Court Information

Ontario Court of Justice

Date: September 15, 2017

Court File No.: Brampton 17-3417

Parties

Between:

Her Majesty the Queen

— And —

Andrew Foster

Before: Justice I. Jaffe

Heard: August 17, 2017

Reasons for Judgment Released: September 15, 2017

Counsel

A. Mountjoy — counsel for the Crown

H. Bassi — counsel for the defendant Andrew Foster

Judgment

JAFFE J.:

Facts and Charges

[1] On December 5, 2015, Andrew Foster was charged with "over 80" after his breath tests revealed that his blood alcohol level exceeded the legal limit. At his trial, Mr. Foster sought to exclude the results of his breath test on the basis of alleged violations of his s. 9 and 10(b) Charter rights.

[2] Specifically, Mr. Foster argues that his s. 9 right to be free from arbitrary detention was violated when he was placed in the rear of the police cruiser for the purpose of providing a breath sample into an approved screening device (ASD), and that he was not immediately provided with his rights to counsel upon his arrest, as required by s. 10(b).

[3] Counsel for Mr. Foster admits that the s. 9 breach would not alone justify exclusion, however the seriousness of the breach is amplified by the s. 10(b) breach, which occurred immediately thereafter. Moreover, the s. 10(b) violation is symptomatic of a recognized systemic problem within Peel Regional Police Service, exhibited by officers who routinely disregard the immediacy requirement imposed by s. 10(b). The systemic nature of this serious problem warrants the exclusion of the breath results under s. 24(2).

Summary of Relevant Evidence

[4] This was a one-witness trial, and it proceeded in a blended fashion with all evidence serving double-duty between the Charter motion and the trial proper. P.C. Taylor Halfyard, a member of Peel Regional Police Service, was the arresting officer on December 5th and the qualified breath technician who administered the Intoxilyzer breath test on Mr. Foster.

[5] In the early morning hours of December 5th, 2015, P.C. Halfyard was conducting spot checks on patrons leaving licensed establishments. At 2:15 a.m., the officer observed Mr. Foster's Ford pick-up truck exit from the parking lot of the Pure Gold Gentlemen's Club and turn right onto Royal Windsor Road in Mississauga. The officer pulled over the truck on the twin basis that it had just emerged from a licensed establishment, and it bore an expired license plate sticker.

[6] As P.C. Halfyard approached, he noticed that Mr. Foster had two passengers. While interacting with Mr. Foster, the officer detected an odour of alcohol on his breath, and his eyes appeared blood shot and watery. Upon being notified by Mr. Foster that he (Mr. Foster) had two beers prior to driving, P.C. Halfyard formed the suspicion that Mr. Foster was operating his vehicle with an excess amount of alcohol in his system. The officer asked Mr. Foster to exit his car for the purpose of administering a road side breath test.

[7] Mr. Foster was directed to sit in the rear of P.C. Halfyard's police cruiser. Mr. Foster was not handcuffed. P.C. Halfyard offered several reasons why he chose to administer Mr. Foster's ASD test in the rear of his cruiser. They included the following facts:

• The officer was alone at the time;
• Mr. Foster's front passenger was heavily intoxicated and was interrupting the officer's conversation with Mr. Foster when he was initially stopped;
• It was 2:15 a.m., and the officer was close to the Pure Gold establishment. There was a chance someone else could have driven out of the establishment in an intoxicated state, putting the officer and Mr. Foster at risk had they been standing at the roadside; and
• Though the officer had never been hit by a driver impaired by alcohol while conducting a roadside stop, he had almost been hit that same year by a driver who was impaired by fatigue.

[8] Upon registering a "fail" on the ASD, P.C. Halfyard asked Mr. Foster to exit the police car. P.C. Halfyard then immediately arrested, searched and handcuffed Mr. Foster at the side of the car.

[9] As the officer was handcuffing Mr. Foster, a second police officer, P.C. Blackburn, arrived on scene. As P.C. Blackburn was standing right next to P.C. Halfyard, P.C. Halfyard provided information to P.C. Blackburn concerning the details of the arrest, the towing of Mr. Foster's car, and Mr. Foster's two passengers (one of whom was exiting the car at that time).

