R. v. DiClemente, 2017 ONCJ 550

ONTARIO COURT OF JUSTICE CITATION: R. v. DiClemente , 2017 ONCJ 550 DATE: July 13, 2017 COURT FILE No: Halton Region, Central West Region 16-814 BETWEEN: HER MAJESTY THE QUEEN — AND — KAREN A. DICLEMENTE Before Justice Alan D. Cooper Heard on April 20 & 21, 2017 Reasons for Judgment released on July 13, 2017 David A. King for the Crown Ben ElzingaCheng for the accused Karen A.

DiClemente Crown Evidence - Care or Control and Right to Counsel [ 1 ] On March 6, 2016, in the Town of Milton, Karen DiClemente was charged with having the care or control of a motor vehicle after having consumed alcohol in excess of the legal limit. [ 2 ] At 10:51am that day, Halton Regional Police Service police officer Jeff Sandifer was in an unmarked cruiser while carrying out traffic enforcement in rural Milton. As he was going northbound on Guelph Line he saw a white Honda pilot SUV parked in front of a golf club laneway.

He saw someone inside and he turned around and parked behind the vehicle. [ 3 ] The defendant was asleep in the driver’s seat and the key was in the ignition. When wakened, Ms. DiClemente was groggy and confused. She said that he had just worked a night shift as a nurse in a Toronto hospital, which had ended at 7:30am. She had then driven to the Carlisle area for personal reasons, and then was going to go to her mother’s residence in southwestern Ontario. [ 4 ] Her face was pink and flushed, and an odour of alcohol was coming from her mouth.

She was very emotional and crying, and was difficult to understand, although her words were not slurred. [ 5 ] At 11am, officer Sandifer formed a reasonable suspicion that the defendant had the care or control of a motor vehicle with alcohol in her body, and read an approved screening device demand to her. After several attempts, she failed the test and at 11:05am was arrested for the above-noted offence. She was never charged with impaired driving. [ 6 ] At 11:12am, the right to counsel information was read to Ms.

DiClemente and when asked if she wished to speak to a lawyer she replied: “I guess so, okay.” At 11:15am, the breath demand was read to her. [ 7 ] Underneath the driver’s seat was found an almost empty bottle of vodka, and a full bottle of whiskey.

[ 8 ] At the 12 Division station in Milton, she was processed. Duty counsel was called by officer Sandifer at 11:49am, and counsel called back at 12 noon. The conversation ended at 12:12pm. At 12:15pm, she was turned over to breath technician Adam Marshall. [ 9 ] In cross-examination, officer Sandifer agreed that the Honda was parked back from the main road and the manner in which it had been parked was not dangerous to the public.

The key was turned in the ignition just enough to illuminate the dash and to cause an audio signal to come on. [ 10 ] The defendant was able to follow officer Sandifer’s instructions at the station. He thought that after speaking to duty counsel she was satisfied with the advice she had received, although did not actually say that. [ 11 ] Officer Marshall dealt with the defendant in a very polite and sensitive manner, despite her emotional distress. The following exchange took

part concerning the right to counsel issue: [Marshall is “M”, DiClemente is “D”] M – You have the right to telephone any lawyer you wish. You also have a right to free advice from a legal aid lawyer. If you are charged with an offence you may apply to Ontario Legal Aid Plan for legal assistance; okay. D- Right. M- Do you understand that? D- Yeah. M- Okay, do you wish to call a lawyer? D- Well, no, I just spoke to somebody about that. M- Okay. Are you satisfied with that? D- Well, yeah. M- Okay. D- Not really, but … [ Emphasis added ] M- Okay.

Um as far as being satisfied, like, uh please don’t get into any details about it. D- No, no. M- I don’t want to know about the conversation you had there. D- No, I know. M- Do you have your personal lawyer, or you said you don’t have a personal lawyer? D- No, I don’t… M- So the duty counsel’s the one … D- …have a personal lawyer. M- Okay. D- Yeah. M- Okay. But did he give you legal advice and you’re satisfied with the … D- She did. M- She did, sorry. I did that – I had a call earlier in the day so … D- No, that’s okay; yeah. M- So she gave you adv—you said you’re okay with that; right? D- Yeah.

