R. v. Sikora, 2019 ONCJ 570

CITATION : R. v. Sikora, 2019 ONCJ 570 DATE : July 29, 2019 Court File No . 2811 998 18 00188 00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. JAMES W. SIKORA ******* BEFORE: THE HONOURABLE JUSTICE G.W. WAKEFIELD this 29 th day of July, 2019 at Oshawa, Ontario ******* REASONS FOR JUDGMENT ******* APPEARANCES: K. POLLOCK Counsel for the Crown I. ISENSTEIN Counsel for Mr. Sikora THE COURT: Mr. Sikora, if you would like to come and have a seat beside counsel. MR. ISENSTEIN: Thank you. For the record, Your Honour, my surname is I-S-E-N-S-T-E-I-N, initial I. And Mr.

Sikora is with me at the counsel table, prepared to receive your judgment. THE COURT: Thank you. WAKEFIELD, J.: REASONS FOR JUDGMENT: (Orally): THE COURT: Mr. Sikora was charged with one count each of impaired care and control of an automobile, and an over 80 while having care and control of an automobile which charges arose from an incident on February 16, 2018. These charges arose when the defendant being suspected of poor driving on the 401 resulting in several civilian complaints, and that resulted in P.C. Wong being dispatched to investigate in the late afternoon during rush-hour traffic.

He observed the defendant’s vehicle weaving within the lane, driving over the demarcation lines once. He confirmed the licence had the same licence plate as was the subject of the civilian complaints. The officer

confirmed that the roads were dry and clear, despite it being in February. The officer executes a traffic stop of the defendant just before 6:14 p.m. The officer engages in conversation with the defendant by requesting the usual documentation and in so doing, confirms the smell of the odour of alcohol on the defendant’s breath, and observes the defendant to have dilated pupils and bloodshot eyes, resulting in the direction to accompany the officer to his cruiser.

When exiting, the defendant is described by the arresting officer as stumbling out of the driver’s seat and when walking alongside his motor vehicle, his walk had a bit of a stagger in which he was wandering towards the live lane of traffic, resulting in the officer guiding the defendant for fear of the defendant wandering into that line of traffic. By 6:14 the officer had concluded reasonable and probable grounds of the defendant’s impairment and effected a formal arrest.

While individually some of the officer’s observations of the defendant’s indicia of impairment were undermined by an effective cross- examination, I do conclude that at the time of the arrest there was a sufficient constellation of indicia to amount to reasonable and probable grounds, both subjectively and objectively. I observed that the officer, however, mostly read from his notes and report. There was some memory reliability issues with the arresting officer, such as not even remembering whether the defendant was placed in a cell or not while awaiting the breath tests.

That memory issue was also reflected in his testimony as to what, if any, choice of counsel was provided to the defendant during the rights to counsel notice. The arresting officer was less than impressive in his testimony in so far as the accuracy of his recollection or the reliability of his testimony in contrast to the station video played at trial. At the station the defendant was put in touch with Duty Counsel. Afterwards was there is no explicit complaint by the defendant regarding advice given to him prior to the breath tests.

However, the defendant did request the ability to call another lawyer after being turned over to the breath tech, which request the breath tech denied for the reason that his Centre of Forensic Sciences training required him to take two samples as soon as possible after the mandatory delay between test samples. I did not understand why the request for counsel would cause a problem if a second and third test were taken after permitting the defendant call counsel.

The breath tech also affirmed that the rights to counsel obligations had been satisfied by contacting Duty Counsel given that officer’s confidence in the professional abilities of the Duty Counsel. I am unsure if that confidence would be maintained by that witness if the officer was aware that the Duty Counsel contact was three minutes in duration.

The breath tech certainly acknowledged his appreciation that by asking to call his own lawyer, the defendant has his own lawyer, the defendant was making the request because he wanted to talk to that lawyer, and that the breath tech asked if the defendant wished to talk to his own lawyer in order to get legal advice.

