R. v. Cater, 2016 ONCJ 538

CITATION: R. v. Cater , 2016 ONCJ 538 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — BREANNE CATER Before Justice J. Ritchie Heard on June 29, June 30 and August 24, 2016 Reasons for Judgment released on September 02, 2016 Ms. K. Kirec .................................................................................................... counsel for the Crown Mr. A.

Captan ............................................................................................ counsel for Breanne Cater RITCHIE J.: [ 1 ] Breanne Cater is accused that, on April 18, 2015 in Toronto, she failed or refused without reasonable excuse to provide breath samples for analysis by an approved instrument in compliance with a demand made under subsection 254(3) of the Criminal Code . [ 2 ] The evidence in this matter was heard over three days. There are two main issues in this case. First, the defence submitted that the Crown failed to prove that Ms.

Cater’s responses amounted to an unequivocal refusal to provide a breath sample. Second, the defence submitted that the qualified breath technician violated Ms. Cater’s rights under

section 10(

b) of the Canadian Charter of Rights and Freedoms by denying her a second consultation with Duty Counsel. The remedy sought was the exclusion of the evidence respecting Ms. Cater’s alleged failure or refusal to provide a breath sample. The two legal issues raised by the defence are separate and distinct, but there is great overlap from the factual perspective. [ 3 ] The parties agreed that the trial and the voir dire on the Charter motion should be conducted on a blended basis. Four police officers (including the arresting officer and the breath technician) testified for the Crown.

All of the witnesses gave honest, straight-forward, reliable testimony, and the defence did not suggest otherwise. I accept their evidence. The defence elected to call no evidence at trial or on the voir dire . The defence submissions relied for the most part on the video-recording of the breath-testing process at the police detachment. [ 4 ] At the outset, I wish to thank Counsel for their professional approach to this matter, including their comprehensive submissions and the instructive case law that they provided.

I have carefully considered the evidence, the submissions and the law. [ 5 ] Briefly, the fact situation is as follows. At approximately 8:16 p.m. on April 18, 2015, Officer Hafeez Nathoo of the Ontario Provincial Police was dispatched to an accident involving a possibly impaired driver on Highway 401 at Markham Road. The officer went to the scene and found Ms. Cater with her vehicle. The vehicle had two flat tires on the passenger side (the evidence respecting the cause of the flat tires was speculative). The officer detected an odour of an alcoholic beverage on Ms. Cater’s breath.

The officer formed a reasonable suspicion that the defendant was operating a motor vehicle with alcohol in her body. Officer Nathoo made a demand for breath testing on an approved screening device. The defendant was belligerent and refused to comply, but after much arguing, she acquiesced. The device registered a “fail” reading. Officer Nathoo arrested Ms. Cater for operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood. The officer read the defendant her rights to counsel and the Intoxilyzer demand and cautioned her regarding her right to remain silent. Ms.

Cater said that she wanted to talk to her lawyer. [ 6 ] At the police station, Officer Nathoo tried to contact Ms. Cater’s lawyer, but the officer’s efforts were not successful. Ultimately, Ms. Cater spoke with Duty Counsel for eight minutes in private. [ 7 ] Ms. Cater was then taken to Officer Sumit Saini (a qualified breath technician and also a member of the Ontario Provincial Police). Much interaction took place between Ms. Cater and Officer Saini. Ms. Cater told Officer Saini that she had not been driving her vehicle (as she had done with Officer Nathoo).

She said that her boyfriend had been driving and he had left the scene. Officer Saini had information that that was untrue. The officer told Ms. Cater that the MTO cameras would prove (or disprove) what she was saying. In his testimony, Officer Saini described her reaction as follows: “When I said the MTO tape will show the man leaving her car, she stopped co-operating and played around and pretended to blow. She faked it from then on.” Officer Saini also said that from Ms. Cater’s demeanour throughout both tests, “I concluded that she was abusing it. She was faking it.

