2016 QCCQ 2083, 2016 QCCQ 2083

R. c. Curry 2016 QCCQ 2083 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU Criminal Division No. 550-01-077525-147 DATE: February 12, 2016 ______________________________________________________________________ PRESENT: THE HONOURABLE RICHARD LAFLAMME J.C.Q. ______________________________________________________________________ THE QUEEN Complainant-Respondent v.

TRAVIS-JAMES CURRY Defendant-Applicant ______________________________________________________________________ JUDGMENT (DECISION ON VOIR DIRE ) ______________________________________________________________________ [ 1 ] The applicant is on trial on charges of driving a motor vehicle while impaired by alcohol or a drug as well as driving a motor vehicle with a blood alcohol level exceeding the legal limit provided for in the Criminal Code . [ 2 ] At the beginning of the trial, he filed a motion for exclusion of evidence under sections 8 , 9 and 10(

b) of the Canadian Charter of Rights and Freedoms . He alleges that when intercepted by the police, his right against unreasonable search, his right against arbitrary detention and his right to counsel were infringed. I. QUESTIONS IN DISPUTE

A) Does taking a breath sample using an "approved screening device", without further details about the device, infringe upon the rights of the accused against unreasonable search and arbitrary detention?

B) In the absence of evidence that the screening device was operating properly, does obtaining a sample of breath in a breathalyzer pursuant to 254(3) Cr. C. constitute an infringement of the applicant's right against unreasonable search and arbitrary detention?

C) Was the applicant's right to counsel of his choice infringed?

D) In the event that there has been an infringement of either the applicant's rights or the three rights invoked, what is the appropriate remedy under section 24(2) of the Canadian Charter of Rights and Liberties ? II. THE FACTS [ 3 ] On January 16, 2014, around 1:44 a.m., dog handler Officer Patrick Gauthier was patrolling on Laurier Street in Gatineau. When about 100 metres from the traffic light, which is at the end of the Alexandra bridge, he noticed a grey Mazda run the red light.

He also noted that the vehicle was accelerating, hearing the engine revving through the open window of his car door. [ 4 ] The vehicle turned left toward the police vehicle. After the vehicles passed in opposite directions, the police vehicle made a U- turn. The vehicle being pursued was travelling so fast that the police accelerated up to 160 km/h but failed to reach it. In a gentle curve, the vehicle slowed down to 100 km/h, which enabled the police to close in to about 150 metres from it. [ 5 ] The vehicle turned onto Victoria Street toward the city centre.

The police officer momentarily lost sight of it but spotted it again on the same street, barely a few seconds later. The police officer affirmed that the vehicle had the same licence plate. At that time, the vehicle was traveling at 80-90 km/h. The speed limit was 50 km/h. That is when the police officer turned on his rotating lights and siren. The vehicle turned north on to Kent Street which ends in a cul-de-sac. The vehicle parked on that street, facing south. [ 6 ] The police officer noted that the applicant quickly got out of the car and looked toward the stairs of a building.

The officer was 10-15 ft. from the automobile and advised the applicant that if he fled, he would release his dog after him. The applicant placed his hands on his vehicle. Approaching him, the officer saw that the applicant's eyes were glassy and he smelled alcohol on his breath. The

officer added that the intervention had not been the easiest, as the applicant refused to identify himself and heed the officer's orders. After negotiating, the applicant handed over his driver's licence. [ 7 ] A woman was inside the vehicle. She confirmed to the officer that the applicant had consumed alcohol. [ 8 ] The officer asked a colleague to assist in obtaining a screening device.

He then immediately proceeded with reading the police service card, requiring the applicant to provide a sample of breath in the approved screening device, an order that he also explained in his own words. [ 9 ] Sergeant Coggan arrived on-scene four minutes later with the device. Around 1:50 a.m., the applicant was again ordered, with the officer using the card provided by the police service, to provide a sample into the approved screening device. The applicant tried to negotiate. The officer said that the applicant's words could have been construed as attempted bribery.

