Ontario Court of Justice

Date: 2018-10-19 Court File No.: Newmarket 17-07897

Between:

Her Majesty the Queen

— AND —

Srdan Miric

Judgment

Evidence heard: October 18, 19, 2018 Delivered: October 19, 2018

Counsel:

• Mr. Philip Hsiung, counsel for the Crown
• Mr. Phillip Mota, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Miric's wife called police to complain that her husband left the house and may be driving while impaired by alcohol. Officers attended the residence and determined that the call was more in relation to a domestic argument. Mrs. Miric showed them a bottle of alcohol and a glass but the bottle was sealed and the glass was dry. It appeared to PC Hartung that she may have been mistaken about her husband's drinking so from that point onward he focused on the domestic dispute that led to the call. A second officer phoned Mr. Miric and asked him to come home to speak to them.

[2] Mr. Miric drove back to the residence. He spoke with the officers and they detected an odour of alcohol on his breath. PC Hartung noted Mr. Miric had redness in his eyes consistent with drinking. Mr. Miric admitted to drinking before he left the house, "two shots before I left". Based on his observations and the new admission PC Hartung redirected his attention to the issue of drinking and driving. He administered an Approved Screening Device (ASD) test. The failure of that test indicated the accused had a blood alcohol level in excess of the legal limit. Further Approved Instrument tests at the station registered truncated readings of 150mgs on each test. Mr. Miric was charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit (Over 80) contrary to s.253(1)(b).

[3] This case turns on consideration of the alleged breaches of the accused's Charter rights that the defence submits should result in exclusion of the breath test evidence. The Notice of Application alleges the following breaches:

• Section 7 – The officer's request to the accused to return home to speak with him deprived the accused of "an operating mind" disabling his ability to choose what action to take and thereby depriving the accused of his right to life, liberty and security of the person.

• Sections 7, 9, 10(a), 10(b) – The accused's rights under these four sections of the Charter were breached as he was not advised initially of the "reason he was being investigated by the police", a direct violation of s.10(a) which created an arbitrary phone detention when the police asked him to return home. The accused was not provided with right to counsel advice during the phonecall despite being detained contrary to s.10(b), further compounding the other breaches.

• Section 8 – The demand for the ASD test was not made immediately when the officer formed the suspicion but minutes later when the officer took out the device for the test. The ASD demand was therefore illegal and the test fail result cannot be relied upon as grounds for an approved instrument demand.

• Section 9 – The accused was detained pursuant to an improper ASD demand then further detained for approved instrument testing at the station. The detention was arbitrary.

• Sections 8 and 9 – The Approved Instrument demand was not made "within a reasonably prompt time". The demand was not lawful and therefore the detention of the accused and the seizure pursuant to that demand were not lawful.

• Section 10(b) – The officer did not read the accused right to counsel advice at the time of arrest but waited until he drove around the corner away from the accused's house so he could have that conversation away from the accused's neighbours and away from his wife who was still in the driveway. The delay is a breach of s.10(b).

• Section 24(2) – The effect of the multiple breaches is serious and any evidence obtained in connection with the breaches including the breath test readings must be excluded from evidence.

Section 7 and the Accused's "Operating Mind"

[4] Mr. Miric testified on the Charter voir dire that the police called him and told him they were at his house investigating a domestic incident. He said the officer asked, "Can you please come home, we need you to come home to speak to you". He returned home.

[5] The defence submits this conversation deprived the accused of an "operating mind" in the sense of overbearing his will and compelling him to come home. The defence compares this case to R v Whittle, [1994] SCJ No 69, a voluntariness case.