Well . … [ Emphasis added ] M- Okay. D- …when my – yeah, I don’t really ………(inaudible in the transcript, but counsel agreed that the word spoken was “know” ) my advice, but anyway. [ Emphasis added ]

M- Okay. Well, but did you speak to –you did explain to her what did occur? D-Yeah, I did speak to her; and whatever; right M- Okay. You – and explained to her that you’re here, you’re in our custody? D- Yeah. M- And the reason why? D- Right. M- And I’m sure she told you… D- Yeah. M- ..some advice so … D-Yeah. [ 12 ] Under cross-examination, officer Marshall stated that the defendant seemed to understand him and was able to follow his instructions. He was satisfied that she had received legal advice but did not know if she was unhappy with the advice she had received. She did not ask to speak to another lawyer.

He agreed that he did not tell her if she was not satisfied, she could talk to another lawyer. [ 13 ] Officer Marshall found Ms. DiClemente’s answers very wish washy, and he did not ask her if she had understood the advice she had received, but thought she did. He agreed that there was no time urgency to get her tests done. [ 14 ] The blood alcohol readings were 170 and 180 milligrams of alcohol in 100 millilitres of blood. Crown Evidence - Overholding [ 15 ] Staff Sergeant Christopher Newcombe was the officer in charge of 12 Division in Milton when the defendant was brought there.

He first dealt with her at 11:44am. At 3:28pm he made the decision to transfer her to the Central Lockup at 20 Division in Oakville for overnight custody. He did this because her blood alcohol content was still high, she was not a resident of Halton, and she had no family members or friends available to pick her up. [ 16 ] Officer Eric Huer was the officer in charge of the Central Lockup in Oakville when Ms. DiClemente first arrived there at 4:12pm.

He thought she was still intoxicated and decided not to release her before his shift ended at 4:50pm. [ 17 ] Sergeant Eric Schwab took over as officer in charge of Central Lockup at 4:35pm. When he first saw Ms. DiClemente at 4:20pm, she was very intoxicated. She then slept for several hours. She had no one to pick her up at the time and he decided to let her sleep. Within 41 minutes of her waking up, she was released at 11:45pm, when a friend came to get her.

Defence Evidence [ 18 ] Karen DiClemente testified, but her counsel emphasized that she was only testifying on the Charter issues at this juncture of the trial. Should her Charter application be rejected, she would later testify on the trial proper, after a ruling from this court. [ 19 ] She was born in 1958 and is a nurse by profession. She had never been charged with a criminal offence or arrested before. When she spoke to duty counsel at the police station she did not understand what was being said to her.

She told the breath technician, officer Marshall, that she was not satisfied with the information she had received from the lawyer. Had he given her the opportunity to speak to another lawyer, she would have done so. She did not know she had the right to do so. She was scared, emotional, confused, and did not know what was happening. She said that she has respect for authority and was trying to be cooperative. She agreed that she never said that she wanted to speak to a different lawyer. [ 20 ] Ms.

DiClemente also acknowledged that that in the beginning of her detention she was not in any condition to be released. Later she did not want to call her husband to pick her up and was reluctant to involve her friend Carolyn, who eventually did come to get her. Charter Issues

[ 21 ] The defence filed an application which alleged breaches of sections 8, 9, and 10(

b) of the Charter . The remedy sought was a stay of proceedings under section 24(1) or, in the alternative, an exclusion of any evidence of breathalyzer tests or statements made by the applicant to the police. The

section 8 application was later abandoned. Onus [ 22 ] It was agreed that the Charter application would be blended with the trial proper. The onus is on the defence to establish a breach of sections 9 or 10(

b) of the Charter on a balance of probabilities. If there has been a breach, the defence has the burden of establishing that the impugned evidence, if admitted, would bring the administration of justice into disrepute under section 24(2) of the Charter , or that a stay of proceedings is warranted. Analysis The Overholding Issue [ 23 ] After reviewing the evidence of officers Newcombe, Huer, and Schwab, I am not satisfied that the defendant was held in custody any longer than was reasonable in the circumstances. I find the evidence of these officers to be credible.

The period complained of is from 2pm to 11:45pm. [ 24 ] There were legitimate concerns about her level of intoxication, and no one was readily available to drive her home. In her evidence, Ms. DiClemente said that she did not want to call her husband and was reluctant to call her friend Carolyn. [ 25 ] At the Central Lockup in Milton she slept for several hours, but once she was awake she was released shortly after her friend Carolyn came to the station. I do not find officer Schwab’s decision to let Ms.

DiClemente continue her sleep was unreasonable. [ 26 ] The defence has not established that there has been a breach of

section 9 of the Charter . The Right to Counsel Issue [ 27 ] Once the detainee has requested to speak to a lawyer, attempts to obtain incriminating evidence must be suspended to allow for a reasonable opportunity to consult counsel: R. v.

