R. v. Pennell, 2013 ONCJ 664

ONTARIO COURT OF JUSTICE CITATION: R. v. Pennell , 2013 ONCJ 664 DATE: 2013·11·29 COURT FILE No.: Regional Municipality of Durham 998 12 15672 & 998 12 23753 BETWEEN: HER MAJESTY THE QUEEN — AND — Sascha Pennell Before Justice Joseph De Filippis Heard on 1 November 2013 Reasons for Judgment released on 29 November 2013 Mr. D. Parke ............................................................................................. counsel for the Crown Mr. T.

Balka ...................................................................................... counsel for the Defendant De Filippis J.: [ 1 ] On 18 December 2012, Sascha Pennell was charged with operating a motor vehicle while his blood alcohol level exceeded the legal limit, contrary to section 253(1) (

b) of the Criminal Code . He was also charged with two related offences under sections 44.1(3) and 44.1(5) of the Highway Traffic Act. One trial was held for all charges and, on consent, it proceeded by way of a blended hearing to incorporate a motion to exclude evidence pursuant to the Charter of Rights and Freedoms.

In this regard, the Defendant claims that his right to counsel was violated and, accordingly, that the breath test results are inadmissible. [1] For the reasons that follow, I reject the Charter challenge to the breath test results and find the Defendant guilty of the three offences. [ 2 ] On the day in question, Cst. Ouellette was on duty in a marked cruiser as part of the “Festive RIDE Program” in the City of Oshawa. Just before midnight, he observed a person, later identified as the defendant, drive out of a small plaza that included a bar known as “Whisky Johns”.

He stopped the motor vehicle to check the driver for sobriety. The defendant denied drinking as he was the “designated driver”. However, the officer noted that the defendant was the sole occupant of the car and he detected a moderate odour of alcohol. On this basis he demanded that the defendant forthwith provide a sample of his breath into an approved screening device. The defendant admitted having consumed alcohol and complied with the roadside demand. There is no issue that a suitable breath sample was obtained by a device in proper working order. The defendant registered a “fail”. Cst.

Ouellete testified as to the significance of this result and explained why, at 11:58 PM, he arrested the defendant. [ 3 ] Immediately upon being arrested the defendant was advised of his right to counsel and cautioned. He was also subjected to a breath demand to be performed at a nearby mobile command centre. As the defendant said he did not understand his right to counsel, this was re-read and paraphrased by the officer. According to the officer, the defendant stated he not know if he should speak to a lawyer; he added that he did not trust the police and wanted to speak to his father.

The defendant was transported to the mobile command centre in a parking lot across the street so that breath samples could be taken. [ 4 ] Before Cst. Ouellette delivered the defendant to the qualified intoxylizer technician he re-visited the issue of contacting counsel and explained that if the defendant did not have a lawyer of choice, he could speak to duty counsel. The defendant again expressed his lack of trust in the police and said he would not provide breath samples.

After the officer explained the consequence of non-compliance, the defendant changed his mind and asked the officer if he should speak to a lawyer. Cst. Ouellette declined to give

such advice. [5] There is no issue about the manner in which the breath tests were conducted or the integrity of the results; they reveal thatthe defendant had a blood alcohol reading of 160 – twice the legal limit. In any event, as a nineteen year old novice driver with a G-2licence he was prohibited from driving with any alcohol in his system. However, as noted, the defendant objects to the admissibility ofthe test results because the police violated his right to counsel. [6]

Section 10(

b) of the Charter imposes three obligations on the police with respect to a person under arrest or detention: (1)Inform the 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.). [7] In this case, it is asserted that the police failed to facilitate the right to counsel by not allowing the defendant to speak to hisfather for that purpose. The arresting officer, Cst.

Ouellette, testified that the defendant never told him he wanted to talk to his fatherabout how to obtain counsel; indeed, he believed the defendant wanted his father’s advice about what to do about the breath demand anddenied this request because the defendant, although only 19, is an adult. [8] I have the benefit of a videotape recording of the interaction between the defendant and the breath technician before testswere conducted. The following transcript, prepared by the Defence, is reliable: Breath Technician (T): Sit right there. That’s your bench, this is my bench.

