R. v. Fraresso, 2015 ONCJ 356

COURT FILE NO. Brampton/13-005953 DATE: 2015-06-25 Citation: R. v. Fraresso , 2015 ONCJ 356 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN - and - JAIME FRARESSO Before Justice James Stribopoulos Heard on February 18, July 17, and October 21, 2014 and April 17, 2015 Reasons for Judgment released on June 25, 2015 Mr. Paul A. Renwick and Mr. Gregory Hendry.....…………..……..…………… … for the Crown Mr. Douglas Lent ……….……….…………………….………………….……..…for the Defendant STRIBOPOULOS, J.: I.

Introduction [ 1 ] The defendant, Jaime Fraresso, is charged with three offences; dangerous driving; impaired driving and driving with a blood alcohol concentration in excess of the legal limit, contrary, respectively, to sections 249(1) , 253(1) (

a) and 253(1)(

b) of the Criminal Code . [ 2 ] The events at issue in this trial took place early on the evening of Wednesday May 8, 2013, in a residential neighbourhood, in the City of Brampton. The defendant was arrested shortly after his vehicle mounted a curb and came to a stop in the middle of a residential street. This case essentially raises five issues for resolution, they are:

i) Whether the Crown has established, beyond a reasonable doubt, that the manner in which the defendant operated his vehicle was dangerous to the public as defined by s. 249(1) (

a) of the Criminal Code ? ii) Whether the defendant has established, on a balance of probabilities, that the police lacked reasonable grounds to arrest him for impaired driving and thereby violated his

section 9 Charter right not to be arbitrarily detained? (If such a violation is established, it follows that the Crown will have failed to discharge its burden of establishing that the defendant’s breath samples were seized pursuant to a lawful breath demand and in accordance with

section 8 of the Charter .) iii) Whether the defendant has established, on a balance of probabilities, that his s. 10(

b) Charter right to speak with counsel of his choosing was violated? iv) If a constitutional violation has been established, whether the admission of the evidence obtained in a manner that violated the defendant’s Charter rights would bring the administration of justice into disrepute and therefore warrant exclusion under section 24(2)?

v) Finally, based on the admissible evidence, whether the Crown has proven beyond a reasonable doubt that the defendant’s ability to operate a motor vehicle was impaired by alcohol? II. Law, Evidence and Analysis

[ 3 ] I will address each of the issues raised in turn. In the course of doing so, I will set out the controlling legal principles and relevant evidence as they bear upon each of the questions presented for consideration. A. Is the defendant guilty of dangerous driving? [ 4 ] The offence of dangerous operation of a motor vehicle is defined in section 249(1) (

a) of the Criminal Code . In recent years the Supreme Court of Canada has provided an in depth analysis of the elements of dangerous driving. [1] In Roy , the Court concisely summarized its earlier holding in Beatty , explaining both the prohibited conduct ( actus reus ) and fault requirement ( mens rea ) for the offence as follows: The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place ( s. 249(1) (

a) of the Criminal Code ). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances ( Beatty , at para. 43 ). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from that norm.

While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [ 5 ] The Crown’s case against the defendant with respect to the charge of dangerous driving is based principally on the evidence of Constable Christopher Robinson and a second civilian witness, Mr. Jason Kelly. [ 6 ] Early on the evening of May 8, 2013, Constable Robinson was on routine patrol in a fully marked police vehicle.

He was working alone that evening. At approximately 6:46 p.m. he was travelling westbound along Harold Street in the City of Brampton. The street consists of a single eastbound lane and a single westbound lane. The officer observed the defendant’s vehicle travelling towards him, heading eastbound. As it did so, Constable Robinson noted that it was missing a front license plate. As a result of this, Constable Robinson decided to effect a traffic stop. In order to do so, he made a U-turn. [ 7 ] As the officer made his U-turn, he noted that the defendant’s vehicle began to accelerate away at a high rate of speed.

