r v. Bruno TRUGLIO, 2018 QCCQ 3127

R. c. Truglio 2018 QCCQ 3127 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal Division No.: 500-01-119928-155 DATE: May 11, 2018 ______________________________________________________________________ PRESIDING: THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ Her Majesty the Queen Prosecutor v. Bruno TRUGLIO Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Bruno Truglio is charged with impaired driving [s. 253(1)(

a) CCC] and with refusal to comply with an order made pursuant to 254(3) [s. 254(5)] (“refusal”). The offences would have taken place on March 20, 2015. [ 2 ] Prior to the trial, the accused filed a Motion for the Exclusion of Evidence, alleging that his constitutional rights protected by sections 7, 8 , 9 and 10(

b) had been violated. More specifically, the accused alleges that his right to counsel was violated and that all the evidence obtained following his interception by the police should be excluded. [ 3 ] The trial took place on April 16, 2018. At that time, the parties agreed that the voir-dire in relation to the alleged Charter violations and the trial would be blended. The entirety of the Prosecution’s evidence consisted in the testimony of one witness, Officer Yves Labbé. The accused testified in his own defence.

ISSUES [ 4 ] Has the Prosecution proved beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol? [ 5 ] Has the Prosecution proved beyond a reasonable doubt that the accused refused to comply with a demand to accompany a peace officer to the police station to provide a breath sample? [ 6 ] Was the accused’s right to counsel protected by

section 10(

b) of the Canadian Charter of Rights and Freedoms violated? [ 7 ] If so, should the evidence obtained following his interception be excluded pursuant to section 24(2) of the Charter ? CONTEXT Officer Labbé [ 8 ] In the early morning of March 20, 2015, Officer Labbé and his partner Jérémie Durocher were verifying the speed of vehicles with the use of a laser gun . Their patrol car was parked on the right shoulder of the 40 East, approximately 100 meters before the Lacordaire exit.

Labbé was sitting in the car in the driver seat, observing the traffic in the rear view mirrors as it arrived from behind him, while Durocher was standing on the shoulder, facing the traffic and operating the laser gun. The passenger door was ajar. [ 9 ] At 2:19 a.m., Labbé saw a car coming quickly in the right lane. According to the laser, the car was travelling at a speed of 171 km/h. The car changed to the left lane to pass a car, and then, as it came up beside the patrol car, it cut across two lanes, crossing solid double lines, in order to take the exit leading to Lacordaire Boulevard.

The exit was off the right side of the highway. As it passed the patrol car, the car was going approximately 140 km/h. [ 10 ] As soon as the car passed them, Durocher jumped into the car and Labbé turned on the sirens and the flashing lights and they headed to intercept the vehicle for speeding. [ 11 ] As they followed the speeding car up the exit ramp, it lost control and almost hit the guardrail on the left side, and then swerved to the right and almost hit the cement wall on the right side. The manoeuvers were such that sand from the road was being kicked up into

the air. [ 12 ] Eventually, the driver of the car had to hit the brakes because there was a red light at Lacordaire Boulevard and there were other cars waiting at the light. [ 13 ] At this point, the officers believed that the driver was trying to escape, as he had continued to drive notwithstanding the fact that they had turned on their lights and sirens. Labbé therefore parked his car on a diagonal in front of the car in question to prevent him from proceeding any further. [ 14 ] Both officers got out of the car. Durocher attended to the driver while Labbé attended to the passenger.

As soon as the door of the car was open, Labbé smelled a strong odor of alcohol coming from inside the car. [ 15 ] Labbé told the passenger to turn off the motor. At this point, Durocher had taken the driver, who, the defence admits, was the accused, from the car and had him on the ground. Seeing this, Labbé went around to that side of the car in order to help his partner. [ 16 ] The accused was handcuffed and then the officers stood him up and searched him. At this point, they leaned him on the side of the patrol car. [ 17 ] The accused had no muscle tone. His body was limp.