Just to let you know, in this room everything is audio andvideotaped, okay? So everything you do is taped. Sascha Pennell (S): Alright, alright. T: So I understand your rights to counsel were read and you chose not to call a lawyer at this time? S: I don’t know what’s for or against, like... Arresting Officer (AR): You just told me you didn’t want to talk to a lawyer, you just wanted to get the test done. T: When somebody is under arrest for whatever reason it is, you have your right to counsel whether it is theft, robbery or impaired,okay? So you have a chance to talk to a lawyer.

So we are giving you the same rights as everybody else has. S: But what does that mean? Like, I don’t… I’m not trying to be difficult, just I don’t... T: If you have any questions that you want to be answered, or you need legal advice, we can put you in touch with a lawyer. S: I know, but it is just like are you fucking me over or you’re not? I’m not trying to be difficult, but I’m just saying, like… T: You’re here to provide two samples of breath and then you’re going to be released. S: I know, but I don’t know what’s best, you know what I mean.

Like, you guys do and you guys know whether you’re fuckingme over or not where I don’t. Like, I’m not trying to be difficult but like, you guys know if you guys are screwing me or if you’renot, where I don’t, like... T: I’m telling you the process, okay? So you’re here to provide two samples of breath. At any point in time if you wish to stop andcall a lawyer you can do that, and we can call one if you want. S: I know but it doesn’t really matter. You guys know whether or not you are pulling a fast one on me or not, so whatever. AR: No one is pulling a fast one on you.

We have explained what your legal rights are. No one is trying to give you a hard time. No one is trying to pull a fast one. S: It doesn’t matter; it doesn’t really matter, so just... T: Would you like to talk to a lawyer or do you want to do the test? S: You know clearly I’m fucking I’m a 93, I don’t know what’s best, I don’t know what’s not best for me, so just goahead. I don’t know what’s best, I don’t know what’s not. T: If you have legal questions I’ll let you get in contact with a lawyer. S: I know, what’s it going to cost me. My parents, like, $3,000 worth of debt? T: Twenty. S: Obviously. Exactly.

Alright, so we don’t know what is going on, you guys do. I don’t. Let’s just make it clear, alright? [Arresting officer leaves and shuts door] T: I’ll explain it to you, okay? If you’re worried about the money cost of talking to a lawyer. S: Yes I am, yes I am.

T: Listen to me, okay? We can put you in contact with free legal advice. It’s called duty counsel legal aid. We can call that phone number. S: Until I call my dad I don’t know what I’m doing, and he’s the only one I trust, and if you guys don’t want to call my dad and let me talk to him then there is nothing really I can do cause he’s the only one who’s going to tell me what’s right and what’s wrong and you guys don’t want to, and I understand it. T: How old are you? S: I’m an uh, I’m a 93. T: How old is that? S: I’m a 93. T: You can’t tell me how old you are? S: I’m a 93. I’m not trying to be difficult.

I’m a 93. T: So you’re 20 years old? S: I’m not 20 years old. T: 21 years old? S: I’m a 93 that’s all I really have to say. T: You don’t know what age you are? S: I’m a 93. That’s all I say. I’m in college, I’m a 93. T: You’re in college? S: I’m in college, I’m a 93. T: Well, you’re over 18. S: Yes, yes, see I’m saying, yes I am, yes I am. T: So you have to make your own decisions. You live with your parents? S: Yes I do. Well, ( laughing) right now I do yes,

T: So do you understand why we’re here? S: Apparently I went over the limit (inaudible). T: Did you blow on something on the side of the road, in that little machine? S: Was it over? Yes it was over. T: It just showed an “F” okay? It doesn’t say what, ah, how much alcohol you have in you, so what we are going to do is we aregonna provide a sample of breath in here, we are gonna wait twenty minutes, we are gonna do another sample, it’s gonna print out theresults and we are gonna look at it. Okay? From there we’ll figure out what happens. Okay? Do you understand that? Any questionsyou ask me. My name’s Julie, okay?

