Ontario Court of Justice
Between:
HER MAJESTY THE QUEEN
— AND —
JESTIN JAMES
Before: Justice Peter C. West
Heard on: September 30, 2019 and October 1, 2019
Reasons for Judgment released on: January 13, 2020
Counsel:
- Ms. M. Tait — counsel for the Crown
- Mr. B. Starkman — counsel for the defendant, Jestin James
WEST J.:
Introduction
1Jestin James was charged on August 8, 2018, with operating a motor vehicle with more than 80 mg of alcohol in 100 mL of blood. He pleaded not guilty and a trial was commenced on September 30, 2019.
2The defence brought a Charter application respecting breaches of ss. 8 and 9, respecting the arresting officer's lack of reasonable suspicion to request an approved screening device demand and s. 10(b), respecting the fact the officer did not advise Mr. James his conversation with counsel would be in private if he had requested to speak to a lawyer at the roadside. It was agreed by both counsel the trial would proceed by way of a blended hearing. The Crown called Ms. Constance Watson, a citizen that called 911, P.C. Bill Towler, the arresting officer and P.C. Khalid Rafhee, the qualified breath technician. Mr. James filed an affidavit respecting the Charter application, which he was cross-examined on.
Factual Background
3Ms. Watson was with her husband when they observed a white SUV that made a wide left turn from Brock Street southbound to Manning Avenue eastbound, in Whitby. The vehicle then weaved within the curb lane moving from the curb to the dotted line separating the curb lane from the passing lane. They believed the driver of this vehicle was impaired so Ms. Watson called 911. Ms. Watson provided the vehicle's license plate.
4P.C. Towler was dispatched with his partner, P.C. Barnett, to investigate a suspected impaired driver who was weaving within his lane on Manning Avenue. They caught up to the vehicle, a white Infiniti QX60 SUV, License plate BYXJ779 on King Street in Oshawa. The vehicle turned south onto Stevenson and P.C. Barnett activated the police cruiser's roof lights and effected a traffic stop at 10 p.m. The white SUV stopped somewhat abruptly.
5P.C. Towler went to the driver's door. The driver did not roll down his window. P.C. Towler had to request the driver to roll down the window and then the driver only lowered it a few inches. P.C. Towler again requested the driver roll his window down completely, which the driver finally complied with. The officer observed the driver to be having some difficulty putting the vehicle in park. The officer noted a slight odour of an alcoholic beverage coming from the interior of the vehicle. There were three small children in the back seat, ages 2, 4 and 7 and no one was in the front passenger seat. P.C. Towler advised the driver there had been a complaint about a possible impaired driver and this was why he was stopped. He asked the driver if he had been drinking that night and the driver said he had not. P.C. Towler requested the driver to get out of the vehicle, which he did without any difficulty and P.C. Towler observed the driver was steady on his feet. They walked to the back of the white SUV and when the officer spoke to the driver, he detected there was an odour of an alcoholic beverage coming from the driver's breath. P.C. Towler asked the driver again if he had been drinking and the driver said he had one beer two hours earlier. P.C. Towler identified Mr. James as being the driver of the white SUV.
6P.C. Towler testified he noted the odour of alcohol coming from the interior of the vehicle when Mr. James finally lowered his window in his written notes and typed report. In his typed report he noted Mr. James' admission of consuming 1 beer two hours before. In his type written guilty plea synopsis, P.C. Towler testified he noted Mr. James had the odour of alcohol on his breath and admitted to consuming one beer. All of his notes were prepared at the same time. His notes are designed to refresh his memory. He agreed he missed the odour of alcohol on Mr. James' breath in his hand written notes but put it in his type-written notes. This type-written report was disclosed to the defence.
7P.C. Towler testified he formed the reasonable suspicion that the driver had alcohol in his body when he was operating his motor vehicle and made an approved screening device (ASD) demand from the back of his notebook at 10:02 p.m. P.C. Towler agreed in cross examination he had no grounds to arrest Mr. James for impaired driving. When he and his partner checked for an ASD they realized they did not have one in the police cruiser. His partner, P.C. Barrett requested an ASD and was told their supervisor would bring one to their location. P.C. Towler testified because Mr. James was being detained to obtain a sample of his breath and they did not have an ASD readily available at 10:04 p.m., P.C. Towler read Mr. James his right to counsel from the back of his police notebook.
Q. It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand?
A. Yeah sure.
Q. You have the right to telephone any lawyer you wish. Do you understand?
A. Okay.
Q. You also have the right to free advice from a Legal Aid lawyer. Do you understand?
A. Yes.
Q. If you are charged with an offence you can apply to the Legal Aid Plan for assistance. Do you understand.
A. Yes.
Q. 1-800-265-0451 is a number that will put you in contact with Legal Aid duty counsel for free legal advice, right now. Do you understand?
A. Yes.
Q. Do you understand everything I've said to you so far?
A. Yes.
Q. Do you wish to call a lawyer now?
A. I have no lawyer.
Q. There is the free lawyer, do you want to call?
A. No, not right now.
8P.C. Towler testified he knew Mr. James had a right to speak to a lawyer in private. He testified he would have placed Mr. James in the back of his police cruiser if he had requested to speak to a lawyer when he read the right to counsel while they were waiting for the ASD to arrive. He testified he and his partner would have remained outside the cruiser to give Mr. James privacy. P.C. Towler did not advise Mr. James he would have done this when he read the right to counsel, however, if Mr. James had requested to speak to a lawyer this is what he would have told him. Mr. James said he did not have a lawyer and did not want to speak to duty counsel when P.C. Towler reminded him there was the free duty counsel as he told P.C. Towler, "No, not right now."
9At 10:09 p.m., P.C. Towler read the caution, which Mr. James said he understood. P.C. Towler testified they never moved from the location of the back of the white SUV on the passenger side. They waited for the screening device to arrive. P.C. Towler noted Mr. James had an accent but it was his belief that Mr. James understood everything the officer had said to him. It was P.C. Towler's evidence they had no problem communicating with each other.
10At 10:11 p.m. Sgt. Carroll arrived on scene with the ASD, which was a Draeger Alcotest 6810, serial #ARDD0289 that had been calibrated by P.C. Williams #3353, on August 6, 2018. The ASD determines the presence of alcohol in a person's system when they blow into the ASD. P.C. Towler testified a pass is below .05; a warn is between .05 and .08 mg of alcohol in 100 mL of blood and a fail is over .08 mg of alcohol in 100 mL of blood.
11P.C. Towler was satisfied the ASD was performing properly. P.C. Towler testified Sgt. Carroll said he had tested the ASD and it was working properly. He demonstrated to Mr. James how to perform the test by placing a new mouthpiece onto the approved screening device and he instructed Mr. James to blow into the mouthpiece creating a tight seal with his lips and to not stop blowing until the officer told him to. P.C. Towler described how the ASD would make a low buzzing sound as Mr. James was blowing. Mr. James understood the instructions.
12P.C. Towler also advised Mr. James if he failed or refused to provide a suitable sample this would result in a charge. He understood this as well. At 10:13 p.m., Mr. James provided a suitable sample and the ASD registered a fail. P.C. Towler testified this meant that Mr. James blood alcohol concentration was over .08 mg of alcohol in 100 mL of blood in his system. At 10:13 p.m., the officer testified he "placed Mr. James under arrest for exceed 80 mg of blood" while operating a motor vehicle and the accused indicated he understood.
13At 10:14 p.m., P.C. Towler read Mr. James the breath demand from the back of his police notebook. When Mr. James was asked if he understood Mr. James said, "Yeah okay, but my kids."
14Mr. James was placed into the rear of the police cruiser. P.C. Towler asked if Mr. James still did not want to speak to a lawyer or did he want to speak to the free one. Mr. James requested to speak to duty counsel.
15P.C. Towler testified they still had to deal with the issue of Mr. James' children in the vehicle. He understood Mr. James was on his way to pick up his wife from work. P.C. Towler asked Mr. James for his wife's phone number. P.C. Towler contacted Mr. James' wife at 10:18 p.m., and he advised her what had occurred and requested her to come to their location to look after the children.
16Dispatch advised P.C. Towler the closest qualified breath technician was at 17 Division in Oshawa. P.C. Towler waited for Mr. James' wife to show up at the scene and he spoke to her when she arrived. He testified he wanted to speak to Mrs. James when she arrived on scene as he would have to advise CAS about the circumstances of Mr. James arrest. He did not note the time she arrived. He spoke to her briefly after she arrived at the scene. P.C. Towler testified he also searched the white SUV before leaving the scene after Mr. James' wife arrived and the children were removed from the car. P.C. Towler could not recall the time he searched Mr. James vehicle, which was to be impounded. He located Mr. James' documents in the vehicle and was satisfied with the accused's identification from his driver's license. He also located the ownership and insurance documents for the vehicle. P.C. Towler testified Sgt. Carroll was the shift supervisor and as a result he could not be tied up in any of the aspects of P.C. Towler's investigation because of his responsibilities as the shift supervisor.
17He left with Mr. James for 17 Division at 10:41 p.m. They arrived at 10:46 p.m., after which Mr. James was paraded before Acting Sgt. Hood. Mr. James was asked again if he still wished to speak to duty counsel and he said he did. He was placed in a cell and duty counsel was called and a message was left.
