R. v. Tascione, 2019 ONCJ 867

ONTARIO COURT OF JUSTICE CITATION: R. v. Tascione , 2019 ONCJ 867 DATE: 2019 12 2 COURT FILE No.: Newmarket 17 01586 BETWEEN: HER MAJESTY THE QUEEN — AND — CHRISTINE-ELENA TASCIONE Before Justice David S. Rose Heard on March 28, 29, November 25, 2019 Reasons for Judgment released on December 2, 2019 Mr. P. Hsiung........................................................................................ counsel for the Crown Mr. S. Price counsel.................................... for the defendant Christine-Elena Tascione Rose J.: [ 1 ] Ms. Tascione pleaded not guilty to the charge of Over 80 Operation.

The trial raised a variety of issues, namely Charter issues as well as soon as practicable under s. 258 of the Criminal Code . Most of the key portions of the investigation were recorded on video, first from a police dash camera, and later by a video recorder system in the police station. They were of real value in determining the case, even if the police video system relied on a microphone in the breath room which was some distance from the front booking area where important events took place.

Evidence [ 2 ] PC Allison, a York Regional Police officer, was on general patrol on February 13, 2017 in the area of Steeles Avenue and Scholes Avenue. At 2:52 am he was in the area of the Cameo Lounge, which he described as a known licenced establishment. He saw a vehicle leave the area of the bar going westbound on Steeles Avenue. It had a licence validation sticker which was good to December 21 of 2016, and was therefore expired. [ 3 ] PC Allison followed the vehicle as it turned from Steeles Avenue to northbound Pine Valley drive. It swerved out of its lane, and then entered Highway 407 going eastbound.

It was swerving within its lane and travelling at inconsistent speeds. The car left Highway 407 at Dufferin Street and went southbound. It was 3:01 am at that point and PC Allison stopped the car with his emergency equipment. [ 4 ] The vehicle, a Mercedes SUV, stopped in the center lane and activated its 4 way hazard lights. Allison approached the car and found two occupants, Ms. Tascione the driver and a female passenger. He told Ms. Tascione that he stopped the car because of an expired validation sticker.

He told her to move the Mercedes to the outside lane. [ 5 ] He approached the car a second time and noticed an odour of an alcoholic beverage coming from the interior of the vehicle. He told Ms. Tascione that he could detect that odour and asked for the usual documents. Ms. Tascione gave PC Allison the permit and insurance card from the front seat but said that her driver’s licence was in the back seat. She exited the SUV to get it and caught her shoe on the floor of the car, nearly falling. She was wearing high heels. [ 6 ] Ms.

Tascione gave PC Allison her library card first and then a valid Ontario driver’s licence. At that point Allison said that he

would be demanding a roadside breath sample. Ms. Tascione initially said that she would not take the test, and PC Allison explained the consequences of a refusal. That conversation provided PC Allison with confirmation that the odour of an alcoholic beverage was coming from her. It was at that point 3:05 am. He made a formal demand at 3:07 am. PC Allison did a self test on the ASD and registered a zero. [ 7 ] Ms. Tascione had issues with the nature of the traffic stop and insisted on speaking with her uncle Enzo. At 3:10 she used her cell phone to make that call, and then agreed to provide the ASD sample.

On the second attempt she registered a fail. She was then arrested for Over 80. It was 3:11. [ 8 ] Ms. Tascione was lodged into the rear of PC Allison’s police car. At 3:16 PC Allison read Ms. Tascione her rights to counsel. She said that she understood and when asked if she wanted to call a lawyer said that her lawyer will be called. PC Allison proceeded to read a standard caution but Ms. Tascione interrupted him. She asked again why she was pulled over. PC Allison told her that she would be charged with Over 80. At 3:19 a breath demand was read. Ms.

Tascione said that she was overwhelmed and asked to be just left alone. PC Allison reads another Approved Instrument demand and Ms. Tascione replied that she didn’t know what he was saying. [ 9 ] By that point the passenger from the Mercedes was at the rear window beside Ms. Tascione. The rear window was open and the police video recorder captured the passenger making numerous telephone calls, none of which connected. Eventually the call connected and the passenger from the Mercedes put the cell phone on speaker and has Ms. Tascione speak with her uncle Enzo through the open window of the police car.