She wasn’t trying at all.” [ 8 ] Ultimately, Ms. Cater provided a suitable breath sample into the Intoxilyzer, and her reading was 157 milligrams of

alcohol in 100 millilitres of blood. [9] The second breath test on the Intoxilyzer proved to be even more difficult. I have mentioned the defence position thatthere was no unequivocal refusal and that there was a breach of

section 10(

b) of the Charter of Rights. I will return to those issues inmore detail below. In the final analysis, Officer Saini made a decision that Ms. Cater was deliberately failing or refusing to providebreath samples for analysis by an approved instrument. He advised her that she would be charged with that offence. [10] The application of the law to the facts of this case is not a straight-forward matter. This is a case where I must look at Ms.Cater’s entire course of conduct and not unduly focus on a few words taken out of context.

I will deal with the two main issues in asimultaneous fashion, since the factual side is totally interwoven. [11] The defence relied on R. v. Sinclair, 2010 SCC 35 , [2010] 2 SCR 310, a decision of the Supreme Court ofCanada. The case was cited in R. v. Ganga, 2014 ONCJ 124, a decision of my colleague Justice S. R. Clark, at paragraph 10. Briefly,the Supreme Court held that

section 10(

b) of the Charter of Rights does not entitle a detained person to consult counsel a second timeduring the course of an investigation, unless there are “changed circumstances”. One of the Court’s examples of changed circumstanceswas “reason to believe that the detainee may not have understood the initial advice of the right to counsel”. [12] The defence also referred to the decision of the Supreme Court of Canada in R. v. Jumaga, (SCC),[1977] 1 S.C.R. 486. Borrowing from the wording of the decision, the defence submitted that Ms.

Cater’s words and actions amountedto “nothing more than a deferring of a decision [to provide or not to provide a breath sample] pending the requested opportunity toconsult with a lawyer by telephone”. [13] It was obvious that Ms. Cater was suffering from the excessive consumption of alcohol. She had vomited at theroadside. Her first breath test reading was 157 milligrams of alcohol in 100 millilitres of blood, which is almost twice the criminal limitfor driving (on the edge of the “aggravating factor on sentencing” consideration, according to the Criminal Code). Ms. Cater’s moodswings were fairly dramatic.

Quite often she was rude, insulting, hostile, abusive and obnoxious towards the police. Some of the timeshe chatted and she cried. The police responded in a calm, tolerant and professional manner. They went to great lengths, in my opinion,to assist Ms. Cater in exercising her right to counsel. [14] Ms. Cater’s first contact with Officer Nathoo at the roadside prophesied things to come: Nathoo: Have you had anything to drink? Cater: No. Nathoo: Where are you coming from? Cater: Why? What’s it to you? Nathoo: Where are you coming from? Cater: From downtown. Nathoo: Doing what?

Cater (smiling sarcastically): I was downtown. [15] Officer Nathoo testified that he “realized from her first answer” that Ms. Cater had alcohol on her breath. After theofficer read the roadside screening demand, Ms. Cater replied “I don’t need to do anything”. Officer Nathoo said that Ms. Cater wasbelligerent and continued to refuse. When the officer pulled out his handcuffs to arrest her, she said she would do the test. However, shesoon backtracked and began demanding to talk to a lawyer. She also said her boyfriend had been driving and he had left the scene.

Officer Nathoo received information to the contrary from two tow truck drivers. Fifteen minutes elapsed between Officer Nathoo’sarrival on the scene and the roadside breath test. When asked how he could remember the details of one particular case, Officer Nathoosaid “I remember this case very well. She was the most argumentative person I’ve ever dealt with at a scene. She was memorable.” [16] It was clear from the roadside that Ms. Cater wanted to talk to her own lawyer. However, she did not know the lawyer’sname or anything about him. Ms.

Cater said that she could get that information from her ex-boyfriend, and she gave the police her ex-boyfriend’s telephone number. The police tried a number of times to reach him and left voice mail messages. Ms. Cater ultimatelydecided that she had given the police the wrong telephone number and that the right one was in her cell phone. However, her cell phonehad gone dead. The police tried unsuccessfully to find a compatible charger. Ms. Cater declined an offer to look for her lawyer oranother lawyer in the lawyers’ phone book or on Google. Ultimately, Ms.