18At 11:01 p.m., P.C. Towler met with P.C. Rafhee, the qualified breath technician and provided his grounds for arrest. P.C. Rafhee testified he was informed by P.C. Towler of his grounds at 11:01 p.m. and advised him there was a 911 call from a citizen describing a white SUV weaving, a possible impaired driver. The vehicle was located at King Street and Stevenson where a traffic stop was initiated. P.C. Towler advised he observed an odour of alcohol beverage on the breath of accused, who admitted drinking 1 beer. There were no obvious signs of impairment. Mr. James' right to counsel was provided because he did not have the ASD in his police cruiser. The accused provided a proper breath sample into an ASD and registered a fail. P.C. Towler provided the times of the traffic stop, the ASD demand and the fail, Mr. James' arrest, the right to counsel and the breath demand. P.C. Towler also advised the qualified breath technician that Mr. James wanted to speak to duty counsel.
19At 11:13 p.m., duty counsel called back. Mr. James was placed in private room at 11:17 p.m. and spoke to duty counsel until 11:26 p.m. When P.C. Towler placed Mr. James into the private room he did not advise him it was in private. The private room is a room big enough for one person to sit in. It had a thick steel door with a window to see if the person was finished with their phone call. P.C. Towler testified one cannot hear what is being said inside the room when the door is closed. Mr. James did not express any concerns about his phone call with duty counsel. Mr. James was then turned over to the breath technician. The first breath sample was completed at 11:38 p.m., with a result of 221 mg of alcohol in 100 mL of blood. The second sample was completed at 12:03 a.m., with a result of 216 mg of alcohol in 100 mL of blood.
20P.C. Towler was advised of Mr. James' breath results at 12:04 a.m. At 12:04 a.m., Mr. James was charged with exceeding 80 mg. and was read his right to counsel and two cautions. Mr. James advised he did not wish to speak to duty counsel again.
21P.C. Khalid Rafhee was the qualified breath technician and he was notified his services were required at 17 Division at 22:53 or 10:53 p.m. He attended the breath room to ensure the approved instrument, an Intoxilyzer 8000C, was working properly. The approved instrument receives and analyzes a person's breath. He conducted the diagnostic and calibration tests on the instrument, as well as a self-diagnostic test. These tests are designed to test the functionality of the Intoxilyzer 8000C. No one else was in the room when P.C. Rafhee was doing these tests. He testified the instrument was in proper working order.
22P.C. Rafhee testified he checked the Certificate of the Analyst, which is on the wall in the breath room. He was checking to ensure that the alcohol solution used in the instrument was appropriate and had been certified by the analyst. He was shown the Certificate of the Analyst, which was marked as Exhibit A. This was the Certificate he looked at. It was taped to the wall to this left as he was setting up the Intoxilyzer 8000C. The Certificate was prepared and the alcohol solution was analyzed by the Centre of Forensic Sciences. The alcohol standard was 100 mg of alcohol and can be above or below by 10 mg, therefore the range was 90 to 110 mg.
23P.C. Rafhee did a calibration test prior to receiving Mr. James and doing his breath tests. The result of calibration test was 99 mg alcohol in 100 mL blood. The diagnostic test was done then. These are automatic tests that test the functionality of the instrument. The tests all passed. He conducted his own self-test, which resulted in a reading of 0 mg of alcohol in 100 mL of blood.
24At 11:26 p.m., Mr. James was turned over to P.C. Rafhee by P.C. Towler. Prior to receiving Mr. James, P.C. Towler, at 11:01 p.m., provided his grounds for Mr. James' arrest. P.C. Rafhee testified Mr. James did not raise any concerns or issues with his conversation with duty counsel after he was turned over to P.C. Rafhee. P.C. Rafhee provided instructions to Mr. James as to how to provide a suitable and proper sample of his breath. The Intoxilyzer 8000C did a system blank test, which draws air from the room in an ambient air test. Its result was 0 mg. Then there was a systems calibration check, which produced a result of 97 mg of alcohol in 100 mL of blood. P.C. Rafhee testified this result told him the instrument was functioning properly. It sustained its standard calibration. P.C. Rafhee testified he did not calibrate the instrument as a qualified breath technician. The result was within the target range provided and told him the instrument was functioning properly. Mr. James provided his first breath sample.
25The result was 221 mg of alcohol in 100 mL of blood at 23:38. P.C. Rafhee testified he has to wait 17 minutes before the instrument does its checks again and will be ready to receive a second breath sample. After 17 minutes had elapsed the instrument did a system blank test, which was 0 mg. The system calibration test was 95 mg of alcohol in 100 mL of blood, which was within the range. The standard solution had been certified by the analyst at the CFS and was proper to be used. P.C. Rafhee advised Mr. James to provide the second breath sample and he did, which was a suitable sample resulting in a reading of 216 mg of alcohol in 100 mL of blood.
26A copy of the printout from the Intoxilyzer 8000C was placed in the Crown brief and was disclosed to the accused. If the systems calibration test result was outside the target value, 90 to 110 mg, P.C. Rafhee testified he would change the solution. As a result of all of the systems checks he performed P.C. Rafhee testified he had no concerns about the functionality of the Intoxilyzer 8000C and he believed it was working properly.
27P.C. Rafhee testified Mr. James' breath tests were his first breath samples obtained from an accused. Since this case he has performed 12 further breath tests. He agreed the standard alcohol solution has content of 100 mg plus or minus 10 mg. The systems calibration test results of 97 and 95 mg were well within the range. P.C. Rafhee took his training in April 2018 from an OPP instructor and a member of the CFS. The Certificate of the Analyst does not say the standard solution is 100 mg. P.C. Rafhee knew from his training the standard solution is 100 mg plus or minus 10 mg.
28P.C. Rafhee testified he cannot begin the second test before 17 minutes have elapsed but then he had to wait for the instrument to conduct the system blank test and calibration test, which was why the two breath tests are 25 minutes apart. The instrument must complete its systems check before it will receive a breath sample.
29Mr. James testified on the blended hearing respecting his Charter application. He filed an affidavit as part of his application and was cross-examined on it. Mr. James agreed P.C. Towler stopped his vehicle and asked him to step outside. They stood at the back of his car. P.C. Towler demanded he provide a sample of his breath but there was a delay for the machine to get there. P.C. Towler read Mr. James the right to counsel. Mr. James agreed the officer went line by line through his right to counsel. He agreed he gave the answers testified to by P.C. Towler.
30He agreed the officer told him he had the right to consult with a lawyer. He told Mr. James about access to a free lawyer. He recalled telling the officer at the end of the right to counsel, when he was asked if he understood that he did not have a lawyer. He agreed when the officer told him again about the free lawyer he told the officer, "No, not right now." Mr. James agreed he did not ask the officer how he would speak to a lawyer. He did not ask where he would be speaking to a lawyer. He did not ask the officer any questions of where or how the right to counsel would be implemented. The only thing he told officer was he did not have a lawyer. He did not ask any questions about using a phone.
31Mr. James testified he said in his affidavit if he knew he would speak to lawyer in private he would have said yes he wanted to speak to a lawyer. He did not say anything to P.C. Towler about that concern. When he got back to station he did speak to duty counsel. Mr. James did not have his phone with him as it was in his car. He did not have a lawyer's number on his phone but he said he would have used his phone for access if he knew he could have used his phone. He never asked the officer to use his phone in that way.
32It was Mr. James' evidence when he was told about his right to speak to a lawyer he was at the roadside, a public place. This was why he said no at that time. It was his position nobody told him he had a right to speak to a lawyer in a private place. He agreed the officer told him he had the right to speak to a lawyer – to consult with a lawyer.
33Mr. James agreed after he was arrested he asked what would happen with his kids. When asked if he was comfortable asking about his kids he testified his kids were right in front of him. Mr. James then asked Ms. Tait if he had the right to talk to the officer about rights or privacy. He agreed the safety of his kids was one of his concerns. He was anxious about his kids until his wife got there. He agreed after his arrest the officer told him about the privacy booth back at the station. Mr. James told the Crown he remembered this but the officer said the previous day in his evidence he did not remember what he told Mr. James concerning privacy.
34Mr. James was not prepared to agree the ASD came very soon after he was read the right to counsel. The Crown suggested it was two minutes after and Mr. James testified maybe it was longer than that, three to four minutes, he did not remember exactly.
Position of the Parties
35At the start of the trial Mr. Starkman abandoned those aspects of the s. 10(b) Charter application which alleged Mr. James was steered or funnelled by the officer to duty counsel and further, that special circumstances existed such that the police officer should have arranged for a duty counsel fluent in Mr. Mr. James' native language, namely, Malaylam, a dialect from India. He advised these were no longer issues to be determined on the Charter application.
36At the conclusion of the evidence, Mr. Starkman commenced making oral submissions, however, shortly into his submissions Mr. Starkman advised he wished to provide his submissions in writing. When I indicated I was prepared to deal with counsels' submissions orally, Mr. Starkman insisted on being given the opportunity to provide written submissions. This was not the Crown's preference, however, she acceded to the defence request.
