Court Information
Court File No.: Halton 15-1060 Date: 2017-03-20 Ontario Court of Justice
Between: Her Majesty the Queen — AND — Kevin Rodger
Before: Justice D.A. Harris
Counsel:
- John Dibski, for the Crown
- Peter Dotsikas, for the defendant Kevin Rodger
Heard: December 1, 2015 and January 30, 2017
Reasons for Judgment released: March 20, 2017
Judgment
Introduction
1Kevin Rodger is charged with operating a motor vehicle in the City of Burlington on March 11, 2015 when his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood.
2Crown counsel elected to proceed summarily.
3Mr. Rodger pled not guilty and a trial was held.
4Mr. Rodger had applied for an order that all evidence of the results of any Intoxilyzer tests should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.
5Counsel agreed that we should proceed with a "blended" hearing in which all of the evidence would be applicable to both the Charter application and to the trial.
6Police Constable Lindsay Knapp testified for the Crown. Mr. Rodger testified for the defence with respect to the Charter application only. Police Constable Dorin Simpson testified in reply for the Crown with respect to the Charter application only.
7There is no issue that Mr. Rodger was operating his motor vehicle in Burlington on March 11, 2015 or that the two Intoxilyzer tests showed respectively results of 100 and 100 milligrams of alcohol in 100 millilitres of his blood.
8Counsel for Mr. Rodger advised me near the end of the trial that he was not pursuing an "as soon as practicable" argument.
9The only issue before me is whether the evidence referred to above should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.
10More particularly with respect to the Charter application, counsel for Mr. Rodger argued that:
(1) the approved screening device demand was not made "forthwith" and therefore was not a valid demand. This was a violation of Mr. Rodger's right to be secure against unreasonable search and seizure as guaranteed by section 8 of the Charter and his right not to be arbitrarily detained as guaranteed by section 9, and
(2) Mr. Rodger's right to counsel as guaranteed by section 10(b) of the Charter was also infringed.
The "Forthwith" Requirement
11I will deal with the "forthwith" argument first.
12In most cases, an accused bears the burden of persuading the court on a balance of probabilities that his or her Charter rights have been infringed, but in the section 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or seizure was reasonable.
13In this case then, the onus is on Mr. Rodger to establish an infringement of his section 9 rights but the onus is on the Crown with respect to the section 8 rights. I have accordingly approached this alleged violation of rights as one where the Crown bears the onus.
Was the Approved Screening Device Demand Made Forthwith?
14Section 254(2) of the Criminal Code does not explicitly require that the police officer's demand be made "forthwith". It only specifically requires that the motorist provide a breath sample "forthwith". However, the Ontario Court of Appeal has 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."
15This does not mean "within a reasonable time". However, it also does not necessarily mean that the demand must always be made immediately once the police officer forms the necessary suspicion. It is to be a prompt demand and in certain circumstances, that may mean that it must be made immediately.
16I note however the comments of LaForme J.A. in R. v. Quansah, where he stated that:
In my respectful opinion, articulation of the precise linguistic equivalent for "forthwith" is less important than a careful consideration of all the circumstances of the particular case. The legal context for this consideration is the objective that "forthwith" sets out, namely a prompt demand and an immediate response, ultimately taking no more than the time reasonably necessary for the prompt performance of the steps contemplated by s. 254(2).
17Earlier, he set out certain specific circumstances that must be taken into account:
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.
18I note particularly the words "these may include" and "these are examples" and interpret them to mean that this may be a comprehensive list, but not an exhaustive one.
19In that regard, I note further that Justice LaForme refers, at paragraph 40, to R. v. Fildan, where Hill, J. of the Superior Court of Justice lists several other examples of circumstances where, despite a short delay, the immediacy requirement would be met. The three examples given are:
(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, 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, 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.
20Justice LaForme goes on to say in the next paragraph that: "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 section 254(2)."