In addition, he was arrogant and insulting. He stiffened when being placed in the vehicle of Sergeant Coggan, so much so that the officer had to use some force. Advised that his attitude could constitute a refusal, he finally provided the required sample. The result was "Fail". He was placed under arrest for driving while impaired and driving with a blood alcohol level over 80 mg/100 ml., with the police service card being used at all times. Always using the card, the officer ordered the applicant to accompany him to the police station to take a breathalyzer test.

Given the resistance offered, he repeated the order in his own words to ensure that the applicant understood. Everything took place in English. The officer again noted the smell of alcohol on the applicant's breath while 50 centimetres from him. He was handcuffed for transportation to the police station and was placed in Sergeant Coggan's patrol vehicle. Two other police officers arrived and sat in the back seat, with the applicant. [ 10 ] Once at the police station, at 2:16 a.m., Sergeant Renaud Côté-Barrette performed the reception procedure. Officer Gauthier indicated that it was 2:20 a.m.

The applicant was unhandcuffed. He was offered his right to counsel and the sergeant gave him a list of lawyers in Québec and Ontario. He asked to contact a lawyer of Jewish faith. The sergeant indicated that he did not have such information. The applicant instead asked to call his mother since she had the contact information of the lawyer he wanted to hire. Sergeant Renaud Côté-Barrette reached the applicant's mother after several attempts between 2:39 a.m. and 2:54 a.m. He finally obtained two phone numbers for Mr. Calvin Barry.

While the sergeant was still on the line, the mother tried to reach the lawyer while on another telephone. She did not succeed. At 2:54 a.m., the sergeant also tried to reach Mtre. Barry. There was no answer. He informed the applicant who then asked him to contact Karen Stein, a lawyer whose name appeared on the list of Ontario lawyers. The sergeant reached the lawyer at 2:57 a.m. and transferred the call to a room provided to allow a confidential conversation with the applicant. Officer Gauthier indicated that the applicant was in contact with Mtre.

Stein from 3:04 a.m. to 3:15 a.m. [ 11 ] The applicant did not ask to speak to another lawyer, nor did he express any dissatisfaction. [ 12 ] In cross-examination, Officer Gauthier did not remember if he told the applicant to choose a lawyer from the list in five minutes, and that otherwise duty counsel would be called. Moreover, he admitted that the applicant complained about the list of lawyers, without elaborating about the nature of the complaint. [ 13 ] Sergeant Côté-Barrette testified that the applicant was brought the breathalyzer at 3:13 a.m. Clearly, the police officers' times differ.

However, the Court notes that it is a recurrent difference of a few minutes which, logically, may be attributed to their watches being set to different times. This discrepancy has no impact on the questions in dispute. [ 14 ] Like Officer Gauthier, Sergeant Côté-Barrette detected a "very noticeable" odour of alcohol on the applicant's breath and that his eyes were red, glassy and bloodshot. According to the witness, he was very intoxicated. In addition, the officer confirmed that he was not very cooperative.

At 3:24 a.m., the first sample of breath was taken. [ 15 ] Officer Gauthier testified that between the first and second test, the applicant fell asleep, and even needed to be awakened for the second test. [ 16 ] The applicant testified on the voir dire. [ 17 ] He said that on the date of the event, he was living in a seven-storey building at the corner of Victoria and Kent streets in Gatineau. [ 18 ] He recounted his day of January 15, 2014, saying, in particular, that he socialized with friends in the evening and consumed alcohol.

Around 1:30 a.m. on January 16, he picked up a woman named Priscilla and then headed home. He said that he crossed the bridge and turned onto rue Victoria. Once at his destination, he noticed the presence of a police officer, who intercepted him in the parking lot. The police officer allegedly threatened to immediately release his dog on him and asked him to put his hands on the vehicle. He was then told that he had to provide a breath sample. He said that he was handcuffed 5 to 10 minutes after having provided the breath sample. [ 19 ] He pointed out that he was forced to enter the patrol vehicle.