37Mr. Starkman set out the following issues he submitted were raised on the evidence heard during the trial.
(a) P.C. Towler lacked the requisite grounds to justify an approved screening device demand, which resulted in ss. 8 and 9 Charter breaches;
(b) Did P.C. Towler's misstatement of the calibration of the approved screening device in terms of a pass, warn and fail result in a breach of s. 8 of the Charter?
(c) Right to counsel, when Mr. James was advised of his right to counsel pursuant to s. 10(b) of the Charter he was not told he could retain and consult with counsel in private. In his written submissions Mr. Starkman submitted that the issue of whether there was a realistic opportunity to consult with counsel from the time P.C. Towler made his s. 254(2) ASD demand and when the ASD was brought to the scene should not be a factor in assessing this alleged Charter breach because this issue was not raised in the Crown's response and was not cross-examined on. I will deal with this submission when I address whether there is a requirement for a police officer, as part of the informational component of the right to counsel, to advise a detainee at the roadside if he exercises his right to counsel it will be implemented in privacy;
(d) Must the Crown prove the statutory pre-requisites of s. 320.31(1) of the Criminal Code have been met in order for the results of the breath test to be admissible and reliable? This argument was raised by defence counsel at the commencement of the trial and the qualified breath technician was cross-examined extensively on this issue. It is my view I should address this Charter argument despite Mr. Starkman not addressing this issue in his written submissions.
(e) Has the Crown proven the tests were taken "as soon as practicable?" Mr. Starkman indicated in his written submissions he was making this argument solely on the basis of it being a non-Charter issue, although the cases clearly indicate the view this argument can be argued as both a Charter and non-Charter issue.
38I have addressed the defence arguments set out under (a) and (d) as these were arguments raised by Mr. Starkman in his Notice of Application, dated August 30, 2019 and during the trial proper, however, they were not argued in his written submissions and he did not abandon them during his oral submissions at the conclusion of the evidence. It is my view for completeness I should address both arguments.
(a) Did P.C. Towler have a reasonable suspicion to make the ASD demand, pursuant to s. 254(2) of the Criminal Code? If s. 8 was violated the defence argues this caused a violation of s. 9 of the Charter as well.
39The authority to make an ASD demand is found in s. 254(2)(b) of the Criminal Code, which reads:
s. 254(2) If a peace officer has reasonable grounds to suspect that a person has alcohol…in their body and the person has, within the preceding three hours, operated a motor vehicle…or had the care or control of 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.
40Section 254(2) permits a police officer to require a motorist to provide a sample of their breath into an approved screening device where the officer has a reasonable suspicion that the individual has been operating or has care or control of their motor vehicle with alcohol in their body. However, it is not necessary that the officer believe the driver has committed any criminal offence, see R. v. Lindsay, 1999 CanLII 4301 (ON CA), [1999] O.J. No. 870 (Ont. C.A.).
41The smell of alcohol alone coming from the driver's breath is sufficient grounds for a screening device demand. In R. v. Lindsay, 1999 CanLII 4301 (ON CA), [1999] O.J. No. 870 (Ont. C.A.), at para. 2, the Court held:
An officer may make an ALERT demand where she reasonably suspects that a person who is operating a motor vehicle has alcohol in his or her body (s. 254(2) of the Criminal Code). There need only be a reasonable suspicion and that reasonable suspicion need only relate to the existence of alcohol in the body. The officer does not have to believe that the accused has committed any crime. We see no need to put a gloss on the words of s. 254(2). The fact that there may be an explanation for the smell of alcohol does not take away from the fact that there exists a reasonable suspicion within the meaning of the section.
42In R. v. Kang-Brown 2008 SCC 18 (CanLII), [2008] 1 S.C.R. 456 the Court discussed the threshold standard of justification for a police dog sniff-search for drugs of a person and his bag in a public bus terminal. As Binnie J. held for the majority in R. v. Kang-Brown, a "reasonable suspicion" is something more than a mere suspicion – an expectation that a person is possibly engaged in some criminal activity -- and something less than a belief based upon reasonable and probable grounds. In order for a court to find that a reasonable suspicion is present, the officer's suspicion must be "supported by factual elements which can be adduced in evidence and permit an independent judicial assessment". In short, suspicion is a belief in a mere possibility of criminal activity; a reasonable suspicion is one that has some objective facts to support it, as opposed to some purely subjective hunch or gut feeling (see also R. v. Chehil, 2013 SCC 49 (CanLII), [2013] 3 S.C.R. 220, at para. 32).
43I was provided a number of cases by counsel dealing with what other judges have considered sufficient grounds for a police officer forming a reasonable suspicion that a motorist has alcohol in their body. While the fact scenarios of other cases are informative it would be an error to try to "pigeon hole" the facts of a case with other fact situations. As expressed by Wright J. in R. v. Defend, [2010] O.J. No. 2406 (ONCJ), at para. 18, "In all of the cases I have reviewed there is simply no support for the notion that a specific precondition, such as an odour of alcohol or an admission of consumption must be present before an approved screening device demand will be valid." Actually, appellate authority is to the contrary.
44In fact, the Ontario Court of Appeal has held it is not a precondition to a valid ASD demand that the driver have the odour of an alcoholic beverage on his or her breath, see R. v. Zoravkocic, [1998] O.J. No. 2668 and R. v. Hryniewicz, [2000] O.J. No. 436.
45In R. v. Singh, [2006] O.J. No. 5133 (Ont. S.C.), Durno J. in finding no preconditions were required to enable a police officer to form a reasonable suspicion made these additional observations, which I adopt:
Even when the test is proof beyond a reasonable doubt there is no requirement that there be any odour of alcohol on the driver's breath or an admission of drinking. For example, in R. v. Collins, [2004] O.J. No. 4249 the Court of Appeal upheld the Summary Conviction Appeal judgment dismissing an appeal from conviction for "impaired operation" where the evidence was the accused, who upon being stopped had slurred speech, drove his car at a high rate of speed towards a police officer before stopping abruptly (see para. 13).
46Justice Wright found the law to be clear, "there is no specific indicator of alcohol consumption that is a prerequisite to the formation of reasonable suspicion." (R. v. Defend, supra, at para. 21.) I agree. What a trial judge must examine is the totality of the circumstances to determine whether they provide an objectively reasonable basis for the officer's suspicion. In R. v. Singh, supra, at para. 14, Justice Durno held:
The only issue was whether that suspicion was objectively reasonable. In making that determination, while all of the facts known to the officer have to be considered, the constable is not required to conduct a trial of the indicia and determine if he or she has reasonable and probable grounds to believe an offence has been committed or whether he or she is satisfied beyond a reasonable doubt that the driver is impaired or has alcohol in their body. Indeed, observations of overt indicia of impairment or consumption are not prerequisites to making an ASD demand.
47P.C. Towler testified he observed a slight odour of alcohol coming from the interior of the motor vehicle when Mr. James finally rolled his window completely down. It is my view this observation, coupled with Mr. James' reluctance to roll his window down and the fact the only other persons inside the car were his three young children (ages 2, 4 and 7), provided a reasonable inference the odour of alcohol was coming from Mr. James, which could have established a reasonable suspicion that Mr. James had alcohol in his body when he was operating a motor vehicle. It was reasonable for P.C. Towler to request Mr. James to step out of his vehicle as he did not know initially if there had been someone sitting previously in the passenger seat who had consumed alcohol.
48P.C. Towler testified after he requested Mr. James step out of his vehicle and come to the rear of his car on the passenger side, this was when he detected the odour of alcohol coming from Mr. James' breath. It was as a result of this observation that P.C. Towler asked Mr. James a second time if he had consumed any alcoholic beverages that night and Mr. James told P.C. Towler he had one beer two hours before. Mr. Starkman argued P.C. Towler had not noted this observation in his handwritten notes in his police notebook and I should not accept his evidence on this issue. The difficulty with this submission was that P.C. Towler advised P.C. Rafhee, the qualified breath technician, that he detected the odour of alcohol coming from Mr. James' breath prior to preparing any of his notes. When the Crown asked P.C. Rafhee what P.C. Towler advised were his grounds for arresting Mr. James, Mr. Starkman immediately stood up and said it was not necessary for P.C. Rafhee to provide this evidence. The Crown continued with her request that P.C. Rafhee advise what P.C. Towler indicated his grounds for arresting Mr. James were and P.C. Rafhee advised part of the grounds included the smell of an alcoholic beverage on the breath of the accused and the accused admitted to drinking one beer. In my view this was a very significant piece of evidence given Mr. Starkman's attack on P.C. Towler's credibility and corroborates P.C. Towler's evidence as to his observations of Mr. James at the rear of his car. Further, P.C. Towler testified Mr. James initially testified he had not consumed any alcoholic beverages when he was first stopped. The fact P.C. Towler asked Mr. James again, when he was outside the vehicle, if he had consumed any alcohol that night provides further supports his evidence that he detected the odour of alcohol coming from Mr. James' breath. Further, P.C. Towler had put in his type-written notes he had detected the odour of alcohol on Mr. James' breath.
