R. v. Bencsik, 2019 ONSC 526

COURT FILE NO.: SCA (P) 679/17

DATE: 20190118

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

GEORGINA BENCSIK

Appellant

J. De Vuono, for the Respondent

S. Price, for the Appellant

HEARD: January 18, 2019

[On appeal from the judgment of K.L. McLeod J. dated September 8, 2017]

MILLER J.

1Georgina Bencsik appeals her findings of guilt for, on April 26, 2013, Operating a Motor Vehicle While Impaired, and with Operating a Motor Vehicle with Blood Alcohol Over 80 milligrams in 100ml of Blood. The trial commenced July 22, 2014 as a blended trial and voir dire and continued on July 23, 2014; October 14, 2014; February 23, 2015; July 25, 2016; December 9, 2016 and July 18, 2017. On September 8, 2017, the learned trial Judge dismissed the Charter Applications and found Ms Bencsik guilty of both offences. Ms Bencsik was fined $1,300.00 and prohibited from driving for one year.

2Ms Bencsik submits that that the learned trial Judge erred in finding that she had not established a breach of her right to counsel under section 10(b) of the Charter by the failure of the officers to assist her in reaching her counsel of choice by allowing her access to her phone for that purpose. Ms Bencsik further submits that the trial judge erred in finding that her right to consult with counsel in private had not been infringed. She submits that the evidence of her breath analysis should have been excluded pursuant to section 24 (2) of the Charter. Ms Bencsik further submits that the trial judge failed to properly consider evidence capable of raising a reasonable doubt as to whether she was impaired while operating her motor vehicle.

3The evidence at trial was that Ms Bencsik drove her vehicle into a ditch. A pedestrian passer-by, Kevin Hussey spoke with Ms Bencsik who was in the driver’s seat as the vehicle was in the ditch and concluded she was intoxicated. He called police. Police arrived to find Ms Bencsik outside of the vehicle. The arresting officer formed the opinion that Ms Bencsik was impaired by alcohol, made a breath demand upon her and returned her to the police station where after speaking with duty counsel Ms Bencsik provided samples of her breath into an approved instrument with results of 170mg of alcohol in 100ml of blood. Ms Bencsik testified at trial that she had been drinking alcohol but did not know how much; that she had subsequently driven the vehicle into the ditch but was not impaired.

Ss. 10 (b) and 24 (2)

4Ms Bencsik submits that she was not permitted to contact counsel of her choice. There were two aspects to this alleged Charter breach at trial. Ms Bencsik had asked the arresting officer to contact a sergeant at 52 Division. The officer ignored this request. Ms Bencsik testified that she wanted to contact the sergeant in order to get the name of a lawyer to contact. Ms Bencsik also testified that she asked for access to her cell to find the name of the lawyer she wanted to call. She gave differing evidence about when and to whom she made this request. The trial judge provided detailed reasons as to why she found Ms Bencsik’s evidence incredible. The trial judge found that she was “not persuaded that Ms. Bencsik wanted to call the 52 Division Sergeant for the purposes of finding the name of a lawyer nor did she ever communicate that fact to the officer.” The trial judge further found that had Ms Bencsik “raised an issue with respect to her right to counsel, she would have been afforded a further opportunity.” The trial judge found “Ms. Bencsik's testimony on the material issues in this application to not be persuasive.”

5I find no basis upon which to find the trial judge erred in her assessment of the evidence or her conclusions on these aspects of the s. 10(b) application.

6Ms Bencsik also submits that she was not provided privacy with which to consult with counsel. Ms Bencsik exercised her right to speak with duty counsel and was placed alone in a room with a telephone for this purpose. Ms Bencsik testified, and the video evidence shows, that the door to the room was not fully closed and in fact was open several inches. Ms Bencsik testified that she could hear the officers speaking outside the room while she was on the telephone and did not feel confident that she could clearly and confidentially speak [to counsel] and ask questions. The officers testified that from outside the room they could hear Ms Bencsik speaking but not what she was saying.

7The trial judge found there was no evidence that Ms Bencsik could hear what the officers were saying. Relying on R. v. Mckane 1987 CanLII 6794 (ON CA), [1987] O.J. No. 557 and R. v. Cairns 2004 CanLII 17588 (ON CA), [2004] O.J. No. 210 (C.A.) the trial judge in her Reasons for Judgment indicated “Ms. Bencsik must persuade me that she believed she could not retain and instruct counsel in private and further that that belief was reasonably held.” The trial judge found that “despite Ms. Bencsik's testimony that she felt it was not "helpful" to her to be able to see the door ajar and hear the officers' mumblings, I do not accept that she held the requisite belief at the time.”

8Ms Bencsik submits that the trial judge misapprehended her evidence, as her testimony was:

Q: What could you hear?

A: Lots of talking, some mumbling but, but I couldn't -- words I heard specifically and I did not feel -- I felt uncomfortable because I heard them speaking and I'm -- 'm in there, I'm supposed to be within a private location and, Your Honour, it was very disconcerting.

9Ms Bencsik submits that she testified that she could hear the words specifically that the officers were saying and the trial judge mistakenly concluded that she could only hear the officers mumbling. Ms Bencsik submits that the trial judge erred in finding that her belief that she could not privately exercise her right to consult with counsel was not reasonably held.

