Court File and Parties
Court File No.: Halton 12/105 Date: 2013-05-27 Ontario Court of Justice
Between: Her Majesty the Queen — and — Stacy Bihi-Zenou
Before: Justice F.L. Forsyth
Heard on: February 8, 2013
Reasons for Judgment released on: May 27, 2013
Counsel:
- Monica Mackenzie, for the Crown
- Nicolas Xynnis, for the accused Stacy Bihi-Zenou
FORSYTH J.:
Introduction
1Ms. Bihi-Zenou was charged with a single count pursuant to s. 253(b) of the Criminal Code arising out of an incident on January 1, 2012. The Crown proceeded summarily and the trial was conducted in its entirety on February 8, 2013.
2Mr. Xynnis filed an application on February 2, 2013 seeking a ruling by this Court that the accused's s. 8, 9 and 10(b) rights under the Canadian Charter of Rights and Freedoms had been infringed by the investigating police officer. Mr. Xynnis emphasized in his application that his main concern was s. 8. He sought exclusion pursuant to s. 24(2) of the Charter of the results of any analyses of the accused's breath samples provided to the police after she was arrested on this charge. He also sought to have excluded any observations of the accused while she was in police custody and any statements made by her to the police while she was in detention and/or custody.
3At para. 6 of his application Mr. Xynnis further clarified that his position on behalf of the accused would be that a sample of her breath that was taken by the investigating officer pursuant to an approved screening device demand was not obtained "forthwith" as required by s. 254(2) of the Criminal Code.
4Both counsel have agreed that this matter could be conducted as a blended Charter and trial application, and I have agreed to that procedure.
Summary of the Evidence
5The first witness called by the Crown was P.C. Erik Chamberlain who testified in Chief that he is a member of the Ontario Provincial Police and was on duty on New Year's Day, January 1, 2012. He was dispatched after an off-duty police officer had called the O.P.P. 911 dispatch number in connection with a possible impaired driver on the Queen Elizabeth Highway. The dispatch information to P.C. Chamberlain included the fact that this vehicle had collided with a centre concrete median on the highway. P.C. Chamberlain answered the dispatch call and proceeded to the area described, arriving at approximately 7:05 a.m. He found the accused to be still in the vehicle behind the driver's wheel when he approached the vehicle. He spoke to her and noticed an odour of an alcoholic beverage on her breath and her eyes were red and watery. When he asked her to exit the vehicle he said that she was not unsteady in her gait.
6Before asking the accused to exit her vehicle P.C. Chamberlain said that he had asked her for her identification which she did produce to him with no difficulty, including her driver's licence and insurance. The reason that he asked her to exit the vehicle, he said, was because the vehicle, in his opinion, was a safety hazard on the highway in its location. He noted that there was severe damage to the left side of her vehicle from its impact with the concrete median.
7The officer said that he had wanted to continue to investigate this accident for two reasons at this point in time. The first reason was that he wanted to ask the accused about the circumstances of the accident and, secondly, he wanted to determine whether or not he had a reasonable suspicion that she had been operating her motor vehicle with alcohol in her body pursuant to s. 254(2) of the Code. He said that the dispatch officer had told him that the accident had occurred at about 6:36 a.m.
8He said that he asked the accused if she had been drinking before the accident and he said that her response was that she had consumed two beers and that she had finished them three or four hours previously. She said that she had been driving from Niagara Falls. When she was talking to him he noticed that her speech was clear.
9He said that at 7:12 a.m. he had formed a reasonable suspicion that she had alcohol in her body while operating her motor vehicle but he felt that he had no reasonable and probable grounds for an arrest pursuant to s. 253(a) of the Code. He satisfied himself by speaking with the accused that she was not injured and she did not request an ambulance. Nor did she require an ambulance in his opinion.
10He said that he did not have an approved screening device with him but he requested one to be brought to the scene, although he was not at that point certain that he would administer it to her. He explained that P.C. Croll was on Brant Street in Burlington and had one in his possession. However, P.C. Chamberlain said that he did not know at that point how long it would take for P.C. Croll to arrive with the unit.