The officer testified that he believed the speed limit on Harold Street to be 50 kilometres per hour (which is in keeping with the fact that the neighbourhood is residential.) The officer testified that as the defendant’s vehicle approached the intersection at Mill Street it slowed before making a right hand turn without stopping at a stop sign. Constable Robinson was accelerating to catch up to the defendant’s vehicle but was unable to do so.

The officer testified that by the point when he turned right at Mill Street he could only observe the tail end of the defendant’s vehicle making a right hand turn onto Elliott Street from Mill Street. [ 8 ] Jason Kelly lives in a house that is located almost directly across from the intersection of Mill Street and Elliott Street. He testified that at approximately 6:30 p.m. he just happened to be standing by the front window of his home when he heard the sound of a roaring engine, which drew his attention to the street.

He then saw a black car go “flying” past his home before the driver “slammed on his brakes” in an apparent effort to go sliding around the corner from Mill Street onto Elliott Street at speed. According to Mr. Kelly, the manoeuvre looked like something out of a movie. Mr. Kelly testified that as the vehicle slid, the wheels on the driver’s side mounted the curb on the south side of Elliott Street, causing both tires on that side of the vehicle to blow. Mr. Kelly described the driver’s side of the vehicle briefly becoming airborne and the vehicle continuing along on only the passenger side wheels.

Then, when the driver’s side wheels came back down to the ground, the vehicle came to an abrupt stop on Elliott Street. [ 9 ] Mr. Kelly’s description of the events is corroborated by a number of photographs that were introduced into evidence. The photographs reveal that Mr. Kelly would have had an unobstructed view of the intersection from his front window.

They also show skid marks on the bottom end of a driveway on the south side of Elliott Street a few metres beyond Mill Street, with markings continuing onto the grass of the boulevard where there is damage to the grass, and then a trail of soil leading from the damaged grass directly to the defendant’s vehicle.

The photographs show that the defendant’s vehicle travelled a fair distance after mounting the curb (from the photographs, it would appear to be about 10 metres), despite the front left tire being bent almost entirely sideways and clearly disconnected from the axle and the rear driver’ side tire being blown flat. There are scrape marks on the pavement evident in one of the photographs (exhibit 7) about half way between the vehicle and the curb which would appear to mark the spot where the left side of the vehicle came back to the ground and began to scrape the pavement before the vehicle came to a halt.

As a result, the photographic evidence appears to corroborate Mr. Kelly’s description. [ 10 ] After the black vehicle came to a halt, Mr. Kelly testified that the driver exited and then the police arrived within ten seconds of that. Mr. Kelly described two police officers emerging from inside a police cruiser and approaching the driver, who responded by placing both his hands in the air over his head.

The officers then requested that the driver place his hands on the roof of his vehicle, they then searched and handcuffed the driver before placing him in a police cruiser. [ 11 ] As noted above, Constable Robinson was trying to catch up to the defendant’s vehicle and only managed to observe the tail end of the car as it made a right turn onto Elliott Street. As he turned onto Elliott Street, Constable Robinson observed skid marks on the south boulevard and the defendant’s vehicle stopped in the street facing westbound.

He described seeing one of the rear tires blown out and a front wheel broken away from the axel. According to Constable Robinson, he stopped his cruiser just ahead of the vehicle. As he exited his disabled vehicle, the defendant put his hands in the air without any prompting. At that point, Constable Robinson testified that he told the defendant that: “You’re under arrest for dangerous driving. Put your hands behind your back.” The defendant complied with that direction.

The arrest took place at approximately 6:47 p.m. [ 12 ] Based on this evidence, the Crown submits that it has proven beyond a reasonable doubt that the defendant committed the offence of dangerous driving. Mr. Lent, on behalf of the defendant, argues that the evidence falls short. He notes that neither Constable Robinson nor Mr. Kelly provided any estimate as to the speed at which the defendant drove his vehicle. Further, Constable Robinson testified that he did not activate his police lights. Given this, Mr. Lent argues that it is quite possible the defendant had no idea that he

was being pursued and it would therefore be a logical leap to infer that he had taken flight from the police. [ 13 ] Mr. Lent further emphasized that the Crown’s case on the charge of dangerous driving very much depends on the eyewitness testimony of Mr. Kelly. According to Mr. Lent, I should approach Mr. Kelly’s evidence with caution. He argued that Mr.

