[REDACTED]

Ontario Superior Court of Justice

Between

Her Majesty the Queen

And

[REDACTED]

[REDACTED], for the accused

[REDACTED], for the Crown

Released: [REDACTED]

R U L I N G

[1] Citizens observed erratic driving by the Appellant, and called the police. When he struck the vehicle in front of him at a stop light at about 11:54 p.m., a citizen pulled closely behind him, approached the driver's door, tried unsuccessfully to take the keys, and blocked the appellant from getting out of the car until police arrived. The appellant was arrested and taken to the police division. He asked to contact his own counsel. The officer left messages, but no one responded from counsel's office. The officer contacted duty counsel, but when he called back, the appellant did not want to talk to him. Mr. [REDACTED] provided breath samples, the first at 1:54 a.m., which analyzed in excess of the legal limit.

[2] At trial, he unsuccessfully argued his s. 10(b) rights to counsel were violated, and that he was not impaired. He was found guilty of impaired operation and driving having consumed excess alcohol, with the latter charge conditionally stayed. He appeals, contending the trial judge erred: in failing to find his s. 10(b) rights were violated, in finding he was in care or control when he was "confined" inside his car by the citizen pending the arrival of police, in failing to provide adequate reasons for rejecting the appellant's evidence, in misapprehending the evidence, and in permitting Crown Counsel to cross-examine the appellant on a previous conviction for impaired operation, and that the verdict was unreasonable.

The rights to counsel

[3] The appellant was arrested at 12:02 a.m. and received his rights to counsel at 12:04 a.m. When asked if he wished to call a lawyer, the appellant replied, "James Lockyer." At the police station, at 12:35 a.m., the officer looked up Mr. Lockyer's number in the lawyers' directory, placed a call and received a recorded message to call counsel Liam O'Connor at another number. The officer placed the call to the second number. In response to another recorded message, the officer left a message for Mr. O'Connor that there was a male at the detachment who was under arrest and wanted to speak to him. Counsel was asked to contact the officer as soon as possible at the number the officer left. After realizing he had not left the appellant's name, the officer called back at 12:37 a.m. and left the name on the voicemail.

[4] At 1:00 a.m. the officer called Mr. O'Connor again, and got the answering machine. He left another message. The officer asked the appellant if there was another lawyer he wanted called, since no one was calling back. The appellant said, "Pinkofsky". The officer went to the lawyers' phone book and determined the number was the same as Mr. Lockyer's. He asked the appellant if he knew where Mr. Lockyer lived, but was told he did not. The officer said, since they were not getting anyone calling back, did the appellant want him to call duty counsel? The appellant said, "Yeah". At 1:24 a.m. the officer called duty counsel. At 1:32 a.m. duty counsel called back, but the appellant said he had changed his mind and did not want to speak to duty counsel. The officer told the appellant what duty counsel would do, and said that no one was calling back.

The officer had also gone on the internet, using Canada 411 and Info Space to try and find counsel's home number. The officer asked the appellant if he was sure he did not want to talk to duty counsel. The appellant said, "Yes, we'll do the tests."

[5] In cross-examination, the officer denied he was concerned about getting the breath samples within two hours of the offence. He said time was not an issue, as a Centre for Forensic Sciences' toxicologist could be called to relate the readings back to the relevant time. He wanted to get the appellant his advice.

[6] The appellant did not dispute the officer's evidence about contacting counsel, except that when the officer offered to get him duty counsel, he said he made no response. When the officer returned with duty counsel on the phone, he told the officer he did not want to talk to duty counsel, he wanted to talk to his lawyer. He had not changed his mind about wanting to speak to his lawyer. In cross-examination, he said the officer asked him three or four times if he wanted to talk to duty counsel. The officer said, "Well, then I'll have to [test] you." The appellant said, "Okay." The appellant agreed the officer asked him if he was sure he did not want to speak to duty counsel. He also agreed he told the officer, "Yes, we'll do the test." He agreed to do the test without speaking to anyone.