However, the Duty Counsel was not called to testify at trial as to what was said during those three minutes which presumably would have amounted to confirmation as to whether that advice was sufficient for the defendant to be able to make informed decisions as to the instrument testing procedures, physical testing, and any utterances. I am continually surprised that in cases like this, that the involved Duty Counsel is not called. In 11 years of presiding, I can only think of two occasions where Duty Counsel was called to testify, albeit with a waiver of solicitor confidentiality that that would require.

The breath test did not occur until 07:23 in the afternoon due to the instrument having been turned off prior to the breath tech’s shift, requiring a cold start, as well as the officer choosing to equip himself before checking the instrument and finding out that it had indeed been turned off. However, I do note that the first test was completed within 50 minutes of the defendant’s arrival at the station and being uncuffed. Overall, the tests were not overly delayed, and conducted within a reasonable amount of time, satisfying the as soon as practical requirement.

I do accept the defendant’s B.A.C. readings analyzed by the instrument were indeed 152 and 149. The defendant testified on the Charter only. He was forthright in considering he initially did agree to talk to Duty Counsel in the context of the arresting officer’s vagueness on how that transpired. The defendant described feeling rushed in the back of the cruiser and again felt rushed during his brief conversation with Duty Counsel whilst at the station. While waiting for the breath tests after the Duty Counsel call, he describes himself as being unhappy with Duty Counsel and wanted to call Mr.

Isenstein whom he had known for 25 years as a family friend and who’s contact numbers he actually had in his cell phone which was with him at the O.P.P. station in his property. He felt, quite understandably, that the police officers had all of the control over him. In cross-examination, the defendant again asserted a dissatisfaction with Duty Counsel, he felt rushed. He felt uncomfortable with Duty Counsel. He felt uncomfortable talking to a stranger.

However, and fatal to this application, the defendant also said that while he did not understand everything the Duty Counsel said, the defendant conceded he did not have any issue with the advice given by Duty Counsel and that his main concern was his feeling uncomfortable speaking with a stranger. In my view, discomfort with a stranger is not the basis for a breach of a detainee’s Charter s.10(

b) rights. I need not review the copious caselaw filed on this application and referenced in submissions as in my view, the Charter application is resolved in the simple factual finding. In the absence of that concession, however, by the defendant, I would certainly have come to a different conclusion. The breath tech knew of the defendant’s desire to speak to the defendant’s own lawyer. The officer conceded it would be for legal advice. That, by itself, would be an indicator of dissatisfaction with the Duty Counsel from my perspective at least.

I accept the defendant’s description of the officer ‘shutting him down’ on the issue of his own lawyer as being consistent, albeit in a different perspective, from the officer’s testimony about moving the matter forward in an efficient manner. I would have found a breach of s.10(

b) and given the importance of rights to counsel, would not felt a Jennings analysis would apply without undermining the fundamental importance of access to counsel to a detainee or for that matter, the importance to all Canadians interacting with the police in circumstances of being deprived of liberty and cut off from society. I would have excluded the evidence of the readings in those circumstances.

Absent the defendant’s concession, I would have found the defendant had made a sufficient expression of requiring additional legal advice, and at a minimum opened the obligation of the breath tech to inquire further of the defendant. In these circumstances, I need not engage in an analysis of either the Vernon case or the Winterfield case. I am still unclear how competent advice can be given by Duty Counsel in a time frame that is one to two minutes longer than it takes an officer to read the rights to counsel from the duty notebook.

However, without testimony, I am not in a position to make findings of fact as to the content of the advice as opposed to the discomfort of talking to a Duty Counsel from within a police station, which discomfort I accept would apply to most detainees. What I do have here

is that concession from the defendant that he did not have any issue with the actual advice given. I accept that the law seems to place on the non-legally trained detainee, the obligation to know their rights and the obligation to be assertive in requesting legal advice. I am certainly curious if Duty Counsel include in their checklist the obligation to tell a detainee of the right to express dissatisfaction with the Duty Counsel advice given, and their right to call another lawyer and how to express that with an officer who has control over the detainee. I find the defendant has not met his onus in demonstrating on a balance of probabilities that his Charter 10(

b) rights were breached. I am also sensitive to the reality that any detainee would feel powerless when confronted by directions from police to proceed. Access to counsel of choice is a fundamental protection of a detainee, not just to obtain access to legal advice, but additionally to arrange for example bail if being held, access to counsel of choice, the foundational protection against the state, keeping a detainee in custody incommunicado. On a different issue, with his usual efficiency, Mr. Isenstein raised the issue of a Shaikh defence argument, at the same time acknowledging Mr.