[10] P.C. Halfyard estimated that the arrest, search and handcuffing of Mr. Foster, together with his interaction with P.C. Blackburn, took approximately three to four minutes. Mr. Foster was then placed back into the rear of the police cruiser. P.C. Halfyard then retrieved his yellow notes from his duty bag, and provided Mr. Foster his rights to counsel and cautions. Immediately thereafter, P.C. Halfyard made a formal breath demand. After taking approximately 4-5 minutes to complete some "tombstone" information on the yellow notes, P.C. Halfyard departed for 11 Division.

[11] In cross-examination, P.C. Halfyard explained that he handcuffed and searched Mr. Foster prior to reading his rights to counsel because officer safety is foremost. He explained that he does not know Mr. Foster, and while Mr. Foster was cooperative up until that point, based on his experience in making over 200 arrests, P.C. Halfyard believes that people's behaviour can change when their jeopardy changes. Accordingly, it was his decision to read Mr. Foster his rights, once he was assured both he and Mr. Foster were safe.

[12] The officer admitted in cross-examination that his discussion with P.C. Blackburn could have waited until after rights to counsel had been given. However, P.C. Halfyard justified his decision by explaining that P.C. Blackburn was standing directly beside him when he was handcuffing Mr. Foster and, at that moment, one of Mr. Foster's passengers was exiting the car. P.C. Halfyard felt it was important to brief P.C. Blackburn on the details of the situation at that moment.

[13] What followed from that point forward is not in dispute. Mr. Foster eventually provided two suitable breath samples into the Intoxilyzer machine, yielding readings of 127 mg and 118 mg respectively, in 100 ml of blood.

[14] The following timeline emerged from P.C. Halfyard's evidence:

Time	Event
2:15 a.m.	P.C. Halfyard stopped Mr. Foster's pick-up truck after observing him exit the Pure Gold parking lot.
2:18 a.m.	Mr. Foster was placed in the rear of the police cruiser for the purpose of providing a sample into the ASD.
2:19 a.m.	Mr. Foster's first sample of breath yielded a "fail" and P.C. Halfyard placed him under arrest. Mr. Foster exited the police car and was searched and handcuffed. During his arrest of Mr. Foster, P.C. Halfyard briefed P.C. Blackburn who had just arrived.
2:23 a.m.	Mr. Foster was placed back into the rear of the police cruiser and P.C. Halfyard read him his rights to counsel.
2:26 a.m.	P.C. Halfyard provided Mr. Foster with cautions.
2:27 a.m.	P.C. Halfyard made the breath demand.
2:39 a.m.	P.C. Halfyard and Mr. Foster arrived at 11 Division.
2:43 a.m.	They entered the cell area.
2:44 a.m.	P.C. Halfyard placed a call to duty counsel.
2:50 a.m.	Duty counsel called back and spoke to Mr. Foster until 2:59 a.m.
3:07 a.m.	Mr. Foster entered the breath test room.
3:16 a.m.	Mr. Foster provided his first suitable sample (127 mg/100 ml).
3:38 a.m.	Mr. Foster provided his second suitable sample (118 mg/100 ml).

Arguments

[15] On behalf of Mr. Foster, Mr. Bassi argued that the ASD test could have been administered on the outside of the police cruiser, and placing Mr. Foster in the rear of the cruiser was both unnecessary and in breach of his s. 9 Charter rights. In support of this argument, Mr. Bassi cited R. v. Klotz, 2017 ONSC 13, in which Botham J. determined that conducting the roadside screening test inside the police cruiser was not reasonably necessary, and violated Ms. Klotz's s. 9 Charter rights.

[16] Compounding the s. 9 breach, was the fact that P.C. Halfyard did not immediately provide Mr. Foster with his rights to counsel as is required by s. 10(b). The four minutes which elapsed between Mr. Foster's arrest, and the provision of rights to counsel, does not comply with the Supreme Court's direction in Suberu, that rights to counsel must be given without delay. In the absence of any justifiable reason (such as public or officer safety concerns), Mr. Foster's rights to counsel were unconstitutionally delayed.

[17] Though neither breach alone significantly impacted Mr. Foster's Charter protected rights, their combined impact justifies exclusion. Additionally, Mr. Bassi relied on several decisions to support his argument that the s. 9 breach in this case was emblematic of a systemic disregard for s. 9 rights amongst Peel Police officers. In both R. v. Simpson, 2017 ONCJ 321 and R. v. Sandhu, 2017 ONCJ 226, Schreck J. excluded breath test results having found that delays in administering rights to counsel within PRPS is a systemic problem – one which significantly aggravated the seriousness of the breaches in both cases.