49Mr. James' admission he had consumed one beer two hours earlier also provided the basis for P.C. Towler to form a reasonable suspicion Mr. James had alcohol in his body. This admission did not necessitate P.C. Towler to make further inquiries of Mr. James. This was an admission of consumption of alcohol by Mr. James and given his previous answer that he had not consumed any alcohol that night, P.C. Towler did not have to accept Mr. James' admission he only had one beer. Mr. James' response provided the basis for P.C. Towler to form a reasonable suspicion that Mr. James had alcohol in his body when he was operating a motor vehicle. (See R. v. Singh, [2006] O.J. No. 5133 (SCJ, at para. 17)). I find P.C. Towler was fair in his evidence concerning his observations of any indicia of impairment exhibited by Mr. James, as he testified Mr. James had no difficulty exiting his vehicle, he had no difficulty walking to the rear of the vehicle or standing in one spot, he was steady and did not sway side to side, his speech was accented but not slurred and he did not notice anything concerning his eyes in terms of redness or being glassy. He agreed he did not have any grounds to arrest Mr. James for impaired operation of a motor vehicle. This was why he made an approved screening device demand because he only had a reasonable suspicion Mr. James had alcohol in his body when he was operating a motor vehicle.
50On the totality of the circumstances it is my view P.C. Towler's suspicion was objectively reasonable. Consequently, considering the totality of the evidence, I am satisfied that P.C. Towler had a reasonable suspicion that Mr. James had alcohol in his body. The ss. 8 and 9 Charter challenges respecting P.C. Towler's reasonable suspicion are therefore dismissed.
(b) Does P.C. Towler's misstatement of the calibration of the approved screening device in terms of a pass, warn and fail result in a breach of s. 8 of the Charter?
51Mr. Starkman argued P.C. Towler's evidence respecting how he believed the approved screening device was calibrated did not support the formation of his belief on reasonable and probable grounds that Mr. James' blood alcohol concentration was over 80 mg of alcohol in 100 mL of blood.
52In his evidence P.C. Towler made reference to the approved screening device being calibrated to register a pass at a breath reading below .05; a warn is between .05 to .08 mg of alcohol per 100 mL of blood and anything above .08 mg of alcohol per 100 mL of blood was a fail. He testified he was satisfied the device was operating properly. Mr. James provided a suitable sample of his breath at 10:13 p.m., into the approved screening device and registered a fail. As a result of the fail on the ASD, P.C. Towler formed the opinion Mr. James had in excess of .08 mg of alcohol in 100 mL of blood in his system. At 10:13 p.m., he testified he placed Mr. James under arrest for exceed 80 milligrams of blood alcohol and Mr. James advised he understood.
53The defence has not challenged the operation of the ASD in their Charter application. It is my view, however, the following cases provide support for a finding that P.C. Towler was entitled to rely on the "fail" result of the ASD as giving him reasonable and probable grounds to arrest Mr. James for the offence of operating a motor vehicle when his blood alcohol concentration exceeded 80 mg of alcohol in 100 mL of blood. In R. v. Ho, [2015] O.J. No. 3997 (C.A.), at para. 1, the Ontario Court of Appeal held "…the trial judge failed to consider the reasonableness of the officer's belief that the test result was reliable, but instead focused on whether the officer actually knew whether the result was reliable."
54In R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 S.C.R. 254, the Supreme Court of Canada held that "[w]here the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary." A "fail" result from a properly operating ASD is itself capable of providing reasonable and probable grounds for arrest and for making a demand for a motorist to provide samples of their breath into an approved instrument.
55What is important about the officer's belief is not its accuracy but its reasonableness. For example, an officer's mistaken understanding about the calibration of a device will not undermine the validity of his grounds to make an arrest and an approved instrument demand, if the belief was honest and reasonably based on the facts as he understood them: R. v. Weese, [2005] O.J. No. 749 (C.A.); R. v. Topaltsis, 2006 CanLII 26570 (ON CA), [2006] O.J. No. 3181 (C.A.); R. v. Deacutis, [2006] O.J. No. 3249 (C.J.). The officer's belief may be based on hearsay or incomplete sources and may contain assumptions. In R. v. Nixon, [2007] O.J. No. 2734 (C.J.) a police officer's expectation that a roadside screening device issued for a planned RIDE spot check would be properly checked and calibrated was held to be objectively reasonable.
56In R. v. Paradisi, 1998 CanLII 1989 (ON CA), [1998] O.J. No. 2336, the Ontario Court of Appeal held the onus was on an accused to establish there was "a high degree of unreliability" with respect to a screening device at the time it was administered. In the case at bar, the defence did not call any expert evidence respecting the proper working of the ASD. There was no evidence called to establish the ASD used by P.C. DeMarco had "a high degree of unreliability."
57In R. v. Mastromartino, supra, at para. 79, Durno J. held:
An officer using an ASD need only have a reasonable belief that the device is properly calibrated and in working order before relying on a "fail" result to confirm his or her suspicions that a driver may be impaired or over the legal limit. There is no requirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly: R. v. MacPherson, unreported, released, March 11, 2004 (S.C.J.); R. v. Coutts (1995), 1999 CanLII 3742 (ON CA), 45 O.R. (3d) 288 (Ont. C.A.); R. v. Hill [2001] O.J. No. 4505 (S.C.J.)(QL).
58The issue of what must be proven by the Crown respecting the proper working condition of the ASD is discussed in the Court of Appeal decision of R. v. Coutts (1995), 1999 CanLII 3742 (ON CA), 45 O.R. (3d) 288. As Moldaver J.A. (as he then was) noted in Coutts at pp. 294-295:
Manifestly, where a roadside test is being used solely for the purpose of confirming or rejecting a police officer's suspicion that a motorist might be impaired or over the legal limit, none of these facts need be proved. It is sufficient if the administering officer believes them to be true. Where, however, the test result is being offered for the truth of its contents, these facts must be proved by admissible evidence.
59P.C. Towler's error, if it can be termed an error, was to add the word milligrams after .08. It is my view this was simply a misstatement or mathematical error by P.C. Towler when he was describing the calibration of the approved screening device. As per Justice Durno in Mastromartino, "there is no requirement the officer knew the calibration setting of the device." P.C. Towler correctly stated what the "Fail" result of the ASD meant for his formation of reasonable and probable grounds when he testified he arrested Mr. James for exceed 80 mg of alcohol while operating a motor vehicle. What the Crown must prove is that P.C. Towler had reasonable and probable grounds to arrest Mr. James for over 80 and make a breath demand under s. 254(3) of the Criminal Code. The "fail" result on the Draeger Alcotest 6810, an approved screening device, was not put forward by the Crown to prove beyond a reasonable doubt that Mr. James' blood/alcohol concentration exceeded 80 mg of alcohol in 100 mL of blood, rather, it was introduced solely to provide reasonable and probable grounds to P.C. Towler for his arrest of Mr. James for over 80. It is my view P.C. Towler knew a "Fail" result on the approved screening device meant Mr. James was over the legal limit. His reliance on the ASD in all of the circumstances in my view was reasonable.
60Mr. Starkman referred to R. v. Nyman, 1998 CanLII 5983 (ON CA), [1998] O.J. No. 4064 (C.A.), however, it is my view that case spoke to a qualified breath technician's misstatement of the breath test results, where a Certificate was not filed and where the Court of Appeal found the breath technician's evidence was nonsensical and did not provide evidence of the core essential element of the offence to be proved by the Crown, namely, that the breath readings were over 80 milligrams of alcohol in 100 millilitres of blood.
61As I have found above, in the case before me the "fail" result on the ASD was not being tendered by the Crown for the truth of its contents. Consequently, based on Coutts and Mastromartino, P.C. Towler does not need to know when the ASD was last calibrated, what the calibration setting of the device is or whether the device was in fact working properly, although he knew the calibration date, he knew his superior had done a self-test and told him it was working properly (see also R. v. Bernshaw, supra, (at para. 38, per Cory J., at paras. 49 and 80, per Sopinka J., and at paras. 93, 102 and 110 per L'Heureux-Dubé J.); R. v. Einarson, 2004 CanLII 19570 (ON CA), [2004] O.J. No. 852 (C.A.), at paras. 11-12; R. v. MacDonnell, [2004] O.J. No. 927 (SCJ, Hill J.); R. v. Hunter, [2017] O.J. No. 3065, at paras. 81-84 (OCJ, Felix J.) and Regina v. Toledo (1999), 41 M.V.R. (3d) 76 (OCJ, Fairgrieve J.)). The issue from the cases is whether P.C. Towler reasonably believed the ASD was working properly. I accept P.C. Towler's evidence he believed the ASD was working properly because it was brought to the scene by his supervisor, Sgt. Carroll, who advised P.C. Towler he had self-tested the device and it was working properly, it was an approved screening device, a Draeger Alcotest 6810 and its calibration date was August 6, 2018. As held by Miller J.A. in R. v. Jennings, 2018 ONCA 260 (CanLII), [2018] O.J. No. 1460 (C.A.), at para. 17, "…What matters is whether the officer had a reasonable belief that the device was calibrated properly and in good working order, and whether the test was properly administered: Bernshaw, supra, at paras. 59-60, 83; R. v. Topaltsis (2006), 2006 CanLII 26570 (ON CA), 34 M.V.R. (5th) 27 (Ont. C.A.) at paras. 7, 9."
