Reasons for Judgment
DATE: June 3, 2021 Information No.: 19-1360
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
v.
CHRISTIAN DEAN
BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on JUNE 3, 2021 at ORANGEVILLE, Ontario
APPEARANCES: D. Garbaty Counsel for the Crown R. Allman Counsel for Christian Dean
Christian Dean faces a single count of driving a motor vehicle with a blood-alcohol concentration of 80 milligrams of alcohol in 100 millilitres of blood or more.
His success or failure will be determined by the defendant’s application to exclude evidence based upon an allegation of violations of his Charter protected rights, especially under s. 8 and 9 of the Charter.
Constable Mulligan, then of the Orangeville Police Service, was parked in his police cruiser near a local fast food drive thru checking vehicle licence plates on his on board computer. He checked the defendant’s pick up truck and it came back on the computer as not having a current validation tag.
After the vehicle pulled onto the roadway he followed and stopped it. The distance travelled before the stop was about one block.
The defendant did stop at 7:26 p.m. The officer went to the driver’s window and asked the defendant for his vehicle documents. The defendant provided a trailer registration instead of a document for his truck. To the officer the defendant appeared to be confused and the officer smelled a slight odour of alcohol. Constable Mulligan returned to his cruiser.
Habitually, he testified that he would have checked the defendant’s background on his police radio, but he did not record that event in his notes. While in his police cruiser he wrote a ticket for the expired validation tag and secured his approved screening device. The device had been properly calibrated and was working accurately.
Constable Mulligan returned to the defendant’s driver’s side window. He told the defendant he was going to do a breath screening test. The defendant denied any alcohol consumption. Constable Mulligan told him that he appeared confused and that he had smelled alcohol.
At 7:33 p.m. the officer read the defendant the approved screening device demand. The defendant did not want to do the test. The officer explained the potential criminal consequences of a refusal and demonstrated the approved screening device by doing a self-test in front of Mr. Dean. The defendant did provide a screening sample and the result was a fail. Constable Mulligan knew that a fail on the device meant that the defendant’s blood-alcohol concentration, as measured by the screening device, was not less than 100 milligrams of alcohol in 100 millilitres of blood. He showed Mr. Dean the fail result and arrested the defendant for driving with excess alcohol.
The defendant was duly tested at the station. His truncated blood-alcohol concentration was measured by an approved instrument. At 8:04 p.m. the result was 140 milligrams of alcohol in 100 millilitres of blood. At 8:25 p.m. the result was 130 milligrams of alcohol in 100 millilitres of blood. The certificate of qualified technician was entered as Exhibit One on the trial.
Constable Mulligan agreed that he did not consider the defendant to be a flight risk at the roadside. He could not recall if he asked the defendant to turn off his vehicle. The stop was at 7:26 p.m. and the ASD demand was at 7:33 p.m.
No other witness testified on either the trial or the defence Charter application.
The defendant conceded that unless the breath test results were excluded based on a successful Charter application the Crown had proved the 80 or over charge beyond a reasonable doubt.
The defendant submitted that the defendant was detained and that the officer did not make the ASD demand immediately as required by s. 320.271 of the Criminal Code. The officer did not immediately secure the ASD when he decided to test the defendant. Instead, he wrote out a ticket and may have checked the defendant on CPIC using his dispatch. The defendant submits that the delay here, seven minutes by their submission, is a breach of the defendant’s right to counsel and that the breach, as such, that on a Grant analysis the breath test results should be excluded.
The Crown submits, based on case law related to the former “Forthwith” requirement, that the delay here was both reasonably necessary, see R. v. Quansah, 2012 Ontario Court of Appeal 123, cited by both Crown and defence, and also met the immediacy requirement of the existing statute.
Further, if the Charter breach was established on a Grant analysis the breath readings should not be excluded.
For as long as roadside screening devices have been available courts have been asked to dissect the passage of time between the time when the officer forms a suspicion that a driver has alcohol in her or his body and the time when the approved screening device is presented to a defendant for a sample. The focus in many cases has been on the detention of the driver without the provision of right to counsel. Delays in terms of a few minutes at the roadside have been considered to be excessive in the context of some fact situations.
In R. v. Quansah the Ontario Court of Appeal gave guidance to trial courts on the issue of the delay in administering an approved screening device.
In R. v. Grant the Supreme Court of Canada assisted trial courts in how to deal with the consequences of a breach of the right to counsel.
Trial courts have also been admonished in the past by appellate decisions to avoid becoming Monday morning quarterbacks in assessing the actions of a peace officer at the roadside. Police officers pull over thousands of vehicles every day in Canada. Each stop is different. Stopping a vehicle for one reason may quickly change to a different investigation.
By Constable Mulligan’s evidence the defendant was stopped at 7:26 p.m. They interacted for some period of time at the door to Mr. Dean’s pickup truck. When Constable Mulligan returned to his cruiser he had a reasonable suspicion that the defendant had operated a vehicle with alcohol in his body. He decided to write a ticket for the expired licence plate tag and to test the defendant for alcohol with an approved screening device that he had in his police vehicle.
