Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
M. Mandel, for the Crown
— And —
Matthew Poeta
T. Kay, for the accused
Heard: June 19, 2014
FELDMAN J.:
Introduction
1Matthew Poeta entered not guilty pleas to Refuse Breath Sample and Obstruct Peace Officer. It is alleged that he refused to provide a sample of his breath into a Roadside Screening Device [hereinafter ASD] without lawful excuse. In addition, it is alleged he would not provide his identification to the police even after his arrest on the first charge.
2The parties agreed to conduct a blending proceeding that would include consideration of the accused's application to have evidence of the refusal and failure to provide his name excluded because of alleged Charter breaches under ss. 8, 9 and 10(b).
3The Crown called the two arresting officers in support of its case. I am mindful of the onus of proof on the prosecution.
The Evidence
4On March 6, 2013, at 2:13 a.m., P.C. Kevin Pargetter was in a police cruiser driven by his escort, P.C. Darryl McKinnon, westbound on Mason Rd. in Scarborough when he observed a vehicle with one headlight out travelling eastbound. P.C. McKinnon made a U-turn, followed the car as it went northbound on Beachell St. and then made the first turn available to it into a strip plaza that was closed and dimly lit. The officer activated the vehicle's emergency equipment. He believed the driver of the car was attempting to evade the police.
5The vehicle, a red, 4-door older model Honda, stopped at the back of the plaza. P.C. McKinnon testified that he pulled the cruiser right in behind the car to within about 8-10 feet of it. He said he had a good view of the driver and passenger as they got out.
6P.C. Pargetter testified that he saw the driver get out and start walking towards Walmart. He said he advised the driver, whom he identified as the accused, about the headlight being out and that their interaction was being audio and video recorded. It was P.C. McKinnon who first asked the accused for his identification documents but he did not provide them.
7P.C. Pargetter directed the two men to sit back in their car while the officers sorted things out. He said Mr. Poeta went to sit in the passenger seat while the other man, later identified as the defendant's brother, Tyler, walked over to the driver's side. The officer asked both to return to their original positions. He told the court that the defendant said he had not been driving and that they were from North Bay but had gotten lost.
8P.C. McKinnon supported the evidence of his colleague in its material elements with regard to the lack of co-operation on the part of the two brothers and that they were asked to return to the car but switched places in doing so.
9The identification of the driver by the officers in light of their opportunity to do so and their description of the two men are supported by the in-car video evidence. There is no doubt on all the evidence that the defendant was in the driver's seat of the vehicle at the time it was stopped.
10P.C. Pargetter said he observed the accused to be nervous and fidgeting and saw him stepping away and blading his body, which was of concern to the officer. He asked for the defendant's identification a couple of times but got no response.
11A review of the in-car video surveillance tends to support the police narrative. In it, the accused tells the officer that there was "no fucking way in hell I was driving". P.C. Pargetter suggested he was lying and asked for his identification, but the defendant said since he was not driving there was no need for the officer to see his documents. When asked not to be so difficult and to take out his identification, the accused again said there was no reason to ask for his driver's license.
12At this point, as indicated in the video evidence, P.C. Pargetter told the defendant to keep his hands out of his pockets because he was concerned about weapons and that he intended to search him. Mr. Poeta questioned why as he said he hadn't done anything wrong. The officer again asked him to provide identification but was rebuffed once more.
13Continuing his evidence in chief, P.C. Pargetter testified that he conducted a pat down search of the accused who still refused to co-operate. In the circumstances, he decided to radio dispatch for another unit and to stand by until its arrival given that they were at the back of a dark and empty plaza in the presence of two large men, one of whom was argumentative. In addition, he said that around the time of the search he smelled the odour of alcohol on the defendant's breath and intended to commence a roadside screening process, but only after the arrival of other officers as he was concerned how Mr. Poeta would react.
14As a result, he waited with the accused who suggested to the officer that he give him a ticket for a burnt-out headlight. P.C. Pargetter said he pointed out to the defendant that he needed his identification to do that, but Mr. Poeta responded that he did not need to provide his own identification for his brother to receive the ticket.
15P.C. Pargetter testified that the defendant then said he would see him later and started walking past him towards Beachell St. The officer reacted to this new development by arresting Mr. Poeta at 2:19 a.m. for Operation Impaired and Fail to Provide Identification under the Highway Traffic Act. He explained to the court that he used the wrong charge in the heat of the moment but always intended to rely on an Alcohol Screening Device as part of his initial investigation. He handcuffed the accused, did a pat down search and placed him in the rear of the scout car at 2:20 a.m., thereafter phoning in a request for a screening device. His road supervisor, Sgt. Wilson, arrived within 2 minutes and was briefed by him.
16P.C. Pargetter agrees he made no note of the time he first had a reasonable suspicion the defendant had alcohol in his system, but I agree with the Crown that the video evidence permits the reasonable inference that this occurred in the 2:16-18 a.m. range.