62Considering all of the evidence before me, I find P.C. Towler had reasonable and probable grounds to arrest Mr. James for over 80. I further find P.C. Towler honestly and reasonably concluded on the basis of the information available to him that he could rely on the ASD "fail" result as being accurate. There is no breach of s. 8 of the Charter because of his description of the calibration settings he believed the ASD was set at. The Charter breach alleged respecting ss. 8 and 9 are therefore dismissed.
63The Crown referred to a recent Ontario Superior Court summary conviction appeal decision, R. v. Charest, [2018] O.J. No. 1367, (SCJ, Sloan J.), at paras. 23-25, 39-53, which addressed the very same argument on appeal that the trial judge erred in finding the arresting officer had reasonable and probable grounds to arrest the appellant for over 80 where he believed the ASD was calibrated to fail at .1 milligrams. Justice Sloan came to the same conclusion as I have in finding the officer's misstatement did not affect his reasonable and probable grounds.
64It is my view even if I am incorrect in my assessment of P.C. Towler's misstatement of the ASD's calibration and it did amount to a breach of s. 8, the balancing of the three factors set out in R. v. Grant, 2009 SCC 32 (CanLII), [2009] 2 S.C.R. 353, would lead to the breath readings being admitted. Considering the seriousness of P.C. Towler's misstatement, I find this was not a serious breach as P.C. Towler was acting in good faith. He relied on the result of the ASD brought by Sgt. Carroll, his supervisor, who told him the ASD was working properly and provided him the calibration date, which he recorded. P.C. Towler's mistake of adding milligrams after .05 and .08 did not change the reasonableness of his reliance on the ASD "Fail" result. The third factor, society's interest in adjudication of the merits, leans towards inclusion of the breath readings. The second factor relating to the impact of a Charter breach on a detainee's Charter-protected interests also favours admission of the breath readings considering the dicta from Grant and Jennings, which has held the providing of breath is not a serious invasion of privacy within Section 8 of the Charter as both cases held breath tests are minimally intrusive (see also R. v. Manchulenko, 2013 ONCA 543, at para. 100 (Watt J.A.); R. v. Guenter, 2016 ONCA 572, at para. 98 (Brown J.A.); R. v. Foltyn, [2019] O.J. No. 4210 (SCJ, Harris J.)). It is my view therefore even if there was a breach of s. 8, the Grant analysis would result in the admission of the breath samples on all three factors.
(c-1) Did P.C. Towler comply with the informational component when he advised Mr. James of his right to counsel due to the fact P.C. Towler had to wait for an ASD to be delivered to the scene?
65The reason P.C. Towler advised Mr. James of his right to counsel at the roadside was because they did not have an approved screening device in their police cruiser. His partner, P.C. Barnett, contacted dispatch to request an ASD be brought to their location. He testified he did not know how long it would take for an ASD to arrive so he read Mr. James his right to counsel. As indicated above, s. 254(2) of the Criminal Code addresses a police officer's responsibility in making a demand for a person's breath to be provided into an approved screening device.
66As noted in R. v. MacMillan, 2013 ONCA 109 (CanLII), [2013] O.J. No. 727 (Ont. C.A.), s. 254(2)(b) of the Code was revised by the Tackling Violent Crime Act, S.C. 2008, c. 6, s. 19(3). Rosenberg J. held there are two temporal limits on the validity of a s. 254(2)(b) demand (see paras. 28-31). First, although the wording of the section implies only the driver must act "forthwith" in providing a sample of breath into an ASD, the courts have also held that an officer must be in a position to administer the test forthwith (see R. v. Grant, 1991 CanLII 38 (SCC), [1991] 3 S.C.R. 139, at p. 150 and R. v. Pierman; R. v. Dewald (1994), 1994 CanLII 1139 (ON CA), 19 O.R. (3d) 704 (C.A.), per Arbour J.A. (as she then was) at para. 5). The second temporal limit flows from the interaction of s. 254(2)(b) and s. 10(b) of the Charter. In R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640, the Supreme Court of Canada held that a motorist was detained within the meaning of s. 10(b) when required to comply with a demand under the predecessor to the current s. 254(2); however, the Supreme Court also held requiring the driver to comply with the ASD demand prior to exercising their right to counsel was a reasonable limit within the meaning of s. 1 of the Charter. Consequently, it is because the driver is detained and would otherwise be entitled to consult with counsel that the test must be administered immediately. Absent this requirement s. 254(2) would not pass "constitutional muster." R. v. Woods, 2005 SCC 42 (CanLII), [2005] 2 S.C.R. 205, at para. 15, 29.
67In R. v. Gill, [2011] O.J. No. 3924 (Ont. S.C.), Durno J., dealing with the "forthwith" requirement in s. 254(2), held:
26 It is an offence to fail or refuse, without lawful excuse, to comply with a demand made under s. 254(2)(b). s. 254(5). The criminal conduct consists of a proper demand and an unequivocal refusal to comply. The offence is complete when the refusal is given. R. v. Degiorgio, 2011 ONCA 527 at para. 42
27 When a peace officer makes an ASD demand the motorist is detained. Thomsen v. The Queen, (1988), 1988 CanLII 73 (SCC), 40 C.C.C. (3d) 411 (S.C.C.). Once a person is detained, s. 10(b) of the Charter requires the officer to inform the detainee of his or her rights to retain and instruct counsel without delay and to provide the detained with an opportunity to exercise those rights. However, the right to counsel is not absolute and is subject to reasonable limits prescribed by law. R. v. Orbanski; R. v. Ellis, (2005), 2005 SCC 37 (CanLII), 196 C.C.C. (3d) 481 (S.C.C.). One of the reasonable limits is a valid ASD demand. Thomsen, supra.
28 What makes s. 254(2)(b) a reasonable limit is the "forthwith" requirement, a requirement that is inextricably linked to it constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and infringement of the right to counsel notwithstanding ss. 8, 9 and 10(b) of the Charter. Absent this requirement, s. 254(2)(b) would not pass "constitutional muster." R. v. Woods, 2005 SCC 42 (CanLII), [2005] 2 S.C.R. 205, at para. 15, 29.
29 "Forthwith" means immediately or without delay. This immediacy requirement is implicit in relation to the police demand and explicit in relation to the driver's response. It connotes a prompt demand and an immediate response. It also provides the constitutional boundaries within which s. 254(2)(b) is meant to operate. Woods, supra, at para. 13, 28 and 44.
30 The boundaries within which Charter rights are justifiably infringed have recently been described by the Court of Appeal as the "forthwith window." R. v. Degiorgio, supra, at para. 49. It is the period in which the detained person can be required to respond to a valid ASD demand by either providing a suitable sample, failing or refusing to provide a suitable sample. During that window, the detainee can incur criminal liability by failing or refusing to provide a sample unaffected by the Charter. Degiorgio, supra, at para. 34 and 47.
31 When the "forthwith window" opens and closes is determined with respect to the right to counsel. The critical question is whether there was a realistic opportunity for the detainee to consult counsel before being confronted with the ASD and required to provide a suitable sample. R. v. Cote, (1992), 1992 CanLII 2778 (ON CA), 70 C.C.C. (3d) 280, cited with approval in Woods, supra, at para. 35. It is not simply an opportunity to contact counsel. Rather, there must be a realistic opportunity to contact, seeks and receive advice before being confronted with the ASD. R. v. Torsney, (2007), 2007 ONCA 67 (CanLII), 217 C.C.C. (3d) 571 (Ont. C.A.).
32 Whether that "realistic opportunity to consult counsel" exists is a question of fact to be determined considering all the circumstances in the case. R. v. Latour, (1997), 1997 CanLII 1615 (ON CA), 116 C.C.C. (3d) 279 (Ont. C.A.), Tornsey, supra, at para. 8. Courts have considered the following non-exhaustive list of circumstances:
i. the time the officer believed the ASD would arrive (R. v. George, (2004), 2004 CanLII 6210 (ON CA), 187 C.C.C. (3d) 289 (Ont. C.A.));
ii. the time between the demand and the taking of the sample (Latour, supra);
iii. the time between the demand and the ASD's arrival (George, supra and R. v. Yamka (2011), 2011 ONSC 405 (CanLII), 267 C.C.C. (3d) 81 (S.C.J.));
iv. the day of the week and/or time at which the detainee would have been attempting to contact counsel (R. v. Singh, (2005), 24 M.V.R. (5th) 19 (Ont. C.A.));
v. whether the detainee had a cell phone, although this factor in itself is not determinative (George, supra, at para. 42; R. v. Beattie, [2009] O.J. No. 4121 (C.J.));
vi. the actual time it took for the ASD to arrive (Latour, supra);
vii. whether there was an explanation for the delay (R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.); and
viii. whether the detainee contacted counsel at the station after being arrested (Torsney, supra).
33 I would also add for occasions when the detainee has a cell phone, whether they had the number for counsel or would rely on duty counsel with its "call back" feature. It would also be important to determine if they had counsel's number, whether it was an office number, 24 hour pager, or cell number as well as the previously noted time of day and day of the week the call would be placed.