21The relevant evidence in this case is as follows.
Facts Regarding the ASD Demand
22Police Constable Knapp testified that she was dispatched to a traffic complaint at 10:19 p.m. on March 11, 2015.
23She was advised that an anonymous caller reported seeing a man stumbling through the parking lot of Joe Dogs, a restaurant/pub located on Brant Street in Burlington. The man entered a motor vehicle and drove off. He began tailgating, and driving erratically and at one point gave the complainant the middle finger.
24The vehicle was registered to Kevin Rodger who resided at an address in Burlington.
25Constable Knapp was asked to go to that address and look for the vehicle.
26She did so, arriving at 10:32. The vehicle she was looking for arrived there at 10:33.
27Constable Knapp initiated a traffic stop. The vehicle reversed into the driveway and stopped.
28Mr. Rodger was the driver. He was alone in the vehicle.
29He opened the driver's door. Constable Knapp asked him for his driver's licence, ownership and proof of insurance and he provided these to her.
30In speaking with him, she noted the odour of alcohol emanating from his breath. She advised him that she could smell alcohol and that there had been a traffic complaint made against him and his driving and that he was not obliged to say anything to her at that time.
31She then asked where he had come from. He told her that he went to the Dickens Pub in Burlington at approximately 5 p.m. and consumed three beers. He then went to the Burlington Performing Arts Centre where he consumed two more beers. His last drink was at approximately 9 p.m. He went to McDonalds for food on his way home.
32As a result, Constable Knapp suspected that he had consumed alcohol and made a request over her police radio for an approved screening device (ASD) to be brought to her. She then told Mr. Rodger that she smelled alcohol on his breath and that he had advised her that he consumed alcohol and that they would be doing a roadside test to determine whether or not his alcohol level was over 80. He agreed.
33She had approached his vehicle at 10:34. They had their conversation as described above. She formed her suspicion, cautioned him, had the further brief conversation with him and requested the ASD.
34Constable Fennell had arrived on the scene and was standing by for "officer safety" purposes. He did not have an ASD either. He had no direct contact with Mr. Rodger.
35She did not advise Mr. Rodger of his right to counsel during this time. I will address this further in the section dealing with that issue.
36Constable Simpson notified her that he was nearby and would bring her an ASD. She believed that his arrival would be "almost immediate". Constable Simpson arrived with an ASD at 10:44.
37Constable Knapp immediately read the ASD demand to Mr. Rodger.
38Constable Simpson conducted the ASD test with Mr. Rodger. This registered a "fail".
39That gave Constable Knapp reasonable and probable grounds to believe that Mr. Rodger was over 80 contrary to the Criminal Code. She then placed him under arrest for that offence. She read him the primary caution, a breath demand, and his right to counsel. When asked if he wished to call a lawyer at that time, he replied "no". In addition he was searched by one of the male police officers before she drove Mr. Rodger to the Burlington police station.
40She left his residence at 11:05 and arrived at the station at 11:09.
41There, the on duty Staff Sergeant conducted his procedure of lodging Mr. Rodger into the cells. During this process, Mr. Rodger asked to speak to duty counsel and at 11:30, Constable Simpson contacted duty counsel for him. Duty Counsel returned the call at 11:39 and Mr. Rodger spoke to him.
42The first breath test was completed at 12:07 a.m. Both tests resulted in readings of 100 milligrams of alcohol per 100 millilitres of blood.
Defence Evidence
43Mr. Rodger testified that he went from work to the Dickens Pub in Burlington at approximately 5 p.m. and consumed three pints of beers there along with his dinner. He then walked back to the Burlington Performing Arts Centre where he had parked his vehicle. He watched a performance there and consumed two more beers, one before the show and one at intermission. He left at approximately 10 p.m. He drove north for several blocks on a street parallel to Brant Street before using a side street to get to Brant Street where he turned left and proceeded north on that street.
