Court File and Parties

Date: March 6, 2015

Court File No.: 13-14405

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jennifer Johnson

Before: Justice Paul F. Monahan

Heard on: February 12, 2015

Judgment Released on: March 6, 2015

Counsel:

• Mr. P. Quilty for the Crown
• Ms. H. Spence for the defendant Jennifer Johnson

MONAHAN J.:

Introduction and Overview

[1] Ms. Jennifer Johnson is charged that on or about October 5, 2013 she had the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in her blood exceeded 80 mg of alcohol in 100 ml of blood contrary to section 253(1)(b) of the Criminal Code (the "Code").

[2] At trial, Ms. Johnson brought a Charter application. She alleged violations of sections 8, 9 and 10(b) of the Charter. A blended trial and Charter voir dire was held. There were four witnesses for the Crown. Ms. Johnson testified only on the Charter voir dire and the defence tendered no evidence on the trial proper.

[3] Constable Kyle Harman, the principal witness for the Crown, demanded that Ms. Johnson provide a breath sample into an approved screening device ("ASD") but did not have an ASD with him at the time of the demand and had to request that another officer bring one to the scene. Constable Harman testified that while they waited for the ASD to arrive, he advised Ms. Johnson of her right to counsel in a detailed and complete manner but his notes did not confirm this detailed advice. Ms. Johnson testified on the Charter voir dire that no such right to counsel was given to her prior to the arrival of the ASD and the giving of the breath sample. She testified that if she had been advised of her right to counsel prior to the giving of the breath sample for analysis by the ASD, she would have consulted with counsel through the use of her cell phone which contained more than one legal contact and included a criminal lawyer's contact information.

[4] A central issue in the case surrounded whether the demand was made "forthwith" as required by section 254(2) of the Code meaning was the demand made and the sample provided within the "forthwith window" such that Ms. Johnson did not need to be advised of her right to counsel. This issue turns on the question as to whether there was a reasonable opportunity to consult counsel between the time of the breath demand and the giving of the sample. Depending upon the outcome of the determination of these issues, if there were Charter violations, should the breath samples be excluded pursuant to section 24(2) of the Charter?

Facts

[5] Most of the facts are not seriously contested. The principal contested factual issue is whether Ms. Johnson was given her right to counsel after the breath demand was made but prior to the giving of the sample. I will address this contested factual question below.

[6] On October 5, 2013 at approximately 9:36 p.m., Ms. Johnson drove her car right through the window of "The Beer Store" located at Erin Mills Parkway and Eglinton Avenue in the City of Mississauga. Almost her entire vehicle ended up in the lobby of The Beer Store. Her two children, both of whom are young adults, were with her in the car at the time of the accident. Thankfully, no one was injured.

[7] The police were called. One of the officers from Peel Regional Police who was in attendance on the scene, Constable Martin, testified at trial. He got a call on his radio regarding the accident at 9:39 p.m. He arrived on the scene at 9:45 p.m. Constable Martin spoke to Ms. Johnson. He noticed that she had red rimmed eyes but acknowledged in cross-examination that this may have been from crying. She and her two passengers were quite emotional. He asked Ms. Johnson if she had been drinking and she said she had had one beer about an hour and a half earlier.

[8] Constable Martin thought the admission of drinking and the accident itself were not enough to arrest Ms. Johnson for impaired driving. He observed nothing regarding problems with her balance or slurring of her words nor did he smell alcohol on Ms. Johnson.

[9] Constable Jayne Glover was on duty on October 5, 2013. She testified that at 9:39 p.m. she was told that an ASD was needed and she delivered it to the scene 14 minutes later at 9:53 p.m. It was an Alcotest 7410. It appears clear that Constable Glover's times were off, although not intentionally so. She did not have these times in her notes but they were in a "will say" statement that she prepared a few days following the event. She said she obtained the times from looking at certain computer records.

[10] Constable Kyle Harman has been with Peel Regional Police for nine years. He was on duty in a fully marked cruiser on October 5, 2013. At 9:39 p.m. he was dispatched to The Beer Store and arrived at 9:45 p.m. He knew before he arrived at the scene that someone had driven a car right into The Beer Store.

[11] Constable Harman spoke to the accused. He detected the smell of alcohol on her breath. He asked her if she had been drinking. She said she had had one beer. She also said she had taken two pills which help her sleep.