11He asked her to sit in the rear of his cruiser while he was waiting for the unit to arrive and having watched her walk to his cruiser he testified that she walked just fine. He explained that another reason for his wanting her to wait inside his cruiser was that he was hoping that he could get more information from observing her, or in speaking with her, about the strength of his reasonable suspicion that she had alcohol in her body at that time. When he began speaking with her again about how much she had to drink she told him that she had consumed a mickey of rum as well as the two beers that she had earlier mentioned while she was in Niagara Falls the previous evening. He pointed out in his evidence that initially she had confined her information to the fact that she had only had two beers.
12He said at this point he realized it was now 7:13 a.m. and he still did not have reasonable and probable grounds for an arrest on an impaired charge, but he did feel that he had the necessary reasonable suspicion pursuant to s. 254(2) of the Code to demand a sample of breath on an approved screening device.
13The officer said that he began to wonder about when the approved screening device would arrive at the scene, and he concluded that it should only be a matter of minutes after 7:13 a.m. Indeed, he said that it did arrive with P.C. Croll at 7:20 a.m.
14He said that he had not provided the accused with her right to counsel pursuant to s. 10(b) of the Charter before the unit arrived. He explained that he did not believe that she would have been able to contact a lawyer in the short time that he anticipated it would take for the arrival of the approved screening device.
15He explained that he had read the s. 254(2) approved screening device demand to the accused at 7:15 a.m., some five minutes before the unit arrived at the scene. He said that she said that she understood the demand.
16At 7:23 a.m. he demonstrated how to provide a sample into the approved screening device and she did successfully provide a sample, producing a fail result on the unit. Because of his knowledge of the significance of a fail result with respect to blood alcohol concentration in the subject he then arrested the accused on the charge of 253(b). He said that another officer who had arrived at the scene produced a cell phone to him that had been obtained from the vehicle of the accused.
17He then escorted the accused to the O.P.P. detachment in Burlington for purposes of the breath testing procedures. He said that while at the detachment he facilitated a call to duty counsel at her request. When he had provided her s. 10(b) right to counsel at the scene after she produced a fail on the approved screening device she had initially declined her right to counsel. However, she changed her mind at the station and he facilitated her request. Mr. Xynnis has not made an issue of the informational component of the s. 10(b) rights once they were given to the accused.
18Through this officer the Crown then introduced a Certificate of Analysis with an attached Notice of Intention to introduce it at trial. The results of two breath samples at the detachment from the accused were 90 milligrams on each test, truncated, at 8:43 a.m. and 9:17 a.m. respectively.
19In cross-examination the officer agreed with Mr. Xynnis that he actually had reasonable suspicion that the accused had alcohol in her system by 7:07 a.m. He agreed that he could have requested the approved screening device at that moment. He then explained that he did not do so because, as he had said previously, he wanted to determine if there were sufficient symptoms of impairment after he investigated a little bit further as opposed to simply suspicions on his part.
20He confirmed that he had provided the accused with her s. 10(b) rights to counsel at 7:29 a.m. and that, therefore, there was a 17-minute delay after she was detained at 7:12 a.m. when he asked her to sit in the back of his cruiser to await the approved screening device arrival.
21He agreed with Mr. Xynnis that he didn't really know how many minutes it would take for P.C. Croll to arrive with the approved screening device. He also agreed that the accused could perhaps have called a lawyer from her cell phone if he had provided her rights to counsel to her earlier. He also agreed that he had not synchronized his watch with the off-duty Metro officer's watch. The latter had been the 911 caller.
22In re-examination Ms. Mackenzie took the officer through what are sometimes referred to as dash pad notes from his cruiser. P.C. Chamberlain explained that these notes are made when the officer begins to record his findings and observations in the cruiser even before completing the notes down at the station. A summary of these dash pad notes was that at 7:15 he had made the approved screening device demand upon the accused, at 7:20 the approved screening device arrived, at 7:23 he demonstrated the unit to her, at 7:29 he provided her with her rights to counsel after she had produced the fail result and, at 7:35 he made the 254(3) demand upon the accused for samples of her breath to be provided into the Intoxilyzer at the station.
23At the conclusion of this re-examination Ms. Mackenzie closed the case for the Crown on the merits and advised that she was not calling any viva voce evidence on behalf of the Crown in response to the Charter applications. In other words, she was content to rely upon the evidence that had been received by the Court from P.C. Chamberlain for both the merits and the Crown's response to the Charter application.
