Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— AND —
Vladimir Gabor
Before the Court
Justice: D.F. McLeod
Heard: February 10, 2015
Reasons for Judgment Released: August 10, 2015
Counsel
A. MacArthur — counsel for the Crown
J Dos Santos — counsel for the defendant Gabor
Judgment
D.F. McLEOD J.:
Charge
1Mr. Gabor is charged that on or about the 15th day of October 2013 with having consumed alcohol in such a quantity that the concentration thereof in his blood exceed 80 milligrams in 100 millilitres of blood and whilst doing that operated a motor vehicle.
Evidence of PC Halfyard
2The window of this matter centres around 13 minutes of interaction between the officers and the accused.
3At 11:59 p.m. on the 15th of October 2013, Mr. Gabor was stopped as a result of driving 89 km/h in a posted 60 km/h zone. Officer Halfyard made his way to the driver's side of the vehicle and requested Mr. Gabor's licence and insurance.
4While speaking with Mr. Gabor, Officer Halfyard detected an odour of alcohol, and observed that Mr. Gabor's eyes appeared blood shot. At 12:01 a.m., the officer formed the opinion that the driver was under the influence of alcohol and made an ASD demand.
5The demand was read using the wording from his blue notebook and Officer Halfyard indicated to the court that it appeared to him that Mr. Gabor appeared to understand what was being asked of him.
6At the time that the ASD demand was made, Officer Halfyard was not in possession of a device, so he advised police communications through an open channel to see if another officer would be able to assist.
7Shortly after the assist communication was given he was advised that Officer Statham would be making his way to his location with an ASD.
8Prior to PC Statham's arrival, PC Halfyard conducted the usual checks with respect to the licence and insurance of Mr. Gabor. Due to the delay in the arrival of the ASD (which arrived at approximately 12:13 am), PC Halfyard attended the driver's side of Mr. Gabor's vehicle and advised him of his right to counsel.
9PC Halfyard indicated to the court that he believed the ASD would take no longer than 5 minutes to arrive but felt it important to advise Mr. Gabor of his rights and to ensure that he understood them.
10In his evidence to the court, PC Halfyard went through the questions and answers that he read to Mr. Gabor. PC Halfyard also had noted in his notes the exact responses that he was provided by Mr. Gabor. With respect to those questions pertaining to contacting counsel, the responses noted by the officer indicated that Mr. Gabor not only did not want to contact a lawyer but he also did not want to contact duty counsel.
11The ASD arrived at the location 13 minutes later at 12:14 am and a sample was taken at that time. The sample registered a "fail." The last sample was taken at 12:16 am at which point another "fail" was registered, and Mr. Gabor was placed under arrest at 12:16 am, placed in handcuffs, searched, and placed in the back of PC Statham's cruiser for excessive blood alcohol.
Evidence of Mr. Gabor
12The evidence of Mr. Gabor and that of Officer Halfyard differ with respect to what transpires after PC Halfyard stops Mr. Gabor's vehicle.
13According to Mr. Gabor, he "believes" that upon receiving his license, PC Halfyard went back to his cruiser and then returned to Mr. Gabor a short time later. Upon returning to the car, Mr. Gabor suggests that he was told to exit his vehicle and was taken to Officer Halfyard's cruiser.
14Mr. Gabor "believes" that he was sitting inside the cruiser for approximately 15 – 20 minutes. At first he could not remember whether or not he was handcuffed whilst in the police cruiser however as his evidence went on he recalls that he in fact was handcuffed.
15Mr. Gabor's evidence is that he does not recall being told his rights to counsel and "believes" he was actually seated in the other officer's car – the officer who brought the ASD, (the officer we now know to be PC Stratham) – in order to blow in the ASD.
16Mr. Gabor testified that he does not recall what exactly was stated to him by Officer Halfyard. However when questioned during the trial, he was aware that upon leaving his vehicle he would be going into the police car for the purposes "blowing into a device." (quote)
17Mr. Gabor also testified that he does not recall being charged with the offence that is currently before the court but does recall that when he was at the station and was asked if he wanted to speak to a lawyer at which point he responded he did.
