COURT OF APPEAL FOR ONTARIO
LABROSSE, MOLDAVER and CRONK JJ.A.
B E T W E E N :
HER MAJESTY THE QUEEN
Alan D. Gold and Vanessa Arsenault
for the appellant
Respondent
- and -
BRIAN TORSNEY
David Finley for the respondent
Appellant
(Applicant)
Heard: January 19, 2007
On appeal from the decision of Justice Bruce C. Hawkins of the Superior Court of Justice, sitting as a summary conviction appeal court judge, dated June 5, 2006, allowing the appeal of the appellant’s acquittal by Justice Ramez Khawly of the Ontario Court of Justice, dated March 8, 2005.
BY THE COURT:
1The appellant appeals the decision of the summary conviction appeal judge allowing the Crown’s appeal and ordering a new trial from his acquittal by the trial judge on a charge of operating a motor vehicle with a concentration of alcohol in excess of 80 milligrams in his blood.
2At trial, counsel for the appellant brought a Charter application seeking to exclude the readings of the alcohol level on the basis that the appellant’s s. 10(b) Charter rights had been violated because he had not been afforded the opportunity to call counsel on his cell phone while waiting for the Approved Screening Device (ASD) to arrive at the scene. Counsel also argued that the wording of the demand for a breath sample did not constitute a proper demand because it omitted the word “forthwith”. As a result, this left the process of demand and response an open-ended one, lacking the element of immediacy required by the Criminal Code and R. v. Woods (2005), 2005 SCC 42, 197 C.C.C. (3d) 353 (S.C.C.).
3The trial judge found that the wording used did not constitute a proper ASD demand and therefore, the demand was invalid. He also found that, in the circumstances, there was a reasonable opportunity for the appellant to call counsel on his cell phone.1 Accordingly, he found that the appellant’s rights under s. 10(b) of the Charter had been breached. On the issue of s. 24(2), the trial judge gave brief reasons that are difficult to discern. They are reproduced in full below:
Given the decision that I have made on the forthwith issue which renders the demand invalid, to suggest, therefore, that under section 24(2), under the rubric that it is in the public interest in drinking and driving charges and to stop the tragic chaos on the streets to allow this type of evidence, in my view, would be rather stretching the public interest. Accordingly, that particular position taken by the Crown fails. That evidence will not be allowed into this trial.
4The Crown appealed the acquittal and the summary conviction appeal judge allowed the appeal, set aside the acquittal and ordered a new trial. The summary conviction appeal judge did not agree with the trial judge that the missing word rendered the demand invalid. He was of the view that there is no statutory requirement that the word “forthwith” must be used. He found that, as the demand had been made three minutes before the arrival of the machine, and the appellant knew that he was going to be required to submit to an ASD test when the machine arrived, the demand was made forthwith even though the word “forthwith” was not used. However, he agreed with the trial judge that the failure of the officer to afford the appellant an opportunity to use his cell phone to call counsel amounted to a s. 10(b) breach.
5On the s. 24(2) issue, contrary to the trial judge’s finding, the summary conviction appeal judge found that the exclusion of the breathalyser result would bring the administration of justice into disrepute. In so concluding, he simply referred to a passage in R. v. Stillman (1997), 1997 384 (SCC), 113 C.C.C. (3d) 321 at 356 (S.C.C.) where Cory J., for the majority, referred to the Criminal Code provisions pertaining to breath samples as being “both minimally intrusive and essential to control the tragic chaos caused by drinking and driving”.
6We agree with the summary conviction appeal judge that the missing word “forthwith” did not render the demand invalid. The demand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his or her breath forthwith.2 This can be accomplished through words or conduct, including the “tenor [of the officer’s] discussion with the accused”. See R. v. Horvath, [1992] B.C.J. No. 1107 (B.C.S.C.) (A.D.). What is crucial is that the words used be sufficient to convey to the detainee the nature of the demand. See R. v. Ackerman (1972), 1972 1300 (SK CA), 6 C.C.C. (2d) 425 at 427 (Sask. C.A.) and R. v. Flegel (1972), 1972 1332 (SK CA), 7 C.C.C. (2d) 55 at 57 (Sask. C.A.).
7In this case, the demand was made clear and the appellant understood. He knew that he was to provide a sample as soon as the machine arrived and he responded accordingly. Put differently, the appellant understood that the only event between the demand and his giving of the breath sample was the arrival of the ASD. That being so, the only issue of substance is whether the police officer was in a position to require that the appellant provide a breath sample forthwith, i.e. before there was any realistic opportunity for him to consult counsel. See R. v. Woods, supra, at 362; R. v. Cote (1992), 1992 2778 (ON CA), 70 C.C.C. (3d) 280 at 285 (Ont. C.A.) and R. v. Latour (1997), 1997 1615 (ON CA), 116 C.C.C. (3d) 279 at 287 (Ont. C.A.).
8On that issue, we believe that the courts below erred in failing to consider all the relevant circumstances when determining whether the roadside breath test had been administered forthwith and in equating the concept of a “realistic opportunity to consult with counsel” with the mere chance to place a call to a lawyer.