Habitually, Constable Mulligan runs the drivers who he has stopped on CPIC by way of radio to his dispatcher. He believes he likely did so here.
By the ASD demand at 7:33 p.m. he returned to the vehicle and informed the defendant of his suspicion, and cautioned him regarding failure to provide a sample, and had made a formal approved screening device demand.
The defendant points to a seven-minute delay from stop to ASD demand as being fatal to the immediacy requirement of s. 320.271 of the Code.
The Crown submits that given all that happened between the stop and the demand the actual delay must have been less than seven minutes, and that any delay meets the test of being reasonably necessary as set out in Quansah.
“Reasonably necessary” in Quansah engages an assessment of the context and circumstances of each case. In my view, the delay here in this case was reasonable, applying Quansah to these facts.
First, I do not believe that the law requires me to use a post-offence judicial stop watch to determine a point at which what had been a reasonable ASD delay one second before becomes an unreasonable ASD delay one second later. Such an approach would mystify the public and mock the grandeur of the Canadian Charter of Rights and Freedoms. This is why Quansah emphasizes a contextual approach in such cases.
There is no suggestion that Constable Mulligan was not reasonably prompt in dealing with Mr. Dean’s stop here. He stopped the defendant for a validation tag offence. When approached, Mr. Dean proffered a trailer registration. He had alcohol on his breath. Constable Mulligan, before his return to the cruiser, determined that he was going to test the defendant with an approved screening device. He had an approved screening device and knew that it was properly calibrated and ready to be used. This is not one of those cases where a device needed to be brought to the scene.
I accept the uncontradicted evidence that, although not noted by the officer, he habitually contacted his dispatcher by radio to query Mr. Dean. This is the type of routine natural to road officers who deal with multiple contacts every day and want to know if they ought to be worried about the person they are dealing with. In his cruiser he also completed a traffic ticket, as was part of his job.
I agree with the defendant that given that Constable Mulligan’s focus was changing from a Provincial Offences Act administrative offence to a potential drink drive investigation, any added ASD delay caused by preparing the traffic ticket inures to the benefit of the defendant on a Quansah analysis. On this record, however, it is not clear what, if any, delay can be ascribed to writing the ticket, seeing as I have found that Constable Mulligan was entitled to seek background information about Mr. Dean by way of his radio before approaching the vehicle with the ASD. Such evidence would have been available to the defence by way of the disclosed radio communication records here, but was not led by either side during the officer’s evidence.
The formal ASD demand was made at 7:33 p.m. After leaving the police car Constable Mulligan took some time to informally tell Mr. Dean about his upcoming ASD test and to hear his possible refusal, and to explain to him what would happen if he did refuse. That took some undefined, but real, period of time.
In my view the delay here was less than seven minutes as urged by the defendant. It was perhaps five minutes in total on the evidence. That time was reasonably necessary under Quansah in my view.
Like “Forthwith”, “Immediately” cannot be taken to mean instantly or the purpose of the ASD test process would be completely frustrated. The ASD tests are intended to be a quick and reliable means to screen drivers for alcohol at the roadside with relative accuracy to decide whether the more accurate approved instrument test should be completed.
Within reason, the detention of a driver for this purpose without right to counsel advice has long been accepted as proper in order to assist the police in screening for the widespread danger of impaired driving.
Parliament’s intention with regard to the use of the ASD as an anti-drink driving tool has been emphasized by the expansion of ASD availability, as legislated by paragraph 320.272 of the 2018 amended Criminal Code.
Constable Mulligan’s return to his cruiser to check on the defendant’s background by radio and retrieve the device and potentially to create a traffic ticket in the interim represented a trivial added delay that I find was reasonably necessary here.
The Charter application cannot succeed because there was no breach of Mr. Dean’s rights in this case.
If my conclusion on the defence Charter application is wrong I would not have excluded the breath test results on the facts of this case. On a Grant analysis any breach would have been very slight.
In this jurisdiction fully two thirds of criminal charges are drink drive related. Alcohol plus driving is a clear and pervasive danger to the public on the local roads. There is a clear public interest in the prosecution of such offences on the merits. The evidence represented by the breath test results is both highly reliable and minimally intrusive. The Crown’s case would inevitably fail if the breath test results were excluded. There is no evidence of any bad faith nor systemic breach in the officer’s training here.
Clearly, considering each aspect of Grant there is, plainly put, no basis to exclude the breath test results and I would not have granted the Charter remedy sought had I found a breach.
The defendant accepts, realistically, that his Charter remedy, if unsuccessful, means that the Crown has proven the 80 or over charge beyond a reasonable doubt. I agree. The defendant is necessarily found guilty of that count.
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Certification
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Kendra Kelly certify that this document is a true and accurate transcription of the recording of R. v. Christian Dean in the Ontario Court of Justice held at 10 Louisa Street, Orangeville, ON. taken from Recording No. 0611_101_20210603_090944_all-chs.dcr, which has been certified in Form 1.
(Date) (Signature of authorized person)