Manninen , [1987] 1 S.C.R. 173 . [ 28 ] The defence alleges that Staff Sergeant Newcombe breached this obligation when he asked questions about alcohol dependency and consumption, which were contained in a typed Prisoner Custody Record document. [ 29 ] I agree with the submissions of the Crown that these questions were asked in order to assess the medical and mental well-being of the prisoner, and there was no attempt by the Crown to introduce these answers during the trial. [ 30 ] At the roadside the defendant indicated to officer Sandifer that she wished to speak to counsel.

At the station, when being booked, she told Staff Sergeant Newcombe that she wished to speak to duty counsel and she was allowed to do so. [ 31 ] After Ms. DiClemente spoke to duty counsel, a conversation between her and officer Marshall was captured on the breath testing room audio-visual recording. When asked if she was satisfied with the advice she had received, she replied “Not really” and “I don’t really know my advice.”

[32] I find as a fact that the above remarks of the defendant clearly indicate that she was unhappy with, or did not understand theadvice she had received from duty counsel. [33] In R. v. Ahmad, [2015] ONCJ 620, Schreck J., then sitting in the Ontario Court of Justice, stated as follows: • (ii) Additional Consultation With Counsel 20 The issue here is whether Mr. Ahmad's comment suggesting that he did not trust duty counsel gave rise to an additionalimplementational duty on the police to facilitate further contact with counsel.

Generally speaking, once the police have provided anaccused with an opportunity to speak to counsel and the accused has done so, their implementational duty has been fulfilled and they arenot under any obligation to facilitate further contact with counsel. This was explained in R. v. Sinclair, 2010 SCC 35 , [2010] 2S.C.R. 310 at para. 47:

Section 10(

b) should be interpreted in a way that fully respects its purpose of supporting the detainee's s. 7 right tochoose whether or not to cooperate with the police investigation. Normally, this purpose is achieved by a singleconsultation at the time of detention or shortly thereafter. This gives the detainee the information he needs to make ameaningful choice as to whether to cooperate with the investigation or decline to do so.

However, as the casesillustrate, sometimes developments occur which require a second consultation, in order to allow the accused to get theadvice he needs to exercise his right to choose in the new situation. 21 In most of the cases where a second consultation is required, it is because there has been some change in the accused's jeopardy.However, this is not the only situation in which the duty will arise, as was made clear in Sinclair at paras. 54-55: The cases thus far offer examples of situations where the right of another consultation arises. However, the categoriesare not closed.

Where the circumstances do not fall into a situation previously recognized, the question is whether afurther opportunity to consult a lawyer is necessary to fulfill s. 10(b)'s purpose of providing the detainee with advice inthe new or emergent situation. The change of circumstances, the cases suggest, must be objectively observable in order to trigger additionalimplementational duties for the police.

It is not enough for the accused to assert, after the fact, that he was confused orneeded help, absent objective indicators that renewed legal consultation was required to permit him to make ameaningful choice as to whether to cooperate with the police investigation or refuse to do so. 22 Thus, the police will be under a duty to implement further contact with counsel if there is some objectively observable basis tobelieve that a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)'s purpose. That an indication that counsel's advice wasinadequate can provide such a basis was made clear in R. v.

Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429 at para. 42: As noted, s. 10(

b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how toexercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received isinadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled tocommence an investigative interview.

Thus, where the accused indicates that the advice received was inadequate, there arises a further implementational duty on the police toprovide further access to counsel. [34] I accept the evidence of the defendant as credible and trustworthy and find that the she was unable to be diligent in asking for asecond consultation because she did not know she had the right to one, and was not told that she did. I find that she did not waive herright to counsel. Whether to Exclude the Impugned Evidence [35] The defence requests the court to exclude the breath readings and statements made to the police. [36] In R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the Supreme Court, at paragraph 71, stated as follows: 71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring theadministration of justice into disrepute engages three avenues of inquiry, each rooted in the public [page394] interests engaged by s.

24(2), viewed in a long-term, forward-looking and societal perspective.

When faced with an application for exclusion under s. 24(2), acourt must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) theseriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious statemisconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message thatindividual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

The court's role on a s. 24(2)application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances,admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking thecategories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins andsubsequent jurisprudence. (

i) The Seriousness of the Charter-InfringingState Conduct [37] The Supreme Court in Grant described this branch of the inquiry as follows: 73 This inquiry therefore necessitates an evaluation of the seriousness of the state conduct that led [page395] to the breach. Theconcern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happyconsequence. The main concern is to preserve public confidence in the rule of law and its processes.