Isenstein was aware I had already ruled against that decision, and accepted that the result today would have been the same in this trial, but reserving the right to raise that issue in a different forum if necessary. I commend counsel for this approach on this issue and agree with counsel that proceeding this way preserves the defendant’s rights on that argument. It follows that I am accepting into evidence the blood alcohol content readings. With respect to the count of impaired. I fully accept that there is a sufficient consolidation of indicia to amount to reasonable and probable grounds.

The question remains, however, whether the Crown has proven beyond a reasonable doubt the defendant was indeed impaired even to a slight degree. I do have the evidence of the arresting officer as to observing the defendant crossing the lane line once, albeit only refenced in his note by a squiggly line without any explanation whatsoever written down, and I am troubled by that. Additionally, I have his testimony as to the defendant’s difficulty getting out of the motor vehicle, and wandering over requiring redirection by the officer.

There was an odour of alcohol on the breath of the defendant who also had bloodshot, dilated eyes. However, I lack confidence in the officer’s actual independent recollections by the time of trial. The breath tech advised of being given grounds which included only slight balance issues. The breath tech confirmed that the defendant’s fine motor skills permitted his placing the mouthpiece on the instrument hose without difficulty. The defendant walked from the cruiser into the station without difficulty. The defendant pulled his vehicle over without difficulty for the traffic stop.

There is no slurred speech and no difficulty in retrieving documentation for the arresting officer. The defendant had been drinking, and had alcohol in his system while operating a motor vehicle. However, the indicia of impairment described by the officers is at best minimal. Additionally, there is the video record of the defendant in the station. That video depicted the defendant standing, walking, sitting without any difficulty whatsoever. As well, the video depicted without demonstrating a remarkable degree of balance and dexterity, removing his belt and shoes without assistance or even sitting down.

It falls that I am left very much in reasonable doubt as to even the slightest degree of impairment of the defendant. As such, I will ask the defendant to stand up for a moment. I am indeed finding you guilty of over 80, but finding you not guilty of the offence of impaired. Just have a seat again for a moment. Speaking to sentence. Is there a prior record alleged? MS. POLLOCK: No, Your Honour, there is not. The Crown is seeking a fine in the amount of $1,300.00 and a 12-month driving prohibition. I note the readings as Your Honour found them truncated are 150 and 140. As I understand it, Mr.

Sikora was driving on a 400 series highway on the Friday of a long weekend with those readings, so there was risk to numerous members of the public. THE COURT: Okay, and defence? MR. ISENSTEIN: I have a letter, Your Honour. I would proffer it to my friend. It sets out my client having done some volunteer work. As Your Honour heard throughout the trial, he’s 47 – I’ll give Your Honour a moment to review that. THE COURT: This will be the first exhibit on sentencing. EXHIBIT ONE ON SENTENCING – A community service letter for Mr. Sikora. MR.

ISENSTEIN: Yes, my client is 47 years of age, date of birth is November 6, 1971. He was born in Toronto. He has a fiancée. He works in construction, Your Honour. The conviction is extremely difficult for him. He lives in Etobicoke and does a lot of his work in Oshawa as well. He is involved in the community in terms of basketball which the Court has read. This trial took place over a number of days which resulted in him having to attend and his lawyer on several occasions. There were certainly arguable issues, so I am asking the Court to impose the minimum fine of $1,000.00 and give him time to pay.

He of course will be eligible for Stream B but that’s for another forum which I can explain to him. THE COURT: And the unfortunate lengthy period of time. Mr. Sikora, will you stand up, sir? Is there anything you want to say before I pass sentence? That’s my first obligation to ask you that.