24Mr. Xynnis elected not to call any evidence for the defence and, therefore, the Court received submissions from both counsel immediately.
Position of the Defendant/Applicant
25Although Mr. Xynnis did not call a case for the defence leaving the Crown to argue first, he agreed to precede the Crown in order to set out his position to which the Crown could then more carefully respond.
The Section 8 Charter Argument
26Mr. Xynnis submitted that P.C. Chamberlain's evidence established that he arrived at the motor vehicle accident scene at 7:05 a.m. and that he had really acquired his reasonable suspicion, contemplated by s. 254(2) with respect to the accused having alcohol in her system while operating her motor vehicle, by 7:07 a.m. He argues that the delay from 7:07 a.m., which includes the period of time during which P.C. Chamberlain waited to request an approved screening device to be brought to the scene and also the period of time when he decided to have further conversation with the accused in the back of his cruiser to try to step his reasonable suspicion up to reasonable and probable grounds for an impaired arrest if he could, is evidence of a breach of the accused's s. 8, 9 and 10(b) Charter rights.
27Specifically, he argues that P.C. Chamberlain could easily have continued his observations of the accused while awaiting the arrival of the approved screening device from another officer if he had made that request forthwith after he had formed his reasonable suspicion. Mr. Xynnis submits that the evidence does not suggest that it was necessary for the officer to delay the approved screening device request until 7:12 a.m. from 7:07 a.m. He argues that the standard to be applied by this Court when assessing the delay created by the officer is what was reasonably necessary in the circumstances.
28Even after the approved screening device finally arrived at approximately 7:20 a.m., according to the officer's evidence, Mr. Xynnis reminds the Court that the officer waited an additional six minutes before he subjected the accused to providing a sample of her breath.
29Mr. Xynnis supports this position by reliance upon a number of common law precedents. He referred the Court to a decision of Mr. Justice Hill of the Ontario Superior Court of Justice. That decision was favourably considered by the Ontario Court of Appeal in R. v. Quansah, 2012 ONCA 123, 286 C.C.C. (3d) 307, a February 23, 2012 decision of a three-member panel of the Ontario Court of Appeal. Mr. Xynnis also relies upon Quansah.
30In R. v. Quansah, supra, Mr. Justice LaForme, speaking for the Ontario Court of Appeal panel, stated at paras. 25, 26 and 28:
25 Section 254(2) does not explicitly require that the police officer's demand be made "forthwith"; rather, it only specifically requires that the motorist provide a breath sample "forthwith". However, Arbour J.A. in R. v. Pierman; R. v. Dewald (1994), 19 O.R. (3d) 704 (C.A.), at para. 5, held that "it is implicit that the demand must be made by the police officer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body." In that same paragraph she reasons that:
This is the only interpretation which is consistent with the judicial acceptance of an infringement on the right to counsel provided for in s. 10(b) of the Charter. If the police had discretion to wait before making the demand, the suspect would be detained and therefore entitled to consult a lawyer.
26 Woods confirms this and reasserts that the constitutional validity of s. 254(2) depends on its implicit and explicit requirements of immediacy. This immediacy requirement is implicit for the police demand for a breath sample and explicit for the mandatory response: the driver must provide a breath sample "forthwith". The term "forthwith" in s. 254(2), therefore, means "immediately" or "without delay" and indicates a prompt demand by the peace officer and an immediate response by the person to whom that demand is addressed: see Woods, at paras. 13-14 and 44. However, in unusual circumstances "forthwith" may be given a more flexible interpretation than its ordinary meaning strictly suggests: see Woods, at para. 43.
28 For years this court has recognized that "forthwith", or the immediacy requirement, called for some flexibility in its interpretation. For example, s. 254(2)(b) mandates that "a proper analysis" be made and thereby "incorporates an element of accuracy": see Pierman, at para. 21. Consequently, if the circumstances dictate that a "short delay" is necessary for the officer to obtain an accurate result, the officer is justified in delaying either the making of the demand or the administration of the test after the demand: see Pierman, at para. 21.
31And further at para. 30:
In R. v. Au-Yeung, 2010 ONSC 2292 , T. Ducharme J. notes that unfortunately this recognition of the need for some delay has been taken to mean that a police officer is not required to make an ASD demand as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. He disagrees with such an interpretation and so do I.
