R. v. Hooper, 2011 ONCJ 48

COURT FILE No.: Region of Durham 998 09 15919 Citation: R. v. Hooper, 2011 ONCJ 48 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Amanda Hooper Before Justice J. De Filippis Heard on: December 15 & 17, 2010 Reasons for Judgment released on February 10, 2011 Mr. F. Stephens ...................................................................................................... for the Crown Mr. K.

Mitchell-Gill............................................................................................ for the Defendant [1] The defendant was tried on an Information alleging that on October 31, 2009 she was in care or control of a motorvehicle with a blood alcohol level that was above the legal limit (“over 80”), contrary to s. 253(1)(

b) of the Criminal Code. The Crownseeks to tender test results obtained from breath samples taken from the defendant to prove the charge. The defendant applied to excludethat evidence pursuant to s. 24(2) of the Charter of Rights and Freedoms, on the basis that her rights under sections 8 and 10(

b) wereviolated. The defendant concedes that if the motions to exclude evidence fail, she must be found guilty of the offence. For the reasonsthat follow, I dismiss both motions. [2] I find the following facts, which are not in dispute or seriously challenged: At 3:10 AM, on the day in question, Cst.Wood and a fellow officer were flagged down by a person who claimed his vehicle had been struck by another one on Highway 401. This person pointed said he had followed the other vehicle to a convenience store and pointed it out to the officers.

The officersapproached that vehicle and saw that it was parked with the engine running. They stopped the driver, and lone occupant, of the car asshe stepped out of the vehicle. The officers summarily explained the information they had received and asked for identification. Thewoman – the defendant in this matter – produced a driver’s license in the name of Amanda Hooper. Cst. Wood noticed that thedefendant’s eyes were glossy, watery and the pupils dilated. She detected a faint odour of alcohol. When asked if she had been drinking,the defendant admitted to three shots of Jack Daniels before midnight.

Based on these observations and conversation, the officersuspected the defendant was in care and control of a motor vehicle with alcohol in her body and made a “roadside demand”. Thedefendant provided a breath sample into an approved screening device and registered a “fail”; that is, that her blood alcohol levelexceeded the legal limit. Cst. Wood arrested the defendant for the charge and made a breathalyzer demand. The defendant was laterturned over to a qualified intoxylizer technician and provided two samples of her breath into the approved instrument.

The lowesttruncated test result is 120 milligrams of alcohol in 100 milliliters of blood. [3] Subject to the Charter motions there are no issues about the manner in which the breath samples were taken from thedefendant or the validity of the test results. Thus, if the impugned evidence is admissible, there is no doubt the defendant is guilty ascharged. Defence counsel did not strongly press the s. 8 argument. Given the foregoing, this is not surprising and I can dispose of thisissue relatively quickly. [4]

Section 8 of the Charter guarantees that “Everyone has the right to be secure against unreasonable search or seizure”. In the circumstances of this case, that means that the legality of the arrest and breath demand is conditional upon the existence ofreasonable and probable grounds to believe that the defendant was in care or control of a motor vehicle with a blood alcohol level thatwas above the legal limit.

The officer was justified in making a roadside demand because her observations and conversation with thedefendant created a “reasonable suspicion” the latter had alcohol in her system while in care and control of a motor vehicle. This, alongwith the “fail” registered on the approved screening device, means reasonable and probable grounds existed within the meaning of R vStorrey (SCC), [1990] 1 S.C.R. 241. [5] Defence counsel’s primary argument is that the police failed to comply with s. 10(

b) of the Charter. It provides that“Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. In determiningthis issue, I have the benefit of a videotaped statement by the defendant as well as her testimony and that of three police officers. [6] After arresting the defendant, Cst. Wood advised her of her right to counsel. She did so by reading the standard

statement that is printed at the back of her duty book. This statement provides as follows: It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a toll-free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now . Do you understand?

The officer testified that the defendant stated she understood and when asked if she wanted to call a lawyer, the defendant responded, “No, I’ll call one when I get out”. Cst. Wood believed the defendant understood her right to counsel. The defendant was taken to a police station and paraded before the booking Sergeant before being turned over to the person administering the breath tests. Cst.

Wood testified that the standard right to counsel statement referred to above is printed, in large letters, on a poster in the area of the booking Sergeant as well as the cell area. [ 7 ] The defendant was paraded before Cst. Hollister who was the Acting/Sergeant. Cst. Hollister testified that the booking Sergeant is responsible for the safety of prisoners in the police station. She asked the defendant routine questions to ensure she had no medical issues, was not injured, understood why she was under arrest, and knew her rights.

