Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Hesham Shaaban
Before: Justice D.F. McLeod
Heard on: April 7, 2015
Reasons for Judgment released on: July 3, 2015
Counsel
J. Kingdon — Counsel for the Crown
E. Willschick — Counsel for the Defendant Shaaban
Judgment
Charge
1Mr. Shaaban is charged with one count of refusing to provide a sample of his breath to Brian Breston, a Peace Officer, to, in the opinion of PC Breston, enable a proper analysis of his breath.
Evidence of PC Breston
2At 4:11 a.m., while working the night shift, PC Breston noticed a late model BMW with an expired validation tag.
3PC Breston stopped the vehicle. PC Breston noticed that there were 4 persons in the vehicle: 2 males in the front and 2 females in the rear seats.
4The officer asked the driver several questions, such as "where are you heading?" and "where are you coming from?" One of the females in the back of the vehicle answered "Rehab" a local liquor licence facility located in Mississauga.
5During the discussion, Officer Breston detected an odour of alcohol emanating from Mr. Shaaban. Further, the officer indicated that Mr. Shaaban had other indicia of impairment such as red watery eyes. However, in cross-examination, it was brought out that the colour of his face was normal, his balance was sure, and that he did not notice any impaired driving while following the vehicle.
6Mr. Shaaban indicated that he was coming from work and that he was the designated driver for his friends, who were at the bar earlier that night.
7Eventually, Mr. Shaaban provided his driver's licence and other particulars to the officer, who went to his cruiser to conduct the necessary checks.
8PC Breston also indicated that due to his suspicions, he radioed for an ASD to be provided to him. He requested the ASD from PC Colley, whom he knew was in the area because they had been on a previous call together. The ASD arrived at 4:14 a.m. according to his notes.
9PC Breston believed that the ASD would take approximately 10 minutes to arrive, and during that time he did not interact with Mr. Shaaban.
10Once the ASD arrived, PC Breston indicated to the court that he demonstrated to Mr. Shaaban the appropriate use of the machine in order to attain a satisfactory sample.
11The sequence of events with respect to providing a sample was enunciated to the court as follows:
(a) Mr. Shaaban began to blow into the machine; however, he did not place his lips around the machine as instructed and as a result there was no tone;
(b) PC Breston then explained the process to him again. Mr. Shaaban then made a second attempt. However, his hand was concealing the mouthpiece;
(c) At the third attempt Mr. Shaaban did not form the appropriate seal and again there was no tone. After the third failed attempt, Mr. Shaaban was informed of the potential consequences should he fail to provide a suitable sample;
(d) Mr. Shaaban made a fourth attempt, but again there was no tone. He was further explained the possibility of a fine and a driving prohibition;
(e) At this point, PC Breston indicates that Mr. Shaaban stated that he should not have been stopped, and that his sticker does not expire until the end of the month;
(f) Eventually Mr. Shaaban indicated that he has already blown into the machine and began to reiterate his belief that his stop was unlawful;
12At this point Mr. Shaaban was walked over to the rear of the cruiser. It was explained to him again the necessity of providing a suitable sample. However, Mr. Shaaban continued to complain about the stop.
13PC Breston stated in his evidence that he asked Mr. Shaaban to provide a sample another 6 – 7 times, at which point he had determined that Mr. Shaaban was avoiding the screening device. At 4:44 a.m. PC Breston arrested Mr. Shaaban and at 4:45 a.m. he read him his rights to counsel.
Evidence of PC Colley
14PC Colley recalls receiving a call at 4:24 a.m. and attending the scene in order to provide PC Breston with an ASD device.
15He also recalls PC Breston demonstrating how to use the device but does not remember how many times. According to the viva voce evidence of PC Colley"he does not recall the male making any attempts to blow into the device at any time."
16In his examination in chief, PC Colley indicated to the court that in spite of several requests and the male being told the consequences of non-compliance - "the male was adamant that he did provide a sample and was not going to provide another one."
17The only interaction he recalls having with the male party was to further advise him of the consequences of not blowing into the ASD device.
Evidence of Hesham Shaaban
18Mr. Shaaban was 20 years old at the time of the incident. He was a student, and was employed by TD Canada Trust and Bell Canada as a sales representative.
19On the day in question, he had worked a double shift and was also playing video games on his Xbox after work was over. Eventually, his sister contacted him and asked him to pick her up.
