Court File and Parties
DATE: February 19, 2021 COURT FILE No. Brampton: 19-22255 ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
HIMANSHU BALI
Before: Justice Paul F. Monahan
Heard on: January 20 and 21, 2021 Judgment Released on: February 19, 2021
Counsel: Ms. C. Bouzane....................................................................................................... for the Crown Mr. B. Daley.............................................................................. for the defendant Himanshu Bali
MONAHAN J.:
Introduction and Overview
1Mr. Himanshu Bali is charged that on or about August 16, 2019 that he did within two hours after ceasing to operate a conveyance (in this case, a motor vehicle) have a blood alcohol concentration which was equal to or exceeded 80 mg of alcohol in 100 ml of blood contrary to s. 320.14(1)(b) of the Criminal Code (the “Code”).
2Mr. Bali brought a Charter application at trial. The Charter application alleged violations of sections 8, 9 and 10(b) of the Charter. The defence sought the exclusion of the breath samples and all statements of the defendant pursuant to section 24(2) of the Charter.
3The Charter application and the trial were held, on consent, on a blended basis.
4The Crown called four witnesses on the trial proper and on the Charter application: Aminah Spooner, a civilian witness; Constable Edvine Yambot, the arresting officer who was in training that night; Constable Rajvinder Gill, the “coach” officer for Officer Yambot; and Constable J. Champagnie, the qualified breath technician. The defence called Mr. Bali on the Charter application only and called no evidence on the trial proper.
5Considering the evidence and the argument it is apparent that there are five issues in the case:
Issue 1 – Did the ASD demand meet the “immediately” requirements of section 320.27(1)(b)?
Issue 2 – Was there a residual mouth alcohol issue? If so, what are the implications?
Issue 3 – Were there one or more s. 10(b) Charter violations?
Issue 4 – In the event that the court finds one or more Charter violations, should the breath sample evidence and statements made on the breath room video be excluded pursuant to section 24(2) of the Charter?
Issue 5 – Has the Crown proved the equal to/exceeded 80 mg of alcohol in 100 ml of blood offence at the relevant time beyond a reasonable doubt? When considering this point, the court should consider the care or control question; the soon as practicable question and the calculation of the blood alcohol concentration (“BAC”) question.
Issue 1 – Did the ASD demand meet the “immediately” requirements of section 320.27(1)(b)?
Introduction
6In the case at bar, the defence alleges that there was a section 8 Charter violation. The defence says that the “forthwith” or the “immediately” requirement of section 320.27(1)(b) was not met in respect of the ASD demand. The defence submits that this led to a section 9 arbitrary detention because there were not proper grounds for the arrest.
7Section 320.27(1)(b) of the Code provides that if a peace officer has reasonable grounds to suspect that a person has alcohol 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 to “immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device” (my emphasis).
8A predecessor provision under section 254(2) of the Code provided that a peace officer could in similar circumstances require the person to “provide forthwith a sample of breath” (my emphasis) for an analysis by an approved screening device (“ASD”). In my view, the prior case law concerning the “forthwith” requirement under 254(2) applies to the “immediately” requirement in section 320.27. I say this because, among other reasons, the Supreme Court determined that the “forthwith” requirement under s. 254(2) meant “immediately” or “without delay”: see R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 at paras. 13-14 and 44.
9Where there is a warrantless search or seizure, the Crown has the burden of establishing, on a balance of probabilities, that the search or seizure was a reasonable one: R. v. Collins, [1987] 1 S.C.R. 265 at paras. 21-23. This proposition is applicable to the case at bar as the ASD sample and the approved instrument samples were all warrantless searches. In order to establish that a search or seizure was reasonable, the Crown must show that the police had reasonable and probable grounds to conduct the search or seizure. In the case of alleged drinking and driving, this will relate to, among other things, the demands made and subsequent obtaining of the breath samples.
10On August 16, 2019, Officer Yambot and Officer Gill of Peel Regional Police were working together in uniform operating a marked cruiser. Officer Yambot was still in training and Officer Gill was his coach officer. They heard a radio call for an accident at about 12:40 am on August 16, 2019. They arrived on the scene at 12:48 am. There were three cars involved in collision including a vehicle registered to Mr. Bali.
