Court File and Parties

COURT FILE NO.: CR-19-70000069-00AP DATE: 2020-12-15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – Scott Lombardi Appellant

Counsel: K. Motyl, for the Respondent Crown D. Gomes, for the Appellant

HEARD: April 20, 2020

Judge: Stewart J.

Nature of the Appeal

[1] Scott Lombardi appeals from his conviction by Madam Justice Katarynych of the Ontario Court of Justice on July 23, 2019 on a charge of “over 80” contrary to subsection 253(1)(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Criminal Code”).

[2] The charge arose from the arrest of Lombardi in the early hours of October 17, 2017 on Yonge Street just south of St. Clair Avenue in Toronto. On that date, police officers had responded to a call about a possibly impaired driver. After arriving at the site at approximately 5:00 a.m., the officers found Lombardi passed out and slumped over the steering wheel of his still-running vehicle which had come to a stop on Yonge Street, positioned partially on the curb and partially in the traffic lane.

[3] After his arrest and booking at the police station, Lombardi spoke to Duty Counsel. He ultimately provided two samples of breath that resulted in readings of 150mgs and 130mgs in 100ml of blood, respectively.

[4] The trial judge dismissed Lombardi’s application pursuant to the Charter of Rights and Freedoms (the “Charter”) to exclude the breath samples on the basis that he had been denied his right to counsel. The breath samples were admitted and their accuracy was accepted by the trial judge. Lombardi was found guilty of the “over 80” offence with which he had been charged.

Positions of the Parties

[5] Lombardi raises two grounds of appeal. First, he submits that the trial judge erred by dismissing his application under the Charter to exclude the breath samples as evidence on the basis of his assertion that he had been denied his Charter right to counsel.

[6] Secondly, Lombardi argues that the Crown failed to prove the accuracy of the breath samples admitted as evidence at trial beyond a reasonable doubt, and therefore there was no evidence before the Court to support the conviction.

[7] The position of the Crown is that Lombardi’s Charter argument is without merit and that his right to counsel was not breached. In the alternative, if there were any such breach, a s. 24(2) analysis would have required admission of the evidence sought to be excluded.

[8] The Crown also submits that the trial judge had an established evidentiary basis for her finding that the accuracy of the breath samples had been adequately proven by the Crown.

[9] Alternatively, the Crown submits that s. 686(1)(b)(iii) of the Criminal Code applies and that, if any error were made on either ground, there was no miscarriage of justice.

Was Lombardi’s right to counsel breached?

[10] Lombardi submits that his right to counsel was violated by the police and that his efforts to speak to counsel of choice before providing breath samples were frustrated, thwarted and deterred by police. As such, he submits that the results of the breath samples upon which his conviction rests ought to have been excluded from the evidence at trial.

[11] It is also submitted that because Lombardi did not speak to his counsel of choice, he should have been given a “Prosper” warning by police.

[12] Lombardi admitted in his testimony that he was informed of his right to counsel at the roadside when arrested and that he was further advised that, if there was a particular lawyer to whom he wished to speak, he should let the officers know of that desire.

[13] The trial judge made extensive and detailed factual findings bases on the viva voce evidence given in the voir dire proceedings and on the sequence of events as depicted in the videotape of interactions between Lombardi and police officers at the Booking stage and between Lombardi and the breath technician who took his breath samples. A transcript of those encounters and the videotape thereof were made available on the hearing of this appeal.

[14] Upon arrival at the police station, Lombardi’s right to counsel of choice was reiterated by the officer in the Booking Hall. Lombardi indicated that he understood that right and confirmed that it had been given to him previously. When asked “Do you have a lawyer you wish to speak to?”, Lombardi’s answer was “I will”.

[15] I agree with counsel for the Crown that this exchange and the response of “But not yet” given to Lombardi at this stage of the Booking process with respect to speaking to a lawyer was not a denial of Lombardi’s right to speak to counsel of his choice. Rather, in context, it was an articulation of the need for the formal Booking process to be completed and an indication to Lombardi that he could speak to counsel if he wished once Booking was completed.

