Court File and Parties

Court File No.: 15-0174 Date: 2020/06/30 Ontario Superior Court of Justice

Between:

Her Majesty The Queen, Respondent – and – Ferid Retta, Appellant

Counsel: Moiz Karimjee, for the Respondent David Anber, for the Appellant

Heard: December 11, 2019 and by telephone, on May 25, 2020

Reasons for Decision – Summary Conviction Appeal

Ryan Bell J.

Overview

[1] The appellant, Ferid Retta, appeals his September 24, 2018 conviction for the offence of impaired operation of a motor vehicle, contrary to s. 253(1)(a) of the Criminal Code. Mr. Retta asks that his conviction be set aside, and an acquittal entered or, in the alternative, a new trial be ordered.

[2] A count of refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code was “gutted” after the trial judge excluded the evidence of the refusal based on a breach of Mr. Retta’s right to counsel. The trial judge did not exclude any other evidence.

[3] Mr. Retta appeals his impairment conviction on two grounds. First, Mr. Retta argues the trial judge’s finding that most of Constable Connolly’s evidence was credible was an unreasonable finding of fact given her finding that the officer’s credibility in relation to the right to counsel and waiver issue had been “completely compromised.”

[4] Second, Mr. Retta contends that the breath technician’s observations of impairment were tainted by the breach of the right to counsel and that the trial judge erred in law when she considered these observations. Mr. Retta argues the trial judge’s reasons are insufficient because they do not permit this court to determine why the breath technician’s observations were not excluded.

[5] The Crown asks that the appeal be dismissed. The Crown’s position is that the trial judge made no unreasonable finding of fact; the trial judge heard evidence that was reasonably capable of supporting her acceptance of most of Constable Connolly’s evidence.

[6] With respect to the second ground of appeal, the Crown submits that the defence made a tactical decision at trial not to pursue the exclusion of the breath technician’s observations and that Mr. Retta is seeking to pursue a new issue on appeal. The Crown also contends there is no merit to Mr. Retta’s submission that the breath technician’s observations should have been excluded because of the breach of his right to counsel.

[7] For the following reasons, I dismiss the appeal.

The Proceeding in the Ontario Court of Justice

(i) The Evidence of Constable Connolly

[8] In the early hours of October 28, 2015, while westbound on Highway 417, Constable Connolly observed the car driven by Mr. Retta “weaving within the lanes over some distance.” Although the officer activated the lights on his cruiser, the car did not stop or slow down. The officer then activated his siren to attract Mr. Retta’s attention.

[9] After Constable Connolly had pulled Mr. Retta over, the officer observed other signs consistent with impairment: the odour of alcohol, fumbling for documents, and confusion about his wallet. He observed that Mr. Retta lost his balance after he stepped out of the car.

[10] Constable Connolly arrested Mr. Retta and brought him to the police station for breath testing. At the station, attempts were made to have Mr. Retta contact counsel. Ultimately, Mr. Retta did not receive any legal advice. Constable Connolly then brought Mr. Retta to the breath technician, Sergeant Birmingham.

(ii) The Observations of the Breath Technician

[11] In dealing with Mr. Retta, Sergeant Birmingham noted the following signs of impairment: the odour of alcohol, slightly slurred speech, glassy eyes, confusion in walking from the breath room to the cell, proceeding straight ahead instead of turning despite directions, and slight sideways swaying.

(iii) The Charter Application

[12] Mr. Retta applied to exclude evidence based on several alleged breaches of the Charter of Rights and Freedoms, including his s. 10(b) rights. Mr. Retta’s notice of application stated that “[t]he roadside breath samples should be excluded and/or all observations and statements, and actions, including the alleged refusal, should be excluded.”

[13] The trial judge found there was insufficient evidence to establish waiver of the right to counsel. In her ruling, the trial judge stated that at “some unknown time for some unknown reason” Constable Connolly modified his notebook entries relating to his attempts to have Mr. Retta speak with counsel and Mr. Retta’s subsequent waiver of his right to counsel. The trial judge described Constable Connolly’s evidence:

…in relation to the issue of rights to counsel [as] difficult to follow, unclear as to what was said by way of explanation by himself and any responses by the applicant, as well as being marred by an after-the-fact alteration. While I am not prepared to find that there were any mala fides given how obvious the fact of the change was, notwithstanding, Cst. Connolly’s credibility on this point is completely compromised. As a result, I cannot accept his evidence and find it to be unreliable and unworthy of belief.