He had trouble standing up on his own. A strong smell of alcohol was emanating from his mouth. He had red and glassy eyes and pasty speech. [ 18 ] The accused was advised verbally that he was under arrest. He was then placed in the back seat of the patrol car on the passenger side. Labbé and Durocher were both in the car as well, Labbé in the driver seat and Durocher in the passenger seat. [ 19 ] At 2:23 a.m., Labbé advised the accused that he was under arrest for impaired driving and informed him of his rights by reading from the card provided by the Sûreté du Québec.

He also ordered him to accompany him and his colleague to the police station in order to provide a breath sample and advised him of the consequences of refusing to comply with the order. [ 20 ] He read the card in French, but noting that the accused was switching back and forth from French to English, he also provided him with all of the information about his rights and the order to attend the police station and the consequences of a refusal in his own words, in English. [ 21 ] The accused indicated that he had a lawyer but he did not provide the lawyer’s name. [ 22 ] In response to the order to attend the police station, the accused said “You guys are the bosses, I’ll do what you say.” [1] Labbé replied that it was the accused who needed to make the decision. [ 23 ] A 22-minute conversation, from 2:25 to 2:47 a.m., ensued.

The officer reiterated the order and explained the consequences of a refusal on multiple occasions. At times, it seemed that the accused agreed to attend the police station, but then he would change his mind. He kept on saying that he wanted to speak to his lawyer.

The conversation took place alternately in French and in English. [ 24 ] Officer Labbé told the accused repeatedly that he could only speak to a lawyer at the police station, so that if he wished to speak to a lawyer, he would have to come to the police station. [ 25 ] Officer Labbé did not consider that he had any way of providing the accused with the opportunity to make a confidential phone call at the roadside.

Labbé never asked the accused if he had a cell phone, and the accused never mentioned it. [ 26 ] At some point, the accused told the officer that he would make them a deal: they could follow him to his home so he could drop off his car, at which point he would come to the station to provide a breath sample. [ 27 ] Also, during the conversation, the accused asked them what they had done with his car, which was odd because it was right in front of the patrol car. [ 28 ] Finally, after 20 minutes, the accused said: “Just drop me off here, I don’t want to come to the station.” Labbé asked him twice if he was sure he didn’t want to go to the station and if he “wanted to do a refusal”, and each time the accused replied “Just drop me off here”.

According to Labbé, the accused also said that the officers had nothing on him and that it would be their word against his, and that he wouldn’t blow into the machine. [ 29 ] At 2:47 a.m., Labbé determined that the accused would be charged with refusal. [ 30 ] The officers then took some time to do the paperwork, which they provided to the accused.

Then they took off his handcuffs and the accused left by foot with the passenger from his car. [ 31 ] After using his report to refresh his memory, Labbé added that as he walked away from the patrol car, the accused had difficulty maintaining his balance, swayed forward and backwards, and had the gait of someone who was drunk. [ 32 ] Labbé is aware that on February 8, 2018, the accused pleaded guilty to speeding for having driven 171 km/h on the 40 East on the night in question.

Cross-Examination [ 33 ] In cross-examination, Labbé was asked about the distance between the patrol car and the accused’s car once they began following him. He indicated that there were no cars between their car and that of the accused, but that he was unable to estimate how far behind him they were, specifying that they were close enough to see everything and to catch up quickly once the accused stopped.

[ 34 ] Labbé was also asked to confirm that the accused stopped in the right lane at the red light behind other cars. When he agreed that this was in fact the case, the attorney of the accused asked how it could be that the patrol car placed itself on a diagonal in front of the car being driven by the accused.

At that point, Labbé said that he had never said that Truglio stopped immediately behind the other cars, and that there was room for the patrol car to place itself between Truglio’s car and the one in front of it. [ 35 ] Labbé admitted that he did not hear his colleague say anything to the accused prior to taking him out of the car, adding that he had “surely” said something. At that point, his attention was directed towards the passenger. It all happened very quickly. [ 36 ] Labbé also was unable to indicate when they obtained the accused’s papers, and how they were able to identify him.

He said that he and his colleague must have obtained a licence with the photo at some point, although he does not remember exactly when, or whether the accused’s documents were on him or in the car. He was only able to affirm that by the time they advised him of his rights, they knew who they were dealing with, and so they had necessarily been able to identify him.