S: It’s okay, don’t worry. T: Here, here’s a new mouthpiece it’s in a plastic wrap so you know that it’s fresh. So you open it up, it’s just like the one on theside of the road that you used. S: I know, I know. I’m sorry for getting mad at you. T: Well, you, you know what? S: It has nothing to do with you. T: I know. You’ve never done this before, right? I’m assuming you’ve never done this before. S: I’ve never done this before. T: Exactly.

So if you have any questions or anything you ask me, and if you need to speak to a lawyer we, we’ll let you speak to alawyer, S: (Accused shrugs and makes a sound.) T: And if you, okay? So blow in it and make sure that it works and it’s not obstructed. Perfect. You satisfied that it works, there isno obstruction with it? [9] There is little dispute between Crown and Defence counsel about the applicable legal principles in a case such as this; theyare accurately set out by Justice Durno in R v Kumarasamy [2002] O.J. No. 303 (Ont. SCJ): 23 Is there a breach of s. 10(

b) if the police do not permit the detainee to contact a friend or relative to facilitate contact with counsel?In R. v. Tremblay (1987), (SCC), 60 C.R. (3d) 59 (S.C.C.), the accused was permitted to contact his wife and asked herto call back when she had reached his lawyer. The Court found a breach of s. 10(b), when the officers did not wait for the return callbefore asking the accused to provide a breath sample. Had the right to counsel not included the right to do so through the assistance of athird party, there would have been no violation of s. 10(b). 24 Relying on Tremblay, supra, Borins J. concluded in R. v. McNeilly (1988), 10 M.V.R. (2d) 142 (Y.T.S.C.), the right to retain and

instruct counsel includes the right to contact others to obtain counsel. Similar conclusions were reached in R. v. Oester [1989] A.J. No.648 (Alta. Q.B.), R. v. LaPlante (1987), (SK CA), 40 C.C.C. (3d) 63 (Sask. C.A.), and R. v. Goodine [1989] A.J. No.220 (Alta. C.A.). 25 In the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee's effortsto do so: R. v. Brydges (1990), (SCC), 53 C.C.C. (3d) 330 S.C.C. This obligation includes facilitating contact withcounsel of choice where a request has been made to speak to a specific counsel.

This is so whether the person has counsel's numberavailable or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice. 26 This is not to say that a detainee is always entitled to make one or a series of calls to friends or relatives. The determination must bemade on a case by case basis. No doubt there will be rare cases where a call to a friend or relative in private could jeopardize an ongoinginvestigation.

For example, if the detainee has accomplices who had not been arrested, or if persons or property could be placed injeopardy by permitting a call to someone other than a lawyer, a delay might be justified. That is not the case here. [10] Cst. Liard, the breath technician was challenged by the Defence about her interaction with the defendant. When asked whyshe did not assume the defendant was declaring that “Dad is the only one I trust”….to get a lawyer, she replied “because he did not saythat….he said ‘Dad will tell me what’s right or wrong”.

The officer re-iterated that she told the defendant the breath tests would beinterrupted at any time if he wanted to speak to a lawyer. Cst. Liard highlighted the fact that the defendant never asked for a lawyer orsay that he needed his father’s assistance to get one. [11] Cst. Liard impressed me as an officer who was aware of and attentive to her Charter duties. I agree with her

interpretation ofthe defendant’s statements. There is no basis to conclude the defendant wanted to speak to his father to obtain information about alawyer of choice. On the contrary, it is clear that he wanted his father’s advice about the situation he faced. This was especiallyimportant to him since he did not trust the police and did not avail himself of the opportunity to speak to a lawyer or duty counsel. Insuch circumstances, there is no right to speak to a family member.

I find that the police properly discharged their duties and that thedefendant was not diligent in exercising his right to counsel. [12] The Charter challenge to the admissibility of the breath test results is dismissed and, accordingly, the defendant is foundguilty of all charges. Released: November 29, 2013 Signed: “Justice J. De Filippis”