Kelly was wrong on a number of points, including: the time at which the events transpired; that the driver exited the vehicle before police arrived; that two police officers were involved in the arrest and emerged from the same police vehicle at the same time and that one of the two police officers involved in the arrest wore a beard. Mr. Lent argued that these apparent errors show Mr. Kelly to be an unreliable witness whose evidence should not be accepted. [ 14 ] There are indeed some discrepancies as between the evidence of Mr. Kelly and that of the two officers who were in attendance on Elliott Street.

For example, unlike Mr. Kelly, who described the driver exiting his car ten seconds before the first police officer was on scene, Constable Robinson testified that the defendant only exited his vehicle after his arrival. Frankly, I am not sure whose evidence to prefer on this particular point. It is clear that both events happened within seconds, so it is possible that either Mr. Kelly or Constable Robinson are remembering the precise sequencing incorrectly. [ 15 ] In addition, Mr. Kelly testified that two police officers emerged from one police vehicle and proceeded to arrest the driver.

He also testified that one of the two officers was wearing a beard. However, both Constable Robinson and Constable Imber each testified that they were travelling in their own vehicles and arrived separately, with Constable Imber arriving five minutes after the defendant was arrested. Although Constable Robinson testified that the defendant was already in his cruiser when Constable Imber arrived, Constable Imber could not remember where the defendant was located on his arrival at the scene.

Finally, Constable Imber could not remember whether he had a beard on May 8, 2013; although he did acknowledge occasionally wearing one. [ 16 ] In my view, to the extent that there are inconsistencies of any substance as between the evidence of Mr. Kelly and that of the two police officers, they relate mainly to the sequencing of events that happened in very short order. Frankly, these strike me as the sort of inconsequential discrepancies that one would ordinarily expect as between witnesses testifying regarding events that took place many months earlier. [2] [ 17 ] In the end, having watched Mr.

Kelly testify and having listened carefully to the substance of his testimony, I accept the core of his evidence regarding the driving he observed. In doing do, I note that his evidence was corroborated by many of the photographs that became exhibits at trial. I therefore accept Mr. Kelly’s account of the defendant’s driving that preceded his vehicle becoming disabled on Elliott Street. [ 18 ] In the end, based on the uncontradicted evidence of Constable Robinson and Mr.

Kelly, I would make the following findings: • That the defendant responded to Constable Robinson making a U-turn by accelerating away from the officer at a high rate of speed; • That the defendant failed to stop at a stop sign, as he turned right onto Mill Street from Harold Street; • That the defendant then accelerated at a high rate of speed along Mill Street towards Elliott Street; • That as the defendant approached Elliott Street, he applied his brakes hard in an effort to make a sharp right turn without slowing down; • That as a result of the speed at which he was travelling the defendant was unable safely to negotiate the turn and the wheels on the left side of his vehicle mounted the curb and boulevard on the south side of Elliott Street; • That upon mounting and striking the curb the front left wheel of the defendant’s vehicle became inoperable because it broke away from the front axle, while the rear left wheel became deflated due to the force of the impact with the curb; • That the left side of the defendant’s vehicle momentarily became airborne after the wheels on that side of his vehicle struck the curb at speed, at which point the vehicle continued along on two wheels a short distance before the disabled left side wheels came crashing to the ground and the vehicle suddenly came to a stop; • That Mill Street and Elliott Street are both residential streets, where the posted speed limit is no higher than 50 kilometres per hour; • That the defendant emerged from his vehicle and immediately put his hands in the air (without being directed to do so) because he recognized that he had just been involved in a short police pursuit, appreciated the extreme nature of his driving, and wanted to ensure that the police officer did not perceive him to be a threat because of his flight and aggressive driving. [ 19 ] In my view, this collection of findings establishes beyond a reasonable doubt that the defendant is guilty of dangerous driving.