44He was never at Joe Dogs and did not even know where it was.
45There was an incident with another car and he remembered making a face and hitting the gas and leaving the situation. He did not remember giving anyone the finger and he did not believe that he had done so.
46He stopped at McDonalds for food on his way home. He believed that he arrived at home just before 10:30.
47Constable Knapp was there. He got out of his car. She told him why she was there and then began asking him questions. When asked if he recalled being cautioned that he did not have to say anything, he replied "not really".
48He did answer her question and also provided her with the documents that she requested.
49She never told him that someone was bringing a device that he would have to blow into.
50Constable Fennell did tell him this however.
51He also administered the ASD test when the device arrived. Constable Simpson did not administer the test.
52He said that from the time that he was questioned about his drinking to the time that he was tested on the device "it seemed like a long time, 15 to 20 minutes".
53When asked to explain how he determined that, he said "It just seemed to be a longer sort of waiting period that nobody was talking with me when I was asked to, you know, you can go sit back in the car for a little bit".
54He later estimated a particular period of time to be over ten minutes. When asked why he thought it was that long, he replied "It is just a feeling. Like obviously, the car wasn't on so I couldn't see the time, but it just seemed to take a while, that is all".
Constable Simpson's Evidence
55Constable Simpson testified that he received the request for an ASD at 10:34 and that he arrived at the location nine minutes later.
56He administered the ASD test to Mr. Rodger. This resulted in a "fail" at 10:44.
Court's Findings on the "Forthwith" Issue
57I am satisfied that the Crown has established on a balance of probabilities that Constable Knapp made the ASD demand "forthwith" as required by the Criminal Code.
58I am satisfied that she had waited a reasonable time for the device to arrive before making the demand.
59I am satisfied that approximately ten minutes, at most, elapsed from the time that she formed the requisite suspicion until the time that she made the demand that Mr. Rodger perform the ASD test.
60I accept her evidence as to the times that events occurred. I note that where Constable Simpson also provided times, they are very close to hers with any discrepancies being explained by the fact that each would be using their own timepiece to determine these times.
61I reject Mr. Rodger's "guestimates" as to when things occurred and how much time elapsed between events. He provided no objective bases for any of these.
62I note further that he had been consuming alcohol to the point where his blood alcohol concentration was 100 milligrams of alcohol per 100 millilitres of blood. This certainly could have affected both his sense of what time it was and how much time elapsed at any point.
63He testified that Constable Fennell administered the ASD test on him. Constable Knapp and Constable Simpson both testified that Constable Simpson did that.
64Mr. Rodger was not a reliable witness.
65I am satisfied then that Constable Knapp did not infringe Mr. Rodger's rights guaranteed by sections 8 and 9 of the Charter.
Right to Counsel
66I will now address the allegation that she infringed his right to counsel.
Was His Right to Counsel Infringed?
67The following summary of the law is taken from the reasons of Justice Durno of the Superior Court of Justice in R. v. Gill.
68When a peace officer makes an ASD demand the motorist is detained and section 10(b) of the Charter requires the officer to inform the detainee of his or her rights to retain and instruct counsel without delay and to provide the detained person with an opportunity to exercise those rights. However, the right to counsel is not absolute and is subject to reasonable limits prescribed by law. One of the reasonable limits is a valid ASD demand.
69What makes an ASD demand a reasonable limit is the "forthwith" requirement. Absent this requirement, s. 254(2)(b) would not pass "constitutional muster."
70I have already discussed the "forthwith" requirement above.
71The boundaries within which Charter rights are justifiably infringed have been described as the "forthwith window." It is the period in which the detained person can be required to respond to a valid ASD demand without being advised of his right to counsel.
72When the "forthwith window" opens and closes is determined with respect to the right to counsel. The critical question is whether there was a realistic opportunity for the detainee to consult counsel before being confronted with the ASD and required to provide a suitable sample. It is not simply an opportunity to contact counsel. Rather, there must be a realistic opportunity to contact, seek and receive advice before being confronted with the ASD.