[12] Constable Harman made a breath sample demand (pursuant to section 254(2) of the Code) on Ms. Johnson at 9:50 p.m. based on his suspicion that she had alcohol in her blood and had been driving a motor vehicle in the preceding three hours. He said that the demand was a formal one and that he carefully followed the wording from his notebook.

[13] Constable Harman did not have an ASD with him. He testified that as he did not have an ASD with him and there would be an "unknown period of time" before the ASD would arrive, he advised Ms. Johnson of her right to counsel. He told her she was not being arrested but was being detained. He was asked by the Crown during his evidence in-chief as to whether or not he had given a "soft right to counsel", whereby the detained person is simply advised in an informal way of the right to counsel. He said no, he "would have" read verbatim from his "yellow notes" which is a preprinted form that Peel Regional Police officers use to read rights to counsel to persons who are detained. It contains a detailed series of statements and questions which police officers are trained to read to persons when they give them their right to counsel. Constable Harman did not have a specific time as to when he gave Ms. Johnson her right to counsel upon detention but as he recalled the chronology it can be reasonably inferred that he thought that it would have been almost immediately after he made the breath demand at 9:50 p.m. and prior to the request for the ASD to be delivered to the scene which he made at 9:52 p.m. Specifically, he testified that prior to the arrival of the ASD, he would have made the following statements to Ms. Johnson:

It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand?

You have the right to telephone any lawyer you wish. Do you understand?

If you are charged with an offence, you may apply to the Ontario legal aid plan for assistance. Do you understand?

1-800-265-0451 is a toll-free number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?

Do you wish to call a lawyer now?

[14] He had no note of having read the specific questions above nor did he have any note of any responses Ms. Johnson may have given. He testified that he did have a note in his "narrative" of the events that he had given Ms. Johnson her right to counsel and that she understood them and that he had done this prior to the arrival of the ASD, but he did not have a specific time noted.

[15] He testified that if she had indicated that she wished to speak to a lawyer using a cell phone he would have been alright with that. He testified that he would have been "happy to make that happen". He also testified that he did not know where her cell phone was and it is a fair inference from his evidence that he did not ask her about it.

[16] Constable Harman said that he made the request over his police radio to obtain the ASD at 9:52 p.m. He testified that after he made the request over his police radio at 9:52 p.m. he escorted Ms. Johnson to his police cruiser where she sat in the back with the door open. He told her they were waiting for the ASD to arrive. She told him that she was claustrophobic and she asked him to leave the door to his police cruiser open which he did. He said there was no other conversation between them after he put her in the police cruiser and prior to the arrival of the ASD.

[17] To summarize as to what occurred prior to the arrival of the ASD according to the testimony of Constable Harman, he said he made a detailed breath demand at 9:50 p.m. followed by a detailed explanation of her right to counsel and that all of this occurred and was complete prior to 9:52 p.m. when he made the request over his police radio for the ASD to be delivered to the scene. Thereafter, he put Ms. Johnson in the back of his cruiser and waited without any conversation with her before the ASD arrived.

[18] Constable Harman testified that the ASD arrived with Constable Glover at 9:58 p.m. I will have more to say about this below but suffice it to say at this point that while Constable Glover may have arrived generally on the scene at 9:58 p.m., I have concluded that Constable Harman did not have the ASD in his physical possession until 10:01 p.m. or immediately before.

[19] At 10:01 PM Constable Harman again made the ASD breath demand following his detailed notes. Ms. Johnson indicated that she understood. He demonstrated how to give the sample. At 10:04 PM she provided a proper sample (apparently on her first time she blew) and registered a fail.

[20] At 10:05 p.m., Constable Harman arrested Ms. Johnson for excess blood alcohol. He made the arrest based on the failure indicated on the ASD device which meant that she had more than 100 mg of alcohol in 100 mL of blood. He testified that he again read her right to counsel. This time, Constable Harman had very detailed notes regarding what he said and what Ms. Johnson said as follows:

Harman: It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand?

Johnson: Hmmm

Harman: You have the right to telephone any lawyer you wish. Do you understand?

Johnson: I understand.

Harman: You have the right to free advice from a legal aid lawyer. Do you understand?

Johnson: Hmmm

Harman: If you are charged with an offence, you may apply to the Ontario Legal Aid plan for assistance. Do you understand?