17At this point, it became clear that Mr. Poeta had no identification on his person, nor would he provide his name. P.C. Pargetter told him that if he continued to be uncooperative in this way he would be taken to the police station in order to verify who he was. The officer told the court that in response Mr. Poeta said that the real driver, who was not his brother, had run away.
18At 2:22 a.m., P.C. Pargetter demanded that the accused provide a sample of his breath into an ASD. Mr. Poeta again asked why he had to comply if he was not the driver. The officer told him he had seen him driving.
19The officer's escort informed him that the passenger had a driver's license in the name of Tyler Poeta, with an address in North Bay. Tyler refused to identify the driver.
20At 2:25 a.m., P.C. Pargetter provided the accused his rights to counsel. Mr. Poeta claimed not to understand, became argumentative and insisted he was not driving so that there was no reason for him to reveal his identification nor provide a breath sample. The officer told the court that the smell of alcohol on the defendant's breath became stronger whenever he spoke.
21The ASD arrived at 2:32 a.m. P.C. Pargetter again asked for the accused's identification and, he said, tried to reason with his detainee, telling him that his lack of co-operation would not make all of this go away. He again demanded that the defendant blow into the ASD, but Mr. Poeta was adamant he was not driving and in light of that would not provide a sample of his breath. The officer informed him that if he continued to refuse he would be charged with Refuse Breath Sample. The defendant said again that he was only a passenger and that the real driver, whom he did not know, had run away, in the circumstances, an absurd and contrived claim indicating a firm intent not to cooperate.
22The time was still 2:32 a.m. P.C. Pargetter felt he had no choice but to take the defendant to the station to confirm his identification and ensure he would appear in court. His escort told him that in a further search of the suspect's vehicle he found a pay stub in the name of Matthew Poeta, also of North Bay, who was a suspended driver.
23At 2:43 a.m., P.C. Pargetter re-read the rights to counsel to the accused in relation to both the Refuse Sample and Fail to Identify charges. In addition, he cautioned him with regard to his having obstructed the police, but even that did not move Mr. Poeta to provide his name.
24The police transported the defendant to 43 Division at 2:47 a.m. Mr. Poeta fell asleep. They arrived at 2:57 a.m.
25The video evidence materially supports P.C. Pargetter's evidence, highlighting the defendant's intransigence. When Mr. Poeta said he was leaving and started to walk away, he continued to do so despite the officer's direction that he not do so, leading to his arrest. When provided his rights to counsel, the defendant continuously interrupted the officer. It was apparent on this portion of the video that P.C. Pargetter was displaying patience and forbearance in the face of his detainee's obstructive behaviour.
26At the station, Mr. Poeta refused to identify himself to the booking Sergeant and could be seen on the video to be yelling, argumentative and angry. A further search of his person revealed a health card in the defendant's name. Mr. Poeta finally admitted that was him.
27He was strip searched and a folded $5.00 bill containing white powder was found. The defendant said he did not want to speak to a lawyer, but agreed subsequently to speak with duty counsel. He did so in private at 5:41 a.m.
Positions of the Parties
28Ms. Kay, for the accused submits that the prosecution has not met its onus of proving that P.C. Pargetter made his roadside demand forthwith rendering it unlawful and providing justification for the defendant refusing to provide a breath sample. As well, counsel submits that the officer arrested the accused for an offence for which he had no reasonable and probable grounds, breaching his Charter s. 9 rights. Finally, she says there was too much of a delay in providing Mr. Poeta his rights to counsel and that while he was detained in the police cruiser there was a realistic opportunity for him to consult with counsel, all of which violated his s. 10(b) rights. Ms. Kay submits that the collective nature of these violations warrants exclusion of the evidence of the refusal to provide his name, as well as a breath sample.
29Ms. Mandel, for the prosecution, submits that there were no Charter breaches, as any delay was minor and caused by the obstructionism of the accused that raised officer safety concerns and required the police to wait for assistance. She says that the authorities would view such delay as part of "unusual circumstances" not warranting a Charter remedy. The arrest, she says, was an innocent wording error made in a dynamic situation.
30In any case, she submits, that in the event a Charter violation is found, it would not pass a Grant analysis.
Discussion and Conclusion
31It would appear from the evidence that the officer made his roadside demand about 6 minutes after he had a reasonable suspicion the accused had alcohol in his system. This gap in time would seem to contravene the requirement in Code s. 254(2) that the demand be made "forthwith", that is, as soon as he forms the reasonable suspicion: R. v. Pierman; R. v. Dewald (1994), 19 O.R. (3d) 704 (C.A.), at para. 5.