Cater said that she would speak with Duty Counsel, and shedid (for eight minutes). Afterwards, she said that she was satisfied, and she did not take the police up on their offer to contact anotherDuty Counsel if she had not been satisfied. [17] As I have mentioned, the first test on the Intoxilyzer 8000C was a lengthy and trying exercise for Officer Saini. However, a suitable sample was eventually obtained. A new issue arose at the time of Ms. Cater’s second test on the Intoxilyzer. Ms.Cater said that Duty Counsel had told her that she only had to take one test on the Intoxilyzer. In fact, Ms.

Cater repeated that assertionmany, many times. Officer Saini told her what the law required and also that they did not have the name or telephone number of thatDuty Counsel. The officer basically tried to coax Ms. Cater to provide a second breath sample. He warned her numerous times about theconsequences of failing or refusing to do so. Ms. Cater then made an apparently firm decision to go ahead with the second breath test. However, that decision soon fell apart, and she kept saying that she had been told she only had to do the test once.

After much back andforth, Officer Saini (the qualified breath technician) made a final decision to charge Ms. Cater with “fail or refuse”. Nevertheless, the

officer still relented a few times and offered one last chance to do the test. [ 18 ] As Officer Saini put it, Ms. Cater had gone back and forth repeatedly between agreeing to comply with the second test and then balking. He concluded that she was feigning when she purported to be trying to provide a breath sample. Officer Saini testified that Ms. Cater “was trying to show me that she was blowing, but she wasn’t … She was playing around and not co-operating and trying to fake us out … She wasn’t trying at all … She was a confirmed liar. She faked on the first test. She also faked the second test.

There was a continuing course of conduct by her throughout.” In the background was the fact that Officer Saini knew Ms. Cater had lied to the police on two significant matters. She said that she had not been consuming alcohol and that she had not been driving her vehicle. [ 19 ] Throughout the time of the second test, Ms. Cater had kept insisting that the Duty Counsel told her she only had to provide one breath sample at the police station. She also said that the Duty Counsel had told her a ninety-day driving suspension was already in effect. Officer Saini tried to explain to Ms.

Cater that she was wrong on both counts. At one point Officer Saini told Ms. Cater that the law requires two breath samples and that he was saying it right into the camera, so that he would be in trouble if he was lying to her. Her response was “No, I don’t trust shit. I don’t trust cops. I don’t trust the system.” This was not a normal conversation taking place. Quite frankly, Ms. Cater’s behaviour was atrocious. It is not possible to tell to what extent her powers of comprehension (during her dealings with Duty Counsel and the police) were distorted or affected significantly by the consumption of alcohol.

I noted Justice Clark’s comment in Ganga that “the defendant would have tested the patience of even Mother Theresa”. [ 20 ] Every detainee is entitled to be treated fairly, regardless of whether they behave badly or not. However, Officers Nathoo and Saini were more indulgent and tolerant of Ms. Cater’s antics than they needed to be. They both could have cut it off earlier, in light of Ms. Cater’s continuing refusal to provide a breath sample and her generally obstructive tactics. [ 21 ] Ms. Cater had already consulted with Duty Counsel for eight minutes. Ms.

Cater did not say “I want to consult again with one of the Duty Counsel before I do the test” or “please hold off the test until I talk to one of the Duty Counsel again”. She railed on about not having to do the breath test, just as she did at the roadside. Right from the start and throughout her time with the police, Ms.

Cater did everything in her power to impede and obstruct the breath testing process. [ 22 ] In the Jumaga decision, Justice Ritchie described the fact situation as follows at pages 498 and 499, and I believe that his words have some application to the present case: “In my view the evidence in fact only discloses one refusal expressed in a single conversation with the police commencing at the time when the appellant was first asked to use the breathalyzer machine … This conversation was characterized throughout by a consistently uncooperative attitude on the part of Jumaga which remained unaltered in any way by the telephone call [to his lawyer] … The telephone conversation resulted in no more than a further affirmation of that attitude.” [ 23 ] Officer Saini testified that he was at his wit’s end, and his objective was to do the test and not to charge Ms.

