R. v. Kelly, 2013 ONCJ 409

ONTARIO COURT OF JUSTICE DATE: 2013·07·26 COURT FILE No.: Regional Municipality of Durham 998 12 14649 Citation: R. v. Kelly , 2013 ONCJ 409 BETWEEN: HER MAJESTY THE QUEEN — AND — Claire Kelly Before Justice J. De Filippis Heard on April 24 & June 7, 2013 Reasons for Judgment released on July 26, 2013 Ms H. Bayley ........................................................................................ counsel for the Crown Mr. E.

Chan ...................................................................................... counsel for the defendant De Filippis, J.: [ 1 ] The defendant was charged with being in care and control of a motor vehicle while her ability to do so was impaired by alcohol (“impaired”) and with having a blood alcohol level that exceeded the legal limit (“over 80”). The offences are said to have occurred on October 11, 2012 at Bowmanville and arose after a police officer discovered a car in a ditch at the side of the road and saw the defendant and another person walking nearby.

The defendant spoke to the police before and after her arrest and during the seizure of breath samples. She applied to have these breath test results and all utterances made by her excluded from evidence pursuant to section 24(2) of the Charter of Rights and Freedoms on the basis that her right to counsel, as guaranteed by

section 10(

b) was violated. The defendant also claims that her statements to police were not voluntary as required by common law. [ 2 ] The trial proceeded by way of a blended hearing; that is, evidence relevant to the Charter and voluntariness voir dires was called along with that applicable to the trial proper. I heard from a police officer and the defendant. I also viewed videotapes of the defendant in conversation at a police station. By agreement of the parties, the defendant’s testimony is limited to the voir dire issues.

In proceeding in this manner, I am mindful of the different standards of proof: The defendant must establish the Charter claim on a balance of probabilities. The Crown must show, beyond a reasonable doubt, that the defendant’s statements were voluntary. This, of course, is also the burden faced by the Crown in justifying a finding of guilt by the Court. [ 3 ] The credibility and reliability of the evidence in this matter is generally not in dispute. At issue are the inferences to be drawn from the evidence and the legal consequences of these facts.

For oral reasons given during the trial, I ruled that the defendant’s statements were voluntary at common law. These written reasons deal with the remaining issues. [ 4 ] On the night in question, Cst. Harding of the Durham Regional Police Service was on routine patrol in a marked cruiser. He came upon a motor vehicle in a steep ditch at the side of a road and saw two people walking away from it. He used his cruiser search light to illuminate the area and told the people to stop.

The officer approached the individuals, soon to be identified as the defendant and a friend named Lucas, and asked questions about what had happened. He learned that the two people had left a bar where the defendant had consumed “a couple of drinks” and that she was the driver of the motor vehicle that went off the road into the ditch. The officer could smell alcohol from the defendant’s breath and, in placing his hand on the hood of the car, noted that the engine was warm. He asked the defendant to walk with him to the cruiser and observed difficulty in her “motor skills”. Having regard to all these

circumstances, he concluded the defendant had care and control of a motor vehicle while her ability to do so was impaired by alcohol. [5] At 2:33 AM Cst. Harding placed the defendant in the cruiser and arrested her. Within the next six minutes, he advised her of theright to counsel, cautioned her and demanded that she provide a sample of her breath into an approved instrument. The defendant wasupset “over a personal issue with an ex-boyfriend” and apologized for “being a bad person”. The officer told her she was not a badperson and had made a mistake. During this conversation, Cst.

Harding noted that the smell of alcohol within the cruiser was strong. [6] In discharging his duties pursuant to

section 10(

b) of the Charter, the officer used the standard recitation from his notebook,including information about how to contact duty counsel for free legal advice. The defendant said she understood and did not want to talkto a lawyer. Cst. Harding transported her to the nearest police station. They arrived at 3:03 AM. On arrival, he again asked thedefendant if she wanted to talk to a lawyer. She again said “no” and the officer told her to let him know if she changed her mind. Thisexchange is captured on video. [7] Cst. Harding is a qualified intoxilyzer technician and conducted the breath tests.

The approved instrument was ready for use at 3:11AM. The two tests were taken at 3:30 and 3:56 AM with readings of 1.8 and 1.7 respectively; that is, more than twice the legal limit. Before the tests were conducted, Cst. Harding asked the defendant if she had changed her mind about not wanting to speak to counsel. She replied, “no”. There was much discussion leading up to this exchange and it continued during and after the breath tests. This is alsocaptured on video. [8] Throughout the defendant’s interaction with Cst.

Harding, from the time of arrest until the seizure of the breath samples, sheexpressed these sentiments: She was upset because an ex-boyfriend had sent unpleasant text messages to her, worried the officer wouldthink she was a ”bad person”, and wanted his advice about what to do. She also worried aloud if she would be released from custody. [9] Cst. Harding assured the defendant, several times, that he did not think she was a bad person, had no grounds to keep her in custody,and that she would be released from the station, “no matter what”.