[7] The trial judge found:

With respect to the rights to counsel, I don't see much merit in this argument. In my view, the officer, here, did everything that could have been asked of him, in attempting to reach counsel of choice. He had, in effect, reached a dead end, having left the message at the numbers that were available to him. He had inquired as to residential locations and the defendant couldn't assist. The officer went as far as to look on the internet, to see if he could get more information. In my view, he went beyond what was required to him. The argument is that the officer precipitously went to duty counsel as an alternative and then when the accused did not want to speak to duty counsel, he in effect, put him on the breathalyzer without waiting longer. In my view, it's a situation like this, which is exactly one of the ones that legal aid counsel was designed for. I'm not given any authority to the contrary. I'm clearly of the view that defendant is not entitled to wait forever to contact counsel of choice, in this context. And it's not irrelevant that there is a certain time limit, including as soon as practicable and the two hour limit. And the police, I think, are entitled to move the investigation along with regards to those considerations, even though cases may be provable in other ways. And, again, this is, in fact, what duty counsel is meant for. The total time, here, that the officer spent, trying to reach counsel of choice, approached an hour, 50 minutes to an hour. It was then 1:30 in the morning. There had been no return call. I think he was quite entitled to conclude that there was not going to be any and to ask the accused or insist that accused avail himself of duty counsel. The accused, clearly, passed on that and submitted to the breath test. There's no violation of the rights to counsel, here, at

all, in my view, and no violation of the Charter.

[8] The appellant contends his rights to counsel were violated. He was diligent in trying to obtain counsel, and should have been able to wait for his counsel of choice to call back. He also argues the officer should have given him a phone and phone book, and let him try and find counsel.

[9] I am not persuaded the trial judge erred in finding there was no breach of the appellant's right to counsel. It does not appear the argument with respect to giving the appellant the yellow pages was advanced at trial. However, I am not persuaded the officer's failure to provide the phone book resulted in a breach of s. 10 (b) of the Charter. There is authority supporting the appellant's submission: R. v. Akkot [2000] A.J. No. 795 (Alta. Prov. Ct.)(QL). However, as I found in R. v.

Neziol [2001] O.J. No. 4372 (S.C.J.)(QL), I am not persuaded the obiter comments on the police officer's obligations in Akkot are in accordance with the obligations where a 24 hour duty counsel system is in place, given the Court of Appeal for Ontario's judgment in R. v. Littlefield [2001] O.J. No. 2437 (Ont. C.A.)(QL).

[10] The right to counsel of choice is a fundamental component of the criminal justice system: R. v. McCallen, (1999), 131 C.C.C. (3d) 518 (Ont. C.A.). However, it is not an absolute right. Whether there has been a breach of the right to counsel of choice is fact specific. Even in trial situations where counsel cannot be available to conduct the trial for an inordinate period of time, an accused may be required to retain other counsel.

[11] When the choice of counsel arises in the context of advice upon arrest and police demand for breath samples, it will also be impacted by the two hour period in which the prosecution is permitted to rely on the "relating back" provisions in s. 258(1)(c)(ii) of the Criminal Code. It will also depend on the time of day. When a detainee is trying to contact counsel of choice in the middle of a business day, the expectation of a return call may be entirely different than a call to an answering machine at 1:30 a.m., when there has been no return call for an hour.

[12] There is a requirement that the detainee be reasonably diligent in attempting to contact counsel of choice. Here, the appellant was reasonably diligent in trying to contact his own counsel by giving the officer all the information he had. However, the officer's efforts to find counsel of choice could also be described as "reasonably diligent". He made calls for the appellant and looked on the internet to try and find the counsel he wished to contact. After

about 50 minutes, the appellant was offered the opportunity to speak to duty counsel. Whether he initially agreed to speak to duty counsel is not relevant in the final analysis. He agreed that he was given an opportunity to speak to duty counsel, and said he was sure he did not want to do so. He then agreed to do the test.