32And further at paras. 33 and 35:
33 As I noted earlier, the Crown argues that the only circumstance in which the "forthwith" requirement is exceeded is where there is sufficient delay such that a realistic opportunity to consult counsel was available but not provided.
34 I do not agree. There is no doubt that if there has been a realistic opportunity to consult counsel that has not been accorded to the detained person when the sample is demanded and the person has responded to the demand by either providing the sample or refusing to blow, the "forthwith" requirement is not met. That is clear from the many cases in which this was the sole issue. See, for example, the following cases in this court: R. v. George; R. v. Torsney, 2007 ONCA 67, 217 C.C.C. (3d) 571; R. v. Latour (1997), 34 O.R. (3d) 150 (C.A.); R. v. Danychuk (2004), 70 O.R. (3d) 215 (C.A.). However, I do not think that these cases canvass - let alone reject - the notion that there are other criteria applicable to assess the "forthwith" requirement.
35 Moreover, it is clear from Supreme Court of Canada jurisprudence that the opportunity to consult counsel is not the only criterion for assessing whether the "forthwith" requirement has been observed.
33At paras. 40 and 41, Mr. Justice LaForme referred to Mr. Justice Hill's decision in Fildan, supra:
40 In R. v. Fildan (2009), 69 C.R. (6th) 65 (Ont. S.C.), several additional examples are recited where, despite a short delay, the immediacy requirement would be met. At para. 39, Hill J. describes three of them:
(1) Where the police officer takes further reasonable steps (such as sobriety and physical coordination tests) to determine whether there are reasonable grounds for an intoxilyzer demand (R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.) at para. 19, 27, 57) or
(2) Where the officer asks questions to learn the amount of alcohol said to have been consumed - with confidence that only one drink was consumed, the constable may direct the motorist on his or her way [emphasis added]: (Megahy, at para. 17-8), or
(3) Where legitimate public safety or similar exigencies arise justifiably explaining a brief delay preventing immediate communication of a formed intention to demand and undertake ASD testing.
41 In my view, all these examples are instances where the assessment of the "forthwith" requirement is based on whether a short delay is reasonably necessary to accomplish the objectives of s. 254(2).
34At paras. 45 through 49 Mr. Justice LaForme summarized the Ontario Court of Appeal's position with respect to the requirements to satisfy the immediacy test when a s. 254(2) demand is made from a standpoint of the reasonableness of a delay by the officer:
45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
47 Third"forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).
48 Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.
35Mr. Xynnis also referred the Court to the decision of Mr. Justice Selkirk in Regina v. Jensen, 2012 ONCJ 685, a decision from the Ontario Court of Justice on November 1, 2012. He asks the Court to consider the rationale of Jensen J. in conjunction with the evidence from P.C. Chamberlain that there was a six-minute delay after the arrival of the approved screening device at the scene before he imposed the breath test upon the accused. Mr. Justice Selkirk found that there is an unexplained six-minute delay where there is no evidence of what had occurred during that six-minute period and that therefore there was a violation of Mr. Jensen's s. 8, 9 and 10(b) Charter rights. He found that these breaches were serious and did not occur in good faith and excluded the breathalyser tests from the body of evidence in the trial pursuant to s. 24(2) of the Charter after a Grant analysis. Specifically, at para. 19, Mr. Justice Selkirk stated:
We have from 23:08, time of the demand to 23:19, eleven minutes, the first five minutes of which is more than adequately explained as being reasonably necessary but no explanation for the last six minutes from 23:13 to 23:19.
36Mr. Justice Selkirk, at para. 29, also referred favourably to the decision of the Alberta Court of Appeal in R. v. Megahy, (2007) 2008 ABCA 207 , 233 C.C.C. (3d) 142:
In Megahy, (2007) 2008 ABCA 207 , 233 CCC (3d), 142, the Alberta Court of Appeal, there was a four minute delay between the suspicion and the demand which occurred while the officer and Megahy walked one and half blocks to where the ASD was kept. The demand was found to be not forthwith. The Court held that although the pre-demand delay was relatively minor but because it was unnecessary and unreasonable that it was a violation of the accused's rights.