[18] On behalf of the Crown, Ms. Mountjoy argued that Mr. Foster's brief detention in the rear of the cruiser during the administration of the ASD test did not breach his s. 9 rights. Mr. Foster was lawfully detained and was required to provide a sample regardless of where he stood or sat. However, even if there was a s. 9 breach, Mr. Foster's detention in the rear of the cruiser during the ASD test was fleeting and had minimal impact on his Charter protected rights. The Crown pointed out that in Klotz, Botham J. would likely not have excluded the breath results solely on the basis of a very similar breach.

[19] With respect to the alleged s. 10(b) breach, the Crown argued that the delay was short and suggested that the real battle ground, are the 1 to 2 minutes during which P.C. Halfyard briefed P.C. Blackburn. In support of its argument that the four to five-minute total delay in this case did not violate s. 10(b), the Crown cited R. v. Singh, 2017 ONCJ 386.

[20] The facts in Singh are similar to the case at bar. After having formed the belief that Mr. Singh was operating his vehicle while impaired by alcohol, the arresting officer patted him down, handcuffed him to the rear, and placed him in the back seat of the cruiser. The officer then took "a minute or two" to conduct computer checks on Mr. Singh. Five minutes after Mr. Singh's arrest, the officer began to read him his rights to counsel.

[21] As in this case, counsel for Mr. Singh relied on two previous decisions of Schreck J. (including Sandhu), in which His Honour underscored the importance of strict adherence to the Suberu immediacy requirement, and in which he identified a systemic disregard for the requirement. While Botham J. did not disagree with principles advanced in Schreck J.'s decisions, Her Honour was not persuaded to apply them in Singh. At para. 19, Botham J. came to the following conclusion with respect to the alleged s. 10(b) violation:

In this case, there was a delay of 5 minutes between the time of arrest and the provision of rights to counsel. The arresting officer explained that during those 5 minutes, he conducted a pat down search of Mr. Singh and handcuffed him, prior to placing him in the cruiser, as well as running Mr. Singh on the police computer. Although I believe it would have been preferable to have provided Mr. Singh with his rights to counsel before checking his background on the computer, I am not satisfied that that particular delay is such as to constitute a breach of his s. 10 rights.

Conclusion

Section 9 Charter Right

[22] There is no doubt that the ambit of s. 9 extends beyond the mere basis for detention, and protects an individual's right against an unreasonable manner of detention. R. v. Aucoin, 2012 SCC 66, at para. 35. The question therefore, is whether having regard to the other options available, the brief detention of Mr. Foster in the rear of P.C. Halfyard's cruiser during the ASD test, was unreasonable. I do not believe it was.

[23] For all the reasons articulated by the officer in his evidence, I find that his decision to put Mr. Foster in the back of his cruiser was reasonably justified. It was late at night, the officer was on his own, Mr. Foster had two passengers, at least one of whom was intoxicated and they were situated on a live roadway. The risks identified by the officer justified taking precautions, and briefly placing Mr. Foster in the rear of his cruiser, unrestrained, was a minimally intrusive means by which to mitigate these risks. I have not been persuaded that Mr. Foster's s. 9 rights were violated.

Section 10(b) Charter Right

[24] There is also no doubt that s. 10(b) obligates the police to provide a detainee with rights to counsel "without delay". In Suberu, 2009 SCC 33, at para. 42, the Supreme Court expanded on the meaning of "without delay", and made it clear it means immediately. This immediacy requirement is subject only to concerns for officer or public safety.

[25] I have carefully reviewed the cases relied upon by defence, and the cases Schreck J. cites within them. The majority of those cases can be easily distinguished from this case. In some instances (i.e. Kraus, 2015 ONSC 2769, Grewal, 2015 ONCJ 691, Lam, 2014 ONSC 3538, Volkov, [2014] O.J. No. 5346), the pre-rights delay far exceeded the four minutes in this case. In other instances (i.e. Soomal, 2014 ONCJ 220, Sandhu, 2017 ONCJ 226, and Ahmad, 2015 ONCJ 620), the arresting officers performed purely administrative tasks before getting around to furnishing rights to counsel. In my view, handcuffing and searching a detainee incident to arrest, are not administrative tasks.

[26] Nor, in this particular case, would I classify as administrative, P.C. Halfyard's one to two-minute conversation with P.C. Blackburn. As P.C. Halfyard was shortly to depart the scene with Mr. Foster, it was necessary for him to brief the second officer about what had just occurred, and what needed to be done. The fact that one of Mr. Foster's passengers was exiting the car at that very moment, adds to the reasonableness of the officer's decision (and arguably the need), to brief P.C. Blackburn right then and there.