11Mr. Bali was outside of his vehicle. Officer Yambot approached him. He identified himself as a driver of one of the vehicles involved in the accident. He was unsteady on his feet, he smelled of alcohol and his eyes were glassy and red. Officer Yambot discussed it with Officer Gill. Officer Yambot concluded that he had a suspicion that Mr. Bali had alcohol in his body and had been operating a motor vehicle in the last three hours.
12Officer Gill testified that had he been taking direct responsibility for the situation; he would have simply arrested Mr. Bali for impaired driving. However, he let Officer Yambot direct the process. Officer Yambot wanted to proceed with an ASD demand. While Officer Yambot did not mention this in his testimony, Officer Gill said they did not have an ASD with them and they had to radio for one. The station was close by and Officer Gill thought it came quickly perhaps in 5 minutes, but he had no note of it.
13Officer Yambot said that he first formed the suspicion that the defendant had alcohol in his body and had been driving a motor vehicle right away after they arrived. The arrival was 12:48 am and I estimate the suspicion was formed at about 12:49-50 am. The ASD demand was made at 12:56 am. and a self test was done at about this same time. There was a delay in the receiving of the sample as Officer Yambot also read him his rights to counsel at 12:57 am. This took until about 1:02 am. As a result, Mr. Bali was not actually required to blow into the ASD until about 1:02 am and there a total of 5 attempts to blow between 1:02 am and 1:06 am when there was a failure.
The Law with respect to the “immediately” or forthwith requirement
14As I have indicated, the “immediately” requirement in section 320.27 is governed by the prior case law concerning the “forthwith” requirement in the now repealed section 254(2). Accordingly, the immediately requirement applies both to the demand by the peace officer and the response by the person who is subject to the demand: see R. v. Quansah (2012), 2012 ONCA 123, 92 C.R. (6th) 1 (Ont. C.A.) at para. 47.
15The Court of Appeal in Quansah at para 34 said that “if there has been a realistic opportunity to consult counsel that has not been accorded to the detained person when the sample is demanded and the person has responded to the demand by either providing the sample or refusing to blow, the “forthwith” requirement is not met.” However, the Court of Appeal made clear that whether there was time to consult counsel is only one factor in the forthwith analysis (see Quansah paras 34, 42 and 49)
16The forthwith requirement is “inextricably linked to its constitutional integrity”: see Quansah at para. 21 and 22 citing R. v. Woods, supra at para. 29. 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 under s. 1 of the Charter on the person’s rights under ss. 8, 9 and 10(b) of the Charter: see R. 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.
17The Court of Appeal in Quansah stated further that “the immediacy requirement must take into account all of the circumstances” and that the time from the formation of the suspicion to the making of the demand to the response to the demand be “no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated under s.254(2)” (see Quansah at paras. 47 and 48). The analysis “must always be done contextually” (Quansah at para 45).
18The 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: (see Quansah, supra at para. 25).
19If the forthwith or immediately requirement is not met then the demand will be invalid and the subsequent approved instrument demand, which relies upon the results of the ASD 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 an approved instrument demand, they will only be inadmissible if the accused can show that they should be excluded under s. 24(2) of the Charter: see R v. MacMillan (2013), 2013 ONCA 109, 114 O.R. (3d) 506 (C.A.) at para. 42.
20If the actions of the police fall outside the terms of s. 254(2) [now s. 320.27] because the forthwith or immediately provision is not complied with, then there will be a s. 8, s.9 and potentially a s. 10(b) violation if rights to counsel are not given and the issue will be whether the evidence obtained should be excluded under s. 24(2) of the Charter: R. v. Vinoharan, [2009] O.J. No. 4037 (Sup. Ct.) at paras. 9 to 26.
The “immediately” issue – application of the law to the facts
21Applying the law to the facts in this case, in my view there was no violation of the immediately requirement in section 320.27. There was a delay from when the suspicion was formed at about 12:49-50 am through to 1:02 am when there was an attempted sample being provided by Mr Bali. This was a delay of 12 to 13 minutes. There was a delay between 12:49 am and 12:56 am as in my view of the evidence, the police had to wait for the ASD to arrive. This time spent waiting was reasonable and necessary. It is clear to me that the device had arrived by 12:56 am as a self test was performed at around this time. In my view, Officer Yambot did not need to provide rights to counsel before proceeding to receive the ASD sample because he was in a position to “immediately” require the sample at that point in time (12:56-57 am). However, he chose to do so due out of an abundance of caution and arguably because of his inexperience. This caused a delay of about 5 minutes from 12:57 to 1:02 am. Even though I don’t consider that Officer Yambot needed to provide rights to counsel before the sample being received by the ASD, Officer Yambot considered in good faith that he needed to do so. Given that the precise meaning of “immediately” or “forthwith” is contextual and will depend on the circumstances of each case, the court needs to allow some latitude for police to make a judgment call while trying to do their job on the ground in the real world. The officers were dealing with an accident and assessing the situation with respect to Mr. Bali. By giving rights to counsel prior to the ASD sample being received, Officer Yambot was making a judgment call and seeking to respect the Charter rights of Mr. Bali. I do not fault him for making that judgment and taking those steps.