Johnson: Yes.

Harman: 1-800-265-0451 is a toll-free number that will put you in contact with a Legal Aid duty counsel lawyer for free legal advice right now. Do you understand?

Johnson: Yes I do.

Harman: Do you wish to call a lawyer now?

Johnson: Yes.

Harman: Do you have a specific lawyer you would like to contact?

Johnson: It is in my phone, his name is Keith.

[21] It took Constable Harman approximately 3 minutes (from 10:08 p.m. to 10:11 p.m.) to read the foregoing questions and for him to make a note of the answers that she gave. At 10:12 p.m., he read her a caution and made a further breath demand, this time pursuant section 254(3) of the Code.

[22] When they arrived at the station Ms. Johnson indicated that she did not wish to speak to a lawyer and, according to Constable Harman, she expressly refused to speak to a lawyer.

[23] Ms. Johnson was then turned over to the breath technician, Constable Scobie, who also testified at trial. He made a further breath demand on her and again read her right to counsel to her. In providing her right to counsel, he had a note of having made the same five statements and questions noted above from the preprinted yellow notes and Ms. Johnson indicated that she understood her right and did not wish to contact a lawyer. Ms. Johnson provided two suitable samples, namely 191 mg of alcohol in 100 mL of blood at 10:51 p.m. and 175 mg of alcohol in 100 mL of blood at 11:14 p.m. He then returned her into the custody of Constable Harman.

[24] Constable Harman did not consider that he had the basis to charge Ms. Johnson with impaired driving and was not involved in laying that charge.

[25] Ms. Johnson testified only on the Charter voir dire. She confirmed that Constable Harman made a breath demand on her and that he told her that he did not have the testing equipment with him and that they would have to wait. She disputed that the breath demand he made on her when she was initially detained was a formal one. She said that he did not inform her of her right to counsel prior to her providing the breath sample into the ASD. She said that she was waiting to hear if he would tell her that she had the right to call a lawyer. She said that while she was waiting in the back of the cruiser, she asked to speak to her children and was told by Constable Harman that she could not. She said that had she been informed of her right to counsel prior to providing the breath sample into the ASD, she would have exercised the right to counsel. She wanted to call Mr. Keith Heath and she had his contact information in her phone. He had done some work for her in the past and she thought he was a lawyer. She later learned that he was actually a paralegal. She testified that she thought that he could have put her in touch with a lawyer. She further testified that she also had the name and contact information for a criminal lawyer in her phone and she was not challenged on this point. She testified that her cell phone was in her purse in her car.

[26] She testified that after she was arrested, she decided not to call a lawyer as she thought it was pointless because she had already been "arrested at that point". She testified that she thought she would just consult a lawyer the next day.

[27] It was suggested to Ms. Johnson in cross-examination that perhaps she had been told about her right to counsel prior to the ASD test but that she did not remember because she was both shocked and stunned by the accident. She admitted that she was shocked and stunned by the accident but she was adamant that she was not told of her right to counsel prior to her arrest.

Determination of the Contested Factual Issues

[28] As indicated above, the principal contested factual issue was whether Constable Harman gave Ms. Johnson her right to counsel prior to the arrival of the ASD and the giving of the breath sample. Constable Harman says he did and that he did so by reading the five statements and questions above from his yellow notes. Ms. Johnson testified on the Charter voir dire that Constable Harman did not provide any such right to counsel until after she had blown into the ASD device and she was under arrest. It is Ms. Johnson who must establish on a balance of probabilities that her section 10(b) right to counsel was violated. It is the Crown's position that she was provided with her right to counsel prior to the arrival of the ASD but it is also the Crown's position that there was no obligation on the police to do so. Let me be clear that at this stage I am only determining the disputed factual issue as to whether she was provided her right to counsel prior to the arrival of the ASD; not whether the police had an obligation to advise her.