73Whether that "realistic opportunity to consult counsel" exists is a question of fact to be determined considering all the circumstances in the case. Courts have considered the following non-exhaustive list of circumstances:
i. the time the officer believed the ASD would arrive;
ii. the time between the demand and the taking of the sample;
iii. the time between the demand and the ASD's arrival;
iv. the day of the week and/or time at which the detainee would have been attempting to contact counsel;
v. whether the detainee had a cell phone, although this factor in itself is not determinative;
vi. the actual time it took for the ASD to arrive;
vii. whether there was an explanation for the delay; and
viii. whether the detainee contacted counsel at the station after being arrested.
74On occasions when the detainee has a cell phone, one should also consider whether they had the number for counsel or would rely on duty counsel with its "call back" feature. It would also be important to determine if they had counsel's number, whether it was an office number, 24 hour pager, or cell number as well as the previously noted time of day and day of the week the call would be placed.
75The relevant period is the time from forming the suspicion and the time the ASD is with the demanding officer and the detainee or to deduct "operational time" where the end of the time period is the providing of a sample or refusal. "Operational time" is a component of the calculation. It is implicit that every ASD demand is going to require time for the officer to prepare the equipment, to explain and perhaps illustrate its use. That period is going to be constant whether the ASD is sitting next to the officer when he or she makes the demand or if the device has to be delivered to the scene. In addition, there are often delays in obtaining the sample or concluding the detainee should be charged with failing or refusing. That time should not be part of the calculation.
76Justice Durno summarized a number of cases addressing this issue as follows:
Given that the determination is fact-specific, the question is not answered simply by calculating the number of minutes the "forthwith window" was open regardless of the parameters of the time period. However it is an important consideration. R. v. Cote (1992), supra, at p. 285. The following cases reflect that proposition: a) cases where a realistic opportunity to consult counsel existed: R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.) -- 15 minutes; R. v. Beattie, [2009] O.J. No. 4121 (Ont. C.J.) -- 20 minutes; R. v. Grant, (1991), 67 C.C.C. (3d) 268 (S.C.C.) -- 30 minutes; R. v. Najm, (2006), 32 M.V.R. (5th) 204 (Ont. C.A.) -- 12 minutes, R. v. Cote, supra -- 14 minutes; and R. v. George (2004), 187 C.C.C. (3d) 289 (Ont. C.A.) -- where the officer knew in advance the device would not arrive for 15 to 20 minutes and it arrived in 18 minutes. b) Cases where there was no realistic opportunity to consult counsel: R. v. Pillon, [2006] O.J. No. 701 (S.C.J.) -- 7 minutes; R. v. Torsney, (2007), supra -- 6 or 7 minutes; R. v. Yamka, (2011), 2011 ONSC 405 , 267 C.C.C. (3d) 81 (S.C.J.) -- 10 minutes; R. v. Latour, supra -- 12 minutes; R. v. Singh (2004), 4 M.V.R. (5th) 252 (S.C.J.) -- 11 minutes; R. v. Au-Yeung, 2010 ONSC 2292 , [2010] O.J. No. 1579 (S.C.J.), -- 8 minutes; and R. v. Singh, [2005] O.J. No. 4787 (C.A.) where the officer believed the ASD would arrive in 5 to 10 minutes and it arrived in 10 minutes.
Application to This Case
77In the present case, Constable Knapp testified that Constable Simpson had responded to her request for an ASD, advising her that he was near her location and would bring one to her. She believed that his arrival would be "almost immediate".
78She did not inform Mr. Rodger of his right to counsel at this time because she was not required to do so unless there would be an unreasonable delay with the delivery of the ASD. The courts had not specified what an unreasonable delay was. It was her opinion in this case that the delay would not be unreasonable and accordingly she did not inform Mr. Rodger of his right to counsel.