As part of this process, the following exchange occurred: Officer: Were you advised of your right to counsel? Defendant: Yes O: Do you wish to call a lawyer? D: No [ 8 ] Cst. Sokoljuk is the qualified intoxilyzer technician who took samples of the defendant’s breath. Before those samples were taken he responded to many questions from the defendant. Their lengthy conversation was videotaped. After the officer read the standard breath demand, they had the following conversation: Defendant: If I were to deny this breathalyser what would be each step from here on in?

Officer: You’d be charged with refusal which is an additional criminal charge. D: ….If I were to say. ‘no I don’t want to take this test’, I would have to call a lawyer and be held in the cell overnight? O: I don’t know what your record’s like, but not necessarily. You’d be charged with refusing… D: I just want to be completely aware. [ 9 ] After learning that the defendant did not have a prior criminal record or outstanding charges, the officer stated that if the defendant refused to comply with the breath demand, she would be charged with that offence and be released.

The conversation continued: Defendant: I mean obviously regardless of whether I choose to do this or not, I have a court date. Officer: That’s right. D: Regardless O: ….You’re asking me questions that you should be asking counsel. D: Well, I don’t have counsel at 4 AM. I don’t feel like sitting here until 8 AM. I have to work at 7 PM and I don’t really have the time or the effort to put in to Durham Regional Police to be completely honest with you. I just want to go home. I don’t want to be here. I don’t want to be here right now. O: I need to do a breath test with you at this point.

It’s required by the law… D: It’s required by the law and if I refuse what happens? O: You get charged with refusing. D: ….Okay, but if I blow over what are the charges? O: It would be exceeding the legal limit of 80 milligrams. D:….Is that a lie that you’re telling me to do this? Or is that actually the law? O: That’s the law. We’re on audio and video, I’m not lying to you. D: Okay and if I were to obtain legal counsel and wait until legal counsel came to do this breathalyser, what would be the difference?

O: If you waited for what? D: Legal counsel which would be a lawyer. O: yea, we can call duty counsel for you if you don’t have a lawyer of choice. D: I know my lawyer’s name. I don’t know his number… Does that make a difference? O: No, they can search it if you know his name. D: Okay. So if I refuse to do this until my lawyer is here does that make a difference? O: Your lawyer doesn’t come here, your lawyer gets called. Whether he calls back or not is another question…Cuz if your lawyer has an answering service or if your lawyer is awake on a Saturday morning at whatever time it is right now. Who’s your lawyer?

D: His name is Doug Cosby. He’s a criminal lawyer. O:…So we need to make a decision here. D: …All my life you guys totally screwed with my head…I don’t want that shit anymore…So what is happening right now is if I refuse I get charged with – O: Refusal. D: If I deny until my lawyer gets here then – O: Your lawyer is not gonna come here. D: It all happens until the call is over and then you guys say, do the breathalyser – O: You call your lawyer, he calls you back, you talk to him and then you come back here and- D: Do the breathalyser. O: Do the breathalyser or refuse, whatever you decided to do.

It’s your – D: If I refuse am I being obtained [sic]? O: Detained? …Are you gonna be put in jail do you mean? D: Yea D: No. [ 10 ] The defendant asked the officer to repeat the breath demand. After he did so, the defendant again asked about the options she had, the consequences of refusing to provide a sample and whether she would be detained if she refused. The officer responded to these questions in the same manner as above. The conversation continued: Defendant: I’m just scared that if I refuse you guys are going to obtain [sic] me.

Officer: Well, I’ve honestly told you we can’t detain you…So make a decision right now Amanda because I can’t talk to you all night long here. I want to go home too….Why are you not providing me with the required samples of your breath? D: …The reason being that I have not only legal counsel that’s not obtained but I’m alone in a room with you and I don’t really know the precautions of anything that’s gonna happen. O: Well, I think I have explained it.

D: It doesn’t matter if you have explained it to me or not, you could be tell me a complete story and trying to get any information… O: Are you going to comply…I’m not going to talk to you much longer… D: Just get me out of here, like whatever makes your day easier, please just do it, I want to go home. O:…Are you going to do the test Amanda? D: Either way I’m fucked… The defendant provided two samples of her breath. The readings were 135 and 127 milligrams of alcohol in 100 millilitres of blood. [ 11 ] Cst.

Sokoljuk testified that it is the duty of the arresting officer to advise the accused of her right to counsel and of the booking Sergeant to confirm this has been done. He said he does not deal with such matters unless the accused asks for counsel, in which case he acts upon the request. He testified that although the defendant asked many questions, he did not interpret anything she said to be request to contact counsel. Specifically, he did not interpret the defendant’s reference to not having a lawyer at 4 AM as a desire to have

one at that time. He stated that he would have called counsel had she requested it and that it would have been easy to find her lawyer’stelephone number. He explained that having satisfied himself the defendant understood her right to counsel, he wanted to take the breathsamples as soon as possible, in accordance with the provisions of the Code. [12] The defendant testified that she was in a “horrible state of anxiety” after her arrest. She does not dispute that when advisedof her right to counsel and asked if she wished to call a lawyer, she responded, “No, I’ll call when I get out”.