Position of the Crown
37First of all, Ms. Mackenzie argued that the police are not required to make a s. 254(2) ASD demand just because the officer has formed the reasonable suspicion that the subject driver may have had alcohol in his or her body when operating the motor vehicle. She submits that the common law supports the position that the officer can take additional reasonable investigative steps once he or she has decided to employ the ASD on the subject. The only restriction on the officer's actions is that the officer must be seen to have acted promptly and appropriately in the circumstances. Ms. Mackenzie relies upon R. v. Fildan, supra, for that position and also on the 1996 decision of the Ontario Court of Appeal in R. v. Smith cited as, 105 C.C.C. (3d) 58.
38At para. 18 of Smith, Mr. Justice Doherty, speaking for the Ontario Court of Appeal stated:
An officer who stops a person he suspects may have been drinking is concerned with both the possibility that the driver is impaired and the possibility that the driver's blood-alcohol level is over the permissible limit. While the two conditions are closely related they are not identical. Section 48 of the H.T.A. authorizes the officer to take reasonable steps to determine whether there is evidence of either condition. The investigative procedure may yield a reasonable suspicion that the driver has alcohol in his body in which case an A.L.E.R.T. demand may be made; or it may reveal reasonable and probable grounds to believe that the driver is impaired or over the allowable blood-alcohol limit, in which case a breathalyzer demand may be made; or it may not provide evidence of either condition, in which case no demand can be made. In my opinion, s. 48 of the H.T.A. authorizes the officer to take reasonable steps to determine whether there is evidence to support an A.L.E.R.T. or a breathalyzer demand.
39In R. v. Menton, [2007] O.J. No. 1230, Mr. Justice Tulloch, sitting as an Ontario Superior Court of Justice summary conviction appeal court on April 2nd, 2007, followed and applied the rationale of R. v. Smith, supra. Ms. Mackenzie referred the Court to paras. 21 and 22 of the Menton decision as authority for her position:
21 In the case at bar, counsel for the appellant argues that because Police Constable Nicholson stated to the appellant at 7:18 p.m. he would "probably" have to provide a sample of his breath into an approved screening device, notwithstanding the fact that a formal demand was read to the appellant at 7:21 p.m., some three minutes later, and after the officer conducted some further investigation of the appellant by having him perform some sobriety tests, the formal demand was rendered invalid as it was not given "forthwith" such that it was not an offence for the appellant to refuse to comply with it. In my view, R. v. Smith is still the authoritative law on this point, and accordingly, I find the appellant's position untenable.
22 In my view, it is clear from the authority of the Smith decision, that a three minute delay in making the formal demand, to afford the officer an opportunity to conduct a brief investigation into the sobriety of the appellant does not render the demand invalid and is considered forthwith within the meaning of the section.
40Ms. Mackenzie also submitted that there would not really have been a realistic opportunity for Ms. Bihi-Zenou to consult a lawyer at 7:00 a.m. on New Year's Day from an objective analysis standpoint.
41The Crown submits that P.C. Chamberlain was confronted with conflicting information from Ms. Bihi-Zenou with respect to the quantity of alcohol that she had consumed and exactly when she had consumed it. This conflicting information, the Crown argues, should justify in the Court's mind his quandary and the decision that he made to ask further questions of her before administering the approved screening device. That conflicting information was the fact that she had initially told him that she had only consumed two beers the previous night and then she changed that to a mickey of rum plus the two beers on New Year's Eve in Niagara Falls. His curiosity was also piqued by the fact that she did not display any demonstrable symptoms of impairment by alcohol when he was investigating her after her motor vehicle collision with the guardrail.
42In short, the Crown submits that the officer's actions were absolutely in conformity with the permissible guidelines stated by the Ontario Court of Appeal in R. v. Smith, supra, and also by Mr. Justice Hill of the Ontario Superior Court of Justice in R. v. Fildan, supra.
43In support of that submission the Crown refers the Court to paras. 18, 19, 21, 28 and 29 of R. v. Smith, supra:
18 An officer who stops a person he suspects may have been drinking is concerned with both the possibility that the driver is impaired and the possibility that the driver's blood-alcohol level is over the permissible limit. While the two conditions are closely related they are not identical. Section 48 of the H.T.A. authorizes the officer to take reasonable steps to determine whether there is evidence of either condition. The investigative procedure may yield a reasonable suspicion that the driver has alcohol in his body in which case an A.L.E.R.T. demand may be made; or it may reveal reasonable and probable grounds to believe that the driver is impaired or over the allowable blood-alcohol limit, in which case a breathalyzer demand may be made; or it may not provide evidence of either condition, in which case no demand can be made. In my opinion, s. 48 of the H.T.A. authorizes the officer to take reasonable steps to determine whether there is evidence to support an A.L.E.R.T. or a breathalyzer demand.