[14] Having found a breach of Mr. Retta’s right to counsel while he was at the station, the trial judge considered whether the refusal to provide a breath sample ought to be excluded under s. 24(2) of the Charter. The trial judge concluded that the breach was of a serious nature, with a high impact on Mr. Retta: “he did not receive any advice and ultimately refused to provide a sample – thus making out the offence with which he was charged.” The trial judge excluded the evidence of the refusal, thereby “gut[ting] the Crown case on this count.”

Reasons of the Trial Judge

[15] The trial judge found Mr. Retta guilty of impaired driving; the trial judge was satisfied that the totality of the observations made by both officers supported a conclusion that Mr. Retta’s conduct was a departure from the norm, and that there could be no other reasonable conclusion but that his ability to drive a motor vehicle was impaired by alcohol.

[16] In her reasons for decision, the trial judge addressed defence counsel’s submission that the court ought not to place any weight on the impairment observations made by Constable Connolly because of “a cloud hanging over his evidence.” The trial judge observed that the negative findings she had made previously were in relation to what he had said concerning rights to counsel and any waiver of these rights by Mr. Retta. The trial judge stated that “[she] did not find his evidence, overall, suspect, and any carelessness he exhibited with his notes was, in [her] view, limited to that one issue.”

Powers of an Appeal Court

[17] Section 686(1)(a) of the Criminal Code which, by virtue of s. 822(1) is relevant to summary conviction appeals, provides that on the hearing of an appeal against a conviction, the court of appeal may allow the appeal where it is of the opinion: (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence; (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or (iii) on any ground there was a miscarriage of justice. Even if the court of appeal finds that there has been a wrong decision on a question of law, it may dismiss the appeal if it is of the opinion that no substantial wrong or miscarriage of justice has occurred.

Analysis

(i) The Trial Judge’s Finding that Constable Connolly was Credible

[18] Mr. Retta submits the trial judge’s finding that Constable Connolly was credible was an unreasonable finding of fact. He contends that the officer’s conduct in altering his notes “suggests mala fides” and that it was not open to the trial judge to have “brushed off the severity” of this conduct.

[19] Absent an error of law or a miscarriage of justice, the test to be applied by a summary conviction appeal court is whether the findings of the trial judge are unreasonable or cannot be supported by the evidence. A summary conviction appeal court judge is not entitled to substitute her own view of the evidence for that of the trial judge. A trial judge’s factual findings are entitled to deference, absent palpable and overriding error (*R. v Sheahan*, 2017 ONCA 159, at para. 12).

[20] A trier of fact may accept some, all, or none of the evidence of each witness. The trier of fact may accept the witness’ explanations for the apparent inconsistencies and the witness’ denial that her testimony was provoked by improper pressures or based on improper motives (*R. v. François*, [1994] S.C.J. No. 66, at para. 14).

[21] The trial judge did not make any findings of intentional wrongdoing against Constable Connolly. The trial judge found the officer exhibited only “carelessness” with respect to his notes. She heard evidence that was reasonably capable of supporting her finding:

• the officer testified that he had only some independent recollection because a few years had elapsed between the incident and the date of trial;
• in his examination-in-chief regarding the changes to his notes, Constable Connolly struggled with his memory; and
• on cross-examination, Constable Connolly explained that he normally would have indicated a “late entry”, stated that he was frustrated by not being able to explain when he made the correction, and apologized for it.

[22] The trial judge confined her negative findings to the officer’s evidence in relation to what he had to say concerning rights to counsel and any waiver by Mr. Retta. She did not find his evidence “overall” to be suspect. A trier of fact may accept some of the evidence of a witness despite some difficulties with the evidence of that witness (*R. v. Mortenson*, 2011 ONSC 6393, [2011] O.J. No. 6630 (S.C.J.)).

[23] On the evidence before the court, it was reasonably open to the trial judge to find that the officer had been careless in his correction of his notes. It was also reasonably open to the trial judge on the evidence before her to accept, as credible, most of Constable Connolly’s evidence, notwithstanding her finding that he had been careless in this manner.

[24] I find no palpable and overriding error by the trial judge in her findings of fact and credibility. Accordingly, on this ground, the appeal must fail.

(ii) The Breath Technician’s Observations and Sufficiency of Reasons

[25] Mr. Retta submits the trial judge erred in law by not excluding the observations of the breath technician amounting to evidence of impairment. Mr. Retta maintains that the trial judge was alerted on three occasions to the defence position that the breath technician’s observations should be excluded: (i) in his notice of application for Charter relief; (ii) in his written submissions; and (iii) during oral submissions. He submits that because the trial judge did not provide reasons why she did not exclude Sergeant Birmingham’s observations, the trial judge’s reasons preclude meaningful appellate review and are insufficient.