Cater with “fail or refuse”. As Justice Clark stated in Ganga at paragraph 9 : “He was merely trying to obtain a breath sample he was legally required to obtain, faced with a belligerent detainee.” Ms. Cater never clearly asked to talk a second time to another Duty Counsel. At one point she said that she wanted to talk to the same Duty Counsel again. Officer Saini told her that he could not contact that person because he did not know their name or telephone number. Also, for example, when Ms. Cater saw Officer Saini putting away his breath testing equipment, she said “I need some kind of lawyer, some kind of law.

Like I can’t just keep giving breathalyzers.” In all of the circumstances, nothing that occurred in the breath room triggered the right to a second opportunity to consult counsel pursuant to the Sinclair doctrine. In other words, the case does not cross the line and amount to a breach of the right to counsel, in my view. [ 24 ] I find that Ms. Cater was unco-operative and behaved badly towards the police throughout her dealings with them. Obviously, bad conduct could never justify a denial of the right to counsel, and that did not happen here. However, Ms.

Cater’s conduct helps to demonstrate how the police persevered and diligently pursued the goal of giving effect to her right to counsel, in spite of the very difficult and trying circumstances. Officer Saini surmised (correctly) that there had been difficulty obtaining Ms. Cater’s breath sample into the approved screening device at the roadside (in light of the length of time it took). Officer Saini also knew from personal experience that obtaining the first breath reading on the Intoxilyzer had been a very difficult process.

It can be argued in every case that the police “could have done more” in terms of right to counsel, but in my view, the police properly and sufficiently carried out their legal obligations towards Ms. Cater. [ 25 ] Officer Saini ultimately concluded from Ms. Cater’s words and actions that she was going to continue her delaying and obstructing tactics indefinitely, and he decided to terminate the process. In the circumstances, he had a right to do so. Officer Saini was justified in concluding that there was never going to be an end to the defendant’s argumentative ranting and ongoing refusal.

In my opinion, the current case does not fall within the Sinclair exception. The circumstances, viewed as a whole, do not indicate that Ms. Cater required further legal advice in order to fulfil the purpose of

section 10 (b). The “right to counsel” process had run its course. There was no violation of Ms. Cater’s

section 10 (

b) rights. [ 26 ] If I were wrong in that view, I would rule that the evidence of “fail or refuse” was admissible under the section 24(2) Grant analysis. The police had gone to extraordinary lengths to give effect to Ms. Cater’s right to counsel. The conduct of the police was close to exemplary and far removed from the egregious category. I found that Ms. Cater was deliberately trying to avoid giving breath samples, and any breach of her

section 10 (

b) rights in the final stages of her interactions with the police should be regarded as impacting only in a minor way on her Charter-protected interests. The “fail or refuse” evidence should be admitted. Its admission would not bring the administration of justice into disrepute. [ 27 ] I have dealt with the two main issues in a “blended” fashion. Ms. Cater went to great lengths to avoid giving a breath sample, and her course of conduct (words and actions) constituted a failure or refusal contrary to subsection 254(5) of the Criminal Code .

Also, there was no clear request to speak to a second Duty Counsel, and Ms. Cater was not denied a second consultation. As a result, the Charter motion is dismissed. Conclusions [ 28 ] If a reasonable doubt exists at any time in a criminal trial, the defendant must be found not guilty. The onus never shifts

to the defendant under any circumstances. The burden always rests solely on the Crown to prove all elements of an offence beyond a reasonable doubt. [ 29 ] I have considered the totality of the evidence and the submissions of Counsel. I am satisfied that the Crown has discharged the burden upon it. There will be a finding of guilty. Released: September 02, 2016 Signed: “Justice J. Ritchie”