[29] I have concluded that Ms. Johnson was not advised of her right to counsel prior to the arrival of the ASD and the giving of the sample. I have concluded that Constable Harman made a breath demand on her at 9:50 p.m. and told her that she was being detained pending the arrival of the ASD. He put her in the back of the cruiser and they waited for the ASD to arrive without any detailed conversation (other than Ms. Johnson's request to be permitted to speak to her children). I have reached this conclusion for the following reasons:

(a) Constable Harman had no note of having given Ms. Johnson her detailed right to counsel prior to the arrival of the ASD. He was called upon to recall events that had occurred 16 months earlier and he fairly stated that he did not specifically recall reading the various five questions and statements from his yellow notes nor Ms. Johnson's answers. He did not testify to the effect that it was always his practice to read these detailed rights to counsel. He simply stated that he "would have". He was asked if Ms. Johnson asked to speak to a specific lawyer and he said he did not have a note of it so she "must not" have. I do not believe Constable Harman intentionally misstated what occurred. I simply believe that he was mistaken in his evidence when he said he gave Ms. Johnson her right to counsel prior to the arrival of the ASD. I believe that when he went back to prepare his narrative notes shortly after the event he recognized that there was a 14-minute gap between the time that the sample was demanded and ultimately provided and he thought that he must have given Ms. Johnson her right to counsel prior to the arrival of the ASD. He made a brief note to that effect but he was mistaken and he did not provide her with any such right to counsel prior to the arrival of the ASD;

(b) There was no specific time attached to the right to counsel said to have been given before the ASD arrived which further supports my conclusion that it did not happen;

(c) Constable Harman did have a very detailed note of having given Ms. Johnson her right to counsel after she was under arrest. This is in contradistinction to having no detailed note for her right to counsel prior to the arrival of the ASD and prior to her being placed under arrest. If he had given Ms. Johnson her detailed right to counsel prior to the arrival of the ASD as he said he did, I believe he would have had extensive notes on it just as he did in connection with the detailed right to counsel he gave her after she was under arrest;

(d) While Constable Harman had no reason to remember giving Ms. Johnson her right to counsel as he is involved in police work on a daily basis, Ms. Johnson did have reason to recall the events. For her, it was not an everyday event. She testified on the Charter voir dire that when she was detained and told there was a breath test to be done, Constable Harman also told her that he did not have the device with him and that they would have to wait. She said that she was waiting to hear if he would tell her that she could call a lawyer and that he did not do so. I have no doubt that if she had been read the five prepared statements and questions from Constable Harman's yellow notes prior to the arrival of the ASD, she would have recalled that and she did not. I recognize that Ms. Johnson might have a motive to not be truthful in her evidence and to say that she was not given her right to counsel when in fact she was. However, I consider that her recollection of events was fair and she was careful in her testimony to make sure that she understood the questions and said only what she could fairly recall. Further, her evidence makes sense and is in keeping with the evidence as a whole;

(e) After she had failed the ASD test and when she was under arrest, Constable Harman's notes confirm that she said she wished to call a specific lawyer and she gave the name of "Keith" and said that the full name and contact information was in her cell phone. There is every reason to believe that this is precisely what she would have said had she been read her detailed right to counsel prior to the arrival of the ASD. Further, and as indicated, if this had occurred there is every reason to believe that Constable Harman would have detailed notes of it;

(f) Constable Harman's testimony was to the effect that he made a detailed breath demand at 9:50 p.m. and then read the five statements associated with the right to counsel. He said that at 9:52 p.m. he made the request for the ASD over his police radio and escorted Ms. Johnson to his police cruiser. The reading of the detailed right to counsel containing the same five statements from the yellow notes (plus one further question "do you have a specific lawyer you would like to contact?") took Constable Harman three minutes to read and make notations about after Ms. Johnson was under arrest (10:08 p.m. to 10:11 p.m.). There was no evidence of any times associated with the reading of such statements prior to the arrival of the ASD. In my view, it was not reasonably possible for Constable Harman to make the detailed breath demand and give the detailed right to counsel and request that the ASD be delivered to the scene all in the two minute period between 9:50 p.m. and 9:52 p.m. Let me clear that I view this point as confirming my conclusion that no right to counsel was given prior the ASD test but that even if could be said that Constable Harman could have made all these statements in two minutes, it would not change my conclusion; and

(g) While she was in the back of the cruiser waiting for the ASD to arrive, Ms. Johnson testified that she asked Constable Harman if she could speak to her children who were sitting on the curb nearby and he told her no. I accept her evidence in this regard. This is consistent with my conclusion that Constable Harman had not provided Ms. Johnson with her right to counsel prior to the arrival of the ASD. If it is for the purpose of facilitating contact with counsel, police must permit a detained person to contact a spouse or other relative. I am not suggesting that Ms. Johnson said she wanted to speak to her children for the purpose of facilitating counsel. However, if Constable Harman had read Ms. Johnson her detailed right to counsel and she asked at some point thereafter if she could speak to her children, I think it is likely that he would have asked her if it was for the purpose of facilitating contact with counsel. The comment he made to her about not speaking to her children is consistent with my conclusion as to what really occurred: she was detained in the back of the cruiser while they waited for the ASD to arrive and she was not invited to talk or consult with anyone including counsel.