He also does not recall whether it was he or his partner who searched the car prior to it being towed. [ 37 ] Following the decision at 2:47 a.m. to charge the accused with refusal, the accused remained in the car while the officers completed all the necessary paperwork. Everything was done at 3:03 a.m. The accused was released sometime between 3:03 and 3:20 a.m., at which time the car was towed. [ 38 ] During the discussion between 2:25 and 2:47 a.m., the accused would say “yes” and then would say “no” when asked if he would accompany them to the station.

They didn’t simply depart to the station when he said “yes” because immediately after saying “yes” he would change his mind and say “no”. They discussed with him for 20 minutes in order to give him a chance and provide him with the necessary information regarding the consequences of a refusal. [ 39 ] Labbé does not recall if Durocher participated in the discussion, although he would assume [2] that it was only him given that he was the one who had determined that charges would be laid.

The Accused [ 40 ] The accused began his testimony by stating that he had been waiting three years to tell his story. [ 41 ] On the night of March 19, he had dinner with his grandfather, with whom he lived at the time. He is not certain at what time they ate but it was definitely not before 6:00 p.m., and it may have been as late as 7:30 or 8:00 p.m. He had one glass of wine at dinner. He spent the rest of the evening at home. He is not certain what he did.

He did not consume any further alcohol. [ 42 ] He knew that some of his friends were together and his friend Alessandro kept on calling him to ask that he go meet them. Nadia, his girlfriend at the time, was with them as well. He didn’t want to go because he was working the following day and knew he would be starting as early as 7:00 or 8:00 a.m., depending on the weather. However, Alessandro was very insistent. He called four or five times and ultimately, the accused gave in and went to meet his friends at the “Pink Taco” situated on St.

Laurent and Prince Arthur. [ 43 ] He stayed at the Pink Taco for between 30 and 60 minutes and consumed two Perriers, which Alessandro paid for. [ 44 ] Eventually, he and Alessandro began heading home. He took the 40 East. The plan was for Alessandro to sleep at his house because he was too drunk to drive. The accused was feeling tired and fed up, and he drove too fast and zigzagged. He was in the middle lane after passing a car that was driving in the right lane, and then he switched to the right lane in order to exit at Lacordaire.

He crossed three lanes to get to the service road and then stopped at the red light behind a Mazda 3. [ 45 ] It was when he was sitting at the red light that he first saw the lights from the police car way behind him in his rear view mirrors. He had not heard the sirens. He had not tried to get away from them. There would have been no reason for him to do so. [ 46 ] The police car pulled up beside him, about half a car length ahead of him. It was pointing straight ahead. As soon as he saw the police car, he understood that he had been caught for speeding.

He immediately prepared his papers and put them in the cup holder in the centre console. His cell phone was there as well. [ 47 ] One of the officers (who he now knows to be Durocher) came up beside him. He had already rolled down the window, and he said “bonsoir”. Durocher immediately demanded that the accused open the door. He was a bit shocked, but he tried to unlock the door. However, the mechanism kept locking, because Durocher was grabbing the handle at the same time. The accused was finally able to unlock the door and Durocher opened it and told him, rudely, to get out of the car.

He grabbed him by the back of the shoulder to pull him out but he was wearing his seatbelt. Durocher tried a second time, and at this point, both of them had their hand on the eject button of the seatbelt. Durocher finally got him out of the car, his head hit the door, and he was brought to the ground. The officer put his knee on his back and put handcuffs on him. The accused then lied on the ground for about two minutes while Durocher went to do something which he couldn’t see because he was lying face down. [ 48 ] The accused was scared.

When he was lying on the ground, he wondered if maybe his car had been confused with a stolen vehicle. He was making up all kinds of scenarios in his head. He thought he had been stopped for speeding, because he knew he had been driving very fast, but he also knew that this was not the way a ticket is given. [ 49 ] When the accused was picked up off the ground, he went limp. He wanted to make sure that they didn’t think he was resisting. [ 50 ] After being lifted up, he was placed against the passenger side of the patrol car and searched. He asked the officers what was happening, was it for the speeding?

