on the video.
27It was also used to establish how Officer Geerts interacted with the appellant and to confirm what he did not say or do.
28In these circumstances, the authenticity of the video had to be established. I am satisfied that the authenticity was established through the evidence of Officer Peterman who, as the respondent noted, was aware of the breath room facilities, the identity of Officer Geerts as the qualified breath technician, the date of the video, and the identity of the appellant in the video.
29In his reasons on the voir dire, the trial judge noted that “the video is continuous, clear and audio recorded. There are no obstructions… she [Officer Peterman] had identified herself and P.C. Geerts and testified that the video was accurate. I have no evidence that the video suddenly became inaccurate as soon as she left.”
30In his reasons for judgment, the trial judge further noted that the five-minute gap when the appellant and Officer Geerts were outside of the breath room “had no impact on my ability to assess their interaction. The video provides an accurate and a contemporaneous account”.
31The trial judge also appropriately and adequately addressed the appellant’s argument that the respondent had not established the voluntariness of the appellant’s statements to Officer Geerts. The trial judge was satisfied that the appellant’s statements to Officer Geerts were voluntary. In addressing the issue of voluntariness, the trial judge noted that “there was no evidence that the police offered any inducement or that there was any oppression prior to making any statements such that the will of the accused was overborne by the conduct of the police. None were depicted on the video. He also noted that “it has not been argued that the operating mind test was not met here.”
32The trial judge again considered the five-minute gap described above, however he concluded that the appellant’s “demeanour before and after is similar” and, in any event, no statements made outside the room were introduced.
33Nevertheless, the trial judge indicated that he was concerned from viewing the video that the appellant “appeared to be in crisis.” He went on to address those concerns and ultimately concluded that he was satisfied beyond a reasonable doubt that the statements were voluntary. I am satisfied that the trial judge made no error in reaching that conclusion. As the trial judge noted, Officer Geerts “was extraordinarily patient with the defendant. He treated him with kindness and compassion. He made every effort to connect with him.”
34I am satisfied that the trial judge fully considered the arguments advanced on the voir dire, and made no error of law in admitting the video evidence and using that evidence in the manner in which he did.
Second ground of appeal – the trial judge erred in not finding a breach of the appellant’s s. 10(b) rights
35The appellant asserts that there was a violation of his s. 10(b) rights because he was not permitted to use a telephone, he was not permitted to speak to his counsel of choice, and he was “funnelled” to duty counsel.
36Officer Maitland, who was an assisting officer at the time of the appellant’s arrest and interacted with the appellant in relation to his request for counsel, testified that the appellant asked to speak to counsel at a local firm in Woodstock of which she was aware. Based on her knowledge, she did not think this firm practiced criminal law. In any event, Officer Maitland placed a call to that firm, spoke to the party who answered the phone, and confirmed they were not criminal lawyers. She advised the appellant of that information. She did not recall what the appellant indicated to her in response.
37Officer Maitland then provided the appellant with a list of local lawyers and a lawyer’s phone book. She testified that the appellant was provided with a list of “local ones” and a “phone book of every available lawyer” but she could not recall on cross-examination if the phone book presented was for Woodstock or London. She also could not recall the details of what the appellant did with the information she provided to him.
38The appellant did not ask for access to the internet.
39Ultimately, Officer Maitland called duty counsel, who called the appellant back. The appellant spoke to duty counsel in private before going into the breath room.
40Officer Geerts asked the appellant if he had had a chance to speak to a lawyer and the appellant responded “not a real lawyer. It was a goof on the phone who actually told me just not to tell you anything.”
41The appellant reiterated on the video that he had talked to a lawyer and was not going to provide the breath sample.
42The appellant asserts on this appeal that there was a violation of his s. 10(b) rights because, in circumstances where the appellant was adamant that he wanted to speak to a lawyer at a particular firm and where he was not satisfied with the advice given to him by duty counsel, the police were obliged to provide him with access to a phone.
43The appellant argues that Officer Maitland made the decision that it was not appropriate for the appellant to speak to a lawyer at the local Woodstock firm he requested and, therefore, the police interfered with his right to a lawyer.
44The appellant emphasizes, as the trial judge made mention of, that the appellant was in a mental health crisis and the context of his request to speak with a particular firm is significant.
45The trial judge thoroughly canvased the appellant’s arguments at trial that the police interfered with the appellant’s ability to speak to his chosen firm and, as he stated, was clearly mindful that Officer Maitland’s note-taking did not reflect best practice. The trial judge thoroughly reviewed the relevant legal principles. He undertook the appropriate analysis of the evidence and properly applied the legal principles in reaching the conclusion that it “might have been helpful to allow” the appellant to speak to the law firm that he asked to contact but the appellant was a “difficult detainee, he did not avail himself of the other options available, nor did he suggest any alternative counsel” and “the police resorted to duty counsel as a last resort.”