In terms of the actus reus , the defendant’s driving was more in keeping with what one might expect from a stunt driver participating in the making of a Hollywood movie than what would be appropriate and safe on a quiet residential street during the dinner hour on a spring evening. At that time of day, it is simply blind luck that no pedestrians were crossing the street and no children were playing road hockey. If they had been, an innocent person could have been seriously injured or killed due to the defendant’s extremely aggressive driving.

As a result, I am satisfied beyond a reasonable doubt that the defendant’s driving was dangerous to the public in light of all of the circumstances. [ 20 ] Further, in terms of mens rea , it is apparent that the defendant’s bad driving was not merely the result of inadvertence. Rather, realizing that he was about to be pulled over and knowing that he had been drinking to excess, the defendant decided to take flight from the police. There is simply no other reasonable explanation for his sudden aggressive driving. His conduct was deliberate and it was dangerous.

I am satisfied beyond a reasonable doubt that the defendant’s driving represented a marked departure from the standard that would be expected of a reasonably prudent driver in the circumstances. Accordingly, the defendant is found guilty of dangerous driving.

B. Were the impaired driving arrest and the resulting breath demand lawful? [21] The defendant claims that his

section 8 and

section 9 Charter rights were violated. First, he argued that Constable Robinsonlacked the required reasonable grounds to arrest him for impaired driving.[3] If true, this would mean that the arrest for that offence wasunlawful and violated the defendant’s

section 9 Charter right.[4] It would also follow that the breath demand would have been madewithout lawful authority, as it too must be prefaced upon reasonable and probable grounds to believe that the defendant was guilty ofimpaired driving.[5] If an unlawful demand led the defendant to furnish breath samples, the result would be an unreasonable seizure inviolation of

section 8 of the Charter.[6] [22] Accordingly, the key to deciding both the sections 8 and 9 Charter claims is whether or not Constable Robinson had reasonableand probable grounds to believe the defendant was an impaired driver when he placed him under arrest for that offence and thendemanded that he furnish samples of his breath for analysis by an approved instrument. [23] The reasonable and probable grounds standard has both a subjective and objective component. This means that a police officermust have an honest belief that the suspect committed an offence.

And, further, there must be reasonable grounds for that belief; which means that a reasonable person standing in the shoes of the officer would come to the same conclusion.[7] [24] The Supreme Court has explained the meaning of the reasonable and probable grounds standard by placing it along a spectrum.According to the Court, it imports a standard of reasonable probability, which entails something less than proof beyond a reasonable doubt or a prima facie case[8] but something more substantial than reasonable suspicion,[9] and much further along the spectrum than mere possibility or suspicion.[10] Given this, the standard is said to be met at “the point where credibly-based probability replaces suspicion.”[11] [25] It will be recalled that after the defendant exited his vehicle he approached Constable Robinson with his hands in the air.

According to the officer, the defendant was walking slowly. The officer immediately told the defendant that he was under arrest fordangerous driving and directed him to put his hands behind his back. The defendant complied, and Constable Robinson moved inimmediately and handcuffed him. He then began searching the defendant. As he did so, Constable Robinson testified that he couldsmell alcohol on the defendant’s breath. At that point, he advised the defendant that, “he was also under arrest for impaired operation ofa motor vehicle”.

Constable Robinson then removed the defendant’s sunglasses, at which point he observed that his eyes were watery,red-rimmed and somewhat bloodshot. The officer continued to search the defendant and then conducted a cursory search of his vehicle.Inside the glove box he discovered and seized a half full “mickey” bottle of vodka. [26] In explaining his decision to also arrest the defendant for impaired driving, Constable Robinson testified that, “I formed theopinion that he was operating a motor vehicle while he was impaired by alcohol”.

After apprising the defendant of his rights to counseland also reading him the primary common law caution, Constable Robinson next read him the formal (approved instrument) breathdemand. When asked why he did so, he explained: “Because I wanted him to be checked for the concentration for any additional excessblood alcohol”.

