Court File and Parties

Court File No.: CR-22-124-00AP Date: 2023 01 20

Ontario

Superior Court of Justice

B E T W E E N:

His Majesty the King Respondent I. Osowski, for the Crown

• and -

Manuel Maric Appellant I. Collins, for Appellant

Heard: November 14, 2022

Judgment on Summary Conviction Appeal

André J.

[1] On March 4, 2022, Mr. Manuel Maric was convicted of the offence of failure or refusal to comply with a demand contrary to s. 320.15(1) of the Criminal Code, R.S.C., 1985, c. C-46. His counsel submits that the trial judge erred in law by taking judicial notice of the instructions duty counsel provides to a detainee and paying shrift to the Appellant’s reasons for his failure to blow into an intoxilyzer device. Counsel submits also that the trial judge failed to consider a Charter application brought by the Appellant. The Crown submits that the trial judge did not commit any of the errors he is alleged to have made.

Summary of the Trial Evidence

[2] Cst. Kops testified that on Thursday, September 3, 2020 at 8:40 p.m., she observed the Appellant travelling northbound on Dixie Road in Mississauga. She observed the Appellant swerve three times within the lanes travelling in his direction and saw him brake at a green light before proceeding through the light.

[3] Cst. Kops stopped the Appellant’s vehicle. She observed the Appellant to have red and glossy eyes but did not smell an alcoholic odour. She also observed a can of Heineken beer in the back pouch of the passenger seat. She arrested the Appellant and called for an ASD to be brought to the roadside.

[4] Cst. Bawa arrived and made an ASD demand. The Appellant blew a “fail” on the machine. He was then handcuffed and taken to the station following a breathalyzer demand.

[5] In the approximately one-hour video of the breath room, the Appellant offered two reasons why he did not want to blow into the breathalyzer machine:

a) He was worried about Covid-19; and,

b) He stated that during his second conversation with duty counsel, aided by a Croatian interpreter, duty counsel told him not to blow into the machine. (The Appellant’s first conversation with duty counsel was without the aid of an interpreter). The appellant did not provide a sample.

[6] In the video, Mr. Maric said:

a) “I really don’t feel good. This Covid, I don’t want to go near anything .”

b) After asking for water and being offered water from the sink in the breath room, Mr. Maric said: “ Water. Can I buy for [sic] the water? What’s this tap water? ”

c) After Cst. Kops takes the cup of water away, the Appellant said: “Coronovirus.”

d) The Appellant said: “I don’t feel good if you want to take me to the hospital. I don’t [sic] good. I feel pressure.”

Cst. Bawa answered: “If you provide a sample you can go. Do you want to risk it all?”

The Appellant replied: “I don’t want to blow anything.”

e) Cst. Bawa said: “If you want to go home just work with me.”

The Appellant replied: “I don’t want to provide nothing [sic] . Can I just go home. If you want to arrest me, put me in jail.”

[7] The Appellant spoke with duty counsel the first time without the aid of a translator between 21:34 and 21:48 and then returned to the breath room. The Appellant then asked Cst. Bawa at 21:57 to speak again to the duty counsel, but with the aid of a Croatian translator. The following exchange took place between the Appellant and Cst. Bawa:

Bawa: “You’re in jail.”

Appellant: “For what?”

Bawa did not reply to this question.

Bawa: “Did you understand the lawyer?”

Appellant: “Maybe not. Call him again. I want to ask him.”

Bawa: “What do you want to ask him?”

Appellant: “Tricky question.”

Bawa: “What did you not understand?”

[8] The Appellant was then permitted to talk with duty counsel, but this time with the aid of a Croatian translator. After the Appellant’s second call with duty counsel and translator, the following exchange took place:

Appellant: “Everything no, no, no, no.”

Bawa: “Do you understand?”

Appellant: “He told me, no, no, no, no.”

Bawa: “Do you understand?”

Appellant: “I understand nothing.”

Bawa: “Do you understand the caution?”

Appellant: “I don’t understand nothing [sic] . Just tell me what need [sic] to be done. See you in court. I am not a criminal.”

[9] Cst. Kops told the Appellant:

Kops: “The lawyer did not tell you to refuse. Your lawyer did not tell you not to blow.”

Appellant: “ The lawyer said don’t do it. ”

The Trial Judge’s Decision

[10] Trial counsel for the Appellant made three submissions, namely:

a) The defendant was not properly informed of the reasons for his detention or arrest, and therefore his right under s.10(a) of the Charter was violated;

b) The police breached the Appellant’s right to silence by not accepting his first refusal but, rather, continuing to try to persuade him to provide the sample; and

c) The trial judge erred in law in failing to consider the defence of officially induced error in the Appellant’s refusal to provide a breath sample.