79Constable Simpson arrived within ten minutes of her making the request.
80Constable Simpson testified that he received the request at 10:34 and that he arrived at her location nine minutes later.
81Mr. Rodger testified that he believed that it took a longer time for the ASD to arrive.
82When asked what he would have done if offered an opportunity to speak to a lawyer, he replied "I would have said yes, I believe".
83He did not have a lawyer of his own. When asked who he would have called, he replied "I have no idea".
84Constable Knapp testified that she arrested Mr. Rodger after he failed the ASD test and that she then informed him of his right to counsel. When asked, he replied that he did not wish to call a lawyer at that time.
85Mr. Rodger testified that she did not inform him of his right to counsel at any time.
86Everyone agreed that he was informed of his right to counsel at the police station and that he asked to speak to duty counsel. Duty counsel was contacted and called back nine minutes later.
Court's Findings on Right to Counsel
87After considering all of the circumstances in this case, I am not satisfied that Mr. Rodger's right to counsel was infringed here.
88In deciding that, I note that the onus is on Mr. Rodger to prove on a balance of probabilities that his right to counsel was infringed.
89Constable Knapp believed that an ASD would arrive within a reasonable time. She based this on the information from Constable Simpson that he was nearby and would bring an ASD to her. I am satisfied that her belief was reasonable.
90Constable Simpson did in fact arrive nine minutes later.
91Mr. Rodger testified that he 'believed' he would have said "yes" had he been given an opportunity to call a lawyer. He offered no suggestions as to how he might have done so, however. He did not have a lawyer of his own. He "wouldn't know who to call for advice".
92His only suggestion as to how he would have made such a call in private was that the police would have let him go back in his car. He did say that he had a cell phone with him.
93Calling duty counsel would necessitate a return call from that person. In this case, the duty counsel took nine minutes to return the call subsequently made from the police station.
94Taking all of that into account, there was no realistic possibility that Mr. Rodger would have been able to speak to a lawyer during the time that they waited for an ASD.
95Further, I am satisfied that Constable Knapp did inform him of his right to counsel after she arrested him and that he replied that he did not wish to speak to a lawyer at that time.
96My reasons for accepting her evidence and rejecting that of Mr. Rodger are the same as set out in the section on the "forthwith" issue.
97As I stated above, the onus is on Mr. Rodger to prove on a balance of probabilities that his right to counsel was infringed.
98I find that he failed to do this. Constable Knapp did not infringe Mr. Rodger's right to counsel.
99Accordingly, I find that Constable Knapp did not infringe Mr. Rodger's rights in any of the ways alleged here and the application to exclude the breath results is dismissed.
Section 24(2) Analysis
100In any event, even if I was satisfied that either of Mr. Rodger's rights had been infringed, I would not have excluded the evidence pursuant to section 24(2) of the Charter.
101The test set out in R. v. Grant by the Supreme Court of Canada directs me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:
(1) the seriousness of the Charter-infringing state conduct,
(2) the impact of the breach on the Charter-protected interests of the accused, and
(3) society's interest in the adjudication of the case on its merits.
102I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
First Factor: Seriousness of Charter-Infringing Conduct
103With respect to the first factor, any Charter breach here was not a serious one.
104Based on the information received by her, Constable Knapp had ample grounds to attend at Mr. Rodger's residence, stop his vehicle and speak to him. After smelling alcohol on his breath and hearing him admit to consuming alcohol recently, she had the necessary grounds to demand that he provide a sample of his breath into an ASD.
105Any delay in making the demand was very short.
106It would not have been unusual for a police officer to wait until the approved screening device was present before making the formal demand. In fact this is often the accepted practice and it is specifically referred to in R. v. Quansah, supra.