18Further, Mr. Gabor testified that he had a cell phone on his person during the interaction between the officers and himself. Mr. Gabor also indicated that if given the opportunity to contact a lawyer at the time on the roadside he would have used his cell phone to contact his wife who he would have asked to contact a lawyer on his behalf.
19He also indicated that the cell phone was not taken from him until he was taken to the police station and held.
Defence Position
20The evidence of Mr. Gabor should be accepted with respect to the fact that he was not provided with his rights to counsel at the roadside, which is bolstered when asked by the officer on video if he wished to speak to counsel to which his response was "yes."
21Further, the defence suggests that in light of the fact that there was a division some 4 minutes from where the stop was initiated, it was incumbent on the officer to have Mr. Gabor avail himself of the ASD's that were in close proximity to where the stop was initiated.
22Lastly, the defence contends that Mr. Gabor should have been provided with the opportunity to contact counsel whilst he was on the roadside especially since the time period of the stop was at 12 a.m. which would have been a reasonable time for him to contact counsel.
Crown Position
23PC Halfyard conducted himself within the confines of the law and by providing Mr. Gabor with the necessary informational components with respect to his rights to counsel. PC Halfyard fulfilled the demands placed on him by the Charter.
Law
The Forthwith Requirement
24Section 254(2) of the Code provides in part as follows:
If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle … the peace officer may, by demand, require the person…:
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
25The "forthwith" requirement in section 254(2) applies both to the demand by the peace officer and the response by the person who is subject to the demand. The term forthwith means immediately.
26The "forthwith" requirement is "inextricably linked to its constitutional integrity." When a roadside demand is made, the driver is most certainly detained and the driver's s. 10 Charter rights are prima facie triggered. However, as long as the forthwith requirements of s. 254(2) are met, there is no obligation to advise the driver of his or her right to counsel and there is no violation of section 8, 9 and 10(b) of the Charter. The forthwith requirement is a justifiable limit on the person's rights under sections 8, 9 and 10(b) of the Charter.
27The courts have held that the forthwith requirement requires that the demand be made by the officer as soon as he or she forms the requisite grounds to make the demand. However, flexibility will be applied to this aspect of the forthwith requirement where the person who is the subject of the eventual demand is not yet detained.
28Once the demand is made, the forthwith requirement also makes it imperative that the peace officer be in a position to facilitate compliance with the demand forthwith. On some occasions, as was the situation in the case at bar, the officer will not have an ASD with him or her and will need to wait while the device is brought to the scene by another officer. As a result, there is a considerable body of law on the question of how much time can be permitted to elapse between the time of the demand and the facilitation of the giving of the sample. If too much time elapses, then the forthwith requirement of s. 254(2) will not be met and the demand will be invalid.
29The Ontario Court of Appeal has held that the central question in the forthwith analysis is as follows:
"The determinative question then becomes in any given case, was the police officer in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel? If so, the demand, if otherwise appropriate, falls within the scope of s. 254(2). If not, the demand is not valid."
30Accordingly, if the right to counsel obligations could realistically have been fulfilled, the forthwith requirement is not met and the demand will be invalid. If the detainee refuses to provide the breath sample in these circumstances, his or her refusal is not an offence.