68Justice Durno suggests (at para. 35) that the appropriate calculation is the time from forming the reasonable suspicion and when the device is with the demanding officer. "Operational time", namely the time required for the officer to prepare the equipment, and ensure it is working properly and the time required to explain its use or where the detainee makes numerous attempts before providing a proper sample, should be deducted where the end of the time period is when the sample is actually obtained. (See also R. v. Bernshaw, supra, at para. 64 and R. v. Yamka, [2011] O.J. No. 283 (SCJ), at paras. 42-45)
69Given that the determination of whether there was a "realistic opportunity to consult counsel" is fact-specific, the question is not answered simply by calculating the number of minutes the "forthwith window" was open, regardless of the parameters of the time period. (See Cote, (1992), 1992 CanLII 2778 (ON CA), 70 C.C.C. (3d) 280 (S.C.C.), at p. 285.) The following cases reflect that proposition: a) cases where a realistic opportunity to consult counsel existed: R. v. Fildan, [2009] O.J. No. 3604 (SCJ) – 15 minutes; R. v. Beattie, [2009] O.J. No. 4121 (OCJ) – 20 minutes; R. v. Grant, (1991), 1991 CanLII 38 (SCC), 67 C.C.C. (3d) 268 (S.C.C.) – 30 minutes; R. v. Najm, (2006), 32 M.V.R. (5th) 204 (Ont. C.A.) – 12 minutes, R. v. Cote, supra – 14 minutes; and R. v. George (2004), 2004 CanLII 6210 (ON CA), 187 C.C.C. (3d) 289 (Ont. C.A.) – where the officer knew in advance the device would not arrive for 15 to 20 minutes and it arrived in 18 minutes and b) cases where there was no realistic opportunity to consult counsel: R. v. Moussavi, [2016] O.J. No. 6317(C.A.) – 11 minutes; R. v. Pillon, [2006] O.J. No. 701 (SCJ) – 7 minutes; R. v. Torsney, (2007), supra – 6 or 7 minutes; R. v. Yamka, supra – 10 minutes; R. v. Latour, supra – 12 minutes; R. v. Singh, [2004] O.J. No. 1553 (SCJ) – 11 minutes; R. v. Au-Yeung, 2010 ONSC 2292 (CanLII), [2010] O.J. No. 1579 (SCJ) – 8 minutes; and R. v. Singh, [2005] O.J. No. 4787 (C.A.) where the officer believed the ASD would arrive in 5 to 10 minutes and it arrived in 10 minutes.
70It is not necessary for the police officer making the demand to have a reasonable basis to believe that the sample will be able to be taken within the "forthwith window". All the officer has to have is a reasonable suspicion that the driver of the motor vehicle has alcohol in his body. (See Latour, (1997), 1997 CanLII 1615 (ON CA), 116 C.C.C. (3d) 279 (Ont. C.A.), at paras. 31-33)
71The Court of Appeal in R. v. Quansah, 2012 ONCA 123 (CanLII), [2012] O.J. No. 779, set out the following summary for the analysis for determining if an ASD is administered "forthwith":
45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.
46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.
47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).
48 Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.
72In the case before me, P.C. Towler formed his reasonable suspicion at 10:02 p.m., and read the ASD demand from the back of his police-issued notebook. Mr. James said he understood. P.C. Towler realized he and his partner did not have an ASD, so at 10:04 p.m., he read Mr. James his right to counsel. At the same time P.C. Barnett called dispatch for an ASD to be brought to the scene. I have set out in detail above the right to counsel as read by P.C. Towler to Mr. James and Mr. James' responses. Mr. James told P.C. Towler he did not have a lawyer and when the officer reminded him about free duty counsel and asked if he wanted to speak to this lawyer, Mr. James responded, "No, not right now." It took P.C. Towler approximately 4 or 5 minutes to read the right to counsel to Mr. James and at 10:09 p.m., he read the caution, which Mr. James indicated he understood. Sgt. Carroll, the supervising sergeant, brought a Draeger Alcotest 6810 ASD to the scene, which he had self-tested, at 10:11 p.m., about 9 minutes after P.C. Towler had read the ASD demand. In my view this period of time – 9 minutes – was certainly within the "forthwith window" discussed by Justice Durno in Gill, supra. Because P.C. Towler did not know how quickly the ASD would arrive on scene, he quite properly read Mr. James his s. 10(b) Charter rights given Mr. James was being detained and he did not know if the ASD could be administered forthwith. As a result of the ASD arriving within 7 minutes of it being requested, it is my view that the "forthwith window" was still open and there, in fact, was no realistic opportunity for Mr. James to speak to counsel between the time the ASD demand was made and the ASD arrived on scene. In R. v. Tornsey, 2007 ONCA 67 (CanLII), [2007] O.J. No. 355 (C.A.), at paras. 12-13, the Ontario Court of Appeal held:
12 …the question to be asked is whether, in the circumstances, the police officer was in a position to require that a breath sample be provided "forthwith", that is, before there was any realistic opportunity for the appellant to consult counsel. The answer, in our view, is "yes". The machine was at the scene and ready for use within six or seven minutes of the demand. The demand was made at 2:35 a.m. On the record in this case, any attempt by the appellant to contact and consult counsel within the space of six or seven minutes, at that time in the morning, would have been futile.
13 In coming to this conclusion, we consider it important to draw a distinction between a detainee having "a chance to call counsel" and a detainee being able to "consult with" counsel. The trial judge was under the impression that in deciding whether, in the circumstances, there was a realistic opportunity for the appellant to consult counsel, all that was required was that he be able to "call" counsel in the few minutes it took for the ASD to arrive and be readied for use. With respect, we think that the trial judge erred in that regard. The question he should have asked is whether, in all the circumstances, there was a realistic opportunity for the appellant, in the space of six or seven minutes, to contact, seek and receive advice from counsel. Had the trial judge framed the issue that way, he would, in our view, have decided the s. 10(b) issue differently. [Emphasis added]
73The defence did not want me to consider the issues raised in R. v. Latour, 1997 CanLII 1615 (ON CA), [1997] O.J. No. 2445 (C.A.) and R. v. Tornsey, supra, however, it is my view these cases are directly on point and have authoritatively determined that whether there is a reasonable opportunity to consult with counsel will depend on an assessment of all the circumstances. I find on the facts of this case, there was no realistic opportunity for Mr. James to contact, seek and receive advice from counsel, given the ASD arrived two minutes after P.C. Towler finished advising Mr. James of his right to counsel and Mr. James advised, "No, not right now." It is my view I cannot ignore evidence, as suggested by Mr. Starkman, led during a trial that directly impacts a Charter application brought by the defence for the exclusion of relevant, reliable evidence, such as breath sample results from an approved instrument. The Crown did address the defence allegation that Mr. James' s. 10(b) Charter right was breached because he was not advised of his right to consult with counsel in private. Once Mr. James got to the police station and spoke to Duty Counsel he was placed in a private room where he did consult and speak to counsel in private. The defence did not highlight this issue as only arising at the scene when P.C. Towler did not have an ASD in his police cruiser and Sgt. Carroll had to bring an ASD to the scene. P.C. Towler did not know how quickly the ASD would arrive so he read Mr. James his right to counsel, which in my view demonstrated P.C. Towler understood his Charter responsibilities at the roadside where an ASD is not readily available. This, however, does not end the matter. The ASD arrived within 7 minutes of being requested and Mr. James' obligation at that point, pursuant to s. 254(2), was to provide a sample of his breath "forthwith" into an ASD. What this required was that even if Mr. James had told P.C. Towler he wanted to call a specific lawyer or he wanted to speak to Duty Counsel, which did not occur on the facts of this case, and the call had been placed but the lawyer or Duty Counsel had not responded when the ASD arrived on scene, which in this case was two minutes after the right to counsel was completed, Mr. James would have been required to provide the breath sample and P.C. Towler would not be able to wait for the call to be returned. Section 254(2) required the demand to be made forthwith, once the reasonable suspicion was formed, and the breath sample must be provided forthwith after the ASD demand was made (see R. v. Quansah, 2012 ONCA 123 (CanLII), [2012] O.J. No. 779(C.A.); R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] 1 S.C.R. 640; R. v. Woods, 2005 SCC 42 (CanLII), [2005] 2 S.C.R. 205, at para. 15, 29 and R. v. MacMillan, 2013 ONCA 109 (CanLII), [2013] O.J. No. 727 (C.A., Rosenberg J.A.)).
74In my view, there was no Charter breach relating to P.C. Towler advising Mr. James of his s. 10(b) Charter rights. In fact, P.C. Towler should be commended for providing Mr. James his right to counsel when he realized he and his partner did not have an approved screening device in their police cruiser and had to request one be brought to their location. P.C. Towler recognized Mr. James was being detained, Mr. James' right to counsel was suspended pending his providing a sample of his breath into an ASD and P.C. Towler did not know how quickly an ASD would be brought to the scene. In those circumstances an officer should advise the detainee of their s. 10(b) rights, however, if the ASD arrived quickly and no lawyer had returned the officer's call, then the requirements of s. 254(2) were engaged.
(c-2) Is there a requirement for a police officer to advise a detainee when providing the right to counsel under s. 10(b) that the detainee's right to consult with a lawyer or duty counsel will be implemented in private?