He was panicking. He was even stuttering. He was then placed into the patrol car. He again asked the officers what was happening and what he had done, and they said that he had been driving quickly. He acknowledged that he had.

[ 51 ] They then asked him if he had been drinking and he said that he had not. They said that they would take him to the station to do a breathalyzer test. The accused repeated that he had not been drinking, and that he would do a test right away. The officer said that it didn’t work that way, that he needed to go to the station and asked him if he wanted to go to the station. He said yes, he accepted. [ 52 ] A card was then read to him. After hearing it, the accused asked what was happening, were they going to the station? He said he needed to speak to a lawyer.

The officer replied that it doesn’t work that way, that they could either leave him here and charge him with refusal, or he could go with them to the station, where he would be able to speak with a lawyer. [ 53 ] The officers then started doing some paperwork. They asked him his name. Officer Labbé got out of the car and came back with his wallet and all of his papers. At some point, they had asked him for his papers and he told them that his wallet and cell phone were in the car. [ 54 ] The whole time that he was sitting in the police car, he thought that he was going to the police station.

In fact, the tow truck was there, and he knew that he was going to the station. [ 55 ] As the officers were filling out their paperwork, he asked five or six times whether he could go to his car to get his cell phone so that he could call his lawyer. The officers replied that it didn’t work that way, if he wanted to speak with a lawyer, it would be at the station. If he preferred to be left there, they could charge him with refusal. [ 56 ] The officers gave him the choice several times, and the accused said that he had already told them that he would go with them to the station.

The accused did not understand why they kept on asking him because he had said yes right at the beginning. He knew the consequences of refusal and that a refusal would be worse for him. They engaged him again and asked if he was sure that he wanted to go to the police station. He said that he wanted to go, and that although it was not a condition, he really wished to speak with his lawyer.

Again, the officers stated that it didn’t work that way and that this would happen only at the station. [ 57 ] It was both officers who addressed him while he was seated in the patrol car. [ 58 ] He never tried to make a deal with the officers. He never said “Just drop me off here”.

He never said that he didn’t want to go to the station or blow in the machine. [ 59 ] He has always learned to be polite to the police and he did say several times that they were the police and that he would do whatever they requested, adding that he wished to speak with a lawyer. [ 60 ] He was never asked if he was “sure that he wanted to make a refusal”. [ 61 ] When they took him out of the car and took off his handcuffs, they told him that he was being charged with refusal. He said that he had never refused, that he had agreed to go the station right from the beginning.

The officers just told him to leave and go home. [ 62 ] He believes that the officers were very blunt and rude with him throughout the event. Following the event, he made a complaint to the police ethics commission, which ultimately ended with a conciliation. [ 63 ] The accused acknowledges that he had been driving too quickly before the interception, which is why he pleaded guilty to speeding. [ 64 ] Ever since the night of the incident, there has been a “cooling” in his relationship with Alessandro.

The accused was angry with him, even though he knows that the situation was his own fault as well as the fault of the police. [ 65 ] The accused has one prior conviction for impaired driving in 2005. [ 66 ] After first denying that he had any other convictions, he admitted in cross-examination that in 2008 he pleaded guilty to soliciting a prostitute. ANALYSIS [ 67 ] The Court will deal with the first two issues together.

By way of reminder, they are as follows: [4] Has the Prosecution proved beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by alcohol? [5] Has the Prosecution proved beyond a reasonable doubt that the accused refused to comply with a demand to accompany a peace officer to the police station to provide a breath sample?

The Law [ 68 ] The law in relation to both of these issues is quite straightforward. [ 69 ] In Stellato [3] , the Ontario Court of Appeal laid out the standard of proof in relation to impaired driving as follows: […] before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairment ranging from slight to

great, the offence has been made out. [ 70 ] This decision was affirmed by the Supreme Court of Canada [4] and has been adopted by courts throughout the country. [ 71 ] Lewko [5] is generally viewed as the governing authority in setting out the elements required to prove the offence of refusal.