He testified that he told the officer that he had a painful shoulder dislocation. [ 20 ] He acknowledged that he was given his right to counsel. His responded to this offer by asking to speak to his cousin's lawyer, Calvin Barry. He confirmed that the police officer obtained Mr. Barry's contact information through his mother. Mr. Barry could not be reached. He claimed that there was a hotline where the lawyer would return a call within the hour. [ 21 ] The applicant said that he was not happy with the situation in addition to being surprised, finding it impossible that there was no hotline.

After he had been informed that Mr. Barry could not be reached, he believes that the officer gave him five minutes to find another one from one of the lists. He chose Karen Stein with whom he spoke. He said that after that conversation, he was rather skeptical about the legal advice that she had given him. [ 22 ] He provided the breath samples requested and was released shortly after.

[ 23 ] The cross-examination emphasized that the applicant did not remember having run a red light when leaving the bridge. He said that he had not paid attention to his speed. However, he did not think that he drove at the speed suggested by Officer Gauthier. He denied having tried to negotiate, instead claiming that he wanted to know why he had been intercepted. [ 24 ] As to the lawyer, he knew him by name only; his cousin had used his services in the past and was satisfied with them. The applicant had never called him before. He acknowledged that for 40 minutes the police officers tried to contact Mr. Barry.

He believed that Mr. Barry was going to call him back. He admitted to having spoken with Mtre. Stein for about 10 minutes, since the lawyer of his choice was not available. [ 25 ] Those are the facts relevant to the voir dire . III. POSITION OF THE PARTIES

A) The applicant [ 26 ] Though the written motion also refers to an infringement under

section 9 of the Charter , the arguments of the applicant's lawyer relate only to sections 8 and 10(

b) of the Charter. [ 27 ] First, as to the infringement against unreasonable search, the lawyer admits that the officer had reason to believe that his client had been drinking alcohol and that a screening test could be administered. The screening device was obtained quickly and the police officer conducted it expeditiously. However, the applicant's lawyer claims that when a peace officer wants to rely on the result of this device, the prosecution must prove that the device was properly calibrated; the officer must have reason to believe that the device is properly calibrated.

In addition, the evidence reveals nothing about the device used. He also suggested that it is not known whether it was in good condition. In short, if this information is not available to the officer who administers the test, he cannot rely on the result to obtain reasonable grounds; proof of consumption alone is not sufficient. [ 28 ] As to the violation of the right to counsel of his choice, the applicant relied upon the case of R. v . Markovic [1] whose facts are similar to those of the present case. The applicant insisted on speaking with a specific lawyer.

Sergeant Côté-Barrette obtained two telephone numbers. He could not say if there had been a voicemail or an answering machine. He did not take any steps to locate Mr. Barry or to inquire whether the phone numbers were good. The lawyer suggested that the police could have used the Internet. By being told that he had only five minutes to find a new lawyer, the applicant did not have the choice of selecting one listed on the lists supplied.

Referring to paragraph 39 of the Markovic decision, satisfaction or the absence of expressed dissatisfaction following the conversation with duty counsel should not be taken into account since it stems directly from the fact that the lawyer was not given enough time to call back before obliging the applicant to fall back on the services of duty counsel. [ 29 ] Faced with such infringements, he argues, as in Markovic , that this is a serious breach giving rise to the exclusion of the evidence.

B) The prosecution [ 30 ] The prosecution submits that the screening test was administered according to the rules. First, the context of the case leads to the conclusion that the test was administered "forthwith". Moreover, the prosecution rejects the applicant's argument that there is no evidence that the screening device was an "approved" device and points to the uncontradicted testimony of Officer Gauthier who reported using an approved screening device. The officer noticed the smell of alcohol coming from the suspect's mouth.

Therefore, having seen the suspect drive in the preceding minutes, he had reasonable grounds to suspect the presence of alcohol in his system. The order to provide the breath sample was read to the applicant using the police department card which clearly indicated that he had to blow into an approved screening device. [ 31 ] As to the question of the right to counsel, the police officer tried to reach the lawyer whom the applicant wanted to contact. He obtained two telephone numbers. The sergeant tried for 40 minutes to reach him.