[30] I also need to address the timing of the arrival of the ASD and the timing of the ASD breath test. As indicated above, I believe that Constable Glover's times were off and I am prepared to accept Constable Harman's testimony that Constable Glover arrived on the scene with the ASD at 9:58 p.m. but I don't believe Constable Harman received possession of the ASD until 10:01 p.m. or immediately before. I must say that it is surprising that Constable Glover arrived on the scene at 9:58 p.m. when she thought it took her 14 minutes to get to the scene and according to Constable Harman he only made the request for the ASD at 9:52 p.m. It may be that someone else also requested that an ASD be provided and that they did so prior to 9:52 p.m. and that this led to Constable Glover's attendance. Putting aside the confusion as to precisely when Constable Glover arrived on the scene generally, I find that Constable Harman did not have the ASD in his possession until 10:01 p.m. (or just before) when he made the second breath demand. The test was conducted, the sample taken and the fail was registered all at 10:04 p.m.

Law

The Forthwith Requirement

[31] Section 254(2) of the Code provides in part as follows:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle … the peace officer may, by demand, require the person…:

(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[32] The "forthwith" requirement in section 254(2) applies both to the demand by the peace officer and the response by the person who is subject to the demand. The term forthwith means immediately.

[33] The "forthwith" requirement is "inextricably linked to its constitutional integrity". When a roadside demand is made, the driver is most certainly detained and the driver's section 10 Charter rights are prima facie triggered. However, as long as the forthwith requirements of section 254(2) are met, there is no obligation to advise the driver of his or her right to counsel and there is no violation of section 8, 9 and 10(b) of the Charter. The forthwith requirement is a justifiable limit on the person's rights under sections 8, 9 and 10(b) of the Charter.

[34] The courts have held that the forthwith requirement requires that the demand be made by the officer as soon as he or she forms the requisite grounds to make the demand. However, flexibility will be applied to this aspect of the forthwith requirement where the person who is the subject of the eventual demand is not yet detained.

[35] Once the demand is made, the forthwith requirement also makes it imperative that the peace officer be in a position to facilitate compliance with the demand forthwith. On some occasions, as was the situation in the case at bar, the officer will not have an ASD with him or her and will need to wait while the device is brought to the scene by another officer. As a result, there is a considerable body of law on the question of how much time can be permitted to elapse between the time of the demand and the facilitation of the giving of the sample. If too much time elapses, then the forthwith requirement of section 254(2) will not be met and the demand will be invalid.

[36] The Ontario Court of Appeal has held that the central question in the forthwith analysis is as follows:

"The determinative question then becomes in any given case, was the police officer in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel? If so, the demand, if otherwise appropriate, falls within the scope of section 254(2). If not, the demand is not valid."

[37] Accordingly, if the right to counsel obligations could realistically have been fulfilled, the forthwith requirement is not met and the demand will be invalid. If the detainee refuses to provide the breath sample in these circumstances, his or her refusal is not an offence.

[38] In answering the so-called "determinative question" of whether there was a "realistic opportunity to consult with counsel" such that the "forthwith" requirement of section 254(2) is not met, the courts are to consider all of the circumstances. The following non-exhaustive list of factors are in particular to be considered:

(a) The time between the making of the demand and the taking of the sample;

(b) Having the time to have a chance to phone counsel is not the same as having time to consult with counsel. There must be the opportunity to "contact, seek and receive advice from counsel" before the forthwith requirement is not met;