20Mr. Shaaban maintains that he was not drinking on the night in question. He was the designated driver on this day and picked up his sister and her two friends. Mr. Shaaban also testified that the two women who were in the back of the vehicle were intoxicated as well as loud.
21He recalls seeing the police while he was stopped driving down Royal Windsor Drive. Eventually, he was pulled over to the side and remembers the officer coming over to his vehicle at which point he opened his window and said good morning.
22Mr. Shaaban advised the officer that he did not have the particulars for the vehicle because it was his first time driving the car. He stated that he usually drives his parent's car.
23He was asked where he was coming from as well as if he had anything to drink. He was also asked if he would mind doing a Breathalyzer.
24According to Mr. Shaaban, he was asked to exit the vehicle and he and the officer spoke to each other for about 15 – 20 minutes. He recalls being nervous as a result of the interaction.
25A second officer eventually arrived with the ASD and asked Mr. Shaaban to blow into the machine.
26Mr. Shaaban did not request a lawyer because he did not feel he was entitled to one, nor did he feel he could leave. He believed that based on the situation he was required to remain at the scene.
27Mr. Shaaban testified that he was told to blow in the machine in a constant manner for about 2 – 3 seconds. He blew in the machine a total of 3 times and recalls that neither officer was taking notes at the time he was using the machine.
28This was a very stressful time for Mr. Shaaban, who was dealing with issues of anxiety at the time of the stop. He could feel what he believed was aggression coming from the police officers, especially when he asked them why they pulled him over. Mr. Shaaban also believed that at one point he was hyperventilating, although he never alerted the police to what he was experiencing.
29Mr. Shaaban goes on to explain in his testimony that his anxiety elevated as the process was unfolding with the police.
Defence Position
30Defence contends that there are inaccuracies within the officers' notes as well as portions missing that bring into question the credibility and reliability of the officers involved in this investigation with respect to possible collusion.
31Further, the defence contends that proper instruction was not provided to Mr. Shaaban, and that as a result, he was unable to use the machine in its proper working order. This error coupled with the anxiety that Mr. Shaaban felt on the morning in question would have contributed to the machine's inability to capture a suitable sample.
32Lastly, defence contends that the demand was not made forthwith and as such is invalid.
Crown Position
33The crown argues that the officer had formed reasonable suspicion under the circumstances, which then allowed him to make a formal ASD demand, which was done lawfully and in keeping with the case law with respect to the issue of Forthwith.
34There was no evidence of collusion nor were the officers questioned to anchor the submission that they had worked together to secure a conviction against this individual.
35Lastly, the crown argues that what took place on this day amounted to a refusal and as such the court should not concern itself with any other issues.
The Issue of the Officer's Note Taking
36PC Colley is not aware of the time that he received the call from PC Breston. There is a time noted in his memo book of 4:24 a.m. however he is not sure if that was his arrival time or the time he received the call.
37Further, PC Colley has no notation as to what is taking place between the times of 4:24 a.m. to 4:44 a.m.
38Further, PC Colley has no notation or memory as to how the machine was held, if the machine was held, or where Mr. Shaaban was when the test was being administered. However he recalls the machine being provided to Mr. Shaaban and recalls that there were several attempts made by Mr. Shaaban to blow into the machine, but does not recall how many or at what times.
39Although there are some gaps in the notes of the police officers this court did not view them as significant. In fact, the material time of 4:24 a.m. is noted in both officers' notebooks.
40Further, this area was not canvassed in any great detail in cross-examination as per the rule in R v Brown and Dunn. The questions were posed generally in cross-examination, however, the defence did not put to the witness the proposition of collusion, which was suggested in counsel's submissions.
Issue #1 – Did the Officer Have Reasonable Suspicion?
41When looking at this matter the court must be guided at first instance with the grounds for the ASD demand. That question must be asked and answered initially before proceeding to grapple with the other issues as they have been presented in this matter.
42Based on the evidence as it has been presented, the court is left with the following grounds as the basis by which Officer Breston used in order to inform his decision to request an ASD demand from Mr. Shaaban:
43When Mr. Shaaban was asked where he was coming from, it was indicated by an individual in the back of the vehicle that they were coming from a licenced establishment known as "Rehab;"
44When speaking to Mr. Shaaban, the officer detected the odour of alcohol emanating from Mr. Shaaban;
45Mr. Shaaban's eyes were red and watery;
46Aside from that noted above, the officer indicated that he had observed no other significant indicia of impairment;
47Based on the very low threshold necessary for a reasonable suspicion, this court believes that the officer was well within his jurisdiction to order and make the ASD demand.