PC Allison can be heard asking to speak with Ms. Tascione’s uncle and he did, explaining that she was stopped because her car had an invalid licence sticker, she failed a roadside breath test and has been arrested for Over 80. PC Allison can be heard saying that he is leaving for the police station but she will be released after breath testing. PC Allison had Ms. Tascione’s uncle’s phone number by that time, namely 3:20 am, and knew that the uncle was going to be arranging Ms. Tascione’s lawyer. Ms.

Tascione repeated that when she was lodged in her cell after being booked into 4 District. [ 10 ] PC Allison read another Approved Instrument demand to Ms. Tascione, who replied “yeah, whatever”, and complains that PC Allison was picking on her. PC Allison can be heard denying that. [ 11 ] The car left the roadside at 3:26 am, arriving at 4 District police station at 3:33 am. At 3:36 Ms. Tascione was removed from the police car and taken to the booking hall. Booking was complete by 3:46 am, and at 4 am PC Allison placed a call to Ms. Tascione’s counsel of choice Domenic Basile.

That name and phone number had been provided by Ms. Tascione’s uncle Enzo, who was by then at 4 District. At some point between 3:46 and 4 am PC Allison saw Enzo at the front desk to get Mr. Basile’s phone number. PC Allison could not say when that happened, although he was candid that he could have called Mr. Basile closer to 3:46. [ 12 ] After Ms. Tascione was booked into her holding cell PC Allison walked back to the booking desk and assisted the booking sergeant deal with her property. He then walked back to her cell to write her information on the cell.

PC Skanes, the breath technician then spoke with him and received PC Allison’s grounds. At 3:52 PC Allison went back to his police car which was still in the sally port of the station and moved it out. At 3:54 he came back into the station and spoke again with the booking sergeant. At 3:55 he was paged to the front desk of the station. [ 13 ] At 4:05 am PC Allison removed Ms. Tascione from her cell and put her in the telephone booth across the hall from her cell to speak with her lawyer. In his evidence he said that he told her to knock on the door when she was done with the call.

He also testified that he told her that the room was private or words to that effect. [ 14 ] The station video system recorded the time when Ms. Tascione was in the phone booth. Once she enters four police officers stood just outside the room at the booking officers desk. When pressed about whether he could hear Ms. Tascione crying in the phone booth PC Allison said that he could not distinguish a sound coming from the phone booth from sounds coming from the nearby holding cells. [ 15 ] Allison can be seen on the station video standing across the hall from the telephone room and going to the door and opening it.

He testified that he did that when she approached the door from inside and knocked on it. Although he had no memory of going in, the video is clear that he does that. When pressed about why he entered the phone booth at 4:08 he testified that he couldn’t hear a knock on the phone booth door on the video. He was adamant, however, that even if the station video didn’t pick up the knock on the door he heard it when he was standing near the phone booth. He would never have gone into the phone booth unless he was prompted to. As he put it, there was “No chance” that he went into the phone booth unprompted.

He denied that he went into the phone booth simply because Ms. Tascione was crying. [ 16 ] When PC Allison went into the phone booth he spoke with the lawyer who was still on the phone. [ 17 ] PC Skanes was the qualified breath technician who took breath samples from Ms. Tascione. He had been so designated since March of 2011, and continued to be a Qualified Breath Technician in February of 2017. On February 13, 2017 at 3:14 am he had been notified that he was required for an investigation at 4 District. He arrived at the station at 3:33 am. An approved instrument was set up there. It was an Intoxilyzer 8000C.

He took the usual steps to ready the instrument, including a diagnostic check a calibration check and then a self test later. He testified that the alcohol standard solution was valid and within its certification had not expired. [ 18 ] He took custody of Ms. Tascione at 4:10 am. At 4:14 he read her another breath demand. At 4:22 Ms. Tascione provided a first sample of her breath directly into the Intoxilyzer, which registered a value of 191 milligrams of alcohol in 100 millilitres of blood. The Approved instrument did a system check again at 4:41 am, and at 4:44 am Ms.

