Court File and Parties

Ontario Court of Justice

Date: 18 May 2016

Court File No.: 14-03998 Newmarket

Between:

Her Majesty the Queen

— and —

Xin Li

Judgement

Before: Justice Joseph F. Kenkel

Delivered: May 18, 2016

Counsel:

• Mr. B. Juriansz, Ms. S. Kumaresan — counsel for the Crown
• Mr. P. Lindsay — counsel for the defendant

KENKEL J.:

Facts

[1] Mr. Li was stopped for speeding. The odour of alcohol on his breath and an admission of drinking led to an approved screening device (ASD) test at the roadside. The Fail result on that test led to Approved Instrument (AI) tests at the station which showed his blood alcohol level was 210 mgs/100ml of blood. He was charged with operation while "over 80".

[2] The submissions of counsel identified the following issues:

• Section 8 – Whether the arresting officer formed the suspicion required by s.254(2) to make a lawful demand?
• Section 8 – Whether the s.254(2) demand was lawful where it was not made until after the officer retrieved the ASD and checked the driver's license and vehicle status?
• Section 8 – Whether there was a proper ASD test that gave rise to grounds for the s.254(3) demand?
• Section 10(b) – Did the officer properly advise the accused of his choices in relation to his right to counsel?
• Section 24(2) – If the defence proves any or all of the breaches alleged, whether the breath test evidence should be excluded?

Section 8 – Reasonable Suspicion

[3] The investigating officer spoke with the accused and detected a strong odour of alcoholic beverage on his breath. The accused admitted he had been drinking. The officer based his ASD demand on those observations.

[4] The officer described his suspicion that led to the ASD demand in a number of ways:

• Suspicion the driver had consumed alcohol within the prior 3 hours and he was operating a motor vehicle
• Suspicion that the driver might be Over 80mgs
• Suspicion that the driver might be impaired or Over 80

[5] Section 254(2) requires that the officer have reasonable grounds to suspect that a person has alcohol or a drug in their body and has operated a vehicle within 3 hours. The accused was found driving the vehicle and the officer was right that with the odour of alcohol and the admission of drinking he had the grounds to make an ASD demand.

[6] The officer's investigation focused on presence of alcohol in the driver's body and he obtained two sources of relevant information before making the demand. He did not question the driver about irrelevant or extraneous matters.

[7] While I agree with the defence that the officer did not properly articulate the s.254(2) reasonable suspicion standard at trial, his investigation met the statutory criteria and I do not find that his testimony reasonably shows he applied an incorrect or lesser standard. Suspecting that a driver is "Over 80" necessarily includes a suspicion of the presence of alcohol in that person's body.

[8] I find that the Crown has proved the officer followed the requirements of s.254(2) and had the required reasonable suspicion for the demand even if his articulation of that standard at trial was deficient.

Section 8 – Delayed ASD Demand

[9] The investigating officer did not make the ASD demand upon noting the odour of alcohol and receiving the admission of drinking from the driver. The officer went back to his patrol car, ran a license check and obtained the ASD. He stated the purpose of the license/police records check was to determine who he was dealing with for officer safety reasons as he was alone, late at night at the roadside.

[10] The defence submits that the ASD demand was not uttered "forthwith" and the ASD test was not conducted "forthwith". The Crown submits the forthwith requirement applies to the administration of the ASD test as a whole including the demand. The demand and test were reasonably prompt in the circumstances.

[11] Section 254(2) does not state that the officer's ASD demand must be "forthwith" but the section requires that the sample be provided "forthwith". In that context, it's implicit that the officer should make the demand as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. R v Quansah 2012 ONCA 123, [2012] OJ No 779 (CA) at para 25. The Court of Appeal explained the section requires a prompt demand by the peace officer, "and an immediate response by the person to whom that demand is addressed." Quansah paras 26 and 47.

[12] In Quansah the ASD demand was made 11 minutes after the accused was arrested and handcuffed. During that time the police conducted a limited search of the accused for weapons, they checked his car for a possible passenger and they walked the accused to a police vehicle that was 20-30 feet away to be in a safer position on the roadway. Three minutes after the demand was read the officer demonstrated the use of the ASD device and the accused provided a sufficient sample two minutes later. The Court of Appeal found that the overall delay of at most 17 minutes to the test was reasonably necessary for the officer to perform his tasks and "forthwith" for the purpose of s.254(2). Quansah at paras 51-54. The court provided a 5 part test to assist trial courts in assessing whether the forthwith requirement in s.254(2) has been met.

[13] In this case the officer was speaking with the driver at 0227h. He detected an odour of alcohol coming from the accused's breath and the driver admitted drinking. The officer did not utter the ASD demand at that moment but returned to his car. He checked the driver's license information and retrieved the approved screening device. At 0231h the officer returned back to the accused's car, removed the driver and took him off the road onto adjacent grass to make the ASD demand and administer the test.

[14] The defence is correct that the ASD demand was not made at the instant the officer obtained grounds. The 4 minute delay in the demand resulted from the officer's license check and retrieval of the ASD device. Some might argue that even retrieval of the ASD without uttering the demand at the window results in a demand that is not "forthwith". However, Quansah at para.48 makes it plain that short delays that are reasonably necessary to enable the officer to accomplish the s.254(2) task, which necessarily would include retrieval of the ASD, do not exceed the immediacy requirement.

[15] The disputed time then in this case is the portion of the 4 minutes attributable to the license or police records check.

[16] The analysis of the overall test delay and the requirements of s.254(2) must start with the context – the balance between the public interest in investigation of drinking and driving cases and the accused's Charter rights. Quansah para 45.