46The trial judge also considered the fact that the appellant was not satisfied with the lawyer he spoke to; however, the trial judge found that Officer Geerts spent “an extraordinary amount of time” speaking with the appellant and “went far beyond what was required.”
47I am satisfied that the trial judge did not err in reaching these conclusions.
48None of the cases cited in the appellant’s factum support the notion that it is the individual in custody who must use the telephone. In those cases, the telephone was not used at all, and the issue was whether the appellant had to specifically request the use of the telephone to activate his rights. This has no bearing on the case at hand.
49The right to choose counsel is an important component of the s. 10(b) right:
The very nature of the right is that the subjective choice of the client must be respected and protected. Absent compelling reasons involving the public interest, the government and the courts need not be involved in decisions about which counsel clients may choose to act on their behalf. (R. v. McCallen, 1999 CarswellOnt 197 (Ont. C.A.), at para. 36).
50This right is not absolute. In R. v. Richfield, 2003 CanLII 52164 (ON CA), [2003] O.J. No. 3230, the Court of Appeal states the following:
Whether legal advice has been sought diligently by the detained person depends on the context of the situation. The element of reasonableness in furnishing a detainee with the opportunity to retain and instruct counsel necessarily excludes the concept of an absolute right to counsel of choice. (para. 7).
51Most obviously, the right is qualified by the ability of the lawyer to be available in a reasonable period of time. When this is not possible, the accused must exercise his or her right by contacting other counsel. See R. v. Willier, 2010 SCC 37 at para. 41 and R. v. Bulat, 2015 ONCJ 453 at para 37.
52Of perhaps greater relevance to these facts, McCallen also notes that the right to retain counsel of choice is “obviously limited to those counsel who are competent to undertake the retainer and are willing to act” (para. 40). Although this appears to refer to a broad retainer, the same principle must hold true for a simple consultation: where a lawyer refuses to provide that consultation, the person in custody must turn to other counsel to exercise the s. 10(b) right.
53The trial judge found that the appellant’s firm of choice effectively refused to consult with the appellant and the appellant was required to turn elsewhere for counsel.
54There is no evidence that the police ‘belittled’ the accused’s counsel of choice as they did in R. v. Burlingham, 1995 CanLII 88 (SCC), [1995] S.C.J. No. 39 at para. 14, nor that they dissuaded him from contacting a particular lawyer (as was the case in Bulat). Indeed, Officer Maitland called the appellant’s firm of choice. It was open to the trial judge to conclude that it was the firm who declined to act as opposed to the police officer interfering with the choice of counsel.
55Having been unable to consult with his lawyer of choice, the appellant had an obligation to exercise due diligence in exercising his s. 10(b) right. As noted in Richfield, supra, diligence is a contextual analysis. It was open to the trial judge to conclude that the appellant did not exercise the necessary due diligence. There is no indication that his ability to contact other lawyers was impeded by the police. Duty counsel were contacted as a last resort. It cannot be said, then, that he was ‘funneled’ to duty counsel.
56Two separate judicial pronouncements support this point. The Court held in R. v. Kumarasamy, [2002] O.J. No. 303, Ont. S.C.J. that “there is no breach of s. 10(b) of the Charter if the detainee speaks to duty counsel after asking to speak to their own counsel, where the police first attempt to contact private counsel and are unable to do so” (para. 20).
57I note the following passage from R. v. Blackett, [2006] O.J. No. 2999, Ont. S.C.J.):
It seems inescapable that the appellate courts have decided that, where duty counsel is available, the scope of the police duty to facilitate contact with counsel of choice is minimal. It would appear from the decision in Richfield that a good faith perfunctory effort by the police to locate counsel of choice is sufficient to “suspend the correlative duties on the police” if it is followed by an offering of access to duty counsel and the failure by the accused to take advantage of duty counsel. (para. 25).
58Further, while the appellant clearly expressed some dissatisfaction with duty counsel, it was open to the trial judge to conclude that this dissatisfaction did not amount to raising doubts as to whether the appellant had exercised the s. 10(b) right.
59In Willier, the court noted the following:
While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. … The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided.” (para. 41)
60Simply because a person in custody does not like the advice that he or she has received from a lawyer does not mean that the right to counsel has not been exercised. It is where there is some suggestion that the right was not exercised at all that the police must exercise caution.
61R. v. Badgerow, (2008 ONCA 605) is instructive on this matter. In that case, the appellant asked to speak to a specific lawyer who could not be reached. Eventually, he spoke to another lawyer from the same firm. He simply asked that lawyer to contact his lawyer of choice and claimed that no legal advice was given. After this conversation, the appellant made several statements that “raised at least the possibility that he had not exercised his right to counsel” (para. 39). Simmons J.A. stated:
Although the police cannot be expected to be mind readers, they are not entitled to ignore statements by an accused that raise a reasonable prospect that the accused has not exercised his or her s. 10(b) rights. Rather, where an accused makes such a statement, the police must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights, and may not rely on answers to ambiguous questions as a basis for assuming that an accused has exercised his or her rights. (para. 46).