Tascione provided a second sample of her breath directly into the Approved Instrument. It registered 185 milligrams of alcohol in 100 millilitres of blood. [ 19 ] PC Skanes testified that Ms. Tascione was upset that night, and quite emotional. He could hear her banging on her cell door. She asked to speak with her uncle at 4:02 am and PC Skanes told her that she couldn’t. Defence Evidence

[20] Ms. Tascione testified in her own defence both for purposes of the Charter motion and the trial proper. She admitted that onthe night she was arrested she had been drinking. She was driving a friend home from work when she was stopped by PC Allison. Shetestified to being anxious, stunned and scared after she was arrested. She admitted to speaking with her uncle Enzo at the police station. She admitted that she had been read her rights to counsel at the roadside but that they were generic. [21] Ms. Tascione admitted to being upset at the police station. She was anxious and crying loudly.

Eventually PC Allison directedher to a room with a lawyer on the phone. Her uncle Enzo had given PC Allison the name of the lawyer. She testified that while shewas on the phone with the lawyer she could hear people talking around her. This made her feel uncomfortable. At that point she wasmore sobbing and anxious rather than understanding what was going on. She believed that if she could hear the people talking theycould hear her. PC Allison had told her that the conversation was to be private. The call with the lawyer ended when PC Allison walkedin, and she passed the phone to him.

She hadn’t really finished her conversation with the lawyer. As she said in chief “We didn’t reallyget anywhere”. She said that she gave PC Allison the lawyer because she thought he had a right to speak to the lawyer and didn’t insiston speaking more with the lawyer because PC Allison was coming into the room. It didn’t seem like an option. Ms. Tascione testifiedthat she didn’t signal PC Allison to come in. She didn’t look at the door until he came in. PC Allison never asked her if she was satisfiedwith the conversation. [22] In cross-examination Ms. Tascione was asked about her memory of the events.

She said that she remembered picking up afriend and had some drinks but couldn’t remember much more than that. She was drinking wine, but couldn’t say how much. As shesaid, it was scattered. When pressed about her ability to remember the details of the night she said that she could remember everythingfrom the night except how much she was drinking. [23] Ms. Tascione agreed in her evidence that she wasn’t intimidated in her dealings with PC Allison. At the roadside she asked a lotof question of PC Allison, challenging him on the basis for the traffic stop.

She agreed that PC Allison was civil, and nice in his attitudeto her. [24] In cross-examination she also clarified that PC Allison told her that she would speak to the lawyer in the booth. It wasinsinuated that the call would be private, but she wasn’t sure if he said that. Ms. Tascione testified that when she was speaking to herlawyer she was crying throughout the call. That muffled the sound of people outside the phone booth. She was intent on speaking withher lawyer, but was also beset by her emotions and crying. Ms.

Tascione was adamant that PC Allison walked in on her phone callwithout her signalling that the call had ended. [25] Ms. Tascione’s uncle Enzo Commisso also testified. He said that he got a call from his niece Ms. Tascione the night of herarrest. He headed over to the police station right away. He spoke with a criminal lawyer Domenic Basile on the way to the policestation. When he got to 4 District he waited for about 20 minutes and then gave the phone number for Mr. Basile to the officer on dutyat the front desk of the station. Issues [26] Given the admissions, the evidence raises the following issues: 1.

Were the breath tests taken as soon as practicable insofar as the period from 3:46 to 4:00 am is concerned? 2. Was the there a reasonable suspicion sufficient to permit PC Allison to demand an ASD sample? 3. Was there a violation under s. 10(

b) of the Charter insofar as PC Allison called counsel for Ms. Tascione at 4:00 am, and notsooner? 4. Was there a s. 10(

b) violation insofar as PC Allison went into the phone room while Ms. Tascione still had her lawyer on the phone? Were the breath tests taken as soon as practicable insofar as the period from 3:46 to 4:00 am in concerned. [27] In submissions Mr. Price narrowed this argument down to the period from 3:46 am to 4 am. [28] The legal test for whether the Crown has proven that the breath tests were taken as soon as practicable under s. 258 of theCriminal Code comes from R. v. Vanderbruggen (ON CA), 208 O.A.C. 379 (C.A.). As soon as practicable does notmean as soon as possible.