On a charge pursuant to article 254(5), the Prosecution must prove the following three things beyond a reasonable doubt: - The existence of a valid demand; - A failure or refusal by the accused to produce the required sample of breath or blood (the actus reus ); - That the defendant intended to produce that failure (the mens rea ) .

Application [ 72 ] In the case at hand, the accused denies driving while impaired and either denies having exhibited the symptoms related by Officer Labbé as proof of impairment or explains them. [ 73 ] The accused also denies having refused to attend the station to provide a breath sample.

He states that he agreed to go to the station and provide a breath sample, and that the whole time that he was sitting in the patrol car, he thought that they would be going to the station and, in fact, “knew” that they were going to the station. [ 74 ] This is therefore a case involving contradictory versions which the Court must analyze in order to reach its verdict. The case of W.D. [6] sets out the following approach:

(1) If the Court believes the evidence of the accused, it must acquit;

(2) If the Court does not believe the testimony of the accused but is left in reasonable doubt by it, it must acquit;

(3) Even if not left in doubt by the evidence of the accused, the Court must still ask itself whether it is convinced beyond a reasonable doubt of the guilt of the accused on the basis of the balance of the evidence which it does accept. [ 75 ] The Prosecution argues that the testimony of the accused should be rejected outright - that it should not be believed and should not raise a reasonable doubt. [ 76 ] It argues that the accused’s whole account of how he spent the night is not credible: he knew that his friends were together, but claims that he did not want to go out with them because he was working the next day, then decides to go all the way downtown simply because his friend is insistent, only to spend 30 to 60 minutes there before turning around and heading all the way back home. [ 77 ] It argues that it is not credible that the accused recollects having consumed one glass of wine with his grandfather during dinner, and two Perriers at the bar, which were paid for by his friend, but does not remember what he did while at home that night before going out. [ 78 ] It insists that the accused’s excessive speeding and the manoeuvers which the Prosecutor suggests constitute dangerous driving cannot simply be attributed to the fact that he was tired and fed up, in particular when it is recalled that the accused has a prior conviction for impaired driving. [ 79 ] It questions the accused’s admission that he blames the situation on Alessandro to the point that their friendship has been affected, and points to this aspect of his testimony as yet another indication of the accused’s lack of credibility. [ 80 ] For the Prosecution, all of these facts are so implausible that the Court should completely reject the accused’s testimony and determine that it does not even raise a reasonable doubt. [ 81 ] Despite his able arguments, the Court does not consider that any of the points raised by the Prosecution justify casting aside entirely the testimony of the accused. [ 82 ] Furthermore, there are no internal contradictions in his testimony.

He answered all of the questions put to him in cross- examination without hesitation, and his version of the events remained consistent throughout. [ 83 ] At one point during cross-examination, the accused mentioned that he felt that the officers had been “blunt and rude” towards him. The Prosecutor challenged him as to why he would say such a thing, and he responded immediately with a concrete example.

To the Court, this was an indication that the accused was not just saying anything that he felt would be of assistance to him. [ 84 ] In evaluating credibility, the Court must evaluate the testimony of the accused in light of the totality of the evidence. In that regard, there is much in the testimony of Officer Labbé that corroborates the version of the accused, or at least does not contradict it. [ 85 ] The accused’s entire testimony is filled with details which heighten its credibility.

By way of example, the Court points to his description of the beginning of his interaction with the officers when Durocher was trying to open the door and get the accused out of the car. This testimony is uncontradicted. [ 86 ] The accused explained where his papers were and when Durocher went to retrieve them. This too is uncontradicted.

[ 87 ] According to the accused, both officers participated in the discussion with him in the car. Labbé “assumes it was only him” but admits that he does not recall whether Durocher participated as well. [ 88 ] On the central issue of whether the accused, in fact, refused to accompany the officers to the police station to provide a breath sample, Labbé testified that when he first gave the order to the accused, the accused replied “You guys are the bosses, I’ll do what you say”.

This is consistent with the testimony of the accused who said that he accepted to go to the station, and that he also told the officers that they were the bosses and he would do what they wanted. [ 89 ] According to the accused, he never said that he would only go to the station if he was granted the right to consult a lawyer immediately, at the roadside.