22Accordingly, it is my view that looking in context at the time that passed from the formulation of the suspicion at 12:49-50 to the time the first sample was sought to be provided at 1:02 am, the immediately requirement of section 320.27 was met and there was no section 8 Charter violation. In my view, the time taken was no more than reasonably necessary for the officer to discharge his duty in the particular circumstances of this case. If I am wrong on this point and the immediately requirement was not met, I would say that any resulting Charter violation was minor in terms of seriousness and the impact on Mr. Bali. The delay was only 12-13 minutes. Further, I agree with Officer Gill that there was a proper basis to arrest Mr. Bali for impaired driving without an ASD demand at all. Officer Yambot’s actions erred on the side of fairness to Mr. Bali by proceeding with an ASD demand without arresting him and by giving him rights to counsel when he arguably did not have to.
Issue 2 – Was there a residual mouth alcohol issue? If so, what are the implications?
23The Ontario Court of Appeal in The Queen v. Notaro, 2018 ONCA 449 has recently clarified the law with respect to residual mouth alcohol. The Court in that case noted it is well known by police that the result of an ASD sample may be unreliable if the driver has consumed alcohol in the 15 to 20 minutes before giving the sample (see paras 41-42). The Court of Appeal summarized the law on this point at para 43 of Notaro:
(a) “if the information known to an arresting officer about a suspect's residual mouth alcohol would make it unreasonable for the officer to rely on the accuracy of an ASD fail result, reasonable and probable grounds will not be established, whether or not the arresting officer turned her mind to the presence or effect of residual mouth alcohol.
(b) if it is reasonable for the arresting officer to rely on an ASD fail result based on the information known to her, then the failure of the arresting officer to turn her mind to the presence or effect of residual mouth alcohol is immaterial.”
24In the case at bar, the call regarding the accident was received over the police radio was at 12:40 am; the officers arrive at 12:48 am; reasonable suspicion for the ASD demand was formed at about 12:49-50 am; the ASD demand was made at 12:56 am; and after rights to counsel and various ineffective attempts to blow, a failure was received at 1:06 am.
25There was evidence that there was liquid in Mr. Bali’s car. It is an agreed fact that in a cup in the car there was liquid which included alcohol. Officer Yambot did not smell the cup but another officer did smell it at some point and smelled alcohol but there is no suggestion in the evidence that this information was given to Officer Yambot prior to receiving the sample into the ASD.
26There was conflicting evidence as to whether or not Officer Yambot had asked about when Mr. Bali’s last drink was. He did ask Mr. Bali at some point and was told 9:30 pm was the time of the last drink but he indicated that he may not have received that information until after Mr. Bali was under arrest.
27The most that can be said on these facts is that perhaps Officer Yambot did not turn his mind to the question of residual mouth alcohol, contrary to his training. However, as indicated above in the Notaro case, the failure of an arresting officer to turn their mind to the presence or effect of residual mouth alcohol is not necessarily a problem. The question is whether it was reasonable for the arresting officer to rely on an ASD fail result based on the information known to the officer.
28In my view, Officer Yambot had a subjective believe which was objectively reasonable that the ASD fail result permitted him to proceed with the arrest for equal to/ over 80. I say that for the following reasons. First, officer Yambot had not received any evidence that Mr Bali had been drinking in the 15 minutes prior to 1:02 am (or 1:06 am when the actual fail was received). There was no evidence to suggest that Mr. Bali had been drinking after the accident was called in at 12:40 am. Of course, it was possible that Mr Bali continued to drink after the accident but there was no evidence that that had happened or that Officer Yambot had any such information. He testified that he believed that the fail result entitled him to make the arrest for equal to/over 80. That subjective belief was objectively reasonable as there was no evidence to suggest that there had been drinking in the 22 minutes between 12:40 am when the call came in and 1:02 am when the first sample was attempted to be provided by Mr Bali. Further, by the time the fail result was received at 1:06 AM some 26 minutes had passed between the time of the radio call and the fail result. Sixteen or seventeen minutes (12:49-50 AM to 1:06 AM) had passed from the time of first suspicion to the time the sample was provided.