32This principle was confirmed in R. v. Woods, 2005 SCC 42, where "forthwith" was held to mean "immediately" or "without delay" indicating a prompt demand by the peace officer and an immediate response by the driver. Of significance, in Woods, the court held, as well, at para. 43, that in 'unusual circumstances'"forthwith" may be given a more flexible interpretation than its ordinary meaning strictly suggests.
33The application of these principles by LaForme J.A. in R. v. Quansah, 2012 ONCA 123 are instructive. There, the accused, having been found sleeping in his vehicle, then driving off and being pursued, was subject to a roadside demand 11 minutes after his arrest and registered a "fail" on the device 6 minutes after that. He was then given his rights to counsel.
34Justice LaForme found that the demand and the taking of the roadside sample met the "forthwith" standard in that viewed contextually the delay was "no more than reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2)".
35In Quansah, the delay related in large measure to the safety concerns arising from the need for the pursuit. In this regard, at para. 48, Justice LaForme said that the immediacy requirement must take into account all the circumstances, including a reasonably necessary delay where a short lag, as here, was the result of "articulated and legitimate safety concerns".
36Of note, however, Justice LaForme made the point, at para. 41, that if the sample is not obtained before there is a realistic opportunity to consult counsel that was not provided, the immediacy requirement is not met.
37Finally, and perhaps of signal importance, the refusal itself is fatal to the "forthwith" complaint. In R. v. Degiorgio, 2011 ONCA 527, Justice LaForme made reference, at para. 53, to "a well-established line of authority that where an accused is charged with refusing to provide a sample, the Crown does not have to prove that the sample could in fact have been taken in accordance with the provisions of the Criminal Code to secure a conviction on a charge of refusing to comply with the demand". He went on to say that there is no requirement that a police officer have a reasonable belief that he or she could "make the demand good" at the time it is made; neither is there a requirement for the Crown to prove that the police could have made the demand good (i.e. that an ASD would have been available) within the "forthwith" period.
38In the case at bar, the police first observed the Poeta vehicle at 2:13 a.m., followed it and then engaged with the difficult driver until P.C. Pargetter, who on this evidence I am satisfied had reasonable suspicion of alcohol consumption at about 2:16 a.m., as well as a lawful basis to require proper identification, felt constrained at 2:19 a.m. to arrest Matthew in light of his continuing obstructionism and attempt to leave the scene.
39In the circumstances, P.C. Pargetter said he also felt, reasonably, in my view, that he needed to be mindful of safety concerns. He radioed dispatch and asked for assistance, intending to wait until another police unit arrived. He then placed his detainee in the back of the scout car and phoned in a request for an ASD. It was only 2:20 a.m. His road supervisor arrived two minutes later. They waited for assistance that would arrive within minutes.
40P.C. Pargetter arrested the accused for the wrong charge. The fact that he requested an ASD supports his evidence that he intended rather to investigate an Over 80 charge but made a technical error in the stress of the moment that included an intransigent detainee about to walk away and in relation to whom there were safety concerns. I would not infer in these circumstances a Charter s. 9 violation that was based on a lack of reasonable and probable grounds for the arrest.
41P.C. Pargetter made his roadside demand at 2:22 a.m. To this point, while as demonstrated in the video, the officer was conducting himself professionally and with patience, he had his hands full and was dealing with the uncertainty of a truculent and unpredictable detainee. It was in this context that I view the delay in making the demand one that was "no more than reasonably necessary", as contemplated in Quansah. I would not give effect to the submission that the demand was unlawful.
42Mr. Poeta continued on his course of being stubbornly obstinate, interrupting the officer and using insolent language. His rights to counsel were provided at 2:25 a.m. The ASD arrived 7 minutes later. P.C. Pargetter still did not know with whom he was dealing. The defendant firmly and continuously refused to cooperate in providing a sample of his breath and his identification on the absurd basis noted earlier of a phantom driver. He was re-arrested and given his rights to counsel at 2:40 a.m. during which he interrupted the officer and used profanities.
43In these challenging circumstances, I would not consider the 7 minutes prior to the arrival of the device to have provided a realistic opportunity for the accused to have sought and received legal advice. I would not give effect to the complaint of an s. 10(b) violation.
44Even were I to find a rights-to-counsel breach, I would not exclude the evidence under s. 24(2) following the 3-step analysis in Grant. The officer was acting in good faith in circumstances where there were continuing safety concerns. He demonstrated patience with the defendant's undiminished antagonistic behaviour. In the circumstances, I would not consider the violation to be serious, nor the impact significant. It is undoubted that the public interest in having this trial proceed on the merits is high.
45Mr. Poeta was adamant and clear in his refusal to provide a roadside sample of his breath, equally so in refusing to identify himself for foolish and incredible reasons. I am satisfied the Crown has proven the essential elements of the offences. There will be findings of guilt on both charges.
Released: July 18, 2014
Signed: "Justice L. Feldman"