The prosecution contends that the argument suggesting that the police officer could have left a message is speculative in that there is no evidence that either of the phone numbers had a message handling service. [ 32 ] In addition, the prosecution based its position on a judgment of the Newfoundland and Labrador Court of Appeal, R. v. Sheppard [2] . As in Sheppard , the police officer had to deal with an individual who resisted on several different levels and who had not been diligent in exercising his right. When informed that Mr.

Barry could not be reached, the applicant clearly agreed to speak with duty counsel. The prosecution invited the Court to adopt the words of Charron J. while she was at the Court of Appeal for Ontario, in paragraphs 5 and 6 in R. v. Eakin [3] and in paragraphs 8 and 9 (found in paragraph 30 in Sheppard ). The prosecution also refers to R. v. Littleford [4] of the Court of Appeal for Ontario, cited in Sheppard , where the accused could not contact his lawyer. The police officer then put the accused in contact with duty counsel, with whom he spoke for some time.

Following this conversation, he made no other request to speak to his lawyer, nor did he complain after having spoken with duty counsel and voluntarily provided the breath sample requested. The Court of Appeal recalls that the onus is on the applicant to prove, on the balance of probabilities, that his right was infringed. The Court held that the accused appeared satisfied with duty counsel at the end of the discussion. [ 33 ] The prosecution also argues that the police officers were not obligated to call the mother back or even to verify Mr. Barry's contact information or whether he was indeed an attorney.

Thus, since the applicant was able to communicate with an attorney, his right was not infringed. IV. ANALYSIS

A) Did the taking of a breath sample using an "approved screening device", without further details about the device, infringe on the accused's right against unreasonable search? [ 34 ] A preliminary remark is necessary. Though the subject has not already really been discussed and argued by the parties, the

Court wants to point out that the police officer had the grounds necessary for intercepting the applicant's vehicle out of respect of offences under the Highway Safety Code . From the initial contact, his findings about the symptoms described in terms of facts, combined with the passenger's declaration, allowed him to suspect the presence of alcohol in the applicant's body. There was no debate about the delay in getting the screening device. Nevertheless, the Court is of the opinion that the short time, barely four minutes, falls within the criterion of "forthwith" stipulated in section 254(2) Cr. C.

Therefore, there was no arbitrary detention resulting from the interception as such. [ 35 ] As to the issue raised earlier, the Court responds in the negative. [ 36 ] First, the identification of the approved screening device need not be described precisely. In this case, the sole mention by the police officer that he had used an "approved screening device" is sufficient. No question was put to him beyond this statement. In 2006, the undersigned reviewed the state of the law on this issue in Marc Lapointe v . The Queen [5] . Based on a decision of Ratushny J. of the Ontario Superior Court of Justice, R. v .

Latulippe [6] , the Court found that it was not necessary to designate the unit in its minutiae. In that decision, Ratushny J. established the burden of proof: " 3. If the charged offence is "over 80" and the challenge regarding the use of an approved screening device is in the context of a Charter motion, then the onus is on the accused to prove on a balance of probabilities that there was no valid demand made under section 254(2)." [ 37 ] Since, the Court of Appeal for Ontario, in R. v.

Gundy [7] , resolved the matter : "44 In determining whether the particular device was approved, the court must consider all the evidence, including any circumstantial evidence. The court is entitled to draw reasonable inferences from the evidence. Thus, in my view, if the officer in his or her testimony refers to the device as an "approved screening device", the trial judge is entitled to infer that the device was indeed an approved device.

As such, the officer is entitled to rely upon the "fail" recorded by the device to find that there were reasonable and probable grounds to make the breath demand. 45 The officer is not required to refer to the device by its particular brand and number such as "Alcotest 7410 GLC". Further, references to a part only of the identification such as "Alcotest" or "Alcotest GLC" do not rebut the reasonable inference from the officer's reference to the device as approved that it is indeed an approved screening device.