29The fact that Officer Yambot could have smelled the cup in the car but didn’t is of no moment. The test is not whether the officer could have done a better investigation. The question is whether or not he had a subjective belief concerning the ASD fail which was objectively reasonable in the circumstances. In my view, for the reasons given, he did.
30Accordingly, the residual mouth alcohol issue is not an issue here at all. There was no Charter violation by reason of the mouth alcohol issue.
Issue 3 – Were there one or more s. 10(b) Charter violations?
Law
31It is the defence’s position that there were two breaches of Mr Bali’s rights to counsel. First, the defence argues that Mr Bali conveyed to Officer Yambot at the roadside that he wanted to call his father for the express purpose of getting the name of a lawyer and that Officer Yambot ignored this request. Second, the defence submits that there was a delay in providing rights to counsel between the time of Mr. Bali’s arrest at 1:06 AM and 1:13 AM when he was provided with rights to counsel.
32In R. v. Bartle, [1994] 3 S.C.R. 173, the Supreme Court of Canada summarized the requirements of section 10(b) as follows:
(i) Police must inform the detainee of the right to retain and instruct counsel without delay and as to the availability of duty counsel;
(ii) If the detainee has indicated a desire to exercise the right to counsel, police must provide the detainee with a reasonable opportunity to exercise that right; and
(iii) Where the right to counsel is invoked, police must refrain from eliciting evidence from the detainee until he or she has had the reasonable opportunity to consult counsel.
33There is an informational and implementational component to the right to counsel. The onus is on the detained person to prove a breach of the right to counsel on a balance of probabilities: R. v. Bartle, [1994] 3 S.C.R. 173 at p. 192.
34A detained person has an obligation to be “reasonably diligent” in exercising the right to counsel: R. v. Prosper, [1994] 3 S.C.R. 236 at para. 35.
35The right to retain and instruct counsel includes the right to contact a third party to obtain counsel of choice: see R. v. Kumarasamy, [2002] O.J. No. 303 (Sup. Ct. per Durno J.) at paras. 24-26; see also R. v. Tremblay, [1987] 2 S.C.R. 435 at para. 8. That is not to say that a detainee is always entitled to contact friends or relatives to get counsel. This might not be permitted where they could jeopardize an ongoing investigation. There is an obligation on the detainee who wants to call a third party to get a lawyer to tell the police that the express purpose of calling the third party is to get a lawyer: see R. v. Antoninas, 2014 ONSC 4220, [2014] O.J. 5226 (Sup. Ct. per Durno J.) at para 94; see also R. v. Cheema, 2018 ONSC 229, [2018] O.J. No. 121 (Sup. Ct. per Andre J.) at para 31.
36As concerns contacting counsel of choice, the test of whether there has been a right to counsel breach is not whether the police could have done more to contact counsel of choice. The question is whether the police provided the detainee with the information required to assist and whether the police facilitated that contact: R. v. Gentile, [2008] O.J. 3664 (Sup. Ct. per Durno J.) at para. 24.
Application of the Law to the Facts – Rights to counsel – the Delay Issue
37I consider that there was a breach of Mr Bali’s rights to counsel associated with the delay in conveying rights to counsel to him after his arrest. To review the timeline, Mr. Bali was arrested at 1:06 am but he was not given rights to counsel until 1:13 pm, some 7 minutes later. There was no explanation for this delay and the case law is clear that unless there are extenuating circumstances, a detainee is to be provided his rights to counsel immediately upon arrest (R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460).
Application of the Law to the Facts – Contacting a third party for the purpose of contacting counsel
38In the case before the court, it is common ground that rights to counsel were provided on three occasions. The first time was at 12:57 am prior to the ASD sample being provided (the “first” rights to counsel); The second time was at 1:13 am with the arrest being at 1:06 am (the “second” rights to counsel); and the third time was in the breath room at the police station when the qualified breath technician provided him rights to counsel which were captured on the breath room DVD which was played for the court on the Charter application (the “third” rights to counsel).