[16] Lombardi testified before the trial judge that he understood that he would be permitted to call a lawyer if he wished to do so.

[17] During the Booking process Lombardi was also advised that he could have an opportunity to speak to Duty Counsel if he wished. Lombardi responded “okay”. He did not express at that time to the officers present any desire to speak to a particular lawyer other than or in addition to Duty Counsel.

[18] Lombardi then took the opportunity provided to him to speak to Duty Counsel. There was no indication by him of any confusion or uncertainty as to his right to counsel of choice. Even if confused, Lombardi was provided with the opportunity to voice a specific request for counsel of choice. Lombardi did not, in fact, ask to speak to anyone in particular other than his mother.

[19] Accordingly, after having been provided with his right to counsel and after having consulted Duty Counsel prior to providing any breath samples, Lombardi did not express any desire to speak to a specific lawyer despite having been given a fair and reasonable opportunity to do so.

[20] At the breath testing stage, the breath technician raised with Lombardi his right to counsel. Specifically, the breath technician confirmed that Lombardi had spoken to Duty Counsel.

[21] The breath technician then asked if Lombardi was satisfied with his discussion with Duty Counsel or if he wished to speak to his own counsel. Lombardi indicated that he was satisfied and wished to continue.

[22] The breath technician advised Lombardi that he could change his mind and speak to his own lawyer at any time. Lombardi expressed that he understood.

[23] In his evidence before the trial judge, Lombardi conceded that he knew that if he wished to speak to a personal lawyer, he just had to let an officer know and he would have been given the opportunity.

[24] Counsel for the Crown submits that it is clear from the videos of all encounters that the words spoken, and the body language of the officers and the breath technician did not dissuade or intimidate Lombardi from speaking to counsel of choice. I agree with that assessment, as did the trial judge. In particular, it was made clear to Lombardi by the breath technician that he could speak to counsel of choice at any point and that all he needed to do was advise the breath technician or another officer and he would be given that opportunity.

[25] After the taking of the first sample was completed and prior to the taking of the second breath sample, Lombardi was again asked if he wished to speak to a lawyer. In his evidence, Lombardi indicated that there were no other calls he wished to make except to his mother.

[26] Although Lombardi testified that he was intimidated by the officers and therefore did not request to speak to a personal lawyer, he has evidently able to clearly and repeatedly ask to speak to his mother. The trial judge made findings of fact amply supported by the evidence that Lombardi adequately understood his right to counsel of which he had been informed and reminded.

[27] The trial judge provided careful and detailed reasons for her observations and findings. She found that the officers and breath technician were courteous and kind to Lombardi during his arrest, Booking process, breath sampling, and right up to his departure from the police station.

[28] Although the trial judge appears in her reasons for her ruling dismissing Lombardi’s Charter application to have considered the exchange during the Booking process as being a “temporary, not fatal” loss, she ultimately found as follows:

[179] So it is that, in the end, and on the whole of the evidence pertinent to this man’s right to consultation with counsel of his choosing, and despite the interlude with the Booking Hall officer, Mr. Lombardi rested in the advice that he had received from duty counsel, and proceeded through the intoxylizer process on his own volition.

[180] The veering into breach that may have resulted in the Booking Hall was cured in a timely fashion by the offers of the Breath technician to link him with his counsel of choice. The offers were declined.

[181] So it is that this man ultimately waived his ‘counsel of choice’ right, rested in the duty counsel advice that he had, and chose to concentrate on getting the required breath testing done under s. 10(b) of the Charter.

[29] I see no basis in this record or these reasons to interfere with the findings of fact or conclusions of the trial judge in dismissing Lombardi’s Charter application. No need for a “Prosper” warning arose. A reasonable opportunity was given to Lombardi to speak to a lawyer of his choice (see: R. v. Persaud, 2020 NSC 3413).