[11] Regarding the first submission, the trial judge noted the following at pages 94-95 of his decision:

With respect, I think this submission is contrary to the uncontradicted evidence. After his vehicle was stopped and he was removed from the car at 8:42 p.m. he was told the reason for his detention being for impaired. At 8:49, a demand that he provide a roadside breath sample was given.

And then when he failed that test at 8:53, he was told the reason for his arrest, that is, for being over 80. He was then given another demand for a breath test and was taken to the station.

The totality of all the information given to this point was more than sufficient to satisfy the requirement of Section 10(a). There was no need to repeat any further information later in the process at least until he finally refused the Intoxilizer demand.

Up until that point it was uncertain what he be [sic] charged with. It could have been over 80 had he blown, it could have been refusal, or it could have been nothing if he had blown and blown under. In any event, I find no violation of 10(a) in this case.

[12] Regarding trial counsel’s second submission, the trial judge noted that:

The breath sample situation is unique in the law in that what the accused says can constitute an offence. Here, the police went to extraordinary efforts to attempt to persuade him not to commit the offence or at least not to do so with any finality. The conduct was the opposite of abusive police conduct. Indeed, they would be properly criticized if they did what the defense argument suggests, that is, immediately accept the defendant’s refusal without giving him a chance to see that that was against his interest. So there is no Charter infringement as alleged in regard to his right to silence and obviously even if there was some technical…

THE COURT: Okay. There was no infringement of any Charter right and if I’m wrong in that, any infringement would be extremely minor and either singly or in combination could no [sic] justify exclusion of evidence.

[13] Concerning Mr. Maric’s refusal to blow into the machine, the trial judge noted at page 97 that, “it’s far from a clear statement that he is refusing because he fears catching Covid from the procedure.” He stated, further, at page 98:

Dealing with Covid first. In my view, this excuse was not genuine. It was but one of many excuses or pleas that he threw up in a blizzard of non-stop talking and arguing. He apparently had no concern about Covid when he took the roadside test which of course involved putting a mouthpiece in his mouth. He had no issue with touching ot her things in the breath room. He was not otherwise particularly Covid cautious.

[14] The trial judge noted further:

For example: he left his mask off and down for about four minutes after he had a sip of water. He had to be told to put it up. Significantly, he made no inquiry about the breath testing procedure and what he would be required to do. He was resistant to receiving and considering information. For example, that the mouthpiece that he would be using would be new and sealed in plastic wrap.

He did not seem to be to be someone who was making a bona fide decision about his health, rather he seem like one who was grabbing onto the convenient excuse and sticking with it regardless of the facts.

[15] Second, the trial judge noted at pages 98-99 that, “ I simply do not believe the defendant that he was told by the lawyer not to blow. It would be very unusual and unethical, and possibly illegal, to give such advice unless the accused had a reasonable excuse that he could convey to that lawyer and clearly he didn’t have any such excuse.” He added that:

To satisfy this burden, in my view, we should have heard from that lawyer or at least seen his notes. It would have been open to the defendant to waive any privilege and he no doubt would have done so if the lawyer could have supported him.

Accordingly, it is not necessary for me to consider questions regarding errors of law or officially induced error because I am not satisfied that the foundation [sic] fact that he was told not to blow even happened. In the result, the defendant has failed to satisfied his burden of showing that he had a reasonable excuse for failing to comply.

Accordingly, he is found guilty as charge [sic].

Analysis

[16] The appeal raises the following issues:

a) What is the appellate standard of review?

b) Did the trial judge err in law by improperly taking judicial notice of advice given by the duty counsel to Mr. Maric?

c) Did the trial judge err in law by failing to consider whether Mr. Maric’s professed fear from the Covid-19 pandemic was a reasonable excuse not to provide a breath sample?

d) Did the trial judge err in law by failing to consider the defence’s Charter application which was heard as part of the blended trial?

e) Did the trial judge err in law by limiting cross-examination when he was unaware that some cross-examination related to Charter issues?

f) Did the trial judge err in law by failing to consider the defence of officially induced error?

A. Standard of Appellate Review

[17] In Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, the Supreme Court of Canada noted at para. 36 that:

The standard of review is correctness for questions of law, and palpable and overriding error for findings of fact and inferences of fact: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10 and 19.

[18] The court further noted at para. 37,

…[A]ccording deference to a trial judge’s findings of fact reinforces the notion that they are in the best position to make those findings. Trial judges are immersed in the evidence, they hear viva voce testimony, and they are familiar with the case as a whole. Their expertise in weighing large quantities of evidence and making factual findings ought to be respected.