It simply means that the tests should be administered within a reasonably prompt time in all thecircumstances. In R. v. Singh 2014 ONCA 293 Jurianz JA reiterated that, ...the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is incustody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliableevidence to prove an accused's blood-alcohol level.

Interpreting these provisions to require an exact accounting of every moment in thechronology from the time of the offence to the second test runs counter to their purpose. As Rosenberg J.A. said in Vanderbruggen, atpara. 12, "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably." [29] With that in mind I find that in the period from 3:46 am to 4 am the following events occurred. Ms. Tascione was lodged in acell across from the breath room waiting for breath testing to commence. She was also waiting to speak with her lawyer.

At around 3:50PC Allison spoke with the Breath Technician PC Skanes about the investigation and provided him with his grounds. He then went tomove his police car from the sally port, where he had parked it when he brought Ms. Tascione into the station. He then went to the frontdesk, where he received the phone number for Ms. Tascione’s lawyer. At 4:00 am he called her lawyer. [30] I am sure that things could have moved marginally faster in this period, but that is not the test. In the impugned period PCAllison was doing necessary tasks connected to or arising from Ms.

Tascione’s investigation: speaking with PC Skanes; moving his car

out of the sallyport; and obtaining the phone number for Ms. Tascione’s lawyer. The police acted reasonably in bringing Ms. Tascione tothe station, and then obtaining her breath samples as soon as practicable. The Crown has proven that the breath tests were taken as soonas practicable. The first breath sample was taken one hour and 21 minutes from the time Ms. Tascione’s vehicle was first stopped. There was a delay at the roadside, but that is attributable to Ms. Tascione’s initial reluctance to supply an ASD sample and the time takento speak to her uncle while in custody.

Was the there a reasonable suspicion sufficient to permit PC Allison to demand an ASD sample. [31] This argument is fairly easy to deal with. By the time PC Allison made the ASD demand he had the following: somemarginally bad driving, an odour of alcohol on Ms. Tascione, and some coordination problems on her part. She initially provided herlibrary card, when asked for her drivers licence and almost tripped getting out of her car. This easily passed the threshold for areasonable suspicion.

When he made the ASD demand PC Allison had good reason to suspect that she had alcohol in her system at thetime he stopped her car. He could smell alcohol on her, he noted some coordination problems which might be consistent with alcoholconsumption and he witnessed some driving which could be consistent with alcohol impairment. All of that combined to properly founda reasonable suspicion. S. 10(

b) issues Delay in implementing Rights to Counsel [32] I find that Ms. Tascione advised PC Allison upon her arrest that she wanted to speak to a lawyer and that her uncle Enzo wasgoing to provide the name of her counsel of choice. PC Allison admitted that he had Enzo’s phone number when they left the roadside togo to 4 District. This argument therefore hinges on the time frame when Ms. Tascione left the 4 District booking hall at 3:46 until thetime that he called Mr. Basile at 4 am. This is a period of 14 minutes during which there were no investigative steps taken whichdirectly involved Ms. Tascione.

She was brought to the breath room at 4:10 after she left the phone booth. The defence argument is thatPC Allison had Enzo’s phone number at 3:46 and should have called him then to get Mr. Basile’s phone number at that time, and notwaited until about 10 minutes later when he got the phone number from the 4 District reception area, where Mr. Commisso testified, hegave it to the officer at the reception desk. [33] The Right to Counsel must be provided upon being requested. That is clear on the language of s. 10(b). The framers of theConstitution could have drafted s. 10(

b) in less than absolute language, but instead chose to say that arrestees have the right “to retain andinstruct counsel without delay”. The informational component of s. 10(

b) is engaged immediately upon detention or arrest, and the dutyto facilitate access to counsel arises immediately upon that request being made, see R. v. Suberu 2009 SCC 33 , [2009] 2 S.C.R.460, R. v. Sinclair 2010 SCC 35 , [2010] 2 S.C.R. 310. The burden is on the Crown to show that the delay is reasonable in thecircumstances, which is a factual inquiry, see R. v. Taylor 2014 SCC 50 , [2014] 2 S.C.R. 495. The timeliness standardapplicable when implementing Rights to Counsel is different than the timeliness standard in s. 258. In the s. 10(

b) context, “The duty ofthe police is to provide access to counsel at the earliest practical opportunity”, see Taylor (supra) at par. 32. As discussed above, the assoon as practicable standard in s. 258 is different. When the arrestee asserts the right to speak with a lawyer, that process takes priorityto taking breath tests by necessity. [34] There is no reason why, on the evidence, PC Allison did not call Mr. Commisso and ask who Ms. Tascione’s lawyer wasimmediately after the booking procedure. He had other things going on at the time, which I have already found were logically connectedto the investigation.