[26] The Crown’s position is that the exclusion of the breath technician’s observations was not a live issue at trial; therefore, there was no need for the trial judge to provide reasons on this issue. The Crown also argues that the Court of Appeal for Ontario and the Supreme Court of Canada have consistently held that evidence of observations supporting impairment are admissible, notwithstanding Charter breaches, provided the observations were not part of compelled roadside tests or Charter breaches.

[27] I do not accept Mr. Retta’s position that the exclusion of the breath technician’s observations was a matter pursued at trial. Mr. Retta’s notice of application was drafted in general terms and sought the exclusion of the roadside breath samples, “and/or all observations and statements, and actions, including the alleged refusal.” The same general language was used in Mr. Retta’s factum on the application.

[28] At the outset of his oral submissions on the application, counsel for Mr. Retta described the application as one to exclude “all evidence that follows or is in context of the Charter breach, and that would include observations, that would also include the refusals themselves.” However, in dealing with the violation of Mr. Retta’s s. 10(b) rights, counsel for Mr. Retta addressed only the exclusion of the refusal, stating: “[n]ow, in light of the violation of the [applicant’s] 10(b)…right to counsel, it is necessary to decide whether the evidence of his refusal to comply with the breathalyzer demand should be admitted under 24(2) of the Charter.” Counsel also submitted: “the direct connection between the incriminating refusal evidence and the offence creates a strong presumption that the admission would render the trial unfair. This is because the appellant [sic] may not have refused to take a breathalyzer test if he had been properly advised under section 10 of his right to duty counsel.” Finally, counsel emphasized “the impact of the breaches of subjecting Mr. Retta to an unlawful demand, and more egregiously to his denial of a chance to speak to counsel prior to the alleged offence occurring.” The trial judge agreed with counsel’s submission.

[29] It is clear from counsel’s submissions on the application that in relation to the s. 10(b) breach, the defence request was that the refusal be excluded under s. 24(2). There was no reference made to the breath technician’s observations of Mr. Retta after the Charter breach.

[30] Before s. 24(2) is invoked, the court must be satisfied that the evidence was “obtained in a manner” that infringed or denied any rights or freedoms guaranteed by the Charter. The connection between the evidence and the breach may be causal, temporal, contextual, or any combination of these three relationships, so long as the connection is neither too tenuous nor too remote (*R. v. Boukhalfa*, 2017 ONCA 660, [2017] O.J. No. 4349 (C.A.), at para. 134). While Mr. Retta now submits that Sergeant Birmingham’s observations amounting to evidence of impairment were temporally connected to the breach, causally connected because they came after the breach when he was subjected to further police investigation without receiving legal advice, and contextually connected because they were related to the overall narrative, these submissions were not advanced before the trial judge.

[31] As the Court of Appeal for Ontario observed in *R. v. Lutchmedial*, 2011 ONCA 585, [2011] O.J. No. 3999 (C.A.), at para. 5, there is a strong line of authority supportive of the proposition that a police officer’s observations of a lawfully detained suspect are not conscriptive evidence because they were not obtained through the suspect’s participation. The Court of Appeal concluded in that case that the summary conviction appeal judge properly deferred to the trial judge’s admission of the breath technician’s observations, stating at paras. 3-4:

Although the results of the breathalyzer tests were excluded by the trial judge, the appellant submits that the trial judge erred in admitting the observations of impairment made by the breathalyzer technician quite apart from the breathalyzer readings. The appellant submits that, as his continued detention was arbitrary, these observations ought to be excluded under s. 24(2) of the Charter.

We disagree. The appellant’s initial detention was lawful pursuant to s. 216(1) of the Highway Traffic Act. The lack of reasonable grounds to arrest the appellant for impaired driving did not convert his detention into an arbitrary detention. The appellant’s continued detention was justified to further the investigation into his horrendous driving. The observations of the breathalyzer technician were admissible as evidence of impairment because they did not arise as a result of a Charter violation. The observations made by the breathalyzer technician could have been made by any police officer at the station. The appellant was not arbitrarily detained.

[32] The evidence obtained as a result of a motorist’s participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer’s suspicion that the driver might be impaired; it cannot be used as direct evidence to incriminate the driver (*R. v. Orbanski; R. v. Elias*, 2005 SCC 37, [2005] S.C.J. No. 37, at para. 58, citing *R. v. Milne*, [1996] O.J. No. 1728 (C.A.)). The limitation applies only to evidence obtained from the compelled direct participation by the motorist in roadside tests or police questioning about alcohol consumption. As Moldaver J.A., as he then was, explained in Milne at paras. 40-41,

I am not referring to observations the officer might make of the driver while carrying out other authorized duties…an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment.