Constable Robinson’s evidence makes clear that he arrested the defendant for impaired driving and read him the formalbreath demand because he had concluded that the defendant’s ability to drive was impaired by alcohol and he wanted to obtain an exactdetermination of his blood alcohol concentration. Given this, I am satisfied that the subjective component of the reasonable and probablegrounds standard was satisfied. [27] This brings me to the question of whether the officer’s belief was objectively reasonable in the circumstances.

In that regard, it isimportant to remember that when the defendant was advised of his arrest for impaired driving, he was already under arrest for dangerousdriving. In other words, his custodial situation did not change. Nevertheless, Constable Robinson was obligated by

section 10(

a) of theCharter to inform the defendant that he was also being investigated for impaired driving.[12] The officer went further than that,however, he arrested the defendant for that offence by telling him as much. Did he have sufficient grounds to do so? [28] On behalf of the defendant, Mr. Lent argues that, from an objective standpoint, Constable Robinson’s grounds for carrying outan arrest for impaired driving were seriously deficient. At the time of the arrest, the officer simply had the defendant’s involvement in asingle vehicle accident and the odour of alcohol on his breath.

None of the tell tale signs of impairment were present, for example therewas no apparent difficulty with the defendant’s motor skills, no slurred speech, no bloodshot eyes, etc. According to Mr. Lent, anaccident and the odour of alcohol falls far short of objectively reasonable grounds to believe the defendant was an impaired driver. [29] In applying the reasonable and probable grounds standard in the context of impaired driving investigations, it is useful toremember the guidance supplied by the Court of Appeal for Ontario in Bush.

In that decision, Durno J., sitting ad hoc, noted: [46] In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, [2010] O.J.No. 2490, 2010 ONCA 435, at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as tothreaten individual freedom: Censoni, at para. 43. [47] There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable groundsto arrest: R. v. Deighan, [1999] O.J. No. 2413, 45 M.V.R. (3d) 90 (C.A.), at para. 1.

Impairment may be established where theprosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), (ON CA), 12 O.R. (3d) 90,[1993] O.J. No. 18 (C.A.), affd (1994), (SCC), 18 O.R. (3d) 800, [1994] 2 S.C.R. 478, [1994] S.C.J. No. 51. Slightimpairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting on perceptionor field of vision, reaction or response time, judgment and regard for the rules of the road: Censoni, at para. 47.

[48] The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato , supra ; Moreno-Baches and Wang , at para. 17 .

Where appellate courts are called upon to review the trial judge's conclusions as to whether the officer objectively had reasonable and probable grounds, the appellate court must show deference to the trial judge's findings of fact although the trial judge's ruling is a question of law reviewable on the standard of correctness: Wang , at para. 18 . [13] [ 30 ] With the benefit of the guidance provided in Bush , I am satisfied that Constable Robinson did have objectively reasonable grounds to arrest the defendant for impaired driving. Despite Mr.

Lent’s able submissions, I am disinclined to characterize this simply as a case of a driver involved in a single vehicle accident smelling like alcohol. Rather, the defendant suddenly and inexplicably took flight from police when it became apparent that he was going to be pulled over. The driving he engaged in was extremely aggressive. The single vehicle accident, as the defendant rounded a corner on a residential side street, was, quite simply, spectacular.

The extreme nature of the driving would have been apparent to Constable Robinson, from what he witnessed and what he also observed of the scene of the accident, including the vehicle’s condition and location in the roadway. In my view, a reasonable person, in the position of the officer, knowing what Constable Robinson did, and then smelling alcohol on the defendant’s breath, would be reasonably justified in forming the opinion that the most probable explanation for these events was that the defendant was a drunk driver who was trying to escape detection.

At a minimum, on these facts, there were reasonable grounds for Constable Robinson to believe that the defendant’s ability to drive was at least slightly impaired by the consumption of alcohol. [ 31 ] I am therefore satisfied that Constable Robinson had the required grounds to arrest the defendant for impaired driving when he did. In my view, those grounds were only fortified when the officer, only seconds after the arrest, observed the defendant’s watery, red- rimmed and bloodshot eyes. Soon thereafter, the officer also found the half empty bottle of vodka in the glove compartment of the defendant’s vehicle.

