R. v. Ham, 2011 ONCJ 327

COURT FILE No.: Toronto 10012307 DATE: 2011·06·17 Citation: R. v. Ham , 2011 ONCJ 327 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JONATHAN HAM Before Justice K. Caldwell Heard on October 27, 2010; January 18-19, April 20, and May 5, 2011 Reasons for Judgment released on June 17, 2011 Ms. Grace Hession David ...................................................................................... for the Crown Mr. Jonathan M. Rosenthal ................................................................. for the accused Mr. Ham . K. Caldwell J.: Mr.

Ham is charged with driving while impaired and “over 80” on September 13, 2009. Mr. Rosenthal argues on his behalf that the Crown has not established beyond a reasonable doubt that Mr. Ham was driving while impaired and further argues that the breath readings should be excluded pursuant to section 24(2) of the Charter on the basis that Mr. Ham’s right to counsel of choice was violated. First, I will review the evidence. Then I will make my factual findings and state my conclusion.

I will note in advance, however, that I am dismissing the Charter application and I do find that both charges have been proven beyond a reasonable doubt. The Evidence Two witnesses were called by the Crown on both the trial and the Charter application. No evidence was called by the defence on the trial but Mr. Ham testified on the Charter application. (

a) Evidence of Marsha Phillip Ms. Phillip testified that she was driving west in the express lanes on Highway 401 in Toronto just after 4 am. Traffic was light. She was travelling at the 100 km/hr speed limit. Mr. Ham’s car passed her on her right hand side, then crashed into the median that separated the collector and express lanes near the Yonge Street exit. The back of the car elevated in the air, spun, and came to rest in the lane in which she was travelling. She stopped her car, called 911 to report the accident, then went to Mr. Ham’s car to see if he was okay. His airbag had deployed and there was smoke.

He seemed a bit dazed, which didn’t surprise her given the collision, but he told her that he was “fine”. She didn’t think he was drunk, unsteady on his feet, nor did she smell alcohol on his breath; she was approximately a foot away from him when they were speaking. Ms. Phillip was standing on the median between the east and westbound traffic thus she had concerns for her safety. (

b) Evidence of PC Tyler Humphries PC Humphries testified that he received a radio call at 4:01 a.m. to attend a personal vehicle motor collision. He saw Mr. Ham’s car at the crash barrier, and saw heavy damage to the front end. Ms. Phillip was at Mr. Ham’s door. The officer determined from speaking to

Mr. Ham that he was not in pain and was okay. While speaking to him, the officer detected a strong odour of alcohol on Mr. Ham’s breath. The officer asked him if he had been drinking, and he said he had consumed five beers. The officer described his speech as incoherent. His eyes were red and glassy. He exited the car when asked and the officer noted that he was very unsteady on his feet; the officer had to grab him to prevent him from falling. Under cross-examination, he emphasized that he remembered quite vividly that Mr. Ham almost fell on his face, and that he had to grab Mr.

Ham to prevent this from happening. The officer arrested him for impaired operation, and read him his rights to counsel. When asked if he understood, and if he wished to call a lawyer now, he answered “yes” to both questions. On the drive to the station, Mr. Ham asked if he could talk to the officer “man to man”. He asked the officer if he could let him go or use discretion. The officer said he didn’t know what Mr. Ham was asking him to do, and told Mr. Ham that he was “gooned”. Mr. Ham said that the officer was right, he was “gooned”, but his wife and kids were coming home that day, and he would be ruined.

These statements were not admitted for truth of their contents, but only to explain the officer’s grounds for arrest. During the conversation, the officer’s belief that Mr. Ham was impaired was confirmed. The officer again found that Mr. Ham’s speech was incoherent. Under cross-examination, he agreed that Mr. Ham was able to answer the questions asked, but his speech was incoherent in the sense that he was having a difficult time stating the words. He couldn’t recall if Mr. Ham’s speech was slurred and said the odour of alcohol was very strong. Under cross, he stated that Mr.

Ham read the rights to counsel sign on the wall at the station, and that this was part of the lodging process at the station thus this event is incorporated in the “lodged, called duty on request” notation in his notes. He testified that he always asks people to read the sign aloud at the station and he independently recalls doing that in this case. He doesn’t know the exact words he put to Mr. Ham regarding his rights to counsel options, nor the exact words of the response, but said that he always asks if the accused wishes to call his own lawyer or duty counsel.