This distinction accords with the principles outlined by Lamer J. (as he then was) in R. v. Ross [citations omitted]. In a case turning on identification, Lamer J. drew a distinction between physical evidence resulting from mere observation and physical evidence “that could not have been obtained but for the participation of the accused in the construction of the evidence for the purposes of the trial.”

[33] In my view, *R. v. Pino*, 2016 ONCA 389 does not assist Mr. Retta. The Court of Appeal in Pino allowed the appeal and set aside the conviction for possession of marijuana for the purpose of trafficking, finding that the trial judge had erred in law by concluding that the s. 10(b) breaches did not provide a basis for exclusion of the marijuana seized prior to the breaches. The Court of Appeal held that all the Charter breaches found by the trial judge satisfied the “obtained in a manner” requirement of s. 24(2): all were temporally and contextually connected to the evidence seized, and all occurred in the course of the arrest of the accused. As Pino makes clear, in considering the “obtained in a manner” requirement in s. 24(2), the court should look at the entire chain of events between the accused and the police, recognizing that there is no bright line rule and each situation should be dealt with on a case by case basis (Pino, at para. 52).

[34] Notwithstanding the guidance provided in Pino, Mr. Retta made no submissions to the trial judge concerning the breath technician’s observations and the “obtained in a manner” requirement of s. 24(2) in relation to that body of evidence. The principle of law set out by the Court of Appeal in Lutchmedial was not addressed in counsel’s submissions to the trial judge. These omissions only serve to confirm that the exclusion of the breath technician’s observations was not a live issue pursued at trial.

[35] Mr. Retta relies on *R. v. Persaud*, [2019] O.J. No. 5448 (S.C.J.). However, Persaud recognizes that for purposes of the s. 24(2) analysis, there is a distinction between the observations of a breath technician and utterances of an accused. As the summary conviction appeal judge stated at para. 20:

Simply put, the failure of the police to provide the Prosper warning to the appellant led inexorably to not only the breath tests, but also to the self-incriminating utterances of the appellant and to the observations of the qualified breath technician. Certainly, one might argue that the latter would have been obtained by the police, in any event, even if the appellant had been acting on the advice of his counsel of choice. The same though cannot be said about the utterances of the appellant, as counsel of choice would almost certainly have cautioned the appellant about not answering police questions.

[36] Mr. Retta submits that the trial judge erred in law by not applying a contextual analysis for both the refusal and the observations of Sergeant Birmingham. He relies on the decision of Schreck J. in *R. v. O’Shea*, [2019] O.J. No. 1178 (S.C.J.). In O’Shea, the trial judge excluded both the observations made by the police prior to the respondent’s arrest as well as the evidence of her refusal to provide a breath sample. The trial judge concluded that all this evidence was “obtained in a manner” that infringed the respondent’s Charter rights but provided no reasons for this conclusion. In the circumstances, Schreck J. was required to undertake the s. 24(2) inquiry afresh, including the “obtained in a manner” requirement.

[37] The flaw in Mr. Retta’s argument is that only the refusal evidence – the first body of evidence – was adverted to by counsel in his submissions to the trial judge. There was no reason for the trial judge to undertake a contextual analysis with respect to the second body of evidence – the observations of the breath technician – because Mr. Retta did not advance this position to the trial judge.

[38] Mr. Retta also relies on *R. v. Doobay*, [2019] O.J. No. 6387 (S.C.J.), leave to appeal refused on June 10, 2020 (M51228). In Doobay, Dawe J. allowed the appeal from conviction on the basis that the appellant’s right to counsel was infringed when the police required him to provide a breath sample. Dawe J. emphasized that the impact of the breach “strongly favours exclusion” because the detainee is “badly in need of legal advice before he did anything that harmed his interests.” Doobay does not deal with excluding observations of impairment and does not assist the appellant here.

[39] Unlike O’Shea, there was only one body of evidence for the trial judge to consider – the refusal evidence. The trial judge concluded that the words and actions amounting to the refusal should be excluded under s. 24(2). This was precisely the position advanced by Mr. Retta.

[40] In considering the sufficiency of reasons, the question for the appellate court is whether the trial judge’s reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial, and the submissions of counsel, deprive the appellant of the right to meaningful appellate review (*R. v. R.E.M.*, 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 57). Mr. Retta has not been deprived of his right to meaningful appellate review: because no submissions were made to the trial judge to exclude the breath technician’s observations, no reasons on this issue were required.

Conclusion

[41] The appeal is therefore dismissed.

[42] I wish to thank both counsel for their assistance in this matter.

Madam Justice Robyn M. Ryan Bell

Released: June 30, 2020