[6] Whittle does not assist the applicant. Mr. Whittle was arrested on warrants of committal for unpaid fines. After his arrest he told police that he had committed a murder and several robberies. The police made further inquiries and then charged Mr. Whittle with those offences. Mr. Whittle declined to speak to a lawyer then offered to take police to the location where he discarded the murder weapon. During a later videotaped statement the accused changed his mind and asked to speak to a lawyer. The interview stopped and Mr. Whittle was advised to remain silent by the lawyer he spoke with. Mr. Whittle continued to speak with police he said because voices in his head were telling him to unburden himself. The issue in that case was whether the accused had a sufficient "operating mind" to meet the voluntariness test. Our Court of Appeal and the Supreme Court held he did.

[7] There's no issue in this case that the accused had an "operating mind" at the relevant times. The defence argument appears to refer to the concept of oppression, also a voluntariness issue. The assertion is that the accused's conversation with the officers over the phone remotely deprived him of the ability to make a free choice as to whether to return to his residence. He was psychologically detained and compelled to return, thereby depriving him of his liberty contrary the principles of fundamental justice and therefore contrary to s.7 of the Charter.

[8] In the brief conversation relayed by Mr. Miric, the officer merely requested in polite terms that Mr. Miric return to speak with them. There's nothing about that conversation that could reasonably overbear a person's will. Mr. Miric testified that he knew he hadn't done anything wrong during the domestic argument. He had no reason to be reluctant to return and he plainly thought it prudent to do so. His calm demeanor upon his return home showed no sign of coercion or oppression. I find the defence has failed to prove the breach alleged on the balance of probabilities.

Sections 7, 9, 10(a), 10(b)

[9] The defence submits that the accused's rights under these Charter sections were breached as the accused was not advised in the initial call of the "reason he was being investigated by the police". The defence submits the accused was in fact detained at the time of the phonecall, triggering his s.10(a) right to be informed of the reason for his detention. The police also should have read him his right to counsel pursuant to 10(b) during the call. The detention was arbitrary as the police had no grounds to arrest or detain him.

[10] Mr. Miric was not being investigated at the time he spoke with the police. When the police were shown the sealed liquor bottle and a dry glass by his wife they had reason to doubt the initial complaint. Although there had been a domestic argument there was no evidence of an assault or threat. The officers had no reason to detain Mr. Miric as there was no allegation of an offence.

[11] In the alternative, the defence submitted that it's important that state interaction with citizens be limited and the police action in calling Mr. Miric when no offence had been alleged was arbitrary. Compelling the accused to return home without lawful reason was contrary to sections 9 and 7 of the Charter.

[12] Constable Hartung explained that where a domestic incident progresses to the point where police are called officers approach that situation very carefully. They try to speak to both parties to ensure that both are safe. Before they leave they also try to ensure the situation has stabilised and neither party has cause to fear further difficulty or violence later after the police leave. Domestic violence is a serious issue in our region and I find the officers' approach to be a responsible one. I disagree with the defence that either the law or convention limits police interaction with citizens to the investigation of offences. Modern policing includes efforts by the police to be proactive, to provide for public safety by helping parties in crisis avoid further conflict that might lead to violence or other offences. That's particularly important in the domestic context and I find the officers' approach prudent and reasonable in this case.

[13] There was nothing in the accused's response to the officers or his demeanor upon arrival home that provides support for the assertion that he was psychologically detained by the simple fact that the officer's asked him to come home to speak with them. He wasn't detained and the officers weren't investigating an offence so there was no reason to provide him s.10(a) advice or s.10(b) right to counsel advice at that time. He could have called a lawyer but he chose not to do so and to simply return home as he'd done nothing wrong. To that point he was right.

Section 8 – ASD Demand Not Forthwith

[14] The police in-car video shows two officers waiting for Mr. Miric at 22:17h across from his driveway. Mr. Miric returned and they spoke with him at 22:18h. The conversation included an admission of drinking. It's plain that by 22:20h when PC Hartung returned to his car to get the ASD that he'd formed a reasonable suspicion that the accused had been driving with alcohol in his body. The officer did not make the ASD demand until he presented the device for the test at 22:22h. The defence submits the demand was not forthwith and therefore not legal.