75The defence argued a further issue respecting the informational component of the right to counsel, which related to whether P.C. Towler was required as part of the informational component of the s. 10(b) Charter rights to advise Mr. James at the roadside his call to a lawyer or duty counsel would be in private. It is my view this issue does not arise on the circumstances of this case given the length of time that elapsed from the s. 254(2) demand and the ASD arriving on scene and my above findings, however, I decided I would address the defence submission as it appears to be contrary to existing precedent. It is important to note at the outset that Mr. James bears the onus of proving a breach of his s. 10(b) Charter rights on a balance of probability.
76In order to properly deal with this submission, it is my view it is necessary to examine what obligations are placed upon a police officer respecting the informational component of the s. 10(b) rights.
77As I have indicated, it is important to note that Mr. James bears the onus of proving a breach of his s. 10(b) Charter rights on a balance of probabilities. The standard right to counsel advises a detainee or someone under arrest that they have the right to retain and instruct counsel without delay, to telephone any lawyer they wish, they also have the right to free advice from a legal aid lawyer and a toll free number is provided to put the detainee into contact with a legal aid duty counsel lawyer for free legal advice right now.
78Section 10(b) of the Charter is comprised of two components: an informational component and an implementational component: see R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192. Ordinarily, the informational component only requires the police to inform a detainee of his right to retain and instruct counsel without delay and to inform the detainee of the availability of Legal Aid and duty counsel: see Bartle; R. v. Devries, 2009 ONCA 477 (CanLII), [2009] O.J. No. 2421 (C.A.), at paras. 21-23 and 28; and R. v. Willier, 2010 SCC 37 (CanLII), [2010] 2 S.C.R. 429, at paras. 29-30.
79In R. v. Brydges (1990), 1990 CanLII 123 (SCC), 53 C.C.C.(3d) 330 (S.C.C.), the Supreme Court held the police must give a detainee his rights to counsel before breath samples are provided and must give the detainee sufficient information to make an informed decision about speaking to counsel and a reasonable opportunity to exercise those rights without delay. Second, the police have an obligation to facilitate contact with counsel. Third, the police are required to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and consult counsel, see R. v. Manninen (1987), 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385 (S.C.C.) at p. 391.
80The Supreme Court of Canada has consistently held since R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537, that the implementation duties of the police "are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel": R. v. Bartle, supra, at p. 192; R. v. Willier, supra, at paras. 30 & 33; and R. v. Taylor, 2014 SCC 50 (CanLII), [2014] 2 S.C.R. 495, at paras. 23-24. The Ontario Court of Appeal has also held that implementation obligations arise only when detainees express a wish to exercise their right to counsel: R. v. Fuller 2012 ONCA 565, at para. 17. The question of whether a detainee asserted a desire to consult with counsel is essentially a question of fact: R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754 (C.A.), at paras. 77-78 and R. v. Owens, 2015 ONCA 652 (CanLII), [2015] O.J. No. 4972 (C.A.), at para. 28.
81In R. v. Sinclair, 2010 SCC 35 (CanLII), [2010] 2 S.C.R. 310, at para. 27 the Supreme Court has also made it clear the implementational duties of the police flowing from s. 10(b) are not absolute. Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended. This has been recently confirmed in R. v. Owens, supra, at para. 25 (see also R. v. Burlingham (1995), 1995 CanLII 88 (SCC), 97 C.C.C. (3d) 385 (S.C.C.) at para. 16; R. v. Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at 135; and R. v. Richfield, 2003 CanLII 52164 (ON CA), [2003] O.J. No. 3230 (C.A.)).
82Once the detainee requests to speak to a lawyer or Duty Counsel as part of the implementational component includes the right to privacy such that the police must accord the detainee to exercise this right in private (R. v. McKane (1987), 1987 CanLII 6794 (ON CA), 35 C.C.C. (3d) 481 (Ont. C.A.); R. v. Playford (1987), 1987 CanLII 125 (ON CA), 40 C.C.C. (3d) 142 (Ont. C.A.)).
83The defence provided the case of R. v. Jackson, 1993 CanLII 8667 (ON CA), [1993] O.J. No. 2511 (C.A.), which appears to stand for the proposition that if a trial judge accepts an accused's evidence he did not request to speak to a lawyer after being advised of his right to counsel because he did not believe he would be able to do so in private this would result in a breach of s. 10(b). In Jackson, the Court of Appeal held there was no obligation on a police officer to advise a detainee of the fact the exercise of his right to counsel would be in private. However, Goodman J.A. posited, because of where the arrest or detention took place and the right to counsel was given by the officer in such circumstances where the person might have reasonably inferred the consultation with the lawyer would not occur in private and it should be reasonably apparent to the officer that such detainee might have reasonably concluded his right to instruct his lawyer was not a right to do so in privacy, then there was a duty on the police officer to make it clear to the detained person that he had a right to instruct and retain a lawyer in private.
84The trial judge and summary conviction appeal judge in Jackson, both held circumstances in that case existed where Mr. Jackson when he was offered the right to consult with counsel reasonably inferred that if he exercised his right to counsel it would be in the presence of a police officer and this led to a breach of s. 10(b). Goodman J.A. recognized the summary conviction appeal court's decision may have gone too far in requiring a police officer as part of the informational component of the right to counsel to advise the detainee his exercise of the right would be "in private." The Court of Appeal held this would be contrary to R. v. McKane, 1987 CanLII 6794 (ON CA), [1987] O.J. No. 557 (C.A.) and R. v. Playford, 1987 CanLII 125 (ON CA), [1987] O.J. No. 1107 (C.A.). Justice Goodman indicated if a detainee indicated to the police officer he did not understand he had the right to speak to counsel in private or indicated he was concerned whether privacy would be afforded him, the instructing officer had an obligation to advise the detainee of his right to privacy. However, in Jackson the accused did not express such concerns to the officer. He did testify he would have asked to speak to a lawyer if he had known he had the right to consult with counsel in private, which evidence was accepted by the trial judge. He was in a general police investigative office where a reasonable person could infer if they requested to speak to a lawyer it would not be in private. In such a circumstance the officer would have a duty to inform the accused he has a right to privacy. Justice Goodman found in those circumstances there would be a breach of the right to counsel.
85Despite the existing s. 24(2) jurisprudence concerning conscripted evidence, which generally led to the exclusion of breath samples (see R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265, at pp. 284-285), Justice Goodman held the evidence should have been admitted because there was a legal obligation to provide samples of breath and he was not prepared to find the admission of the breath samples would render the trial unfair. He relied upon R. v. Marshall, [1989] O.J. No. 1999 (C.A.), where the court found the breach of the s. 10(b) rights was not deliberate or wilful and consequently, the breath samples were admissible. Justice Goodman found the officer was acting in good faith, the breath samples were reliable evidence, the samples would have been obtained under statutory compulsion and the charge was a serious one and the evidence was admitted.
86The Jackson case has only been referred to by the Court of Appeal in R. v. Damassia, [2017] O.J. No. 6402 (C.A.) on one subsequent occasion. The trial judge, Dawson J., of the Ontario Superior Court, found the arresting officer complied with the informational obligations of the right to counsel and went to some length to ensure the accused understood his rights, after which the accused made an informed decision to speak to the police without first speaking to a lawyer. Mr. Damassia testified he did not fully understand who duty counsel was or how long it would take for duty counsel to call back and he did not understand he had a right to speak to a lawyer in private. The accused testified it was for these reasons he did not ask to speak to a lawyer. Justice Dawson found the arresting officer was fully aware of his obligation to make sure the accused understood his s. 10(b) rights and when Mr. Damassia indicated he did not understand his right to counsel, the officer provided a more detailed explanation in plain language of the right to counsel. The Charter application was dismissed at trial and the Ontario Court of Appeal upheld this decision. Justice Dawson in R. v. Damassia, [2015] O.J. No. 6544 (SCJ) ruled:
32 The accused testified on the voir dire that he did not know what duty counsel was. He said he did not know how long it would take to contact duty counsel and he did not understand that he had a right to consult a lawyer in private, right at that time. He said it was for those reasons that he did not ask to speak to a lawyer.
33 I simply do not believe this evidence. The accused is an intelligent and educated young man. He spoke intelligently with the officer about his rights. He was able to assert himself -- he was not retiring. The officer in very clear terms told him that he could speak to a lawyer at any time. He explained that duty counsel was a lawyer on standby. Although expressly given the opportunity to seek further clarification the accused did not do so. He said he knew his rights and chose to proceed with the interview. Given these findings this was not a situation in which the officer had an obligation to advise the accused that he had a duty to hold off until the accused spoke to counsel. The accused was not equivocating. He continued in his previous stance that he did not wish to contact a lawyer.
34 As to the right to speak to a lawyer in private, I have been referred to no authority for the proposition that a comment on privacy forms part of the informational component of s. 10(b).