31In answering the so-called "determinative question" of whether there was a "realistic opportunity to consult with counsel" such that the "forthwith" requirement of s. 254(2) is not met, the courts are to consider all of the circumstances. The following non-exhaustive list of factors are in particular to be considered:
(a) The time between the making of the demand and the taking of the sample;
(b) Having the time to have a chance to phone counsel is not the same as having time to consult with counsel. There must be the opportunity to "contact, seek and receive advice from counsel" before the forthwith requirement is not met;
(c) The Court of Appeal has said that "the issue is thus not strictly one of computing the number of minutes that fall within or without the scope of the word 'forthwith.'" Having said that, the number of minutes the "forthwith window" is open is an important consideration. In R. v. Cote, the Ontario Court of Appeal held that 14 minutes was sufficient time for counsel to be consulted. In another case, where there was a delay of 18 minutes between the issuance of the demand and the taking of the sample and counsel could have been contacted through a cellular telephone or the public telephones available at the police station, the Ontario Court of Appeal held that the forthwith requirement was not met. In another case, the Ontario Court of Appeal upheld an acquittal on the basis that 12 minutes between the time of demand and the receiving of the breath sample was sufficient for counsel to be consulted and the forthwith requirement was not met. In other cases, lesser periods of time have been held not to present a realistic opportunity to consult with counsel;
(d) The time of day where the driver would need to contact counsel is a factor to be considered. If it is the middle of the night, a short period of time may not be enough to contact and consult with counsel. For example, six or seven minutes at 2:35 a.m. was held by the Ontario Court of Appeal not to be sufficient for a consultation with counsel; and
(e) The availability of a phone is a factor to be considered. Facilitation of the right to counsel can involve asking the driver if they have a cell phone.
32If the forthwith requirement of s. 254(2) is not met then the demand will be invalid and the subsequent demand made under s. 254(3), which relies upon the results of the s. 254(2) demand, will also be invalid unless there are other facts to support it. However, if breath samples are nevertheless provided in response to an invalid s. 254(3) demand, they will only be inadmissible if the accused can show that they should be excluded under s. 24(2) of the Charter.
Issues
Issue #1 – Did PC Halfyard provide Mr. Gabor with the informational components necessary for his rights to counsel, and if so, were they denied?
Issue #2 – Was the forthwith requirement in s. 254(2) met in this case?
Issue #3 – If Mr. Gabor's rights were violated, should the breath samples that were taken be excluded under s. 24(2) of the Charter?
33I will examine each issue in turn.
Issue #1 – Did PC Halfyard provide Mr. Gabor with the informational components necessary for his rights to counsel, and if so, were they denied?
34When analysing the evidence of the accused it is not lost on this court the myriad of things that would have impacted on the reliability of the accused's testimony. The accused indicated to the court that this was a highly stressful and disturbing incident, which has impacted him even after the incident.
35The accused does not recall or remember the following:
(a) Initially did not remember whether he was handcuffed or not;
(b) Initially Mr. Gabor felt that he was taken out of his vehicle and then taken to the officer's car. In cross-examination, he recalls the officer simply detaining him for suspicion of alcohol;
(c) He does not recall his rights to counsel being explained to him while waiting;
(d) He believes he went to PC Halfyard's car while waiting;
(e) He did not recall who read him his rights to counsel post-arrest;
(f) He believes the first time he was given his rights to counsel was at the division.
36The officer has recorded the precise questions as well as the responses that were elicited from Mr. Gabor.
37Further, at one stage, according to Mr. Gabor he was not read his rights to counsel. He was brought to sit in the back seat of the car and was not even apprised of what he was being charged with. That being said, when asked what he was going into the car to do, Mr. Gabor replied "he knew he was going to blow into something."
38This response seemed innocuous at first blush. However, upon further reflection, the response answers the query that Mr. Gabor was foggy with respect to. That query being: were your rights read to you? To which he responded he does not recall.
39A portion of the ASD demand alerts the individual to the fact that they will at some point have to blow into a device. It would appear to this court that in light of the fact that Mr. Gabor recalls that he was going to have to blow into something it is clear that he was provided with the appropriate rights prior to the ASD's arrival.
40It is this court's belief that the evidence of the officer on this point must be seen as the more credible recitation. PC Halfyard clearly made a general radio call in order to retrieve an ASD, based on the evidence he was able to enlist the aid of a fellow officer to attend the scene.
41According to the submissions of the defence it was conceded that if this court found that Mr. Gabor had been given his rights to counsel while he was waiting and he declined them there is no "forthwith" argument made.
42As such I have found as a fact that Mr. Gabor had been given his rights to counsel and declined them. As such my ruling is that the evidence that flows as a result of the ASD demand are admissible and ends the matter without the court needing to canvass the 2 remaining issues.
Released: August 10, 2015
Signed: Justice D.F. McLeod