(c) The Court of Appeal has said that "the issue is thus not strictly one of computing the number of minutes that fall within or without the scope of the word 'forthwith'". Having said that, the number of minutes the "forthwith window" is open is an important consideration. In R. v. Cote, the Ontario Court of Appeal held that 14 minutes was sufficient time for counsel to be consulted. In another case, where there was a delay of 18 minutes between the issuance of the demand and the taking of the sample and counsel could have been contacted through a cellular telephone or the public telephones available at the police station, the Ontario Court of Appeal held that the forthwith requirement was not met. In another case, the Ontario Court of Appeal upheld an acquittal on the basis that 12 minutes between the time of demand and the receiving of the breath sample was sufficient for counsel to be consulted and the forthwith requirement was not met. In other cases, lesser periods of time have been held not to present a realistic opportunity to consult with counsel;

(d) The time of day where the driver would need to contact counsel is a factor to be considered. If it is the middle of the night, a short period of time may not be enough to contact and consult with counsel. For example, six or seven minutes at 2:35 a.m. was held by the Ontario Court of Appeal not to be sufficient for a consultation with counsel; and

(e) The availability of a phone is a factor to be considered. Facilitation of the right to counsel can involve asking the driver if they have a cell phone.

[39] If the forthwith requirement of section 254(2) is not met then the demand will be invalid and the subsequent demand made under section 254(3), which relies upon the results of the section 254(2) demand, will also be invalid unless there are other facts to support it. However, if breath samples are nevertheless provided in response to an invalid section 254(3) demand, they will only be inadmissible if the accused can show that they should be excluded under section 24(2) of the Charter.

[40] The issues that arise for decision on the facts are as follows:

Issue 1 – Was the Forthwith Requirement in Section 254(2) Met in This Case? If the Forthwith Requirement Was Not Met, Were Ms. Johnson's Charter Rights Violated?

Issue 2 - If Ms. Johnson's Charter Rights Were Violated, Should the Breath Samples That Were Taken Be Excluded Under Section 24(2) of the Charter?

[41] I will examine each issue in turn.

Issue 1 – Was the Forthwith Requirement in Section 254(2) Met in This Case? If the Forthwith Requirement Was Not Met, Were Ms. Johnson's Charter Rights Violated?

[42] In this case, the accused was detained and the demand for the breath sample was made at 9:50 p.m. Constable Harman did not have the ASD in his possession. By the time he obtained it and was in a position to proceed with the demand, it was 10:01 p.m. He made a further breath demand at 10:01 p.m. and then obtained the sample at 10:04 p.m.

[43] The Crown urges me to view the operative number of minutes for the forthwith analysis as being the eight minutes between 9:50 p.m. and when Constable Glover is said to arrived at 9:58 p.m. I do not accept this argument. First, as a factual matter, I have found that Constable Harman did not have the ASD in his possession until 10:01 p.m. Further, there are numerous decisions from the Ontario Court of Appeal where the Court indicates that trial courts are to examine all of the circumstances but in particular are to consider the time between the making of the demand and the taking or receiving of the sample. This makes sense as it is during this entire period of time that the Charter rights of the detainee are suspended and I note that Ms. Johnson provided the sample on her first time blowing into the ASD so there was no extended passage of time between the second demand and the provision of the sample.

[44] Accordingly, in my view the question in this case as to whether the demand was made forthwith turns on the 14 minutes between the time of the first demand at 9:50 p.m. and the time the sample was received at 10:04 p.m. It is also a fact to be considered that Constable Harman was ready to begin the process of requiring a sample at 10:01 p.m. He had to demonstrate how to use the device and, as indicated, thereafter he received the sample at 10:04 p.m.

[45] It is my conclusion that the forthwith requirement of section 254(2) was not met in this case based on a consideration of the following facts:

(i) When Constable Harman made the breath demand at 9:50 p.m. he knew that there would be a "unknown period of time" before the ASD would arrive and he apparently made no inquiry as to when it would arrive. I recognize that the key question is not what the officer believed at the time the demand was made as to when the ASD would arrive but rather when the officer was in fact in a position to require the person to provide the sample and the actual time elapsed to the taking of the sample. Nevertheless, it is fact that he did not know when the device would arrive when the demand was made and at least two decisions from higher Courts have indicated that it is advisable (although not required) for officers to inquire as to when the ASD will arrive so that they will be assisted in determining how to proceed at the time they make the demand;