[13] The appellant relied on the judgment of MacKenzie J. in R. v. McKenzie [1999] O.J. No. 4222 (S.C.J.)(QL) in support of his position that he was denied his right to counsel of choice. However, after that judgment, the Court of Appeal judgment in R. v. Richfield (2004) 178 C.C.C. (3d) 23 (Ont. C.A.) was released. McKenzie must be read in light of Richfield. In Richfield, the accused wanted to speak to his own counsel. A phone message was left on an answering service in the middle of the night, and no answer was received after an hour and forty-five minutes. He was then offered an opportunity to speak to duty counsel and declined. The Court of Appeal held there was no breach of s. 10(b) of the Charter.

[14] The Court of Appeal, in examining whether a detainee had been reasonably diligent in contacting counsel, referred to the following comments in R. v. Brydges (1990), 53 C.C.C. (3d) 330 (S.C.C.):

Indeed, if the purpose of s. 10 (b) is to assist initially persons upon their being

detained as regards their rights and as regards their exercise thereof, we might

well have to put time-limits, not on access to counsel, but on access to counsel of

one's choice. It may be that it is unreasonable not to seek the advice of available

counsel when the only one available is either duty counsel or a Legal Aid Lawyer.

[15] In R. v. Littleford [2001] O.J. No. 2437 (Ont. C.A.)(QL), there was no breach of the rights to counsel of choice, where the accused wanted to speak to his own counsel but could not reach him and spoke to duty counsel. He did not complain about the advice he received.

[16] I am not persuaded the trial judge erred in finding there was no breach of s. 10(b).

The care or control issue

[17] The appellant was charged with impaired operation, and operating a motor vehicle having consumed excess alcohol. The officer testified he received the first call about a possible impaired driver at 11:54 p.m. The first breath sample was taken at 1:54 a.m. In order to avail itself of the "relating back" provisions of s. 258(1)(c)(ii) of the Criminal Code, the offence must occur within two hours of the first sample being taken. It was clear that the appellant had not driven the car within two hours of the first sample being taken. The trial judge found that at the time the investigating officer arrived, midnight, the appellant was in care or control of the car, so that the "relating back" provision in s. 258(1)(c)(ii) of the Criminal Code applied.

[18] The evidence on this issue was not in dispute. The first civilian witness, [REDACTED], had approached the appellant's car when he was stopped after striking a car in front. The appellant had backed up after hitting the car, causing Mr. [REDACTED] to flash his high beams. He had parked about 6 to 10 feet behind the appellant. [REDACTED] asked the appellant if he had been drinking, and was told he had. The witness smelled alcohol on the appellant. The appellant kept saying, "Who are you?" The witness told him he was Mr. Sober and the appellant was Mr. Drunk. [REDACTED] asked the appellant for his keys. The appellant took the keys out of the ignition but refused to give them to [REDACTED], pulling them away when [REDACTED] tried to grab them. [REDACTED] stood beside the appellant's door for about 15 minutes until the police arrived.

[19] [REDACTED], the driver of the vehicle the appellant struck, got out of his vehicle and stood outside the appellant's door, holding it closed. He also asked for the keys, but was not given them. [REDACTED] was next to him, making sure he kept his knee on the door.

[20] The appellant testified that he felt he was in a fine state to be driving. He saw no reason to give up his keys, and agreed he was going to decide what to do with his car. Even if he had wanted to move his car, he could not have because he was blocked in. He agreed his intention was to get out of the car, see the damage, make arrangements to pay for the damage, and then go home.

[21] The trial judge found the issue was whether the appellant was in care or control at some time later than 11:54 p.m., and concluded:

... the accused is in the driver's seat. He has got the keys. He's got, as Crown

counsel put it, dominion over the vehicle. It may be that his very immediate

intention was to sort things out, first of all, with the van driver, and then, since the

police were coming, with the police officer, but in my view, it was his intention to

remain in control of the car, and ultimately to continue on his way. It is my view

that that does constitute care and control within the meaning of the Criminal

Code. And the fact that he was actually being kept there by other people,

properly in my view, doesn't have any legal bearing on the question of care and

control of it.