19 The facts of this case provide a good example of the interaction of s. 48 of the H.T.A. and s. 254 of the Criminal Code. Constable Stuckey acting under the authority of s. 48 stopped the appellant's vehicle and took certain steps to determine whether he had grounds to make either of the demands in s. 254. He concluded that he had grounds for an A.L.E.R.T. demand and at some point between 12:42 a.m. and 12:45 a.m. told the appellant that he would be required to perform the A.L.E.R.T. test. In my opinion, even though Constable Stuckey had decided to make the A.L.E.R.T. demand he was still entitled under s. 48 of the H.T.A. to take reasonable steps to determine whether he had grounds to make a breathalyzer demand on the basis of possible impairment. In taking any additional steps, however, Constable Stuckey was constrained by the requirement that the A.L.E.R.T. test be administered "forthwith". Constable Stuckey took one additional step. He required the appellant to perform the standing sobriety test.
21 … The language of s. 48 indicates that the investigative powers granted by that section are to be used in conjunction with the demand powers in the Criminal Code. The section is designed to assist the officer in making an informed decision about the existence of grounds to make either or both of the demands provided for in s. 254. By its very terms, s. 48 of the H.T.A. anticipates that resort to that section will in some cases lead to the making of one or more of the s. 254 demands. Section 48 and s. 254 are symbiotic, not mutually exclusive.
28 Section 48 does not set out the specific procedures that an officer may use under the authority of that section, and it does not place any numerical limit on the procedures that may be employed. Instead, as interpreted in Saunders, the section authorizes any procedure or procedures that are both reasonable and done for the purpose of determining whether the officer has grounds for making either or both of the demands referred to in s. 254 of the Criminal Code. It is impossible to provide an exhaustive list of procedures that will meet these criteria in all cases. It is, however, safe to say that a procedure cannot be reasonable within the meaning of s. 48 unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee…
29 Constable Stuckey's questions concerning the appellant's alcohol consumption were also clearly asked for the purpose referred to in s. 48 of the H.T.A. Constable Stuckey was trying to determine whether he had grounds to make one of the demands provided for in s. 254. The questions were asked at the scene of the detention, took little time and in no way endangered or further inconvenienced the appellant. They meet the reasonableness criteria outlined above. It is contended, however, that the questioning of the appellant concerning his alcohol consumption introduced an added element of self-incrimination, which distinguishes that form of questioning from other investigative procedures such as a standing sobriety test.
44In addition to those paragraphs, Mr. Justice Doherty stated at para. 30:
30 The extent to which a particular investigative procedure intrudes upon a detainee's constitutional rights is a factor to be considered in determining whether that procedure is reasonable. I do not, however, accept the contention that questions like those asked in this case concerning alcohol consumption are so qualitatively different from other forms of investigation as to place such questions beyond the limits of s. 48 of the H.T.A. The investigative avenues available to the police officer at the roadside are limited. Any grounds the officer develops at the roadside for making one or both of the demands in s. 254 will in almost every case emanate from the driver. There is simply no other source of information available. I see little distinction in terms of self-incrimination between evidence that flows from a standing sobriety test performed by a driver and evidence in the form of a driver's answers to questions put to him by the police officer: R. v. Ross, [1989] 1 S.C.R. 3 at pp. 15-18, 46 C.C.C. (3d) 129 at pp. 138-40; R. v. Bartle, [1994] 3 S.C.R. 173 at p. 213, 92 C.C.C. (3d) 289 at p. 317.
45In particular, the Crown commends to the Court the statements from Mr. Justice Doherty in para. 29, supra, with respect to the questions that were asked by P.C. Chamberlain of Ms. Bihi-Zenou in order for him to try to become more certain as to whether or not he would confine himself to a reasonable suspicion that she was operating her motor vehicle with alcohol in her system or whether he might, by speaking with her further, in light of the fresh information which she had given him about the increased quantity of alcohol that she had consumed, be able to observe some symptoms of impairment by alcohol more consistent with that consumption that would allow him to make an arrest pursuant to s. 253(1)(a) of the Code. The Crown submits that the steps taken and the questions asked by P.C. Chamberlain were reasonable and would meet the test of reasonableness that is contemplated by the appellate authorities to which the Crown has referred the Court, especially with respect to the scope of permissibility for such investigative questioning provided by s. 48 of the Highway Traffic Act to the police officer who is investigating the driver of a motor vehicle.