[17] The immediacy requirement started when the officer had the information necessary to form a reasonable suspicion when speaking with the driver. The time between the formation of the reasonable suspicion to the making of the demand and the accused's response must be, "…no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s.254(2)." Quansah para 47.

[18] In R v Dreaver 2015 SKQB 93 at para.31 the Summary Conviction Appeal court applied the five part test in Quansah and found that, "…it is reasonable for an officer to attempt to determine the identity of the driver before making an ASD demand notwithstanding that the officer may have formed a reasonable suspicion of an accused's impairment at an early stage."

[19] The same issue was considered in R. v. Muirhead 2008 ABQB 169. The Summary Conviction Appeal Court held at para.14, "…Surely the officer is entitled to ascertain at least some of that necessary fundamental investigatory information before making the demand and presenting the approved screening device to a suspected impaired driver. It stands to reason in the interests of police and public safety, and the interests of the suspect, the police officer should know such pertinent information before making the demand and presenting the approved screening device to the suspected driver. Otherwise the officer would be obtaining a sample from an unknown suspect or could find himself in an unknown situation with respect to any other occupants of the motor vehicle … In my view the police officer must learn the necessary fundamental investigatory details of the random stop."

[20] Trial courts have also held that the time to run a police records check to determine the identity of the accused and status of the vehicle for officer safety reasons still complies with the "forthwith" requirement. Some recent examples: R v Mullins 2015 NSPC 80, R v Boudreau 2015 NBPC 8, R v Rutherford 2014 SKPC, R v Bueckert 2014 SKPC 130, R v Kumarasamy 2013 ONCJ 536, R v John [2012] OJ No 3567 (CJ), R v Ferland 2011 MBPC 66.

[21] In R v Mullins the court observed, "… part of the officer's duty as contemplated by s.254(2) requires that he conduct checks reasonably ancillary to those encompassed in the formulation of the ASD demand." In that case checks confirming identification and vehicle status were held to be necessary.

[22] The contrary view was taken in R v Cole 2012 ONCJ 416 at para 10 although the checks in that case were referred to as "routine" and the court noted at para 16 that no safety concerns were raised to justify the delay.

[23] I find that the license/records check was reasonably necessary in the circumstances here to enable the officer to discharge his duty under s.254(2). In my view, courts should be careful when second-guessing officer safety decisions at the roadside. In 2011 Constable Garrett Styles of the York Regional Police was killed during a routine traffic stop by a young 15 year old driver of a van that had been taken without permission of the owner. It was late at night and Constable Styles was alone during that investigation. Police officers are entitled to know important information about the driver and the status of the car before they engage directly with the driver out of the vehicle in the ASD demand and test process. The few minutes that this important step takes is within the "forthwith window".

[24] The brief delay in this case had no impact upon the accused's Charter protected rights as he would have been aware by the discussion with the officer that the traffic investigation had turned to a drinking and driving investigation. The officer could not have implemented Mr. Li's s.10(b) right to consult with a lawyer during those few minutes.

Section 8 – Was There an ASD Test?

[25] The investigating officer testified that he administered a roadside test with an approved screening device, an Alcotest 6810. He tested the device earlier that evening at 1924h by way of a self-test and found it to be in proper working order.

[26] The accused's test registered a "fail" which meant to the officer that the accused had more than 100mgs of alcohol/100ml in his blood. He arrested the accused for operating a motor vehicle with over 80mgs of alcohol per 100ml of blood.

[27] I agree it's hard to tell from the video at what moment the ASD test is administered. The audio is difficult to hear given the wind. The parties are away from the camera in the car. During the exchange between the officer and accused a woman got out of the accused's car and was told to get back in. Beeps from the ASD are audible during the process. The officer explained that the beeps occur when the ASD provides a test result. The officer confirmed that he obtained a reading.

[28] I accept the officer's evidence that the test he demanded was performed on the ASD he brought to the accused for that purpose. I further accept his evidence that the result was a fail and that the fail result gave him grounds for the s.254(3) AI demand.

Section 10(b) – Right to Counsel Advice

[29] After he was advised of his right to counsel Mr. Li told the arresting officer that he would speak to a lawyer if he had one. When the officer learned that the accused did not have a lawyer to call he offered to contact duty counsel. The accused agreed to that suggestion and spoke with duty counsel prior to the breath tests. He made no complaint afterwards about legal advice nor did he request to speak to another lawyer.

[30] The police have a duty to inform the person detained of his right to instruct counsel without delay and of the availability of legal aid duty counsel. R v Willier 2010 SCC 37 at para 29. Here the officer advised Mr. Li he could call a lawyer of his choice and the accused told the officer he wanted to call a lawyer but didn't have one to call.

[31] Where the officer has complied with the informational component of s.10(b) and the accused responds that they don't have a lawyer to call, it's doesn't violate the Charter if the officer offers to call duty counsel. R v Willier 2010 SCC 37 at para.43, R v Rice 2011 SKQB 412, R v Fonseca 2014 ONCJ 66. On the contrary this was a logical and helpful response on the part of the officer, particularly at 3 a.m. If that was not acceptable to Mr. Li he would have said so.

[32] There's no evidence of a s.10 breach.

Conclusion

[33] Despite the thorough submissions of Mr. Lindsay, I find that the Applicant has failed to prove the breaches alleged on a balance of probabilities. The Charter application is dismissed.

[34] Considering the evidence as a whole I find that the Crown has proved the charge beyond a reasonable doubt.

Released 18 May, 2016

Justice Joseph F. Kenkel