The officer had the benefit of this additional evidence when he read the defendant the formal approved instrument breath demand at 6:57 p.m. [ 32 ] I am therefore satisfied that the defendant’s arrest for impaired driving and the subsequent approved instrument breath demand were both premised upon the required grounds. Therefore, each of these measures was lawful and Charter compliant. The claims under both sections 8 and 9 of the Charter are therefore dismissed. C.

Was the defendant’s right to counsel of his choosing violated? [ 33 ] The defendant claims that the police violated his right to counsel guaranteed by

section 10(

b) of the Charter . Specifically, Mr. Lent argues that the defendant’s concomitant right to speak with a lawyer of his own choosing was ignored by police who instead steered him towards consulting duty counsel. [ 34 ] It is well established that

section 10(

b) of the Charter includes the right to consult counsel of one’s choice. The Supreme Court made this clear long ago in R. v. Ross . [14] In that case, two detainees were unable to contact lawyers of their choosing at 2:00 a.m. Before they were able to call their lawyers’ offices in the morning, police placed them in an identification line-up. This violated

section 10( b ), the Court held, because detainees have a “right to choose their counsel”. [15] They are only expected to call another lawyer if their chosen lawyer “cannot be available within a reasonable time.” [16] The duration of this period, it suggested, might be shortened by circumstances of “urgency” or some other “compelling reason”, but in this case the line-up could have easily been held “a few hours later”. [17] The Supreme Court recently reaffirmed its holding in Ross regarding the right to counsel of choice and its limits. [18] [ 35 ] In this case, Constable Robinson first apprised the defendant of his rights to counsel at 6:52 p.m., soon after he was arrested.

At that time, when he was specifically asked, “Do you wish to call a lawyer now?” the defendant responded, “I do not.” Once they were back at 22 Division, at 7:10 p.m., Constable Robinson again asked the defendant if he wanted to call a lawyer. This time the defendant replied, “No, not now.” A short time later, while Constable Robinson and the defendant were still waiting on the qualified breath technician, at 7:20 p.m. the officer again asked him if he wanted to call a lawyer.

And, once again, the defendant replied, “No, not now.” [ 36 ] At 7:32 p.m. the defendant entered the breath room with Constable Robinson and the qualified breath technician, Constable Pallett. The events inside the breath room were video and audio recorded in their entirety and that recording was played at trial and became an exhibit in these proceedings. [ 37 ] Inside the breath room, Constable Pallett begins by apprising the defendant again of his rights to counsel.

In the course of doing so, Constable Pallett tells the defendant that he is entitled to call any lawyer he wishes and also informs him of the 1-800 number in Ontario by which duty counsel can be contacted for free and immediate legal advice. When ultimately asked if he would like to speak with a lawyer, some discussion takes place between the defendant and Constable Pallett, essentially consisting of the defendant seeking the officer’s advice on whether or not to call a lawyer. Constable Pallett rightfully tells the defendant that he cannot guide him either way.

At that point, the following exchange takes place: Pallett: Do you have a lawyer that you know of or do you want to speak to duty counsel lawyer? Defendant: Um, I, I have, I have a lawyer, but I am pretty sure you’re not going to give me my cellphone back, so .... Pallett: Who is the lawyer that you know of? [This question was followed by a long pause, after which the defendant responded.] Defendant: I’ll talk to your lawyer. Pallett: You want to speak to duty counsel? Defendant: Sure.

Pallett: Are you sure. Defendant: Yes. Pallett: Okay. [ 38 ] The defendant testified in support of his

section 10(

b) Charter application. He gave evidence that at the time his girlfriend had recently retained Mr. Lent in relation to some legal troubles that she was dealing with. He testified that when he asked Constable Pallett if he could retrieve his cellphone, he wanted his phone because it contained his contacts. Had he been given access to his cellphone, the defendant testified that he would have used it to call his girlfriend in order obtain Mr. Lent’s contact information from her.