Issue #2 - Was the Demand Made Forthwith?
48Section 254(2) of the Criminal 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.
49The "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."
50The "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.
51The 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.
52Once 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 taking 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.
53The 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."
54Accordingly, 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.
55In 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 to make the demand valid. 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.
56If 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.
57This court finds that the forthwith requirement has in fact been made out in this instance.
58I will not go further into the above issue because this court believes the true resolve for this matter lies with the next issue.
Issue #3 - Did Mr. Shaaban Refuse to Blow?
59As was stated in this matter, at some point during the process, Mr. Shaaban decides to stop blowing into the machine, which is tantamount to a refusal to blow.
60Where there is categorical refusal, the prosecution is not required to provide explanation of process and consequences of failure, or instrument warmed-up and operating. R v. Danychuk, 183 C.C.C. (3d) 337 (Ont. C.A.), para. 19
61Where there is an outright refusal, the offence is made out if the demand is properly made. The crown is not required to prove that the ASD was present at the scene, or that it could have been present at the scene within the forthwith period. R v. Degiorgio, 2011 ONCA 527 (Ont. C.A.), para. 69
62In light of the evidence it is clear that Mr. Shaaban eventually refuses to blow into the approved screening device. Once he has refused, the above issues are really of little to no consequence and a conviction must be entered based on the facts as they have presented themselves in this matter.
63As such Mr. Shaaban will be convicted of the counts before the court.
Released: July 3, 2015
Signed: "Justice D.F. McLeod"
Footnotes
1R v. Quansah (2012), 2012 ONCA 123 , 92 C.R. (6th) 1 (Ont. C.A.) at para. 47.
2Ibid at para. 26 citing R v. Woods, 2005 SCC 42 , [2005] 2 S.C.R. 205 at paras. 13-14 and 44.
3Ibid at para. 21 and 22 citing R v. Woods, supra at para. 29.
4R v. George (2004), 187 C.C.C. (3d) 289 (Ont. C.A.) at para. 27 citing R v. Thomsen (1988), 40 C.C.C. (3d) 411; and R v. Quansah, supra at para 22.
5R v. MacMillan (2013), 2013 ONCA 109 , 114 O.R. (3d) 506 (C.A.) at para. 32 and 39.
6R v. MacMillan (2013), 2013 ONCA 109 , 114 O.R. (3d) 506 (C.A.) at para. 29 referring to R v. Grant, [1991] 3 S.C.R. 139 at p.150.
7R v. MacMillan, supra at para. 29.
8R v. Latour (1997), 34 O.R. (3d) 150 (C.A.) at para. 28.
9R v. Quansah, supra at para 49; see also R v. Cote (1992), 6 O.R. (3d) 667 (C.A.) at para. 12.
10R v. Cote, supra at para. 12.
11R v. Latour, supra at para. 33.
12R v. Torsney (2007), 2007 ONCA 67 , 217 C.C.C. (3d) 571 (Ont. C.A.) at para. 13, leave refused [2007] S.C.C.A. 126.
13R v. George (2004), 187 C.C.C. (3d) 289 (Ont. C.A.) at para. 33.
14R v. Gill (2011), 2011 ONSC 4728 , 276 C.C.C. (3d) 556 (Sup. Ct.) at para. 36.
15R v. Cote, supra at para. 4 and 12.
16R v. George (2004), 187 C.C.C. (3d) 289 (Ont. C.A.) at para. 34.
17R v. Najm (2006), 32 M.V.R. (5th) 204 (Ont. C.A.).
18The following are some of the cases where the forthwith requirement was met are reviewed and summarized by Justice Durno in R v. Gill, supra at para. 36: R v. Pillon [2006] O.J. No. 701 - 7 minutes; R v. Torsney, supra – 6 or 7 minutes; R v. Singh (2004), 4 M.V.R. (5th) 252 (S.C.J.) – 11 minutes; R v. Singh, [2005] O.J. No. 4787 (C.A.) - 10 minutes.
19R v. Torsney supra at para. 12.
20R v. George (2004), 187 C.C.C. (3d) 289 (Ont. C.A.) at para. 34.
21Ibid at para. 42.
22R v. MacMillan, supra at para. 42.