[27] Recently, in R. v. Rossi, 2017 ONCJ 443, Henschel J. considered whether a seven-minute delay between arrest and the provision of rights to counsel breached Mr. Rossi's 10(b) rights. The arresting officer spent those seven minutes searching Mr. Rossi incident to his arrest, ensuring that Mr. Rossi was settled in the rear of the cruiser and situated in such a way that he could properly hear, and retrieving Mr. Rossi's cell phone at his request. While acknowledging the obligation of the officer to confer rights to counsel immediately upon detention, Henschel J. also acknowledged the coinciding need to take certain safety precautions prior to providing those rights. Henschel J. concluded that notwithstanding the seven-minute delay, Mr. Rossi's s. 10(b) rights were not violated.

[28] I have come to a similar conclusion in this case. Having regard to all of the circumstances, I have not been persuaded that the four-minutes which elapsed between arrest and rights to counsel, ran afoul of Suberu's immediacy requirement, and it follows that I have not been persuaded that it violated Mr. Foster's s. 10(b) rights.

Section 24(2) Analysis

[29] If I am wrong in finding that the four-minute delay in administering rights to counsel did not violate Mr. Foster's s. 10(b) rights, I am confident that a contextual consideration of s. 24(2) concerns, would result in the admission of the breath test results.

The Seriousness of the Charter-infringing State Conduct

[30] In several of the cases cited in Simpson and Sandhu, the seriousness of the Charter infringing state conduct was exacerbated by the fact that the arresting officer's evidence made it clear that he or she believed the words "without delay" were analogous to "as soon as practicable". It is not surprising why such evidence from police officers almost a decade after the release of Suberu, might lead courts to conclude that a systemic problem exists in Peel.

[31] However, I do not find that P.C. Halfyard's actions on December 5, 2015 are emblematic of a systemic problem. When asked if rights to counsel must be given "as soon as practicable", P.C. Halfyard replied that they must be given "upon arrest" however, he explained that he believed he was acting in good faith, and his decisions were reasonable under the circumstances. I agree.

[32] P.C. Halfyard was not uninformed about the need to confer rights to counsel, and he accurately understood that the immediacy requirement accommodates safety precautions. If the one to two minutes he took to brief P.C. Blackburn converted a justified delay into a Charter breach, it was done in good faith, and without an ignorance or disregard for Mr. Foster's Charter protected rights.

The Impact on Charter-Protected Interests

[33] To borrow the phrase used by Felix J. in Campbell, an unreported decision dated July 4, 2017 and referred to by Mr. Bassi in argument, the informational component of Mr. Foster's 10(b) rights was delayed but not denied. The delay in this case was very brief. Had the officer proceeded directly from handcuffing and searching, to reading rights to counsel, Mr. Foster would have received his s. 10(b) rights one to two minutes earlier than he did. No utterances were elicited during this time period and no self-incrimination concerns arise.

[34] Once at the station, P.C. Halfyard acted with dispatch in contacting duty counsel. The evidence was that four minutes after arriving at 11 Division, and one minute after arriving in the cell area, P.C. Halfyard called duty counsel and left a call-back message. Duty counsel called back and Mr. Foster was able to consult duty counsel, eleven minutes after arriving at the police station.

[35] I find that if there was a breach in this case, it impacted minimally on Mr. Foster's s. 10(b) rights.

Society's Interest in Adjudication of the Case

[36] The breath test results are reliable, and their exclusion would bring an end to Crown's case. In light of the officer's good faith and the minimal impact of the breach, I find that the truth-seeking function of the criminal trial process would be better served by the admission of the breath test results, rather than by their exclusion. R. v. Grant, 2009 SCC 32, at para. 79.

[37] Having regard to all of the circumstances in this case, I find that the admission of Mr. Foster's breath-test results, would not bring the administration of justice into disrepute. Accordingly, Mr. Foster's application to exclude his breath readings is dismissed.

[38] Counsel for Mr. Foster agreed that if the Charter application was dismissed and the breath-test results admitted, the Crown has proven Mr. Foster's guilt beyond a reasonable doubt. Accordingly, I find Mr. Foster guilty of operating a motor vehicle while his blood alcohol content exceeded 80 mg per 100 ml of blood.

Released: September 15, 2017

Justice I. Jaffe