According to the defendant, when he made mention of retrieving his cellphone and Constable Pallett did not take him up on that request, he assumed that accessing the contacts on his cellphone was simply not an option. As a result, he agreed to speak with duty counsel because he was left with the impression that that was his only option. According to the defendant, he would have preferred to contact Mr.

Lent but he was ultimately left with the impression that that was simply not an option. [ 39 ] During cross-examination, when pressed as to why, when Constable Pallett specifically asked him for the name of the lawyer that he knew he did not mention Mr. Lent, the defendant struggled to provide a coherent explanation. The defendant essentially maintained that once he concluded that his cellphone was not going to be provided to him he felt that his only option was to speak with duty counsel. [ 40 ] I have carefully considered the defendant’s evidence in support of his

section 10(

b) Charter application. I have done so in conjunction with the recording from the breath room, especially the exchange between the defendant and Constable Pallet on the topic of speaking with counsel. In the end, I simply do not accept the defendant’s evidence. The recording betrays that when he was actually presented with the option of speaking to a lawyer of his choosing, the defendant briefly contemplated the possibility but ultimately decided against it. In my view, the defendant made a fully informed and deliberate choice to speak with duty counsel.

As a result, I have concluded that the defendant’s right to consult with counsel of his choosing was not violated. To the contrary, the defendant made an informed decision to expressly and unequivocally waive that right. [ 41 ] As an aside, I think it also deserves mentioning that the defendant was fully apprised of his rights to counsel when he was first arrested. At that time, he expressly waived his right to speak with counsel. In my view, after that, there was simply no ongoing duty on the police to continue asking the defendant if he wanted to call a lawyer.

Nothing about the defendant’s situation had changed such that he was entitled to be re-apprised of his right to counsel. [19] As a result, although the Crown did not chose to respond the defendant’s

section 10(

b) Charter claim in this fashion, and I therefore engaged with the issue as it was raised and argued by the parties, I think that the defendant’s initial waiver of his right to counsel also provides a full answer to his specific claim regarding the violation of his right to consult with counsel of his choosing. [ 42 ] Accordingly, for all of these reasons, the defendant’s

section 10(

b) Charter claim is dismissed. D. Should the evidence be excluded under section 24(2) of the Charter? [ 43 ] Given that I have concluded that none of the defendant’s Charter rights were violated, there is no need to engage in an analysis regarding the exclusion of unconstitutionally obtained evidence. In my view, all of the evidence proffered by the Crown was obtained in a manner that complied with the defendant’s Charter rights. E.

Has the charge of impaired operation of a motor vehicle been proven? [ 44 ] The only issue remaining for consideration is whether the Crown has proven the charge of impaired operation of a motor vehicle beyond a reasonable doubt. I must decide whether the evidence establishes beyond a reasonable doubt that the defendant’s ability to operate his vehicle was impaired by alcohol.

As the Court of Appeal explained in Stellato : “If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.” [20] However, the “question is whether the person’s ability to drive is impaired to any degree by alcohol” which means that judges “must be careful not to assume” that where a motorist’s “functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired.” [21] [ 45 ] The Crown’s case on the impaired driving charge came principally from two police witnesses, Constable Robinson and Constable Pallett.

The Crown did not prove the voluntariness of the defendant’s statements to police inside the breath room. Accordingly, the parties were agreed that the defendant’s statements from that interaction could not be used for the truth of their contents.

Rather, the recording was only admissible to assess any physical indicia of impairment, for example any slurred speech, apparent difficulties with motor skills or other extraordinary behaviour on the part of the defendant. [ 46 ] Based on the admissible evidence, the Crown’s case on the impaired driving charge consisted of the following: • The defendant’s apparent flight from police. • The defendant’s dangerous driving and his involvement in a rather spectacular single-vehicle car accident. • The odour of alcohol on the defendant’s breath.