[19] The trial judge has the discretion to decide how much of a witness’s evidence he or she accepts: R v. Charlton, 2019 ONCA 400, 146 O.R. (3d) 353, at paras. 59-62; R v. H.(W.), 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 32.

B. Did the trial judge err in law by improperly taking judicial notice of advice given by duty counsel to Mr. Maric?

The Law

[20] In R v. Find, 2001 SCC 32 at para. 48, the Supreme Court noted that:

…[T]he threshold for judicial notice is strict: a court may properly take judicial notice of facts that either: (1) so notorious or generally accepted as not to be subject of debate among reasonable person; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Potts (1982), 66 C.C.C. (2d) 219 (Ont. C.A.).

[21] In R v. J.M., 2021 ONCA 150, 154 OR (3d) 401, the Court of Appeal noted at para. 38:

Where a judge, on his or her own initiative, wishes to take judicial notice of a fact or state of affairs that bears on a key issue in a proceeding, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response. [citations omitted]

Application of the Law to the Facts

[22] Mr. Collins points to the following statement by the trial judge to support his contention that the trial judge committed reversible error by stating that:

Regarding the excuse about the lawyer, I simply do not believe the defendant that he was told by the lawyer note [sic] to blow. It would be very unusual and unethical and possibly illegal to give such advice unless the accused had a reasonable excuse that he could convey to that lawyer and clearly, he did not have any such excuse.

[23] Mr. Collins submits that the trial judge’s “judicial notice” does not meet the test in Find; involves speculation about the advice a lawyer would have given to Mr. Maric; had no basis in fact; related “singularly to the credibility of the Appellant”; and was not “related to the key adjudicative fact of reasonable excuse.”

[24] I am not persuaded that the comments by the trial judge constituted judicial notice that, absent a reasonable excuse provided by a detainee, duty counsel would advise a detainee not to blow into a breathalyzer machine. The trial judge was entitled to place whatever weight he wished on Mr. Maric’s statement in the breath room that duty counsel told him not to blow. He was also entitled to rely on his personal experience or common sense that duty counsel would not give this type of advice unless Mr. Maric had given a reasonable excuse about why he could not blow. It is commonplace in jury trials for a jury to be advised that they should apply their good common sense and experience in weighing the trial evidence. It therefore cannot be wrong if the trial judge relied on his own common sense and experience to assess the evidence of any witness, including the accused. Accordingly, this ground of appeal fails.

C. Did the trial judge error in law by failing to consider whether Mr. Maric’s professed fear of the Covid-19 pandemic was a reasonable excuse not to provide a breath sample?

[25] Mr. Collins submits that the trial judge should have taken judicial notice of the deadly effects of Covid-19 at a time when a vaccine had not even been manufactured. To that extent, Mr. Maric’s fear of Covid-19 constituted a reasonable excuse for his failure to provide a sample.

[26] However, the trial judge did not find that Mr. Maric’s fear of Covid was not a reasonable excuse for his failure to provide a breath sample. Rather, he concluded, on page 97 of his Reasons for Judgment, that “it’s far from a clear statement that he is refusing because he fears catching Covid from the procedure.”

[27] The trial judge proceeded to indicate why he was not persuaded that Mr. Maric’s refusal to provide a breath sample was on account of Covid. He noted that Mr. Maric left his mask off about four minutes after he had a sip of water. Mr. Maric made no inquiry about the breath testing procedure. Additionally, he noted that Mr. Maric had no fears about blowing into the ASD device. It was open to the trial judge to conclude that Mr. Maric’s fear of Covid was not the reason for his failure to provide a breath sample and that his professed fear was merely a convenient excuse for failing to provide a breath sample into the breathalyzer machine. To that extent, this ground of appeal fails.

D. Did the trial judge err in law by failing to consider the Appellant’s Charter application which was heard as part of the blended trial?

[28] Mr. Collins submits that the trial judge did not have his Charter application at the start of the trial and had still not received it at the start of the afternoon session on the first day. Despite this, the trial judge made no inquiry of its contents and simply continued the trial. Mr. Collins contends that “ it is virtually certain that [the trial judge] convicted the accused in his own mind within the first hour of the trial in which the video was played and [the trial judge] concluded that the Appellant was lying about the duty counsel telling the Appellant to blow .”

[29] Mr. Collins submits further that on the second day of trial, the trial judge limited cross-examination when he was unaware that some cross-examination related to Charter issues. That, Mr. Collins submits, constituted an error of law because the trial judge had no knowledge of the blended Charter application. In limiting cross-examination, the trial judge severely infringed Mr. Maric’s rights to assert his Charter rights. Additionally, the trial judge’s reasons on the Charter application “was brief, contained a major error of law, was cursory and devoid of merit of trial evidence.”