However, she claims shedid want to speak to counsel right away. Similarly, she does not dispute telling the booking Sergeant that she did not want to call counselbut claims she was confused and did not know she could do so at that time. When asked why she simply did not ask the breathalyzertechnician to call her lawyer, she said she did not believe the latter would come to the station or call back. She acknowledges she wastold about the availability of 24 hour duty counsel and free legal aid. [13]

Section 10(

b) imposes three duties on the police: (1) inform the detainee of the right to counsel; (2) provide a reasonableopportunity to exercise this right if counsel is desired; and (3) curtail questioning and compulsion to make a decision or participate in aprocess that could ultimately have an adverse effect at an eventual trial, until that reasonable opportunity has been exercised. The firstduty is an informational one. The second and third are implementation duties, triggered only if a detainee expresses the wish to exercisethe right to counsel. See: R. v.

Bartle (1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.). [14] In the absence of something indicating that the defendant did not understand, recitation of the standard s. 10(

b) statementabout the right to counsel, including information about legal aid and duty counsel is sufficient. If there is a basis to doubtcomprehension, the police have an obligation to reasonably ascertain that the rights are understood and, if not, to take steps to ensurecomprehension. See: R. v. Vanstaceghem (1987), (ON CA), 36 C.C.C. (3d) 142 (Ont. C.A.) and R. v. Baig (1987), (SCC), 37 C.C.C. (3d) 181 (S.C.C.). [15] The defendant must exercise reasonable diligence in exercising s. 10(

b) rights. Accordingly, if the police have properlyadvised of the right to counsel, the fact that they could have made greater efforts does not detract from her lack of diligence. See: R. v.Richfield (2003), (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.). The onus is on the defendant to adduce evidence toprove on a balance of probabilities that she did not understand their rights to counsel: See R. v. Baig, (SCC), [1987] 2S.C.R. 537. [16] Apart from Cst. Woods belief that the defendant understood her right to counsel, Defence counsel does not take issue withthe evidence of the arresting officer and booking Sergeant.

He submits that the answer given by the defendant to Cst. Wood should havealerted the officer to the fact the defendant did not understand she could call counsel right away. Counsel also submits the bookingSergeant should have repeated the standard statement about right to counsel. In any event, Defence counsel argues that the exchangebetween the defendant and the intoxilyzer technician shows the defendant had not understood her right to counsel or had becomeconfused about it.

It is submitted this should have been obvious to the intoxilyzer technician and he failed to comply with s. 10(b). [17] I reject the suggestion that the defendant did not understand her right to counsel. This is made clear by her responses tothe arresting officer and booking Sergeant: The defendant told the former that she did not wish to call counsel and would do so afterbeing released from custody. She told the latter that she had been advised of her right to counsel and did not wish to call a lawyer. Thereis no ambiguity about the defendant’s statements or the context within which they were made.

In these circumstances nothing more wasrequired of either officer. What remains to be determined is whether subsequent events affected the defendant’s s. 10(

b) rights. [18] The intoxilyzer technician allowed himself to be drawn into a lengthy and unnecessary discussion with the defendant. The Charter imposes important duties on the police. To go beyond these obligations runs the risk that a detainee will become confusedor otherwise require the right to counsel to be explained again. In my opinion, that danger did not materialize. [19] Although it was inappropriate for the officer to question whether the defendant’s lawyer of choice would receive themessage and call back at 4 AM, I am not troubled by it in this case.

I accept that the officer did not intend to dissuade the defendant fromcontacting counsel but merely expressed an opinion about the likelihood of success, in response to questions from the defendant. In thisregard, it must be noted that the officer told the defendant he could find her lawyer’s telephone number and also advised about theavailability of duty counsel. I accept that had the officer believed the defendant wanted to speak counsel, he would have arranged it.

When he said “we need to make a decision” it is clear he meant the choice to seek legal advice and/or provide a sample or not. [20] Regardless of what the officer intended, meant, or believed it is important to consider what the defendant understood. Her claim that she was in a “horrible state of anxiety” must be viewed in context of the videotaped conversation with the officer. Thedefendant’s mood, at various times, reflected frustration, fear, and assertiveness. She was coherent and occasionally joked.

It is obviousshe wanted to know her options but there is nothing to suggest she was confused about her right to counsel. Her reference to a lawyer“not being obtained” reflects her belief she would not likely reach counsel of choice. She showed no interest in speaking to dutycounsel. Indeed, although the defendant had many questions, she never asked to call her lawyer or duty counsel. [21] The defendant has not persuaded me that her s. 10(

b) rights were violated. [22] The Charter motions are dismissed. The defendant is found guilty. Released: 10 February 2011 Signed: “Justice J. De Filippis”