39As concerns the first rights to counsel provided at 12:57 am before the ASD sample was provided, Officer Yambot did not have a note as to what Mr Bali said in response to the final question “do you wish to call a lawyer now”. Officer Yambot was unclear in his testimony as to whether he asked this final question at all on the first rights to counsel. In chief, he said that he had asked this question but did not have a note of the answer. In cross examination, he suggested that he did not ask this question. In my view Officer Yambot must have asked the final question-there would be no reason not to and it would make no logical sense not to do so. On my view of the evidence he asked the question but did not make a note of the answer, if there was one.
40As concerns the second rights to counsel after Mr. Bali was arrested at 1:06 am, Officer Yambot says that when he asked him at the end of the rights to counsel “do you wish to call a lawyer now”, Mr. Bali said “no, I wish to call my parents”.
41As concerns the third rights to counsel captured on the breath room video, when Mr. Bali is told by the breach technician words to the effect “you have the right to telephone any lawyer you wish and have a conversation in private with that lawyer, do you understand” Mr. Bali responds, “can I call my dad?” to which he is asked if his father is a lawyer and he is told that as he is not a lawyer, he can’t call his father. In addition, after Mr. Bali spoke to duty counsel and after the first sample was given, Mr. Bali said “can I call my parents” and he is told that he cannot call them but that arrangements could be made for them to pick him up later. Once again, no mention is made that he wants to call his parents to get a lawyer.
42Mr. Bali testified on the Charter application only. Mr Bali agreed that he was provided with rights to counsel three times. He gave confusing evidence on what his response was to the various rights to counsel and why. In chief, he testified that the first two times he was given rights to counsel, he told the officer both times that he wanted to call his father for the purpose of getting the name of a lawyer to call. In cross-examination, his evidence changed and he said that he told the officer that he wanted to call his father to get the name of a lawyer on the second rights to counsel but he did not remember what he said the first time he was given rights to counsel.
43The onus is on Mr. Bali to prove a breach of his right to counsel on a balance of probabilities and he has failed to do so. I do not believe that Mr. Bali ever told Officer Yambot or any officer at any time that he wanted to call his father to be able to contact a lawyer. Let me explain why.
44As I say, Mr. Bali’s evidence was confusing. At first, he said that on the first two rights to counsel, he twice asked to call his father for the express purpose of getting a lawyer. Then his evidence changed and said it was only on the second rights to counsel and that he did not remember what he said the first time.
45Officer Yambot’s evidence refreshed by his notes was that when asked if he wished to call a lawyer on the second rights to counsel, Mr. Bali said “no, I wish to call my parents”.
46The breath room video has a significant bearing on my determination of the facts on this issue. In the course of being given rights to counsel in the breath room, Mr. Bali does ask to speak to his father but there is no suggestion that it was for the purpose of getting the name of a lawyer. Mr. Bali says this was because the police had ignored his earlier requests. I don’t believe it. It is clear from Mr. Bali’s comments on the breath room video that he was much more concerned about the accident and whether anyone was hurt than he was about exercising rights to counsel. In fact, separate and apart from rights to counsel, after he has already spoken to duty counsel and he had already given the first sample and is told he will have to wait to give a second sample, Mr. Bali asks “can I call my parents”. It is clear that this inquiry had nothing to do with trying to identify or reach counsel of choice. In my view of the whole of the evidence, Mr. Bali had no intention or desire at any time to call his father to get a lawyer and he certainly never told the police he wished to call a lawyer for that purpose.
47I do acknowledge that Officer Yambot's evidence was also somewhat confusing as concerns the first rights to counsel. He had no note of what Mr Bali said in response to the final question “do you wish to call a lawyer now”. And in cross examination he suggested that he was not sure he had even asked that question at all. As I have indicated above, in my view, Officer Yambot must have gone through all of the rights to counsel on both the first and second time. He simply did not have a note of what was said the first time as concerns the last question. And for the reasons explained above, I simply do not believe that Mr Bali said at anytime that he wished to call his father for the purpose of getting a lawyer.
48As I have said, the evidence on both the second and third rights to counsel was clear in my view that Mr. Bali did not ask to speak to his father for the purpose of getting the name of a lawyer. The same was true of the request to call his parents after the first sample. I infer that nothing was said on the first rights to counsel as concerns a request to call his father to get the name of a lawyer.