The officer’s cross-examination spread over two dates scheduled three months apart. On the return date, the officer testified that the request to call duty counsel came from the accused himself, and thus he didn’t specifically ask Mr. Ham if he wished to call his own lawyer. He also concluded that Mr. Ham understood what was meant by “any lawyer”. He made no note of whether Mr. Ham’s speech was still slurred at the station. He also didn’t pay attention to Mr. Ham’s balance when he walked. He found it unnecessary to do so as his grounds already had been formed. At 4:30, a call to duty counsel was made at Mr.

Ham’s request. A second call was placed when duty counsel didn’t respond. At 5:02, counsel returned the call and Mr. Ham was taken to the soundproof booth to speak to him. At 5:06, the call was finished and Mr. Ham indicated that he was satisfied. He was then turned over to the breath technician, PC Sauve. Once the proceedings in the intoxilyzer room were finished, PC Humphries served the certificate of analyst on Mr. Ham, stating breath readings of 260 mg alcohol per 100 ml of blood and 240 mg of alcohol per 100 ml of blood.

Under cross-examination, he agreed that he had made so-called “dashboard notes” in short form at the time of the incident and then transcribed these into his memo book. He had shredded the dashboard notes; it was his understanding that the Supreme Court of Canada had ruled that such dashboard notes needn’t be kept and thus could be destroyed. (

c) Evidence of Mr. Ham Mr. Ham denied that he read a sign at the station. He stated that he was brought to a cell at the station, then taken to a room, given a phone, and, when he asked, was told that it was duty counsel on the line. At no point did he ask to speak to duty counsel. If asked if he wished to speak to a lawyer, he would have said that he wanted to call Jonathan Rosenthal as counsel had helped a family friend on a previous occasion. He said that the only time mention was made of his own lawyer was on the highway. He did not ask to speak to Mr.

Rosenthal at that time as he assumed he would be asked again at the station. He also stated that he didn’t ask to speak to Mr. Rosenthal when given the phone to speak to duty counsel as he assumed the issue would be raised again; he was just following the flow of events. Under cross-examination, he agreed that he understood what was meant by the statement, “you have the right to telephone any lawyer you wish”. He agreed that he said “yes” when asked at the scene if he understood his rights, and if he wanted to call a lawyer.

He described his state as “mildly drunk” that night, and denied that his alcohol consumption would have affected his memory as he remembered that night “like the birth of my daughter”. Findings of Fact I accept the officer’s evidence. Specifically, I accept the officer’s evidence that he directed Mr. Ham to read the right to counsel outlined on the sign at the entry to the station and I accept that he contacted duty counsel at Mr. Ham’s request. I reject Mr. Ham’s evidence that he did not read that sign. I will address a number of points raised concerning both the officer’s reliability and his credibility.

First, I note the discrepancy between Ms. Phillip’s evidence of Mr. Ham’s state of sobriety and that of the officer. Ms. Phillip testifiedthat she did not smell alcohol on Mr. Ham’s breath, didn’t see any unsteadiness in his walk, nor did she think he was drunk. The officertestified that the odour of alcohol was strong, his speech was incoherent, and that he almost fell down when walking to the cruiser. I find that both witnesses were credible but I accept as fact the evidence of the officer. Ms.

Phillip did not testify at any lengthconcerning her powers of observation at the scene but common sense leads to the inference that her attention must have been fracturedthat night. She has just seen an accident on a very busy highway. She is standing on a median between fast traffic. She is concernedabout her safety. This is a very unusual situation for the average citizen and it defies reason to expect her to be focussed on Mr. Ham.

The officer also testified that he was concerned for everyone’s safety, including his own, given that they were all stopped in the middleof the highway; however, he clearly is trained as an officer to deal with situations of this nature. Further, though I fully accept Mr.Rosenthal’s submission that police officers are not the only individuals who are able to observe signs of impairment and that the averageindividual is also capable of making such assessments, I do note that as part of their duties police officers are expected to make suchassessments when confronted with this type of event. I accept that Ms.

Phillip did not make observations suggesting impairment; however, I do accept the officer’s evidence that Mr. Ham hadthe strong odour of an alcoholic beverage on his breath, that his eyes were bloodshot and glassy, that he was unsteady when he exited hiscar and had to be steadied by the officer, and that his speech was not clear. I find that the officer made a poor choice of words indescribing the speech as “incoherent” given that it is clear from his evidence that he understood what Mr. Ham was saying; however, Iaccept that Mr. Ham had some difficulty articulating his words at the scene.