9In R. v. Latour, supra, this court held that in deciding whether, in any particular case, there was a realistic opportunity to consult with counsel, all the circumstances must be considered, including the time which in fact elapsed between the demand and the taking of the breath sample. In so concluding, at p. 287 Charron J.A. rejected the proposition that “unless the peace officer reasonably believes that he or she can ‘make the demand good’ at the time it is made, the demand is not valid even if the sample is, in actual fact, received into an approved screening device a few moments later.” Rather, as she explained at p. 288:
If, as the events actually unfold, the peace officer is in a position to require the person to provide the sample before there is any realistic opportunity to consult counsel, the statutory requirements are met. The detained person has no cause for complaint as the events will have unfolded in accordance with the legislative scheme and within its constitutional boundaries. I see no sound policy reason for requiring that the statutory requirements be met by design rather than by chance. Compliance is compliance whether fortuitous or otherwise.
10Justice Charron’s remarks are apposite to this case. The breath demand was made at 2:32 a.m. and the ASD arrived approximately three minutes later, at 2:35 a.m. According to the appellant, the testing began a few minutes later. Hence, the elapsed time in this case between the demand and the appellant’s first attempt to provide a breath sample was at most six or seven minutes, not ten minutes as found by the trial judge.3
11Regardless of the precise time, the first attempt was well within the periods of time that have been said to comply with the legislation. See e.g. R. v. Singh, [2005] O.J. No. 4787 (C.A.), eleven minutes from demand to the arrival of the ASD and a further six minutes to testing; R. v. Pilon, [2006] O.J. No. 701 (S.C.J.), five minutes to the arrival of the ASD and a further two minutes to testing; and in R. v. Latour, supra, eight minutes from demand to the arrival of the ASD and a further four minutes to testing.
12As in Latour, supra, the question to be asked is whether, in the circumstances, the police officer was in a position to require that a breath sample be provided “forthwith”, that is, before there was any realistic opportunity for the appellant to consult counsel. The answer, in our view, is “yes”. The machine was at the scene and ready for use within six or seven minutes of the demand. The demand was made at 2:35 a.m. On the record in this case, any attempt by the appellant to contact and consult counsel within the space of six or seven minutes, at that time in the morning, would have been futile. The proof of that lies in the appellant’s attempt to contact a lawyer after he had been arrested at 2:43 a.m. and taken to the station pursuant to a breathalyser demand. According to the evidence, at the station, it took the appellant “a lot of effort to get his phone call to his lawyer” and “he phoned more than one number to try to get through”. Nothing on this record leads us to believe that the situation would have been different had the appellant attempted to contact and consult with counsel at the roadside.
13In coming to this conclusion, we consider it important to draw a distinction between a detainee having “a chance to call counsel” and a detainee being able to “consult with” counsel. The trial judge was under the impression that in deciding whether, in the circumstances, there was a realistic opportunity for the appellant to consult counsel, all that was required was that he be able to “call” counsel in the few minutes it took for the ASD to arrive and be readied for use. With respect, we think that the trial judge erred in that regard. The question he should have asked is whether, in all the circumstances, there was a realistic opportunity for the appellant, in the space of six or seven minutes, to contact, seek and receive advice from counsel. Had the trial judge framed the issue that way, he would, in our view, have decided the s. 10(b) issue differently.
14In sum, we are satisfied that the demand made by the police officer was a valid demand under s. 254(2) of the Criminal Code and the breath sample was provided forthwith, i.e. before there was any realistic opportunity for the appellant to consult counsel. Contrary to the position taken by the courts below, there were no Charter violations here. Accordingly, it is unnecessary to address the s. 24(2) issue.
15In the result, the appeal is dismissed.
Signed: “J-M. Labrosse J.A.”
“M.J. Moldaver J.A.”
“E.A. Cronk J.A.
RELEASED: “MJM” February 1, 2007
Footnotes
- In the brief three-minute interval between the time of the demand and the arrival of the ASD, the appellant asked the officer if he “should call his lawyer on [his cell phone]”. The officer replied, “that won’t be necessary”.
- The word “forthwith” carries with it a sense of immediacy. In R. v. Danychuk (2004), 2004 12975 (ON CA), 183 C.C.C. (3d) 337 at 342 (Ont. C.A.), Blair J.A. took the word “forthwith” to mean “as soon as reasonably practicable or within a reasonable time having regard to the provision and the circumstances of the case”. In R. v. George (2004), 2004 6210 (ON CA), 187 C.C.C. (3d) 289 at 295 (Ont. C.A.), Gillese J.A. stated that “to be ‘forthwith’, the demand must be that the detainee provide a sample after ‘a short period of detention’, if not ‘immediately’.”
- The ten-minute calculation failed to take into account the fact that the appellant blew three times before providing a sample suitable for analysis. While the third sample was likely provided at about the ten-minute mark, the first unsuccessful attempt would have occurred sooner.