This was described by Constable Robinson, and confirmed by Constable Pallett, who characterized it as a “strong” odour. • According to Constable Robinson, the defendant’s watery, red-rimmed and somewhat bloodshot eyes. Constable Pallett described the defendant’s eyes as bloodshot and watery, but did not note them as being red-rimmed.

• The defendant’s somewhat unusual actions in the breath room, where he performs calisthenics and stretches before providing breath samples. • Constable Pallett’s testimony that the defendant’s face appeared to be flush. • Constable Pallett’s testimony that the defendant’s overall demeanour was consistent with somebody who was under the influence of alcohol. • Constable Robinson’s opinion that the defendant’s ability to operate a motor vehicle was impaired by alcohol. [ 47 ] In terms of the defendant’s speech, Constable Pallett also testified that it was slurred.

I watched and listened to the breath room video, paying particular attention to the defendant’s speech. Frankly, I do not share Constable Pallett’s conclusion. The difference between my perception and that of Constable Pallett might be the product of the less than optimum acoustics on the recording. Nevertheless, based on that recording, I am simply not prepared to find that the defendant’s speech was in fact slurred. [ 48 ] I also heard some evidence that can be fairly described as exculpatory on the issue of impairment.

For example, both Constable Robinson and Constable Pallett testified, and video recordings from the police division (both from inside and outside the breath room) confirmed, that there was no apparent effect on the defendant’s motor skills from his alcohol consumption. For example, he had no difficulty walking or with his balance. Similarly, he had no obvious difficulty with his finer motor skills.

For example, he had no problem removing the mouthpieces that were used during the breath testing from their plastic wrappers. [ 49 ] In order to find the defendant guilty of impaired driving I must be satisfied beyond a reasonable doubt that his ability to operate his motor vehicle was impaired by alcohol at least to a slight degree. The only evidence of the defendant’s driving relates to his sudden flight from police and his extremely aggressive driving and the resulting single-vehicle car accident.

I have struggled with the weight to attribute to the defendant’s driving, in terms of its assistance to the Crown in proving the impaired driving charge. In the end, I am simply unsure as to whether the accident resulted from: (

i) the defendant’s ability to drive and judgment being impaired by alcohol; (ii) the defendant’s decision to deliberately engage in some very dangerous driving in an effort to escape the police; or (iii) whether it was the result of some combination of factors (

i) and (ii). [ 50 ] When the competing potential explanations for the defendant’s driving are combined with the remainder of the evidence, both incriminating and exculpatory, I do think it far more likely than not that the defendant’s ability to drive was impaired by alcohol. However, without more, for example a toxicologist’s expert opinion that the defendant’s blood alcohol concentration would necessarily have meant that his ability to drive was impaired by alcohol, on the entirety evidence, especially remembering some of its exculpatory features, I am simply left in a state of reasonable doubt.

As a result the defendant is entitled to be found not guilty on the charge of impaired driving. III. Conclusion [ 51 ] The defendant ultimately furnished two breath samples that betrayed that at the time of testing his blood alcohol concentration was 2 ½ times the legal limit for driving. Those readings were proven in evidence through the introduction of a Certificate of a Qualified Technician that became an exhibit at trial. A Notice of Intention to Produce that certificate was also filed in evidence. It establishes that the defendant was properly served with the certificate.

The Certificate of a Qualified Technician establishes that the breath samples were collected within two hours of the defendant operating his motor vehicle. On the evidence, there was no unreasonable delay apparent in the administration of the breath tests. [22] As a result, the Crown has established the preconditions for relying upon the presumption of identity found in subsection 258(1) (

c) of the Criminal Code . [ 52 ] Based on the certificate and the presumption of identity, I am satisfied beyond a reasonable doubt that the defendant was operating a motor vehicle while his blood alcohol level exceeded the permissible limit, contrary to section 253(1) (

b) of the Criminal Code . [ 53 ] Accordingly, the defendant is found guilty of counts 1 (dangerous driving) and 3 (excess blood alcohol). Count 2, the charge of impaired driving, is dismissed. Released: June 25, 2015 __________________________ Justice James Stribopoulos