107Constable Knapp informally told Mr. Rodger that he would be asked to blow into a machine. He disagreed that she did so but testified that Constable Fennell did. So, even in his version of events, he was told informally, even before the device arrived, that he would be required to take an ASD test. While this not the same as a formal demand, it is a circumstance that I must consider as part of this analysis.
108With respect to the right to counsel issue, Mr. Rodger would not have been able to speak to counsel at the scene before the ASD test was completed in any event.
109Further, he did speak to counsel before providing breath samples into the Intoxilyzer.
110The low degree of seriousness of any Charter-infringing conduct here favours inclusion of the evidence.
Second Factor: Impact on Charter-Protected Interests
111With respect to the second factor, the detention and the ensuing breath tests were both minimally intrusive both in terms of what took place and the evidence obtained.
112In reaching that conclusion, I have taken note of the obiter comments in R. v. Grant, supra that:
While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive.
113Previously, it often seemed that any infringement of the rights of those accused of drinking and driving would result in the automatic exclusion of the breath results. This passage would appear to indicate that this will not always be the case now.
114I do note the following comments of Justice Ducharme of the Superior Court of Justice in R. v. Au-Yeung:
60 As for the s. 8 violation, it is true that the taking of breath samples pursuant to either s. 254(2) or 254(3) is not "a significant compelled intrusion upon the body." While the taking of a breath sample interferes with privacy of the person, the most assiduously protected privacy interest, the procedure is minimally intrusive in two respects. First, the procedure involved in collecting and analyzing breath samples is minimally intrusive in a physical sense. Second, the information gleaned from a breath sample is far from the "biographical core of personal information" that is protected by s. 8 and 9. These factors favour the admission of the evidence.
61 But that should not end the matter, because the demands placed on a driver to facilitate these tests are often not minimally intrusive. In this case, the appellant was arrested, handcuffed, placed in the rear of a police car and taken to a police station, a sixteen minute trip, and, once at the station, he was kept in police custody for another hour and fifty minutes. Thus, while the trial judge was correct in saying that the treatment of the appellant was not "oppressive" that is not the test. Certainly, such an interference with the appellant's personal liberty cannot be dismissed as minor. Thus, where the police lack the requisite grounds for the s. 254(3) demand, these aspects of the appellant's treatment constitute a significant violation of s. 9.
62 While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed to extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds. To condone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under sections 8 and 9 of the Charter, the police can ignore these and detain and arrest any driver. Thus, despite the minimal intrusiveness of the breath-testing procedures themselves, the second branch of Grant also weighs in favour of exclusion of the evidence.
115In this case, Mr. Rodger was arrested. I do not know if he was handcuffed but it would have been the common practice. The trip to the police station took only four or five minutes. I do not know how long he was in police custody before he was released. It would be unusual for this to have been less than the one hour and fifty minutes referred to in R. v. Au-Yeung, supra.
116In light of Justice Ducharme's comments above, I conclude that the second branch of R. v. Grant weighs in favour of exclusion of the evidence, but just barely.
Third Factor: Society's Interest in Adjudication on the Merits
117As for the third factor, the offence is recognized to be a serious one. The societal interest in having a trial on the merits would usually favour admission here.
118I must also consider the fact that the evidence which Mr. Rodger seeks to have excluded, is reliable. "Subject to other evidence in any given case, breath samples and their testing by ASDs and Intoxilyzers are generally considered reliable evidence." The Intoxilyzer test results are certainly presumptively reliable by virtue of the Criminal Code provisions.
119I find then that the truth seeking function would be better served by the admission of the evidence than by its exclusion.
120So, after considering all the circumstances here, I am satisfied that admission of the evidence would not have brought the administration of justice into disrepute even if there were infringements of Mr. Rodger's rights.
Conclusion
121I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Rodger was operating his motor vehicle when his blood alcohol concentration was 100 milligrams of alcohol in 100 millilitres of blood. I find him guilty of the offence charged and enter a conviction.
Released: March 20, 2017
Signed: Justice D. A. Harris