62In R. v. Brown, (2015 ONSC 2092), Spies J. found a s. 10(b) breach despite the accused having spoken to a duty counsel lawyer. There, the accused made it clear to police that he did not think that he was speaking to a lawyer (and thus did not believe he had exercised his right to counsel). The police breached the s. 10(b) right by persisting with questioning in the face of this knowledge.
63This can be contrasted with R. v. Williams, (2014 ONCA 431), where Tulloch J.A. stated:
In Badgerow, however, the accused’s statements to police raised a reasonable prospect that he had not exercised his s. 10(b) rights. In such cases, Badgerow held, the police must act diligently to ensure that an accused is supplied with a reasonable opportunity to consult counsel. In the case at bar, the appellant’s statements did not indicate to the officers that he had been deprived of an opportunity to speak to his counsel; indeed, the evidence points to the contrary conclusion. (para. 40)
Third ground of appeal – the trial judge erred in assessing whether the appellant had a reasonable excuse for failing to provide a breath sample
64The appellant argues that the trial judge erred in assessing whether the appellant had proven on a balance of probabilities that he had a reasonable excuse for failing to provide breath samples. The evidence established the elements of the breath sample offence. It was clear from the video that the appellant willfully refused to provide the sample. I agree with the observation of respondent’s counsel at trial that the real issue was with respect to whether the appellant’s condition contributed to or provided him a reasonable excuse for his refusal to provide the breath sample.
65As the trial judge noted, during his testimony the appellant offered a number of reasons why he could not comply with the demand to provide a breath sample. The trial judge reviewed the relevant case law and noted the onus on the appellant to prove the reasonable excuse defence on a balance of probabilities.
66The appellant referenced a statement in the trial judge’s reasons that he was not satisfied on a balance of probabilities that the appellant’s traits arising from his autism spectrum disorder “rendered him incapable of complying” with a demand. The appellant argues that the trial judge overstated the onus on the appellant to prove a reasonable excuse for his refusal in that the appellant was not obliged to establish that he was not incapable of complying.
67However, I am satisfied that the trial judge carefully reviewed and analyzed the testimony of the appellant and the evidence of Dr. Stoddard. Dr. Stoddard is a specialist in autism spectrum disorder in adults. The appellant was referred to Dr. Stoddard by his trial counsel and Dr. Stoddard saw the appellant on four occasions. Dr. Stoddard’s colleague provided a diagnosis of autism spectrum disorder and learning disability.
68I am satisfied the trial judge did not err. It was open to the trial judge to conclude, as he did, that the appellant’s autism spectrum disorder alone did not account for his failure to follow the police instructions.
69The trial judge also considered the stress the appellant was under, his anxiety and panic, his upset with his father, his lack of sleep, and his lack of food and water.
70He ultimately concluded that the appellant’s knowledge that he would “fail due to his consumption of alcohol was far more significant.” The trial judge found that the appellant had too much to drink, knew what the result of his sample would be, and the evidence did not establish that he had a reasonable excuse for his refusal.
71This conclusion was open to the trial judge to make on the whole of the evidence which, as I previously noted, he considered fully and fairly without placing an improper onus on the appellant.
Fourth ground of appeal - the trial judge erred in the conviction for impaired operation
72The final issue on the appeal is the appellant’s assertion that the trial judge erred in convicting the appellant of impaired operation of a motor vehicle. Specifically, the appellant asserts that the trial judge provided inaccurate reasons, wrongfully convicted him based on demeanour, and incorrectly considered the refusal to provide a breath sample in convicting him of impaired operation.
73The appellant asserts that during his testimony he explained his various behaviours that were significant to the issue of impairment. For example, although Officer Peterman testified that the appellant staggered when he exited the vehicle and could not walk in a straight line, the trial judge acknowledged it was plausible that his lack of balance resulted from sitting in the car for a long period of time and his back issues. The trial judge also took into account the traits that could be displayed by an individual diagnosed with autism spectrum disorder, and in particular that autism spectrum disorder could be a factor in slurred speech.
74The trial judge rejected the appellant’s evidence and specifically concluded that he had overstated his panic.
75I note that the trial judge expressed caution in drawing an adverse inference from the appellant’s failure to comply with the breath demand.
76It was open to the trial judge to reach the conclusions he did on the issue of impairment based on the evidentiary record before him.
77I am satisfied that the trial judge made no error in his analysis and consideration of the evidence in concluding that the respondent had proved beyond a reasonable doubt that the appellant’s ability to drive was impaired by the consumption of alcohol.
Conclusion
78For these reasons the appeal is dismissed.
“Justice L. C. Leitch”
Justice L. C. Leitch
Released: August 21, 2019
COURT FILE NO.: 13/18
DATE: 20190821
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Scott Hargreaves
Appellant
– and –
Her Majesty the Queen
Respondent
REASONS FOR JUDGMENT
Leitch J.
Released: August 21, 2019