COURT FILE NO.: CR-24-0000041-0080 DATE: 20241230 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent – and – MICHAEL ARA Appellant
COUNSEL: Tania L. M. Monteiro, for the Respondent David Landesman, for the Appellant
HEARD: November 22, 2024
B. P. O’MARRA J.
JUDGMENT ON APPEAL
Overview
[1] On April 29, 2024, the appellant was found guilty after a trial in the Ontario Court of Justice (OCJ) of operating a motor vehicle while having a blood alcohol concentration in excess of the legal limit. He received the minimum sentence of a fine, driving prohibition and victim surcharge. On appeal he submits that the trial judge erred in not excluding the critical evidence based on violations of his rights under the Charter. He specifically submits that the trial judge failed to address one of the Charter breaches and also erred in his analysis and ruling pursuant to s. 24(2) of the Charter.
The Evidence at Trial
[2] At 10:25 p.m. on January 1, 2023, the appellant was randomly stopped by a RIDE spot check operated by Toronto Police Service (TPS). There was no suggestion of improper or suspicious driving. The appellant blew a “fail” on an approved screening device. He was then arrested by P. C. Fox who read him his right to counsel and a caution. The appellant said he wished to speak to counsel. At 10:37 p.m. P.C. Fox informally explained that there would be further breath tests with a breath technician back at the police station.
[3] P. C. Fox had only been a police officer for eight months at that time. He was accompanied and assisted by P. C. Robertson who was more experienced. P. C. Robertson testified that he provided a formal breath demand to the appellant in an unrecorded conversation. The trial judge did not accept that he had done so. The trial judge also found that what P. C. Fox said to the appellant did not amount to a lawful demand.
[4] At 10:38 p.m. P. C. Fox offered the appellant to contact counsel on a cell phone in the back seat of the cruiser. The appellant said he did not require privacy for the call and wished to contact duty counsel immediately. P. C. Fox received advice from another officer that resulted in the appellant not being permitted to contact duty counsel on a cell phone from the back seat of the cruiser.
[5] While driving to the station P. C. Fox provided further information to the appellant that made clear that he was required to provide breath samples at the station. The trial judge found that this combined with what he said at the roadside amounted to a lawful demand. However, the trial judge found that the demand was not made “as soon as practicable.” P. C. Fox had prioritized the entry of data into his computer over completing a lawful demand in a timely way.
[6] At the station at 11:25 p.m. the appellant asked to speak to his real estate lawyer. At 11:27 p.m. he spoke in private on the phone with counsel of his choice. At 11:35 p.m. as he entered the breath-room he asked to contact duty counsel. At 11:45 p.m. the appellant spoke to duty counsel by phone in privacy. At 11:56 p.m. he was taken back to the breath-room after speaking to duty counsel.
[7] At 11:58 p.m. the qualified breath technician read to the appellant the approved instrument demand. The trial judge found that this formal demand was not administered “as soon as practicable.”
[8] At 12:03 a.m. the appellant’s first sample was 133 mgs. At 12:07 a.m. he was escorted to a privacy booth at his request so he could speak to his wife. At 12:23 a.m. he provided a second sample of 127 mgs.
[9] At trial, counsel for the appellant filed a notice alleging violations of sections 8, 9 and 10 of the Charter. He sought exclusion of the breath sample results pursuant to s. 24(2) of the Charter.
[10] The trial found there were breaches of ss. 8 and 10 (b) of the Charter based on the following:
- The lawful demand by the arresting officer was not done “as soon as practicable”; and
- There was an unacceptable delay in facilitating access to counsel after the appellant was diligent in asserting his right to do so.
Position of the Parties
[11] The appellant submits that the trial judge erred in his Charter analysis related to ss. 8, 10 (b) and 24(2) and also his failure to address the alleged breach of s. 9 of the Charter.
[12] The respondent submits that the trial judge’s ruling under s. 24(2) of the Charter is entitled to considerable deference, absent errors in principle, palpable and overriding factual error, or an unreasonable determination. In regard to s. 9 of the Charter the respondent submits that any breach of that section does not add to the seriousness of the s. 8 and s. 10(b) breaches.
[13] The trial judge identified six factors that he viewed as mitigating the seriousness and impact of the breaches of ss. 8 and 10 (b) of the Charter:
i. P.C. Fox was a young, inexperienced officer who did not purposely set out to trample on Mr. Ara's Charter rights. His missteps were inadvertent. ii. The delay in providing access to counsel was not particularly long. iii. No attempts were made to elicit evidence form Mr. Ara during the delay. iv. All the officers who dealt with Mr. Ara that night were kind to him. He was treated with dignity and respect. P.C. Fox arranged a call to Mr. Ara's personal real estate lawyer, duty counsel, and Mr. Ara's wife. v. Although no lawful demand for breath samples was made, the police tried to, and eventually succeeded, in properly informing Mr. Ara of his obligations before he spoke to counsel. vi. There was no evidence at trial that the Charter-infringing conduct was systemic.
[14] On appeal, the respondent properly concedes that the absence of a systemic compliance with Charter requirements is not a mitigating factor in assessing the seriousness of the breaches.
Analysis
[15] The rights protected by ss. 8 and 10 (b) of the Charter are very important. However, a breach of those sections, even in combination, does not lead to automatic exclusion of evidence. The police conduct that relates to breaches of those sections is on a broad spectrum from less serious to egregious. The delays in this case in making a breath demand and affording access to counsel did not include any efforts to elicit further evidence from the appellant. Before the appellant provided the first breath sample the police facilitated two separate contacts with counsel in private.
[16] The trial judge properly referred to the s. 24(2) analysis as set out in R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32.
[17] The admissibility or exclusion of evidence under s. 24(2) is ultimately a question of law. On appeal a deferential approach is required. Absent an error in principle, material misapprehension of evidence, or an unreasonable conclusion appellate courts should defer to trial decisions: R. v. Manchulenko, 2013 ONCA 543 at para. 84.
[18] The appellant did not testify on the Charter applications. He was not required to do so. The trial judge engaged in fact finding and inference drawing based on the evidence of the police. I am not satisfied that he made an error in law or that he misapprehended any of the evidence. He made findings of fact that were reasonably open to him to make.
[19] I see no error in the failure of the trial judge to specifically address a further potential breach of the Charter related to s. 9. The delays in conveying a lawful breath demand and access to counsel were fully addressed in relations to ss. 8 and 10 (b). The appellant was stopped in a RIDE spot check, a process that has long been upheld as constitutional. He blew a “fail” on an approved screening device which provided reasonable grounds to demand breath samples at the station. There was nothing arbitrary about the detention of the appellant through the completion of the second breath sample at the station.
Result
[20] The appeal is dismissed.
B.P. O’Marra J. Released: December 30, 2024