(ii) Constable Harman thought he was obliged to advise Ms. Johnson of her right to counsel and I have found that he mistakenly thought he did so prior to the arrival of the ASD but that he did not do so. What Constable Harman thought or did not think his obligations were vis-à-vis Ms. Johnson's rights does not determine whether he was in fact obligated to advise her of her right to counsel but I consider that it is irrelevant point for consideration. If he had done what he said he did and her right to counsel had been facilitated and she had been permitted to consult with counsel, the demand would be invalid;

(iii) Constable Harman testified that if Ms. Johnson had indicated that she wished to speak to a lawyer using a cell phone he would have been alright with that. He testified that he would have been "happy to make that happen";

(iv) While the demand was made during the evening (9:50 p.m.), it was not the middle of the night as sometimes occurs in these cases. Accordingly, while not the same as a case arising during business hours, it is nevertheless reasonable to conclude that Ms. Johnson could have reached a criminal lawyer at this time;

(v) Ms. Johnson had a cell phone in her purse in the vehicle which had been the subject of the accident. It is reasonable to infer that her cell phone was almost immediately available to her at the time the breath demand was made;

(vi) Ms. Johnson had the name of a paralegal in her cell phone who she wished to contact. While the paralegal could not have given her advice on a drinking and driving matter, it is reasonable to expect that he could have put her in touch with a criminal lawyer on an urgent basis. In addition or in the alternative, Ms. Johnson had in her cell phone the contact information for a criminal lawyer whom she could have contacted; and

(vii) The consultation with counsel would only need to be brief and 14 minutes was sufficient time within which to do this.

[46] In my view, for the foregoing reasons, there was a realistic opportunity to consult counsel between the time of the original demand and the taking of the sample. Accordingly, it is my conclusion that the forthwith requirements of section 254(2) were not met and the demand was invalid.

[47] Given that the forthwith requirement of section 254(2) was not met, it follows that Ms. Johnson's section 10(b) right to counsel was violated. Further, her detention and subsequent breath samples were all dependent on the invalid breath demand. It follows that her detention was arbitrary and she was subject to an unreasonable search and seizure, contrary to sections 9 and 8 of the Charter respectively.

Issue 2 - If Ms. Johnson's Charter Rights Were Violated, Should the Breath Samples That Were Taken Be Excluded Under Section 24(2) of the Charter?

[48] As is well known, where a person establishes that evidence has been obtained in a manner that infringed or denied their rights, the evidence is to be excluded if it is established that the admission of the evidence would bring the administration of justice into disrepute. This requires a consideration of the analysis laid down by the Supreme Court of Canada in R. v. Grant which requires an evaluation of three issues: (i) the seriousness of the Charter infringing state conduct; (ii) the impact on the Charter protected interests of the accused; and (iii) society's interest in an adjudication on the merits. The Court must balance each of the assessments of these three issues to determine whether in all the circumstances the admission of the evidence would bring the admission of justice into disrepute.

(i) The Seriousness of the Charter Infringing State Conduct

[49] Concerning 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. The more severe or deliberate the state 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. In my view, the failure to give Ms. Johnson her right to counsel in this case was particularly serious. There were 14 minutes that elapsed between the time the breath demand was made and the time the sample was provided as she sat in the back of the cruiser without receiving her right to counsel.

[50] The unique aspects of section 254(2) need to be considered to appreciate the significance of the failure to be advised of her right to counsel in these circumstances. If an accused receives a demand from the police to provide a breath sample for analysis by an ASD and the ASD is unavailable and the police provide right to counsel and a consultation with counsel is facilitated, then the demand will not be valid. This follows from the fact that if there is a reasonable opportunity to consult counsel, then the giving of the sample will not occur forthwith, if it occurs at all. In my view, the correct legal advice to be provided to a person detained in these circumstances is to tell them that there is no obligation to comply with the demand.

[51] Accordingly, this is not like the case where an accused has already been arrested based on reasonable and probable grounds and their complaint is, for example, that they end up having to speak to duty counsel instead of their counsel of choice. The failure in the case at bar is a failure to be able to consult with counsel at a critical point in time in the detention and arrest process. I consider that the failure to give Ms. Johnson her right to counsel prior to the arrival of the ASD was a very serious breach of her right to counsel.

[52] In addition, she was detained unlawfully and arbitrarily for more than one and a half hours pursuant to an invalid breath demand and further breath samples were taken, all of which was contrary to sections 8 and 9 of the Charter.

[53] It is true that I have found no bad faith on the part of the police in this case but I note that it has been stated by the Supreme Court in Grant stated as follows:

"Good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.