46In conclusion, the Crown submits that the Court should find that there was no breach of Ms. Bihi-Zenou's s. 8, 9 or 10(b) Charter rights caused by the actions of P.C. Chamberlain in the context of the totality of the evidence and the totality of the circumstances that were presented to him.
47In the alternative, Ms. Mackenzie submits that if the Court does find that there has been a breach of those Charter rights of the accused under the circumstances of this particular case the Court should find, after an informed analysis in conformity with the principles in the Supreme Court of Canada decision of R. v. Grant, that the evidence of the breath tests should not be excluded from the trial pursuant to s. 24(2) of the Charter.
48In reply, Mr. Xynnis referred the Court to para. 31 of R. v. Smith, supra, in support for his argument that the questions of an officer of a detainee under such circumstances must at least be very brief and must be the least possible incursion into the right of that detainee to be provided rights to counsel pursuant to s. 10(b) of the Charter. Mr. Xynnis exhorts the Court to remember that s. 48 of the Highway Traffic Act cannot condone police mischief by permitting excessive delay in the pursuit of further investigative steps before providing an approved screening device demand to a detainee who has not been afforded his or her s. 10(b) Charter rights to counsel.
49I will set out para. 31 of R. v. Smith, supra, in totality for the purposes of Mr. Xynnis' argument:
31 In my opinion, a statute authorizing reasonable steps to determine whether there are grounds for making one or both of the demands in s. 254 contemplates direct questions of the driver concerning his alcohol consumption. In the circumstances of a roadside stop where the officer must make a quick assessment of the need for further action by way of a demand while at the same time minimizing the detention and inconvenience to the motorist, simple straightforward questions like the two asked by Constable Stuckey are eminently reasonable.
Analysis
50Dealing initially with Mr. Xynnis's reference to para. 31 of Smith, I do not find that Mr. Justice Doherty hamstrung an investigating officer with the requirement that his/her questions be 'brief'. His words speak for themselves. The questions should be direct and designed to minimize the detention and inconvenience to the motorist, especially in the context of the suspension of the provision of the detainee's s. 10(b) right to counsel for that purpose. In any event I find that PC Chamberlain's questions which he posed to the accused were indeed direct and also quite brief for that matter.
51I find that after the accused varied her information about her alcohol consumption during the previous evening from 2 beers to a 'mickey' of rum and 2 beers the officer was entitled to pursue an investigation to try to determine whether he may have been able to find RPG for a s. 253(a) arrest. I find that the method that he chose to use, by asking the concise questions that he did, was both reasonable in the totality of the circumstances and also was in compliance with the extent of the common law authority provided to an officer in such a situation by R. v. Smith, supra, and R. v. Fildan, supra.
52With respect to Mr. Xynnis's reliance upon the Ontario Court of Justice decision of R. v. Selkirk, supra, I am afraid that I disagree with him when he asserts that there are 6 minutes of unexplained delay in PC Chamberlain's evidence. I find that he explained at least 3 or 4 minutes of that impugned 6 minute period in his trial evidence and also the various time periods were to a large extent explained by his dash pad notes to which the Crown referred him in re-examination. In addition, the reasonableness of the officer's actions must be objectively assessed through the prism of the context of the totality of the circumstances which were available to him and not simply by means of a tabulation of individual minutes of chronological delay. I find that he acted both reasonably and also in conformity with the established common law principles with respect to the immediacy and forthwith requirements of an ASD demand and the provision of a detainee's s. 10(b) right to counsel.
53In the result I agree with the Crown's position and I find that there was no breach of the accused's s. 8 or 10(b) Charter rights by the actions of PC Chamberlain. The Charter application is accordingly dismissed.
54I do thank both counsel for their very concise and well-informed presentations of the important evidentiary issues in this case.
Released: May 27, 2013
Signed: "Justice F.L. Forsyth"