[22] The appellant contends that while he occupied the driver's seat, the trial judge did not rely on the presumption in s. 258 of the Criminal Code. Rather, he found the appellant continued to have dominion over the car. In this situation, he argues there was no danger of the car being put in motion; he was being held pending the arrival of police. When police arrived, the appellant gave the officer the keys.

[23] I agree with the trial judge that the appellant continued to have care or control of the car. The judgment in R. v. Toews (1985), 24 C.C.C. (3d) 24 at 29 (S.C.C.) cited several authorities which defined ‘care' or ‘control'. "Care" means custody, charge, safekeeping, preservation, oversight, attention, or having charge or protection. "Control" is the fact of controlling or of checking and directing action.

[24] Here, the appellant would not give up the keys to the other motorists. He remained seated in the driver's seat. He testified he felt fine and planned to drive home. The fact he was temporarily unable to do so, does not negate his care or control of the car. He maintained the intention to drive the car, in effect, as soon as he was able to do so. It is not like a person who abandons care or control to another, by calling another driver to come and drive the vehicle.

[25] It is a similar situation to that in R. v. Rishy-Marahaj (1995), 16 M.V.R. (3d) 146 (Ont. Ct. Gen. Div.), where the appellant was standing seven or eight feet from his vehicle, which was in a ditch, with a tow truck driver at the scene ready to pull the car out of the ditch. At the time the officer arrived, the appellant could not drive his car. [REDACTED]. agreed with the trial judge that when the car was in the ditch he no longer had control over it. Nevertheless, he was found to

have retained care of the car. Here, while the other drivers had control over the car, the appellant retained care of the car. See also R. v. Lackovic (1998), 45 C.C.C. (3d) 80 (Ont. C.A.).

The Reasons for Judgment

[26] The appellant raised a series of issues in regards to the Reasons for Judgment. I will deal with them separately. First, he contends the trial judge erred in failing to provide any reasons for rejecting the appellant's evidence. There is no dispute that the trial judge's only reference to the appellant's evidence was that he admitted drinking, although he falsely minimized the amount he had to drink when he testified. Ms. Price argues that given the bad driving and the admission of drinking, it was not necessary to examine in detail the appellant's evidence. He was such a bad witness, he knows why he was disbelieved.

[27] The trial judge made the following findings of fact: I do accept, however, that the vehicle was in addition to cutting off Mr. [REDACTED] on two occasions - the vehicle was weaving in a way that as significant enough to cause Mr. [REDACTED] concern. And I accept that Mr. [REDACTED] called the police from his cell phone, before the incident at Dundas. In my view, this weaving, as I find it to be, it was not insignificant at all, but rather, I think I mentioned before, it is a hallmark of an impaired driver - at least one thing that can be indicative of it. I couple that with the two cut offs of Mr. [REDACTED]. Then I refer to the driving on the ramp, in my view, which was very unusual driving. The vehicle, and I accept the evidence of Mr. [REDACTED] on this point - that the vehicle did come up behind him, very rapidly, and then it, I suppose one could presume, saw the [REDACTED] vehicle and slowed abruptly - so abruptly that the nose of the defendant's vehicle came down and the space then increased between the two vehicles. At that point, strangely, the [REDACTED] vehicle again

accelerated and came up too fast on the [REDACTED] vehicle. And, again, went through the same motion of slowing abruptly, so the nose came down. After it came almost to a stop, or perhaps to a stop, it moved forward again, and struck, although lightly, the [REDACTED] vehicle. These, in my view, are very odd manoeuvres, to say the least by Mr. [REDACTED]. Couple all of this together, in my view, the driving evidence is very significant here, and paints a picture of someone who is not, either not in control of his vehicle or is oblivious to other vehicles around him, or both. And, in my view, it speaks strongly to his ability to drive being impaired. He immediately, when confronted, was asked if he had been drinking. And he said, "Yeah and shrugged. He admitted of course, that he had been drinking, although minimized - and I am convinced falsely - minimized the amount he had to drink.