49Accordingly, by way of summary on the rights to counsel issue, there was a violation of the defendant’s rights to counsel associated with the delay in advising him of his rights to counsel after his arrest. I find no violation of his right to counsel by failing to permit Mr. Bali to call his father. The defendant did not make it clear he wanted to speak to his father for the purpose of getting the name of a lawyer.
Issue 4 – In the event that the court finds one or more Charter violations, should the breath sample evidence and statements made on the breath room video be excluded pursuant to section 24(2) of the Charter?
50I have concluded that Mr. Bali’s Charter rights were violated in one respect.
51There was a 7 minute delay from the time of his arrest to the time of the providing of rights to counsel.
52This Charter breach engages section 24(2) of the Charter which provides as follows:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute
53Section 24(2) of the Charter requires a consideration of the analytical framework laid down by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The test is well known and involves a consideration of three factors: (i) the seriousness of the Charter infringing conduct; (ii) the impact of the breach on the Charter protected rights of Mr. Tyndall; and (iii) society’s interest in adjudication on the merits. The Court must balance an assessment of each one of these factors in order to determine whether, considering all the circumstances, the admission of the evidence would bring the administration of justice into disrepute.
(i) The Seriousness of the Charter Infringing State Conduct
54Concerning the seriousness of the Charter infringing state conduct, the question is whether the admission of the evidence would bring the administration of justice into disrepute by suggesting that the courts will condone breaches of the Charter and the need for the courts to dissociate themselves from unlawful conduct. This factor involves an examination of the conduct of the police. The more severe or deliberate the state or police conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from the conduct so as to preserve public confidence in the rule of law: see also R. v. Orlandis-Habsburgo, 2017 ONCA 649 at para. 130.
55As concerns the delay in providing rights to counsel, in my view this was of low to moderate seriousness. Police officers must understand that the right to counsel is to be provided immediately upon a persons arrest unless there are circumstances justifying the delay. Here, there was a delay of seven minutes. In my view, I attribute this to the inexperience of Officer Yambot and was not due to some greater systemic problem. This is not a complete answer, but it does provide a context. This was the officer’s first drinking and driving investigation and he was still in training. Further, he had already given him rights to counsel before the arrest and this somewhat mutes the seriousness of the delay in giving it afterwards.
(ii) The Impact of the Breach on the Charter Protected Interests of the Accused
56The impact on the delay in providing him with rights to counsel was somewhat muted by the fact that the arresting officer had already given him rights to counsel at the time of the ASD demand. Nevertheless, it is serious to be under arrest and not be told your rights to counsel immediately thereafter. However, there was no attempt by the police in this case to obtain information from Mr Bali after he was under arrest but before he received his rights to counsel. In my view, there was little impact of the breach of Mr. Bali’s Charter protected rights.
57I note as well that the breach resulting from the delay in advising Mr. Bali of his right to counsel was muted by the fact that he did in fact consult with duty counsel.
58In summary, I consider that the impact of the breach on Mr Bali’s Charter rights was low.
(iii) Society’s Interest in Adjudication on the Merits
59Under this heading, the Court considers whether the truth seeking function of the Court process would be better served by admission of the evidence or by its exclusion. The reliability of the evidence and the importance of it to the Crown’s case are to be considered. In this case, the breath samples are highly reliable and critical to the Crown’s case on the equal to or over 80.
60Overall, this issue clearly favours inclusion of the evidence.
(iv) Balancing
61The seriousness of the Charter infringing state conduct and its impact on the Charter protected rights of Mr. Bali was low to moderate at most. Society’s interest in adjudication on the merits favours inclusion of the evidence.
62Summarizing and balancing all of the three Grant factors, I consider that the long-term interests of justice and the reputation of our justice system would not be damaged by the admission of the breath sample evidence. The breath sample evidence should not be excluded. The same is true of the statements made on the breath room video.
Issue 5 – Has the Crown proved the equal to/exceeded 80 mg of alcohol in 100 ml of blood offence at the relevant time beyond a reasonable doubt? When considering this point, the court should consider the care or control question; the soon as practicable question and the calculation of the blood alcohol concentration (“BAC”) question.
63For the reasons outlined above I have dismissed the defendant’s Charter application. The breath samples and statements made on the breath room video are all admissible in evidence at trial.