The addition of the manufacturer's name, for example "Drager Alcotest 7410 GLC", is likewise not fatal: see R. v. Neziol (2001), 22 M.V.R. (4th) 299 (Ont. S.C.J.) . Further, in my view, the context in which the officer refers to the device as approved is of no particular moment. Thus, if the officer testifies that he or she used an approved screening device, or agrees with the suggestion that it is an approved screening device, such testimony is direct evidence upon which the trial judge can rely: see e.g. R. v. Latulippe (2005), 26 M.V.R. (5th) 97 (Ont. S.C.J.) ." [ 38 ] The Court agrees with this

interpretation. The name itself of an "approved screening device" which issues a "Fail" result may be the basis for the acquisition of reasonable grounds for submitting a driver to a breathalyzer test in accordance with section 254(3) Cr. C.

B) In the absence of evidence that the screening device was operating properly, does taking a breath sample in a breathalyzer, pursuant to 254(3) Cr. C, constitute an infringement of the applicant's right against unreasonable searches? [ 39 ] The applicant raised the absence of evidence that the screening device was working properly and properly calibrated. The evidence clearly establishes that the police officer based himself on the result of the approved screening device (ASD) to form reasonable grounds and require the applicant to provide a sample into an approved Alcotest.

Certainly, evidence of the result "Fail" is not proof of the applicant's blood alcohol. Therefore, it is not necessary for the prosecution to submit such evidence. This is at least the majority tendency of the courts since the decision of the Court of Appeal for Ontario in R. v . Paradisi . [8] See to the same effect, R. v . Robichaud [9] (Court of Queen's Bench); R. v . Langlois [10] . Also, Conrad Chapdelaine J. of our court recently recalled correctly in R. v.

Huneault [11] that "if an accused contends that the results of an approved screening device cannot provide reasonable grounds, the onus is on the accused to present credible evidence establishing that the device used was not reliable . The evidence of an expert who doubts the reliability of the results based on the device's frequency of calibration is not sufficient ." [ 40 ] Moreover, our Court of Appeal in Huppé v.

R. [12] reiterated that jurisprudence is clear that proof of the proper functioning of the ASD will be relevant only in certain specific situations especially in cases of equivocal refusal to provide a breath sample. [ 41 ] Since the accused blew into the screening device and presented no evidence to doubt the reliability of the result, his complaint must be dismissed. [ 42 ] The Court concludes that in this case, there was no infringement of

section 8 or 9 Charter rights resulting from the interception or the use of the approved screening device.

C) Was the defendant's right to consult the lawyer of his choice infringed? [ 43 ] R. v. Bartle [13] specifies peace officers' obligations when they inform a detainee of his right to counsel: (1) inform the detainee of his right to retain counsel, (2) provide him with a reasonable opportunity to exercise that right, and (3) refrain from eliciting evidence from him until he has had that reasonable opportunity. [ 44 ] In addition to recalling this teaching in Robichaud v.

R. , [14] our Court of Appeal noted the following: [TRANSLATION] [7] This right, however, is not absolute or unlimited and must be exercised in a way that is compatible with the needs of society . [3] The accused must demonstrate reasonable diligence in exercising his right to the assistance of a lawyer otherwise the obligations imposed on the police officers are suspended and no longer prevent them from continuing their investigation . [4] A person

arrested or detained cannot be allowed to obstruct the work of the police officers by allowing him to ensure that the latter are unable toproperly carry out their task.[5] [45] More recently, the Supreme Court ruled on the impact of the unavailability of the lawyer on a detainee's constitutional right tobe assisted by counsel of his choice in R. v. Willier.[15] The majority states: [35] . . . If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait areasonable amount of time for their lawyer of choice to respond.

What amounts to a reasonable period of time depends on thecircumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. Ifthe chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel bycalling another lawyer or the police duty to hold off will be suspended: R. v. Ross, (SCC), [1989] 1 S.C.R. 3; andBlack.