He repeatedly and patiently told her he could not provide legal adviceand reminded her she could contact a lawyer of her choice or duty counsel. Notwithstanding the officer’s comments, the defendantcontinued to ask his opinion of her situation because she “had never been in trouble before” and also stated she wanted to talk to hermother or boyfriend. Cst. Harding consistently responded that he sympathized with her distress but could not give legal advice. At longlast, the officer asked, “Do you want to speak to a lawyer, yes or no, I need an answer”. The defendant said, “no” and the tests wereconducted. Cst.

Harding informed the defendant that the results meant she would also be charged with the offence of over 80. Thedefendant said that she was impaired and made a mistake. She added that she had driven off the road five minutes before the officerarrived and expressed concern about the consequences of a criminal record. [10] The video recorded conversations show a defendant with signs of intoxication; she is talkative, with slurred speech and, during abreak in the conversation, fell asleep. Nevertheless, the defendant is coherent in conversing with the officer.

She is concerned about thejeopardy she faces and, at one point, stated, “I’m so mad at myself”. [11] The defendant is a young adult who carries on business as a professional photographer. She testified that she and a friend, Lucas,had been drinking at a bar and that, on the way home, the car went into a ditch after she attempted a “three point turn”. She left thescene to go home and speak to her parents. The defendant explained that she had never been arrested before and did not know what todo; she wanted guidance from the officer, Lucas, or her mother.

She now appreciates she should have spoken to a lawyer or dutycounsel. The defendant testified that she did not do so because Cst. Harding was calm and comforting and “gave me a good feeling I wasgoing to be okay”. [12] The defendant’s pre-arrest admission that she was the driver of the motor vehicle is relevant for other purposes but cannot be usedat trial to prove that fact: R v Huff [2000] O.J. No. 3487 (Ont. C.A.). However, as Defence counsel fairly concedes, the defendant’scomments after arrest at the police station leave no doubt that she was the operator of the car in question.

Defence counsel argues thatthese statements were “induced” and therefore not voluntary. As I explained in my previous ruling on voluntariness, there is nothing tosuggest inducements, threats, or oppression. On the contrary, the officer was sympathetic, polite and professional. Moreover, thisattitude was sincere and not a ruse to encourage the defendant to talk. It is also claimed that the defendant’s

section 10(

b) right wasviolated because the police “did not explain to her the existence of free, immediate, access to legal advice” and she “was not allowedreasonable use of the telephone to facilitate access to counsel”. This submission is without merit. [13]

Section 10(

b) of the Charter imposes three obligations on the police with respect to a person under arrest or detention:

(1) Informthe person of the right to counsel;

(2) Provide a reasonable opportunity to exercise this right if counsel is desired, and

(3) Curtailquestioning and compulsion to make a decision or participate in a process that could ultimately have an adverse effect at an eventualtrial, until that reasonable opportunity has been exercised. The person detained or arrested must be reasonably diligent in exercisinghis/her right to counsel. See: R v Richfield (ON CA), [2003] O.J. No. 3230 (Ont. C.A.). [14] I am confident the defendant understood her right to counsel and ultimately made an informed decision not to exercise it. I find thather

section 10(

b) rights were not violated. Cst. Harding’s conduct was exemplary. The defendant persisted in declaring that “this is notwho I am” and in asking for guidance, notwithstanding the officer’s patient and repeated reminder that he could not give legal adviceand she could speak to counsel of choice or a free legal aid lawyer. The Crown describes the defendant as “suffering from decisionparalysis”. I agree to this extent: The defendant did not want to face the issue of consulting with counsel. What she wanted was to undowhat had happened. This desire may reflect genuine remorse.

In any event, the defendant has not persuaded me that her statements andthe breath test results should be excluded from evidence. [15] The offence of having care and control includes the act of driving. Accordingly, a person who is found drunk and asleep in a carat the side of a road and testifies he drove there and pulled over is guilty of having care and control of a motor vehicle while impaired: Rv Pincemin [2004] SKCA 33. In the present case, it is clear from the defendant’s post arrest statements that she drove the motor vehicleminutes before being investigated by Cst. Harding.

It follows from the dismissal of the Charter motion that there must be a finding ofguilt with respect to the charge of over 80. Defence counsel concedes that charge is otherwise proven. Counsel submits, however, thatthere is insufficient proof of the impaired charge. I disagree.

[ 16 ] It is clear the defendant drove a motor vehicle that went off the road and came to rest in a steep ditch. There are many reasons why this could happen that do not involve criminal conduct, including human error and weather, road, or lighting conditions. There is no evidence of any such factor. The only evidence before me is that the defendant was under the influence of alcohol at the time. I have no doubt that her consumption of alcohol constitutes impairment and caused this otherwise unexplained “accident”.

I come to this conclusion because the defendant emitted a strong odour of alcohol, slurred her speech, and fell asleep at the police station. In addition, after being advised of the added charge of over 80, the defendant offered the opinion that she had been impaired. [ 17 ] The Crown has discharged its burden of proof. The defendant is found guilty of both charges. Released: July 26, 2013 Signed: “Justice J. De Filippis”