64I am of the view that the equal to or over 80 mg of alcohol in 100 ml of blood has been proved beyond a reasonable doubt. Let me explain why I say this. I will touch upon the as soon as practicable issue, the care or control issue and the calculation of the BAC.
65The truncated breath samples here were 170 mg of alcohol in 100 ml of blood at 2:34:58 am and 160 mg of alcohol in 100 ml of blood at 2:57:54 am.
66Under s. 320.31(4) if the breath samples are taken at two hours or less after the person ceased operating a motor vehicle, then the results of the breath samples analyzed under s.320.31(1) conclusively prove the BAC within those two hours. If the first sample is taken more than two hours after the person ceases to operate a motor vehicle, then the BAC within two hours of operating a motor vehicle is the results of the breath samples analyzed under s. 320.31(1) plus 5 mg of alcohol in 100 ml of blood for every interval of 30 minutes in excess of two hours.
67In this case, the first breath sample was taken at 2:34.58 AM. On my view of the evidence, the collision could have reasonably taken place at 12:30 AM or perhaps as much as 15 minutes before or five to eight minutes after. I base this on my consideration of the evidence as a whole including the civilian witness’ evidence and the police radio call at 12:40 am. Therefore, I can’t say beyond a reasonable doubt that the first sample was taken within two hours after the actual driving.
68Both the Crown and the defence say that care or control at the time police arrive at 12:48 am is not an issue. I have a different view. It is true that the defendant was not in the driver’s seat of the vehicle when the police arrived. However, in my view he was in de facto care or control when the police arrived at 12:48 AM. The car was registered to him; he had the keys in his pocket and was standing near his vehicle when the police arrived. To quote from Justice Duncan in R. v. Dhesi, [2018] O.J. 6954 at paragraph 32 “a driver is in continuing care or control from the moment he enters the car, while he drives it and after he comes to a stop, until he relinquishes care or control”. There is no direct evidence in this case as to whether or not the vehicle was operable after the accident, but this does not matter in my view: see R. v. Dhesi at para 34.
69In any event, even if I am wrong and de facto care or control is not established as of 12:48 am, it does not matter. I agree with the Crown that Mr. Bali was clearly in care or control of the motor vehicle within 2.5 hours of the first sample at 2:34 AM. The accident clearly happened in my view as early as 15 minutes before approximately 12:30 am or five to eight minutes after.
70Accordingly, by reason of s. 320.31(4), Mr. Bali’s BAC was at least 160 mg of alcohol in 100 ml of blood at the time of driving and within 2 hours afterwards, contrary to s. 320.14(1)(b).
71Under the predecessor provisions concerning drinking and driving under the Code, section 258(1)(c)(ii) required that the breath samples be taken “as soon as practicable” although the failure to do so had been held not to affect the admissibility of the sample results: see R. v. Mawad, 2016 ONSC 7589. The failure to take the samples as soon as practicable under the prior regime did affect the presumption of identity but this could be addressed through the calling of a toxicologist for example.
72The as soon as practicable requirement is not a part of section 320.31. I note that the as soon as practical requirement does survive as concerns the approved instrument requirements in section 320.28.
73Accordingly, while it is difficult to see the relevance of whether the samples were taken as soon as practicable, in my view, the samples here were taken as soon as practicable. In this regard, police arrived at 12:48 am. There was a three car accident which they had to deal with. The police arrested the defendant on the basis reviewed above and then got him to the police station and had him processed. Police then facilitated a discussion with duty counsel. The first sample was obtained at 2:34 am. While the first sample was not accomplished with great speed, that is not the test and the police do not have to account for every minute of activity. If the as soon as practicable requirement applies, the police have to obtain the breath samples in a reasonably prompt time in the circumstances: R. v. Vanderbruggen (2006), 206 C.C.C. (3rd) 489 (Ont. C.A.). Bearing that test in mind and to the extent that it has any bearing on this case, I find that the breath samples were taken as soon as practicable in this case.
Conclusion
74For the reasons outlined above, I have found that Mr. Bali’s BAC was at least 160 mg of alcohol in 100 mL of blood at the time of driving and within 2 hours afterwards, contrary to s. 320.14(1)(b). In my view, the equal to or over 80 charge contrary to 320.14(1)(b) is proved beyond a reasonable doubt and there will be a finding of guilt on this charge.
Released: February 19, 2021
Justice Paul F. Monahan