MR. SIKORA: I guess I kind of put a monkey wrench in work now, I guess. THE COURT: I’m hoping you can make alternative arrangements for the next six months. I know Mr. Isenstein will explain to you both the interlock program and what is involved with it. How much do you earn a year? MR. SIKORA: Well, right now $32.00 an hour. THE COURT: It all depends on how much work there is. MR. SIKORA: Yeah. MR. ISENSTEIN: It’s a different ‘inaudible’ Your Honour. He lives with his mother and his brother in an apartment in Etobicoke. His mother recently has had her hours cut back as well. MR.

SIKORA: Twenty hours every two weeks she gets now. THE COURT: The readings while not on the facts I found amounted to evidence beyond a reasonable doubt of impairment, are still troubling. Has there been any effort by you to check into community resources, anything like that so far? MR. SIKORA: No, sir. THE COURT: Is that something you are prepared to undertake to me that you will look at whether it’s a Pinewood equivalent, A.A., something to give you some advice to consider whether drinking has become a problem in your life. MR. SIKORA: Sure.

THE COURT: All right, with that undertaking, there were some real triable issues. In fact there is an acquittal on one, and I don’t mind saying that I took some time thinking through the final result on the over 80 and Charter application, and I don’t accept that somebody should be penalized for having a valid trial, especially one that has been run as efficiently as this one. In all of the circumstances, while the readings don’t quite take you into the sort of level where I’m obliged to look at a higher fine, there will be the minimum fine of $1,000.00. I believe it’s 16 days in custody if it is not paid.

Time to pay? I appreciate he has to have it paid off for the interlock? MR. ISENSTEIN: Yes, perhaps six months, please, Your Honour? THE COURT: Six months in which to pay the fine. And if things are tight financially that you cannot pay it off in six months, I know Mr. Isenstein will explain to you how to make the application to extend the period of time. And, as long as you are making basic efforts and an explanation as to why you don’t have it paid off, I am very flexible in giving as much time. I just want to make sure you are making best efforts. MR.

ISENSTEIN: Sir, can I just have the Court’s brief indulgence...Would Your Honour consider nine months? THE COURT: All right, look. I’m going to give you a year to pay, all right? The reason I am doing that, if you need it, you have got the time without having to come back here to make the application. If you get it paid off in six months, you do not have to worry about whether I have given you six months, nine months or twelve months. Has your address changed at all since the date of arrest? MR. SIKORA: No. THE COURT: Did you get your licence back? MR. SIKORA: Yes. THE COURT: And do you have it with you today?

MR. SIKORA: Yes. THE COURT: Would you just give it to Mr. Isenstein to pass to the clerk? And the address on the licence is your current address? MR. SIKORA: Yes. MR. ISENSTEIN: Thank you. For the record, I am handing up his licence. So, it will read Your Honour not guilty on the impaired and guilty on the over 80? THE COURT: That is correct. I think I have said enough to keep all your options open. MR. ISENSTEIN: Yes, thank you, Your Honour. May I please be excused? THE COURT: Thank you for attending and sorry for the delay in getting to this matter.

Just wait in the hallway until Madam Clerk completes the paperwork. Once you sign the paperwork you are free to go. I am taking you at your word, that you will check into community resources in terms of the dangers of drinking, all right? MR. SIKORA: Yes, sir. MR. ISENSTEIN: Can I just ask Madam Clerk to give me an extra copy of the paperwork?

COURT CLERK: Certainly. I’m just confirming, Your Honour that the driving prohibition is for one year? THE COURT: One year. Madam Reporter, you don’t do your own transcripts. I will order a transcript of today’s proceedings to be done by somebody internal, actually no, I will appoint Ms. Jodi Hewett to do the transcript and at some point, in the next two or three weeks is fine. COURT REPORTER: Yes. MR. ISENSTEIN: May I ask if I might obtain a copy of that transcript? Does Madam Reporter want my business card? COURT REPORTER: Sure. MR. ISENSTEIN: So, Your Honour has appointed Jodi Hewett?

THE COURT: Jodi Hewett, yes. MR. ISENSTEIN: Here is my business card. Thank you. THE COURT: Thank you very much. MR. ISENSTEIN: Good afternoon. ******************