[30] Although I would have seen no issue of even possible or “temporary” denial of the right to counsel emerging from the events in the Booking Hall, the ultimate conclusion of the trial judge that Lombardi’s right to counsel was not breached in all of the circumstances of this case is, in my opinion, unassailable.

[31] Accordingly, that ground of this appeal must fail.

Was the accuracy of the breath samples admitted proven at trial?

[32] It is also submitted on Lombardi’s behalf that the accuracy of the breath samples was not proven at trial and as a result the conviction should be set aside, or a new trial ordered.

[33] In this case, the admissibility of the breath sample readings was conceded by Lombardi. The only issue was whether the accuracy of these readings had been proven.

[34] This case is “transitional” in that it straddled the substantial amendments made to the Criminal Code provisions that deal with impaired driving offences. These amendments created a new evidentiary regime to be applied to “over 80” offences after December 18, 2018.

[35] Parliament intended for offences committed before repeal of those provisions to be prosecuted after the coming into force of the new regime. Once it is assumed that these offences were still triable after the repeal date, it must also make sense that the corresponding methods of proof such as the presumption of “identity” also subsisted (see: R. v. Persaud, supra).

[36] In my opinion, the same reasoning applies to the method of proof of the accuracy of the results of breath sample tests.

[37] Counsel for the Crown submits that accuracy of breath sample test results may be proven by resort to s. 320.31(1) of the Criminal Code, the evidentiary “shortcut” created by statute to conclusively prove such accuracy if certain enumerated criteria are met. This presumption of accuracy is not, however, the exclusive means of proving accuracy. The Crown may also prove accuracy by calling expert evidence from a toxicologist, or by relying on the common law doctrine of scientific instruments (see: R. v. Wu, [2019] O.J. No. 5000; R. v. McCarthy, 2013 ONSC 599).

[38] A review of the reasons of the trial judge reveals that she understood that the subsections of section 320.31(1) apply only where the Crown is relying upon the statutory presumption of accuracy. The trial judge also understood that the Crown in this case was not seeking to rely upon the statutory presumption but was relying upon the common law doctrine of scientific instruments that provides that measurements performed by a scientific instrument or device are admissible at common law if the court is satisfied that the instrument or device was capable of making the measurement in question, that it was in good working order, and that it was properly used at the material time.

[39] The trial judge found that the Crown had made out the accuracy of the Intoxilyzer readings and had met the necessary standard of proof. She based her conclusions on the following:

a) The Intoxilyzer 8000C was the device used to measure Lombardi’s breath and the technician was fully qualified to use the instrument; b) The Intoxilyzer 8000C is an approved instrument for this purpose as per the Criminal Code; c) The technician properly primed the instrument prior to testing and the technician tested the device prior to each sample given by Lombardi and found it to be in good working order; and d) The technician properly operated the Intoxilyzer 8000C when he took the breath samples.

[40] None of this evidence was contested. Counsel for Lombardi at trial conceded the qualifications of the breath technician and did not question the witness in relation to the device, the accuracy of the samples or the abilities or expertise of the technician. The evidence of proper use came from the breath technician involved whom the trial judge found properly qualified to provide admissible evidence about its operation.

[41] Although the Crown may have conceded in argument that it could not rely on the statutory presumption of accuracy because there was no specific evidence from the breath technician or elsewhere that he had tested the instrument using “an alcohol standard certified by an analyst” as required by s. 320.31(1)(a), the doctrine of scientific instruments nevertheless remained available to prove the accuracy (and admissibility, if same had been challenged) of the test results, as described above.

[42] As such, a solid evidentiary basis existed for the trial judge’s determination that the results of the tests of breath samples taken from Lombardi were accurate and reliable. In my view, there is no basis upon which that finding ought to be reversed by appellate intervention.

[43] Accordingly, this appeal also fails on the second ground advanced.

Conclusion

[44] For these reasons, this appeal is dismissed.

[45] If counsel require any further order to implement the disposition of this appeal, they may direct a request to that effect to my attention.

Released: December 15, 2020