He spoke with PC Skanes, he moved his patrol car out of the sally port. He ended up getting the number which Mr.Commisso had provided at approximately 10:54 upon going to the front desk of 4 District. That is an 8 minute delay. This is a closecase. The time frame is admittedly brief, but the Supreme Court of Canada has long pronounced that immediate facilitation of rights tocounsel means just that. PC Allison prioritized other steps in the investigation before rights to counsel. There is no reason on theevidence why rights to counsel did not prevail over moving his police car or speaking with PC Skanes.

I therefore find that Ms.Tascione’s rights to counsel were violated when PC Allison waited before obtaining the name of Ms. Tascione’s lawyer from Mr.Commisso. s. 10(

b) Privacy [35] An arrestee speaking with counsel is entitled to privacy in that communication. This is axiomatic, see R. v. McKane (1987), (ON CA), 21 O.A.C. 73 (C.A.), R. v. Cairns (2004), (ON CA), 182 O.A.C. 181 (C.A.). Even ifthere is no actual privacy violation, if the arrestee reasonably believes that his lawyer client conversation is being listened to and restrictshis conversation with counsel there will be a s. 10(

b) breach, see R. v. Playford (1987), (ON CA), 40 C.C.C. (3d) 142(Ont. C.A.), R. v. Burley (2004), (ON CA), 182 O.A.C. 395 (C.A.) [36] PC Allison denied that he entered the phone booth unprompted, and Ms. Tascione testified that he did just that. I havesignificant concerns with Ms. Tascione’s credibility. When pressed about her memory of this investigation she testified that sheremembers everything except how much she drank the night of her arrest. This is a significant inconsistency. Her BAC was quite high –over double the legal limit. That is the essence of the charge against her.

Her answer that she remembers everything except the pivotalissue, namely her alcohol consumption is unbelievable. I find that her answer that she remembers everything except how much shedrank to be an attempt to make me believe her on the issues relevant to her Charter application which were not captured by the videorecording. [37] It is also an inconsistency for her to assert to PC Allison when under arrest that she just wanted be left alone, and yet testify asshe did that when she was alone with her lawyer she failed to say that.

This is of less significance because it is clear from the video thatat the roadside Ms. Tascione was somewhat defiant, but by the time she was in custody at the police station she was not so much defiantas upset. [38] It is also a testimonial inconsistency for her to testify that PC Allison advised her that the phone call would be in private, but incross-examination clarified that PC Allison told her that she would speak to the lawyer in the booth, and it was only insinuated that thecall would be private, and she wasn’t sure if he said that.

Privacy of the phone call is an important issue on the Charter Application and

this is more than a minimal inconsistency. It is also a frailty in Ms. Tascione’s evidence that while she was on the phone call with herlawyer she was, as she put it “sobbing, and into my emotions”. To be fair, she also said that she was otherwise involved in the phone callwith her lawyer, but she was in an emotional state at the time. This can be seen on the station video. [39] By comparison, PC Allison was careful to say what he did and didn’t do. He admitted in cross-examination that he didn’t recallhow many times Ms. Tascione swerved in and out of the lane.

He made no attempt to exaggerate the degree of bad driving. He easilyadmitted that her driving wasn’t “overly alarming”. He admitted that she may have caught her heel on the floor of the car when she gotout. He admitted that he could have called Ms. Tascione’s uncle closer to 3:46. He admitted that he could hear sounds when Ms.Tascione was in the phone booth but couldn’t say if they were from her or another prisoner in a cell. Significantly, he admitted that hehad no memory of going into the breath room at the end of the call. There were no material inconsistencies in his evidence.