[28] The appellant testified he started drinking at 8:30 p.m. He was not feeling well, as he was suffering from hives which made his face red and his body and eyes itch. His eyes may have appeared to be red and watery that night because of the hives. He did not recall if he cut anyone off, and denied he was swerving across lanes on the 401. He could not recall weaving within his own lane. He might have been speeding because he had to go to the bathroom. While he saw

the car on the Dundas ramp, his brakes were a little low and he had to press them a "little low". In terms of impairment he was feeling perfect, very, very good. He denied slurring his words.

[29] In R. v. Sheppard (2002), 162 C.C.C. (3d) 298, the Supreme Court of Canada provided assistance as to what should be included in reasons for judgment. Of note here, the Court held that the accused, counsel, and appellate courts must be able to examine the reasons for judgment and know why there was a conviction, and why he was disbelieved.

[30] While the trial judge did not provide extensive reasons why he disbelieved the appellant's evidence, including that he was fine to drive, Mr. [REDACTED], his counsel and the reviewing court are not left in any doubt as to why he was convicted. He did not take serious issue with the bad driving on the highway. While he explained the minor accident as having been caused by his

poor brakes, the fact he knew he had bad brakes and still wound up hitting another car, speaks volumes about his judgment that day. The trial judge was clearly entitled to accept the evidence of bad driving, which was not contested by the appellant. He was not required to accept or find his explanations raised a reasonable doubt. When coupled with the admission of drinking, there is no mystery why the appellant was convicted. His assertion that he was fine was contradicted by an abundance of evidence. There were also conflicts within Mr. [REDACTED]'s evidence.

[31] Even if I am in error in this area, and there are "deficiencies" in the reasons, they are not such as to prevent "meaningful appellate review": Sheppard, supra at para. 28. The path His Honour took through conflicting evidence is apparent. There are no conflicting "theories for why the trial judge might have decided as he did": Sheppard, at para. 46.

[32] The second issue on the Reasons deals with the alleged misapprehension of the appellant's evidence. At p. 135 the trial judge found:

There were certain indicia of impairment noted. And there was variations, as there usually is with this sort of thing. And, in my view, the indicia must be considered together with one of the things that came out in the evidence, that the defendant is an experienced drinker who drinks almost daily. So, his body is very familiar with alcohol. Quite apart from physical indicia, I would be of the view, that even if there was none or almost none, the driving, itself, is the best measure, and speaks for itself, and speaks loudly, that this man's ability to drive was impaired by alcohol. And I am convinced that is so.

[33] The appellant contends there is no evidence he is an experienced drinker. The undisputed evidence is that he told the technician he drank two or three drinks daily. The appellant told the technician that "probably every time he has a meal, he has a bottle of wine". In the 24 hours before the accident he had had a bottle of wine, maybe a little more. He said he drinks daily. There was ample evidence upon which the trial judge could conclude he was an experienced drinker.

[34] Third, the appellant argues the trial judge ignored evidence that had the potential to exonerate him. In particular, his evidence that he felt fine, that the accident was caused by bad brakes which he was aware of, his explanation for his physical condition, that he had hives and was on medication, the inconsistencies in the officers' evidence, particularly in regards to whether the appellant had slurred speech, the exaggerations in Mr. [REDACTED]'s evidence which the trial judge accounted for on the basis of the "vagaries and trickery of memory".

[35] I am not persuaded the trial judge erred. First, a trial judge does not have to address every piece of evidence adduced during a trial that potentially offered some support for the defence: R. v. Torchia [2002] O.J. No. 3075 (Ont. C.A.)(QL). This was an oral judgment, given at the conclusion of argument in a busy trial court. However, a trial judge should give reasons to explain the verdict in the face of confused and contradictory evidence: R. v. R.(D.) (1996), 6 C.R. (5th) 420 (S.C.C.)