As Lamer J. emphasized in Ross, diligence must also accompany a detainee's exercise of the right to counsel of choice . . . : Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v. Tremblay, (SCC), [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, thecorrelative duties imposed on the police and set out in Manninen are suspended. Reasonable diligence in the exercise of the right tochoose one’s counsel depends upon the context facing the accused or detained person.

On being arrested, for example, the detainedperson is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seekingthe best lawyer to conduct a trial, the accused person faces no such immediacy.

Nevertheless, accused or detained persons have a rightto choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accusedshould be expected to exercise the right to counsel by calling another lawyer. [p. 11] [46] In this case, there is no doubt that the applicant had been advised of his right to counsel. Only the matter concerning thepossibility of communicating with the lawyer of his choice is at issue. [47] The applicant had first asked to speak to a lawyer of Jewish faith.

As the police officer was not able to identify one, theapplicant indicated that he wanted to speak to his cousin's lawyer, Calvin Barry. He could not provide the police with the contactinformation. However, since his mother had the information, he asked Sergeant Côté-Barrette to contact her for it. Not only did theapplicant's mother provide the lawyer's two telephone numbers, she tried, using another telephone, to contact him. She did not succeed.The sergeant tried, but unsuccessfully.

There is no preponderance of evidence that a message was left, or that a voice mail or ananswering machine was available at one of the numbers. Following his unsuccessful attempts, the sergeant informed the applicant ofthem. Nothing in the evidence allowed the detainee to believe that Mr. Barry was going to return his call in the next few minutes.Instead, he was told that the lawyer could not be reached at either of the numbers. [48] The evidence shows that the situation was one of not being able to reach the lawyer, a situation that was the case not only bythe police officer, but even for the applicant's mother.

The steps took about 40 minutes. The police officer could not have done anybetter. It must be remembered that the applicant was being detained for a matter of driving with more than 80 mg and that already aboutan hour and 15 minutes had passed since the interception. [49] These facts are clearly distinguished from the Markovic[16] decision on which the applicant's lawyer has relied. In that case, thepolice officer had left a message on the voicemail asking the lawyer to call back.

Another important distinction from the decision mustbe made in that the police officer himself took the initiative to contact duty counsel. In this case, the police officer did not impose anylawyer on the applicant. He reiterated to him the two lists. The lawyer was chosen by the accused and not by the police officer. TheCourt considers that there is no preponderance of evidence that any of the officers ordered the applicant to find a lawyer in the five-minute period. The police officers testified that they had no recollection of that.

The applicant cannot affirm with any accuracy; he saidthat he felt that he had been given five minutes to find a new lawyer. [50] A simple impression that lacks any probative evidence does not constitute proof according to the balance of probabilities. It is aperception, not a fact. [51] The applicant was justifiably presented another option for obtaining legal advice, an option that he voluntarily elected to apply.He talked privately with Mtre. Stein. There is no indication, based on the balance of probabilities, that his decision to call duty counselwas the product of coercion.

At no time did he express his dissatisfaction following this discussion. In his testimony, he said that he wasnot satisfied with the advice given, however, refraining from specifying why. [52] The Court endorses the words of the Court of Appeal for Ontario in R. v. Littleford[17] applied with approval by theNewfoundland and Labrador Court of Appeal in Sheppard, supra, at page 15: "On a Charter motion, the onus is on the accused person to prove a breach of his or her Charter rights on a balance of probabilities.

Thedifficulty with the appellant's position in this case is that he did speak to duty counsel before taking the breathalyzer test. ... The trialjudge made a finding that speaking to duty counsel "seemed to satisfy him at the time". There is no basis on the record to disturb thatfinding." [53] This quote applies to this case. [54] Thus, considering all the circumstances, the Court concludes that the applicant has not demonstrated, according to the balanceof probabilities, an infringement of his

section 10(

b) Charter right. THEREFORE, THE COURT: DISMISSES the applicant's motion to exclude the evidence.

__________________________________ RICHARD LAFLAMME J.C.Q. Mtre. Isabelle MacKay Criminal and penal prosecuting attorney Mtre. David-Frederick Burke Counsel for the defendant-applicant Date of hearing: October 26, 2015