In order to determine the effect ofadmission of the evidence on public confidence in the justice system, the court on a s. 24(2) application must consider the seriousness ofthe violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold therights guaranteed by the Charter. [38] In R. v. Au-Yeung, 2010 ONSC 2292 , [2010] O.J. No. 1579 (Sup. Ct.), T. Ducharme J. at para 55, stated the following: 55 The reputation of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct.

Police officerswho stop and detain motorists in order to perform ASD tests must execute their duties efficiently, competently, and accurately. There isno question that the need to combat drinking and driving is a pressing social concern. The public therefore accepts the use of breathsamples both for roadside screening and ultimately for the determination of blood alcohol levels. Nonetheless the administration ofjustice would inevitably fall into disrepute if such shoddy police conduct were permitted to form the basis for the arrest, detention, andsubsequent testing of drivers.

As Sopinka J. observed in Bernshaw at para. 74: Although we all agree that Parliament has every reason to vigorously pursue the objective of reducing the carnage on our highways, thatobjective is not advanced by subjecting innocent persons to invasions of privacy on the basis of faulty tests. I do not believe that this iswhat Parliament intended in enacting s. 254 of the Criminal Code. [Emphasis added] [39] The right to counsel is one of the most fundamental rights in our constitution. Here, that right was violated by not informing thedefendant that she could have a consultation with counsel.

I find that the Charter breach was serious. (ii) The impact of the Breach on the Charter-protected interests of the Accused [40] In Au-Yeung [supra], Ducharme J. also said this: 60 As for the s. 8 violation, it is true that the taking of breath samples pursuant to either s. 254(2) or 254(3) is not "a significantcompelled intrusion upon the body." While the taking of a breath sample interferes with privacy of the person, the most assiduouslyprotected privacy interest, the procedure is minimally intrusive in two respects.

First, the procedure involved in collecting and analyzingbreath samples is minimally intrusive in a physical sense. Second, the information gleaned from a breath sample is far from the"biographical core of personal information" that is protected by s. 8.9 These factors favour the admission of the evidence. 61 But that should not end the matter, because the demands placed on a driver to facilitate these tests are often not minimallyintrusive.

In this case, the appellant was arrested, handcuffed, placed in the rear of a police car and taken to a police station, a sixteenminute trip, and, once at the station, he was kept in police custody for another hour and fifty minutes. Thus, while the trial judge wascorrect in saying that the treatment of the appellant was not "oppressive" that is not the test. Certainly, such an interference with theappellant's personal liberty cannot be dismissed as minor.

Thus, where the police lack the requisite grounds for the s. 254(3) demand,these aspects of the appellant's treatment constitute a significant violation of s. 9.

62 While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed to extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds. To condone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under sections 8 and 9 of the Charter, the police can ignore these and detain and arrest any driver. Thus, despite the minimal intrusiveness of the breath-testing procedures themselves, the second branch of Grant also weighs in favour of exclusion of the evidence. [ 41 ] As a result of the breach of

section 10(b), the defendant was compelled to provide incriminating evidence against herself. This had a serious impact on her Charter rights. (iii) Society’s Interest in the Adjudication of the Case on its Merits [ 42 ] In Grant [supra], the court dealt with this concern in paras 110 and 111: 110 The third line of inquiry -- the effect of admitting the evidence on the public interest in having a case adjudicated on its merits -- will usually favour admission in cases involving bodily samples.

Unlike compelled statements, evidence obtained from the accused's body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission. 111 While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [ 43 ] Because of this direction from the Supreme Court, and because we are dealing with breath samples and impaired driving, I find that society ordinarily would have an interest in the adjudication of the defendant’s case on its merits.

But, as Grant states, “each case must be considered on its own facts.” To not fully inform a detainee of her right to counsel, and to obtain incriminating and conscriptive evidence from her without an unequivocal waiver, would be of great concern in a democratic society. It is my opinion that this concern outweighs the need for this case to go forward for adjudication on its merits. [ 44 ] Balancing all of the above-mentioned factors, it is my opinion that to admit the breath readings of the defendant into evidence would bring the administration of justice into disrepute.

Conclusion on Charter Issues [ 45 ] There has been a breach of

section 10(

b) of the Charter of Rights and Freedoms and the breath readings of the defendant and statements she made to the police will be excluded under section 24 (2). Conclusion on the Trial Proper [ 46 ] The defendant is found not guilty of the offence of operating a motor vehicle after having consumed alcohol in excess of the legal limit. Released: July 13, 2016 “Justice Alan D. Cooper”