He acknowledges, however, that he did state repeatedly that he wished to speak to his lawyer, and also that he asked on a number of occasions if he could retrieve his cell phone from the car in order to call his lawyer. [ 90 ] Labbé’s testimony is not that different. He stated that the accused said repeatedly that he wished to speak to his lawyer.

For some reason, Labbé interpreted this to mean that the accused would only go to the station if he was given the immediate right to speak to his lawyer. [ 91 ] According to Labbé, it was only at the very end of the 20-minute discussion that the accused clearly stated “Just drop my here, I don’t want to come to the station” and that he wouldn’t go to the station and blow into the machine.

The accused denies having said this, and the Court finds that at the very least, his denial raises a reasonable doubt. [ 92 ] On the charge of driving while impaired, the accused denies being impaired, and in fact testified that he consumed only one glass of wine many hours before his interception. [ 93 ] This is in contrast with the evidence of the Prosecution, which includes: the dangerous manner in which the accused was driving, the fact that he did not pull over when the police began pursuing him, the smell of alcohol on his breath, his red and glassy eyes, his pasty speech, his lack of muscle tone once he was lifted up off the ground, and his uncertain gait upon exiting the police car after the interception.

If the Court did not have a doubt about the presence of all of the symptoms, then they clearly would be sufficient to meet the Crown’s burden. [ 94 ] However, the Court has already stated that it considers the testimony of the accused to be sufficiently credible to raise a reasonable doubt, and this includes his testimony as it relates to the symptoms of impairment.

Again, the Court arrives at this conclusion by evaluating the testimony of the accused in light of all of the evidence, and more specifically the testimony of Officer Labbé. [ 95 ] The accused acknowledges that he was driving very fast, and in fact, pleaded guilty to the statement of offence that was given to him.

He acknowledges his lane changes. [ 96 ] His affirmation that he only saw the police car in his rear view mirrors when he was stopped at the light is credible, particularly in light of Labbé’s inability to evaluate the distance between the patrol car and the accused’s car prior to the interception. [ 97 ] The accused states that when he was lifted off the ground he went limp in order to avoid the appearance that he was resisting.

The Court considers this plausible in light of the details regarding the beginning of the interaction, the accused’s surprise at being dragged out of his car, and his lack of understanding as to why things were happening the way they were. [ 98 ] When he got up and was leaned against the car, he stated that he was so panicked that he was stuttering. The Court finds that this may have been what Labbé interpreted as a pasty mouth.

Furthermore, despite the testimony of Labbé to the effect that he and the accused had a conversation in the car which spanned over 20 minutes, no further comment was made regarding the accused’s speech. [ 99 ] The accused denies having had any difficulty walking upon exiting the patrol car. The Court notes that during the trial, the Prosecutor had a very hard time getting the officer to state to the Court that the accused was walking like someone who was impaired. It was only upon consulting his report that Labbé shared this information with the Court.

It goes without saying that given that this incident happened over three years ago, the officer cannot be expected to remember things vividly, and necessarily needed to use his report to refresh his memory. However, it was clear that even after consulting his report, Labbé’s memory was not really “refreshed”, and that he simply recounted to the Court what he had written in the report.

Again, this is not in and of itself determinative, but is a factor which the Court considers in determining that the testimony of the accused raises a reasonable doubt. [ 100 ] Ultimately, the only symptom which is not denied or explained by the accused is his red and glassy eyes, and this symptom alone is clearly not enough to enable the Court to infer that the accused’s ability to drive was impaired by alcohol. [ 101 ] In conclusion, after considering all of the evidence, the Court finds that the testimony of the accused raises a reasonable doubt on both counts. [ 102 ] This conclusion renders it unnecessary to consider the other two issues.

CONSEQUENTLY, the accused is acquitted. __________________________________ SUZANNE COSTOM, J.C.Q. Me Alexis Dinelle

Prosecuting Attorney Me Eddy Ménard Accused’s Attorney Hearing date: April 16, 2018