DATE: 20040202
DOCKET: C40169

COURT OF APPEAL FOR ONTARIO

SHARPE, ARMSTRONG and BLAIR JJ.A.

On appeal from the order of Justice Lorna-Lee Snowie of the Superior Court of Justice dated May 15, 2003.

BY THE COURT:

[1] The appellant seeks leave to appeal the dismissal of his summary conviction appeal from his conviction for having care and control of a motor vehicle with more than 80 milligrams of alcohol per 100 milligrams of blood.

[2] The appellant raises the following issues:

(1) Was the appellant's initial admission that he was the driver a compelled statement that violated the principle of self-incrimination?

(2) Was the appellant's s. 8 Charter right violated and were there reasonable and probable grounds to request a breathalyser test?

(3) Was the appellant's s. 10(b) Charter right to counsel violated?

(4) Did the Crown establish that the appellant had actual care and control of the motor vehicle?

[3] We did not find it necessary to call upon the crown with respect to the first two issues.

[4] The trial judge noted that the Crown did not rely on the appellant's initial admission that he was the driver and did not consider the statement in making his factual findings. Accordingly, we see no reason to consider that point on this appeal.

[5] We see no error by the trial judge with respect to s. 8, nor with respect to the issue of reasonable and probable grounds. The appellant made the tactical decision to testify on the Charter voir dire and we do not accept the contention that it is now open to the appellant to argue that his original motion to grant the Charter application and enter an acquittal should have been granted when the Crown elected to call no evidence. As the appellant elected to testify, it was open to the trial judge to take into account his evidence, including his admission that he had been both drinking and driving shortly before the accident in making his conclusion on s. 8. The investigating officer's observations of the appellant at the scene provided a sufficient basis to support the trial judge's finding that there were grounds to demand a breath sample.

[6] With respect to the s. 10(b) issue, we do not think that the trial judge erred in finding that there was no breach of the appellant's right to counsel. The relevant evidence pertaining to this issue is as follows. Upon arrest, the arresting officer read the appellant his rights to counsel and cautioned him. When asked if he wished to speak to a lawyer, the appellant answered: "I'll blow first". The arresting officer took this to mean that the appellant would provide the breath samples before he spoke with a lawyer. The appellant confirmed that intention on the voir dire.

[7] Officer Hewgill, the breathalyser technician administered the breathalyser tests. Hewgill followed the usual practice of administering the first test and then asking the appellant certain questions. In answer to Hewgill's questions, the appellant stated that he had been driving the motor vehicle when it was driven off the road, and that he had consumed three or four beers prior to the accident. In addition to the breathalyser tests, the appellant also complied with Officer Hewgill's request that he perform three sobriety tests, from which Hewgill concluded that the appellant had some problems with balance. The appellant did not renew his request to speak to a lawyer after the administration of the breathalyser test, but indicated that he simply wished to go home.

[8] On the voir dire, the appellant testified that when he said "I'll blow first", he "postponed" his right to counsel. He then gave the following answers on cross-examination:

A. I said I'll blow first.

Q. And what does that mean?

A. That secondly I'll call my lawyer.

Q: Okay. And you did the sobriety tests and the conversation with the breath tech in between the two blows. Right?

A. Correct.

Q: So you never intended to actually speak to your lawyer until after you completed the first blow, sobriety test, the conversation and the second blow. Correct?

A: Correct.

Q. Okay. So your beef, to use the sort of colloquial word, your beef is that after you do all that, you don't get your lawyer. Right?

A. It's not a beef.

Q. Well, your, your point. You think at that point you should have been given the phone again. Correct?

A: Yes.

[emphasis added]

[9] Despite stating that he had knowledge that he would be subjected to a conversation after blowing, the appellant submits that his statement, "I'll blow first" meant that he should not have been questioned by the breathalyser technician. Although the appellant concedes that he was legally required to perform the tests, he submits that his answers to the subsequent questions were improperly put before the court because they were obtained by breach of his s. 10(b) rights.

[10] The test for waiver of a Charter right is a strict one and that, as stated in R. v. Prosper (1994), 92 C.C.C. (3d) 353 (S.C.C.) at 379, "the standard required for an effective waiver of the right is very high". It is also well established that once a detainee states that he or she does wish to consult counsel, the police must "hold-off" and refrain from questioning the detainee until the right to counsel has been satisfied: R. v. Prosper, supra. Having heard the appellant's response "I'll blow first", and in view of the importance of the right to counsel, it might have been more prudent for the police to have warned the appellant that the technician might ask him to answer some questions or to perform certain sobriety tests. However, since a detainee must be "reasonably diligent" in asserting the right to counsel (see R. v. Smith (1989), 50 C.C.C. (3d) 308 (S.C.C.)), we are not persuaded that the trial judge erred in law in finding that the appellant had waived his right to counsel, particularly in light of the appellant's admission on cross-examination that he did not intend to actually speak to a lawyer "until after you completed the first blow, sobriety test, the conversation and the second blow".

[11] With respect to the "care and control" issue, we see no error of law that would warrant the interference of this court. The appellant was found standing beside a vehicle that had just been driven into the ditch with the keys in the ignition. While the police were on the scene, a tow truck arrived to pull the vehicle out. The appellant produced documentation indicating that his father was the owner of the vehicle. In our view, it was open to the trial judge to infer care and control from these facts and to conclude that the conduct of the appellant in relation to the vehicle created a sufficient risk of danger: see R. v. Wren (2000), 144 C.C.C. (3d) 374 (Ont. C.A.); R. v. Magagna (2003), 173 C.C.C. (3d) 188 (Ont. C.A.).

[12] Accordingly, leave to appeal is granted but the appeal is dismissed.

"Robert J. Sharpe J.A."
"R.P. Armstrong J.A."
"R.A. Blair J.A."

Released: February 2, 2004