[54] While I have found no bad faith on the part of the police in this case, I do consider that the error that Constable Harman made in indicating to the Court that he had provided Ms. Johnson with her to counsel prior to the arrival of the ASD when I have concluded that he did not do so, does exacerbate the breach. I repeat the point made above that I do not consider that he intentionally misstated what had occurred. He must have thought that he had given Ms. Johnson her right to counsel and he made a note to that effect, but he did not do so.

(ii) The Impact of the Breach on the Charter Protected Interests of the Accused

[55] The ultimate result of the breach of sections 8, 9 and 10(b) of the Charter is that breath samples were obtained and Ms. Johnson was arbitrarily detained. The breath samples provided at the roadside and at the police station are considered relatively non-intrusive. The arbitrary detention is worse in my view as it continued for more than an hour and a half. The violation of the right to counsel is somewhat muted by the fact that Ms. Johnson ultimately declined to contact counsel after she was under arrest. Ms. Johnson's explanation for this was that she figured that at that point she was already under arrest and it did not matter. I consider that the cumulative impact on the Charter protected rights of the accused in this case was in the moderate range.

(iii) Society's Interest In Adjudication on the Merits

[56] Under 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. This issue clearly favours inclusion of the evidence.

(iv) Balancing

[57] The seriousness of the Charter infringing state conduct favours exclusion of the evidence and society's interest in adjudication on the merits favours inclusion of the evidence. The impact of the breach on the Charter protected interests of the accused falls somewhere in the middle.

[58] There is no hard and fast rule that the evidence of breath samples should be admitted or excluded where there is a Charter violation. In at least two breath sample cases where the right to counsel was violated, the Court of Appeal for Ontario has supported the admission of the breath samples. In R. v. MacMillan, the Court of Appeal overturned the exclusion of the breath samples by the trial judge in a case involving a serious boating accident. However, I note that the right to counsel of the accused in that case was violated in what the Court referred to as "unusual circumstances" which included the fact that the police were dealing with a fatality and an attendance at a hospital.

[59] R. v. Wilding was also a case involving a breach of the right to counsel. The Court of Appeal concluded that the breath samples should not be excluded as the justice system would suffer if they were so excluded. However, I note that in that case, the right to counsel breach was characterized as minor and involved a failure to make sufficient efforts to locate and reach the accused's counsel of choice. The accused in that case nevertheless did consult with duty counsel and expressed no dissatisfaction with the advice they had received.

[60] On the other hand, breath samples have been excluded in cases that are similar to the case at bar. There are no hard and fast rules and each trial court is called upon to balance the Grant factors in order to make a determination as to whether the admission of the evidence would bring the administration of justice into disrepute.

[61] I am persuaded that the balancing of the three Grant factors favours exclusion of the evidence as this will protect the rule of law and the integrity of the justice system in the long run. In this case, we have a person who was not under arrest but who was detained for 14 minutes without receiving her right to counsel while she waited in the back of a police cruiser in a major city for an ASD device to arrive so that a breath sample could be obtained and tested. The police were called upon to investigate a fairly serious accident at 9:39 p.m. in a major city (the City of Mississauga). Two police officers attended at the scene by separate vehicles (Constable Martin and Constable Harman) and neither one of them had an ASD device with him. This is a bit surprising given that they knew before attending at the scene of an accident where someone had driven a motor vehicle right through the window of The Beer Store, a somewhat suspicious circumstance. A third police officer in a third vehicle was required to bring an ASD to the scene. If the police are going to require detained persons to provide breath samples without giving them the right to counsel then they must be in a position to proceed with the test forthwith. I have concluded that the police were not in a position to do that in this case. That resulted in a serious breach of the accused's right to counsel, her right to be free from arbitrary detention and her right not to be the subject of an unreasonable search and seizure. If she had been given the opportunity to consult counsel and had successfully done so she would have been properly advised not to give the breath sample at all as the demand on her was not valid.

Conclusion

[62] In conclusion, in light of my decision that the breath sample evidence is to be excluded, there is no evidence upon which the Crown can rely to prove the over 80 case beyond a reasonable doubt. Accordingly, the over 80 charge is dismissed. Thank-you to both counsel for their helpful submissions.

Released: March 6, 2015

Justice Paul F. Monahan