[30] The trial judge’s Reasons for Judgment on the Charter application do not bear out Mr. Collins’ contention that they contained a major error of law, were cursory or devoid of merit.

[31] At page 99 of his Reasons for Judgement, the trial judge noted that Mr. Maric was removed from his car at 8:42 p.m., told the reasons for his detention and at 8:49 p.m., was issued a demand to provide a roadside breath sample. The Appellant failed the test at 8:53 p.m. and was then told that he was under arrest for excess blood alcohol. He was then given a demand for a breath test and taken to the station where he refused to provide a breath sample. The trial judge then concluded at page 95:

The totality of all the information given to this point was more than sufficient to satisfy the requirements of Section 10(a). There was no need to repeat any further information later in the process at least until he finally refused the Intoxilizer demand.

[32] I find no error in the trial judge’s determination of this issue. There was no evidence in the trial that Mr. Maric misunderstood what the officer said to him or the rights of counsel read to him. Mr. Collins’ second submission regarding his Charter application was that the police breached Mr. Maric’s right to remain silent by not accepting his first refusal to blow but rather continuing to try and persuade him to provide the sample. Regarding this submission, the trial judge concluded on page 98 in his Reasons for Judgment:

[T]he police went to extraordinary efforts to persuade him not to commit the offence or at least not to do with any finality. The conduct was the opposite of abusive police conduct. Indeed, they would be properly criticized if they did what the argument suggests, that is immediately accept the defendant’s refusal without giving him a chance to see that that was against his interest. So there is no Charter infringement as alleged in regard to his rights to silence…

[33] In my view, the trial judge gave adequate reasons to dispose of the Charter application based on an alleged breach of Mr. Maric’s right to remain silent. To that extent, this ground of appeal fails.

E. Did the trial judge err in law by limiting cross-examination when he was unsure that some cross-examination related to Charter issues?

[34] During the trial, the trial judge gave Mr. Collins an additional 30 minutes to cross-examine the witness on the stand. Mr. Collins completed his cross-examination. The trial judge gave Mr. Collins 40 minutes to cross-examine the Crown’s next witness.

[35] At the end of his cross-examination, Mr. Collins requested an additional minute to check his notes. The court granted his request. Mr. Collins did not ask for any additional time to cross-examine the witness on any other issue.

[36] As Mr. Collins readily concedes in his factum at para. 43, a trial judge has the right to control the court process by placing time limits on counsel either on the length of their examination in chief or their cross-examination of any witness or witnesses. At no time did Mr. Collins advise the court that the required additional time was insufficient to cross-examine either witness or evidence related to his Charter application.

F. Did the trial judge err in law by failing to consider the defence of officially induced error?

The Law

[37] In R v. Cancoil Thermal Corporation and Parkinson, the Court of Appeal noted that “the defence of ‘officially induced error’, exists where the accused, having averted to the possibility of illegality, is led to believe, by the erroneous advice of an official, that he is not acting illegally.”

[38] To be successful, an accused must prove, on a balance of probabilities, the following preconditions:

a) The accused must have considered the legal consequences of his actions and sought legal advice,

b) The legal advice obtained must have been given by the appropriate official,

c) The legal advice must have been erroneous,

d) The person receiving the advice must have relied on it; and

e) The reliance must have been reasonable.

See Maitland Valley Conservation Authority v. Cranbrook Swine Inc., 64 O.R. (3d) 417; [2003] O.J. No. 1433 (CA), R v. Jorgenson, [1995] 4 SCR 55 at paras. 28-33.

[39] The defence of officially induced error is an exception to the rule that ignorance of the law does not exonerate an accused charged with a criminal offence: Jorgenson, at para. 25. The defence applies in regulatory and criminal offences: Jorgenson, at para. 26.

Application of the Law to the Facts

[40] Mr. Maric stated in the breathroom that duty counsel advised him not to blow into the machine. Mr. Collins points to the evidence of Officer Bawa that he told Mr. Maric that duty counsel was a government officer. This evidence, he contends, constitute evidence that the defence of officially induced error had been proven on a balance of probabilities and that consequently, Mr. Maric should have been acquitted.

[41] Had the trial judge found as a fact that duty counsel had advised Mr. Maric that he did not have to blow into the machine, the trial judge would have had to consider whether the defence of officially induced error had been made out. However, the trial judge made no such finding. He disbelieved Mr. Maric’s evidence that he had received such advice. It was open for him to do so. As a result, he committed no error in concluding that he was not required to consider the defence of officially induced error. Accordingly, this ground of appeal fails.

Conclusion

[42] For the above reasons, the appeal is dismissed.

[43] The driving prohibition and fine imposed on Mr. Maric following his conviction are reinstated as of today’s date.

André J.

Released: January 20, 2023