[15] There is no requirement in s.254(2) that the demand be uttered "forthwith" but courts have held that it's implicit in that section that the officer make the demand once he or she forms the required reasonable suspicion – R v Quansah 2012 ONCA 123, [2012] OJ No 779 (CA) at para 25. The need for a timely demand is part of the overall requirement that the ASD test be administered "forthwith".

[16] As sometimes happens, this officer thought it best not to read out the demand in the abstract but to make the demand when the device was at hand, after showing the accused the ASD and the mouthpiece that would be used. That's logical where the device is immediately available and is much more likely to be understood by the person detained, but as the defence points out it departs in a small way from the recommendation in Quansah. Overall though the ASD test was administered "forthwith" in compliance with s.254(2). Given that the test was administered forthwith it's not plain that the delayed demand is a breach but if it is it's a very small one that had no impact on any right that s.8 was meant to protect.

Section 9 – Arbitrary Detention

[17] The section 9 argument related to the notion that the ASD process was illegal because of the slight delay in the timing of the demand. The ASD test was administered forthwith as required by s.254(2) and both the detention for that process and the arrest that followed the test result was lawful.

Sections 8 and 9 – Delayed Approved Instrument Demand

[18] PC Hartung forgot to read the Approved Instrument demand at the roadside. The in-car video shows why. He read Mr. Miric right to counsel advice and then the caution. He testified that he typically would have read the s.254(3) demand next but the video shows he was interrupted at that point by the second officer. The two officers discussed the provincial impound requirement that the accused's vehicle be towed and impounded if he's charged with Over 80. Despite the "fail" result showing a blood alcohol concentration at the time over that limit, the officers still thought it was possible that the accused would not test over 80 at the station. For that reason they decided not to have his vehicle towed from his home. After this conversation PC Hartung forgot to return to the approved instrument demand. He did relay his grounds to the breath technician PC Vincent at the station who did make a timely demand. The defence conceded in submissions that R v Guenter 2016 ONCA 572 applies and the demand at the station was lawful.

Section 10(b) – Delay in Right to Counsel Advice

[19] Right to counsel advice is meant to be provided immediately upon arrest – R v Suberu 2009 SCC 33.

[20] In this case the officer spent several minutes searching the accused and sorting his property, then went to the accused's car to retrieve his wallet at the accused's request. He put the accused in the vehicle and then, rather than read the right to counsel advice in the accused's driveway, with his wife nearby, the officer drove a very short distance around the corner. Once out of sight of the accused's home he stopped and provided the accused with right to counsel advice. The officer later assisted Mr. Miric in speaking with a lawyer at the station.

[21] The delay in providing right to counsel advice is a breach but no investigative steps were taken in the interim and there was no impact on the interests that s.10 was meant to protect.

Section 24(2) – Exclusion of Evidence

[22] The delayed s.10(b) advice had no impact on the Charter protected rights of the accused. This is not a case of systemic disregard as in R v Simpson 2017 ONCJ 321. The s.10 breach even combined with the alleged s.8 breach for a 2 minute delay in reading the ASD demand was not serious and could not reasonably lead to a s.24(2) remedy.

Conclusion

[23] Mr. Miric didn't tell the officer he was at a bar and had been drinking doubles for over three hours when the officer asked him to return home. It's understandable that Mr. Miric chose to speak to the police as requested, particularly where no offence had been committed during the argument. His present charges do not flow from that decision but rather from his decision to drive after extensive drinking. He could have asked the officers to come to speak to him. He could have taken a cab. His decision to drive led to the charges before the court. The defence has proved a s.10 Charter breach but not one that reasonably could lead to the remedy sought under s.24(2). The remaining Charter breaches were not proved on the balance of probabilities. The Crown has otherwise proved the charge alleged beyond a reasonable doubt.

Delivered: October 19, 2018

Justice Joseph F. Kenkel