[36] Second, as regards the appellant's explanation for his physical symptoms and the accident, the trial judge was well aware of his evidence and had just heard counsel's argument. Once the Certificate of Analysis was admissible, there was evidence the appellant had consumed alcohol in an amount in excess of the legal limit. The readings were 140 and 130 milligrams of alcohol in 100 millilitres of blood. The appellant had testified he consumed two beers. When coupled with the bad driving, there was clear evidence upon which the trial judge could do what he said he was doing, convicting on the basis of the driving and the admission of consuming alcohol, rejecting the appellant's explanations.

[37] The appellant said he felt fine to drive. The evidence suggested otherwise. The arresting officer believed his ability to operate a motor vehicle was impaired by the consumption of alcohol. While there is always a credibility assessment in regards to evidence, where the opinion is in regards to the ability to drive a motor vehicle, it is not purely a matter of credibility. It is more a consideration of the reliability of the opinion. It may be that Mr. [REDACTED] honestly believed, and continues to honestly believe, that he was fine to drive. How reliable that honestly held opinion was is the issue. The trial judge does not have to reject his evidence on the basis of credibility in order to convict.

[38] As regards the alleged inconsistencies in the officers' evidence. Both officers testified the appellant had slurred speech at the scene. One of those officers was also the breath technician. He said that at the station, one and a half to two hours later, the appellant did not have slurred speech. There was no inconsistency. As for the argument that the arresting officer had modified or elaborated on his evidence, the trial judge was alert to the argument. He gave no weight to the officer's evidence in regard to whether the car's lights were on or off.

[39] Finally, in relation to Mr. [REDACTED]'s evidence, the trial judge was aware of the defence arguments regarding his credibility in light of the different descriptions he had given of the driving. He was entitled to believe all, part, or none of his evidence. His Honour explained the discrepancies as a product of the "vagaries and trickery of memory." His Honour accepted the less aggravating description of the driving. Where a trial judge makes findings of credibility, they can only be overturned on appeal where the reviewing court concludes that the findings of

credibility are so tenuous that the conviction was unreasonable: R. v. W.(R.) (1992), 74 C.C.C. (3d) 134 (S.C.C.) The trial judge's findings were not so tenuous as to result in appellate intervention.

The Cross-examination of the Appellant's criminal record

[40] At the start of cross examination on the Charter voir dire, the Crown asked the appellant about previous convictions for public mischief in 1980, assault causing bodily harm in 1983, and impaired driving in 1994. [REDACTED] did not object when the question was asked. After the appellant had testified and the trial judge gave his reasons for dismissing the Charter motion,

[REDACTED] told the judge he wanted to put on the record that he thought the Crown's cross-examination on convictions which were over 20 years old was not appropriate. He had asked Crown Counsel not to do that. The trial judge replied: "You know what? I didn't make a finding of credibility against your client on the basis of it, anyway." Counsel replied, "Oh, I understand." Counsel agreed with His Honour that the evidence did not differ greatly between the officer and

the appellant as to what happened, so it was a non-issue.

[41] Counsel then said it was the third conviction that caused him the problems. He was submitting that if it had been a jury trial, it would have been the subject of a Corbett application. His Honour interjected, "I didn't even note it. I can't even recall what it was." Counsel esponded, "All right, all right."

[42] [REDACTED] argues from the perspective that having the trial judge hear of the previous conviction for impaired driving was prejudicial to the appellant. In addition, he contends the trial judge's comment he could not recall evidence given shortly before, raises concerns for his client.

[43] I am not persuaded there was any prejudice to the appellant, nor that there was any appearance of unfairness or other areas of concern. His Honour said he did not rely on the record. There is absolutely no indication he did. As regards the alleged concerns expressed by Mr. [REDACTED], as a result of His Honour saying he neither wrote down nor remembered the record, I am not persuaded there is any foundation for the concerns. His Honour basically said he did not act upon or regard that evidence as important. The fact he did not recall the details of irrelevant evidence, does not raise any concern for the fairness of the trial.

Conclusion

[44] The appeal is dismissed.

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