I do not find that the officer’s destruction of his dashboard notes at the scene impacts negatively on his credibility or on his reliability. The officer testified that he recorded times and brief notations at the scene then transferred them to his notebook once at the station. Hetestified that his dashboard notes then became redundant thus he destroyed them. I accept the officer’s evidence that his standard practice is to ask the accused to read the right to counsel sign on the wall upon entry tothe station and I do not find the absence of a specific notation to that effect suggests that it did not occur.

The officer indicated that thisis a standard part of the lodging process, and his notes indicate that Mr. Ham was lodged. In reaching my conclusion regarding both the destruction of the dashboard notes and the lack of specific reference to the right to counselsign, I apply the reasoning of Mr. Justice Durno in R. v. Machado, 2010 ONSC 277 , [2010] O.J. 387 at paras. 120-125. Thenotes are a testimonial aid, not evidence. Further, I accept the officer’s evidence that it was Mr. Ham who requested contact with duty counsel.

I note that on January 19th theofficer testified under cross-examination that he would have asked Mr. Ham if he wanted his own lawyer or duty counsel, and that wouldhave led to the response that Mr. Ham requested duty counsel. Then, upon continuation of cross three months later, the officer testifiedthat upon reading the sign at the station, Mr. Ham asked to speak to duty counsel, and thus the officer never asked Mr. Ham if he wishedto contact his own lawyer. Mr. Rosenthal submitted that the fact that the officer testified on the one date that he proactively asked Mr.

Ham a question which lead tothe duty counsel response, and on the next occasion said that Mr. Ham asked for duty counsel without the officer posing such a questionshould impinge negatively on his credibility. I do not accept this submission. I accept that the officer cannot remember what provoked the request for duty counsel. I accept theofficer’s testimony that Mr. Ham clearly indicated that he wished to speak to duty counsel, and that he appeared to fully understand hisrights and options. I have reviewed the DVD of the events in the breath room and I note that Mr.

Ham’s speech can be understood, there does not appear tobe an issue with his coordination, and he did not fall on the video. These events take place at the station, however, after some time haspassed. Further, as he was seated throughout the vast majority of the video, it is difficult to discern his degree of balance. I reject Mr. Ham’s evidence that he did not read the sign at the station and that he simply was provided with duty counsel withoutindicating that he was choosing to speak to duty counsel. In rejecting his evidence, I take into consideration that he testified that he was“mildly drunk” that night.

I emphasize that as Mr. Ham testified only on the right to counsel voir dire and not on the trial itself, I havedisabused my mind of this aspect of his testimony in assessing whether Mr. Ham drove that night while his ability was impaired. Histestimony on the voir dire that he was mildly drunk is relevant, however, to an assessment of the reliability of his evidence on the voirdire. It was also agreed by counsel that the officer’s testimony overall was also evidence on the voir dire and I have already indicatedthat I accept the officer’s evidence that Mr.

Ham’s eyes were glassy and bloodshot, that he was unsteady on his feet and had difficultywith his speech at the scene, and that his breath had the strong odour of an alcoholic beverage. I do not have an issue with Mr. Ham’s credibility on this point; I accept that he honestly believed that he did not read the sign and did notrequest duty counsel. I find, however, that his evidence is unreliable given his own testimony that he was mildly drunk that evening andthe officer’s evidence corroborating that fact. Further, I find that the tenor of Mr.

Ham’s evidence indicates that he was testifying about what he thought he should have done, inhindsight, not what he actually chose to do that night at the station. He agreed that he understood the meaning of the statement “youhave the right to telephone any lawyer you wish”. He agreed that he was told this fact at the scene. He indicated that he did not raisecounsel’s name at the scene, nor at the station, because he thought the issue “would come up” at some point. He also agreed that henever expressed any issue with the advice he received from duty counsel.

Conclusion I have accepted the officer’s evidence of Mr. Ham’s signs of impairment. I find that those indicia, combined with the accident itself,lead me to conclude that the Crown has proven beyond a reasonable doubt that Mr. Ham’s ability to operate a motor vehicle was

impaired by alcohol that night. Further, I dismiss the

section 10(

b) Charter application. I find that the Crown has proven that Mr. Ham operated a motor vehicle with in excess of 80 mg of alcohol in 100 ml of blood in his body. Released: June 17, 2011 Signed: “Justice K. Caldwell”