10Ms Bencsik submits that the facts of her case are almost on all fours with the facts in R. v. Carroll [2002] O.J. No.1215 (C.J.) ( referenced in Cairns) in which a breach of s. 10 (b) was found and he subsequent breath tests were excluded pursuant to s. 24 (2) of the Charter.

11The Crown submits it is clear that that in her Reasons for Judgment the trial judge’s rejection of Ms Bencsik’s evidence was not founded on whether she could hear words spoken by the officers or just mumblings. The trial judge found that Ms Bencsik had not persuaded her that her ability to consult with counsel in private was impeded for the following reasons:

As is clearly indicated in the assessment of Ms. Bencsik's credibility she is not reticent to emphasize her sense of self, she could not be described as a "shrinking violet" by any stretch of the imagination. Obvious examples of this include her refusal to be handcuffed to the rear upon her arrest. Constable Glaab complied with her request. Additionally, while she stated that the officers did not appear to be listening to her requests with respect of a Sergeant at 52 Division, even Constable Glaab's evidence was that she repeatedly made the request.

Additionally the video of her conversation with duty counsel reveals the following: that for much of the conversation Ms. Bencsik was not facing the telephone: rather she was facing the door. At one point she did turn in the opposite direction, but there is nothing in her body language which in anyway shows an attempt to try and ensure that her conversation was not heard, such as a distancing from the open door, or the turning of her back to the door.

Furthermore, the evidence from Constable Vergil-Bisaillon is such that this door does not have a lock on it: there was nothing to prevent her from pushing the door shut. Also, when she spoke, to the booking officer she ·did not voice any complaint of her discomfort immediately following the call.

The video shows the door to be open maybe a few inches.

12It is apparent that the trial judge rejected Ms Bencsik’s testimony that she believed, at the time that she was exercising her right to counsel, that she was not being given sufficient privacy to do so freely. That finding was open to the trial judge on the evidence. She had the opportunity to see and hear all of the witnesses at trial and her findings of fact are entitled to deference.

13I therefore would not grant the appeal in respect to the alleged Charter breaches.

14Were I to find that there had been a s. 10(b) breach of Ms Bencsik’s right to consult counsel in private, and further, to exclude the subsequent breath analysis results, by no means a given under the s. 24(2) analysis¹, the result would affect only the finding of guilt on the Over 80 charge. As set out below, I would nonetheless uphold the trial judge’s findings on the charge of Impaired Operation.

The Impaired Charge

15The trial judge found Ms Bencsik guilty of both Over 80 and Impaired Operation. Ms Bencsik was sentenced on the Over 80 charge and the Impaired Operation charge was provisionally stayed.

16Ms Bencsik submits that the finding of guilt on the Impaired Operation charge should not stand because it is dependent on the admissibility of the breath analysis evidence; the trial judge failed to properly consider evidence of the civilian witness which was not credible; and the trial judge failed to properly consider evidence inconsistent with that of the arresting officer with respect to Ms Bencsik’s impairment by alcohol.

17The trial judge properly concluded in assessing the evidence as to Ms Bencsik’s impairment that: “While the readings of the breath tests reveal a BAC of over twice the legal limit and the presumption of identity permits a relating back of that result to the BAC at the time of care and control, all that is legally permissible is for me to conclude that Ms. Bencsik had been drinking alcohol before ending up in the ditch.”

18The trial judge noted that that conclusion that Ms. Bencsik had been drinking alcohol before ending up in the ditch was “evident given the smell of alcohol on her breath and her admission that she had been drinking in her testimony.” It is clear that the trial judge’s finding that Ms. Bencsik had been drinking alcohol before ending up in the ditch was not dependent upon the admissibility of the breath analysis results.

19The trial judge accepted Mr. Hussey’s evidence of what he considered to be indicia of intoxication, specifically the slurring of Ms Bencsik’s words and her distress. The trial judge accepted the evidence of the arresting officer that Ms Bencsik was impaired; he noted slurring of words, unsteadiness on feet, the smell of alcohol and vomit on her outfit. The trial judge also noted that the other officer at the scene noted indicia of alcohol.

20It is clear in her reasons for Judgment that the trial judge also considered Mr. Hussey’s evidence that the ditch would be hard to see at night. She also carefully considered and found to be “problematic” Mr. Hussey’s evidence that he observed the rear wheels of the vehicle spinning when other evidence was that the vehicle was front wheel drive. The trial judge also carefully considered Mr. Hussey’s evidence that when he spoke to Ms Bencsik she appeared to him to have an East European accent; he later indicated in his evidence that “I just I don't know if she would have an accent or not. It maybe it was just that she was intoxicated. But from, from when the way she was talking, it sounded like she had an accent… She might not have an accent. I am not a hundred percent sure.”

21It is also clear in her Reasons for Judgment that the trial judge carefully considered the evidence of other officers who did not make the same observations of Ms Bencsik in respect of slurring of words and unsteadiness on feet. I find that the trial judge had plenty of evidence upon which to properly conclude that Ms Bencsik was impaired by alcohol while operating the motor vehicle.

22I would not grant the appeal in respect of the charge of Impaired Operation.

23The appeal is dismissed.

Footnotes

1. 1R. v. Jennings 2018 ONCA 260, [2018] O.J. No. 1460 (C.A.); R. v. Mann 2018 ONSC 1703; R. v. Merko 2018 ONSC 7336