Nothingabout his evidence was illogical or at odds with the evidence I have accepted. Almost all of his evidence was confirmed by the in carcamera and station video. I therefore find him to be generally credible. [40] The station video recorded PC Skane going to Ms. Tascione’s cell at 4:02 and speaking to her through the door. Muffled cryingsounds can be heard, as well as Skanes saying that she can’t speak with her uncle because she is under arrest. At 4:03 PC Allisoncompleted a conversation with an officer at the booking desk, opens the door to the phone booth and removes Ms. Tascione from thecell.

PC Allison escorts her about 20 feet to the phone booth. When he opened the cell door he told her that her lawyer is on the phone. They have a conversation which is only partly heard on the video, but includes Allison telling her to pick up the phone, knock when youare done, “he’s at the front desk” and “don’t hang up until you are done”. He closes the door behind her. [41] PC Allison then moves to the booking hall desk and has a conversation with PC Skanes and one other officer. PC Allison isseen writing in his police notebook. The officers can be heard speaking but what they say is inaudible.

At 4:06 PC Skanes walks back tothe breath room. PC Allison walks to the breath room and then back to position himself in the hallway across from the phone booth. Hemoves a few feet in many directions but he stays in the vicinity of the breath room. At 4:08:32 he enters the phone booth. The videorecords him changing his attitude from one of passively waiting to deliberately going to the phone booth. [42] Having reviewed the station video recording a number of times, I could not hear a sound which was consistent with a knock onthe door.

The sound recording is consistent with a microphone in a room down the hall, in a building which is composed of brick andmetal. To be fair, many of the sounds which I would expect to hear from that time frame are not picked up on the microphone if thesound were recorded in close proximity to the source. PC Allison’s foot movements, and body movements are not recorded. [43] I have difficulty with Ms. Tascione’s evidence. For the reasons outlined, I do not accept her evidence.

She bears the onus onthe Charter Application and I do not accept her evidence on a balance of probabilities that her phone call with her lawyer was interruptedby either the persons outside the room or PC Allison interrupting the phone call with counsel. I accept PC Allison’s evidence that heentered the phone booth upon hearing a knock signalling that she wanted him to open the door. For these reasons the s. 10(

b) privacybreach allegation is dismissed. [44] I have found that Ms. Tascione’s rights under s. 10(

b) were violated when PC Allison did not provide her access to her lawyerwithout delay. The call to her lawyer should have been placed closer to 3:46 am as opposed to 4:00 am. The difference is some 14minutes. Admissibility of Evidence – Section 24(2) [45] Turning to the three part test from R. v. Grant 2009 SCC 32 , [2009] 2 S.C.R. 353 I find that the Charter violation isnot serious. PC Allison was candid in his evidence that he should have provided access to counsel earlier. His evidence wastrustworthy. There was no attempt to mislead the Court.

The delay in providing access to counsel was brief, less than 15 minutes, and inthat time period PC Allison was doing other things connected with the investigation. I also take into account that PC Allison was politeand professional throughout his dealings with Ms. Tascione. At the roadside he went beyond what was required to speak with Ms.Tascione’s uncle to explain the situation. On the video this appears to have some effect of reducing Ms. Tascione’s anxiety. I woulddescribe the 14 minute delay in calling Ms. Tascione’s counsel as a technical violation of s. 10(b).

The first part of the Grant teststrongly favours admission of the evidence. [46] The affect on Ms. Tascione’s Charter protected interests was minimal at best. She spoke to her lawyer prior to providing breathsamples. She made no complaint about the adequacy of her call. There was no attempt to take evidence from her prior to the phone call. In short, she spoke with her lawyer of choice when she needed to. The second prong of Grant (supra) also favours admission of theevidence. [47] Lastly, society always has an interest in adjudication of criminal trials on their merits. The question is by how much?

In thiscase the evidence is BAC readings drawn from breath samples. The evidence is highly reliable, and the readings are quite high. There isa problem with drinking and driving in York Region. In sum, society has a very strong interest in adjudication of this trial on its merits. The last prong of Grant (supra) test also favours admission of the evidence. [48] In the result, the breath tests are admitted into evidence and Ms. Tascione is convicted of the offence. Released: December 2, 2019

Signed: Justice David S. Rose