87In the case at bar, P.C. Towler broke down the standard right to counsel and asked Mr. James after each statement if he understood what the officer was saying to him. This is evident from what he recorded in his notes, which is set out in full above. It is my view Mr. James fully understood his right to counsel, as this was what he repeatedly told the officer in response to the officer's questions. When Mr. James was asked if he understood everything the officer had told him so far, he responded, "Yes." When P.C. Towler asked him if he wished to call a lawyer now, Mr. James responded, "I do not have a lawyer." P.C. Towler reminded Mr. James of the free lawyer and asked if he wanted to call that lawyer and Mr. James said, "No, not right now." His answers throughout were unequivocal and clear, he understood what the officer was saying to him and he told P.C. Towler if he wished to call a lawyer or the free lawyer he said, "No, not right now." Mr. James did not testify he did not understand what P.C. Towler told him concerning his right to counsel.
88In R. v. Zoghaib, [2005] O.J. No. 5947 (SCJ, Fragomeni J.), affirmed [2006] O.J. No. 1023 (C.A.), the summary conviction appeal judge held it was not a breach of s. 10(b) where an accused told the arresting officer at the scene she did not wish to speak to a lawyer and when she was asked again at the police station she said she would like to speak to a lawyer but never indicated a name of a lawyer to the officer, who contacted duty counsel. The Court of Appeal in a short endorsement held:
1 We are in substantial agreement with the analysis of the Summary Conviction Appeal Court. The appellant was fully advised of her right to counsel at the roadside and understood those rights. On the finding of fact made by the trial judge, any subsequent misapprehension by the appellant of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought processes, none of which were conveyed to or known by the officer. The Summary Conviction Appeal Court correctly held that as a matter of law the appellant's unexpressed desire to speak to her own lawyer could not result in a breach of s. 10(b) of the Charter. [Emphasis added]
89It is my view Mr. James did not request to speak to counsel of choice and did not ask to speak to duty counsel. He told the officer he did not have his own lawyer and when he was reminded about the free lawyer and whether he wanted to speak to that lawyer, Mr. James said, "No, not right now." Both of these answers indicate Mr. James clearly understood his right to counsel and he did not testify differently. P.C. Towler was asked if he told Mr. James he could exercise his right to counsel in private he answered he did not. Of course, he was not obligated to say anything about Mr. James speaking to a lawyer in private. His obligation to ensure the exercise of the right to counsel was in private only arose once Mr. James requested to speak to a lawyer during the implementational component.
90P.C. Towler testified if Mr. James had asked to speak to a lawyer he would have allowed him to make the call in the back of the police vehicle. This was clearly a way for the officer to ensure Mr. James' consultation with duty counsel or another lawyer was conducted in private. There have been a number of cases where the right to counsel is given to an accused who was brought to a hospital emergency room and courts have recognized there may be circumstances where ensuring an accused has privacy when speaking to counsel may be difficult (see R. v. Turriff, [1998] O.J. No. 4818 (OSC, O'Connor J.), affirmed [2000] O.J. No. 1522 (C.A.)](https://www.canlii.org/en/on/onca/doc/2000/2000canlii26570/2000canlii26570.html); R. v. Burley, 2004 CanLII 9437 (ON CA), [2004] O.J. No. 319 (C.A.); R. v. Cairns, 2004 CanLII 17588 (ON CA), [2004] O.J. No. 210 (C.A.); and R. v. Taylor, 2014 SCC 50 (CanLII), [2014] S.C.J. No. 50).
91I do not accept Mr. James evidence that he told P.C. Towler he did not want to speak to a lawyer because he thought he would not be able to speak to the lawyer in private. When he was first asked if he wanted to speak to a lawyer now, he responded "I have no lawyer." He never asked if his call would be in private. When he was reminded about duty counsel or the free lawyer that could be called, he again did not inquire whether the call would be in private.
92I find there was no breach of Mr. James' s. 10(b) Charter rights. P.C. Towler cannot be expected to know what was going on in Mr. James' mind, as indicated by the Court of Appeal in Zoghaib. If as a matter of law Ms. Zoghaib unexpressed desire to speak to her own lawyer could not result in a breach of s. 10(b), how could Mr. James' unexpressed concern the call would not be in private result in a breach of s. 10(b), especially when there is no obligation to ensure the call is in private on the police officer until a detainee invokes his right to counsel.
93Finally, the timing of this right to counsel only arose because P.C. Towler had to request an approved screening device be brought to the scene and he did not know how long it would take to get there. As I have already indicated the forthwith requirement rests with both the officer and the detainee: to make the ASD demand and to comply and provide a sample. Therefore, if the ASD arrived, as it did in this case, before a lawyer or duty counsel called back, the ASD demand must be complied with. Even if P.C. Towler breached Mr. James' s. 10(b) rights by not being aware of the reasonable inference Mr. James would believe the call could not be exercised in private, there was no evidence collected, such as breath sample results from an approved instrument or statements by Mr. James the Crown sought to introduce, to be excluded and given the nature of the alleged breach it is my view, P.C. Towler's conduct at its highest was inadvertent, not in bad faith, the impact on Mr. James' Charter rights was minimal and the public would want trials to occur on their merits, all of which would favour admission of the breath samples under the balancing of the factors in Grant.
94Finally, when P.C. Towler asked Mr. James again as they arrived at the police station if he was sure he did not want to speak to a police officer, Mr. James indicated, for the first time, yes he would like to speak to Duty Counsel. After Duty Counsel called back, Mr. James was placed in a private room where he was able to consult with Duty Counsel in private. This was prior to Mr. James being turned over to the qualified breath technician and providing two suitable samples of his breath. I find the defence has not established on a balance of probabilities that Mr. James' s. 10(b) Charter rights were infringed and his Charter application is dismissed.
(d) Must the Crown prove the statutory pre-requisites of s. 320.31(1) of the Criminal Code have been met in order for the results of the breath test to be admissible and reliable?
95The defence did not raise this issue in their written submissions, however, it was part of the original application, cross-examined on during the trial and was argued during oral submissions. Therefore, I am providing my reasons for dismissing this Charter argument.
96Section 320.31(1) of the Criminal Code sets out an evidentiary shortcut providing that the results of breath tests are accurate if the criteria enumerated in the section are met. It provides:
320.31 (1) If samples of a person's breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person's blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same -- or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person's blood alcohol concentration at the time when the analyses were made -- if
(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 ml of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;
(b) there was an interval of at least 15 minutes between the times when the samples were taken; and
(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.
97In R. v. Wu, [2019] O.J. No. 5000 (SCJ), Justice Roberts held the enumerated criteria set out in s. 320.31(1) are not elements of the offence of "over 80" or pre-requisites to the admissibility or reliability of breath tests, rather, they are pre-requisites to the evidentiary short-cut set out in s. 320.31(1). The point of this is to obviate the necessity of calling the evidence of the breath technician (see R. v. Alex, 2017 SCC 37 (CanLII), [2017] 1 S.C.R. 967, at paras. 20 & 36).
98In this case the Crown called the breath technician, P.C. Rafhee, and did not rely on the short-cut provided by s. 320.31(1). P.C. Rafhee testified as to the following evidence:
He was designated as a qualified breath technician under the Criminal Code on August 6, 2018. This was two days before he received the breath samples of Mr. James.
He was using an Intoxilyzer 8000C, which is an approved instrument under the Criminal Code.
He conducted the calibration, diagnostic and self-diagnostic tests to determine if the approved instrument was operating properly and concluded it was suitable for use. The instrument was in ready mode when he received Mr. James into his custody.
He viewed the Certificate of an Analyst from the Centre of Forensic Sciences, Exhibit A, to check the standard alcohol solution used in the instrument, which was taped to the wall to the left of where he was working with the Intoxilyzer 8000C. The system calibration check showed a result of 97 mg of alcohol in 100 mL of blood, which was within the range +- 10 or 90 to 110 mg of alcohol in 100 mL of blood; the self-diagnostic test of his breath produced a result of zero mg of alcohol in 100 mL of blood, which was correct. This information was on the Test Record Card or printout generated by the Intoxilyzer 8000C, Exhibit 2. P.C. Rafhee provided similar evidence as to the tests performed by the Intoxilyzer 8000C before the second breath sample was received. The instrument was working properly.
Mr. James provided two breath readings: the first was at 23:38 p.m. and registered a reading of 221 mg of alcohol in 100 mL of blood; the second was at 12:03 a.m. and registered a reading of 216 mg of alcohol in 100mL of blood. Both breath samples were proper, suitable samples for analysis provided by Mr. James.
99In R. v. McCarthy, [2013] O.J. No. 467, at para. 22, (SCJ), MacDonnell J. held where the Crown does not rely upon the short-cut contained in the Criminal Code, the evidence of the breath technician will satisfy the admissibility and reliability requirements at common law:
Measurements performed by a scientific instrument or device are admissible at common law if the court is satisfied that the instrument or device was capable of making the measurement in question, that it was in good working order, and that it was properly used at the material time: see R. v. Redmond (1990), 1990 CanLII 10971 (ON CA), 54 C.C.C. (3d) 273 (Ont. C.A.); R. v. Vancrey (2000), 2000 CanLII 26961 (ON CA), 147 C.C.C. (3d) 546 (Ont. C.A.); R v. Grainger (1958), 1958 CanLII 469 (ON CA), 120 C.C.C. 321 (Ont. C.A.). Having regard to Parliament's designation of the Intoxilyzer 8000C as an 'approved instrument' - "an instrument of a kind that is designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person" - the first of those requirements is easily satisfied. The viva voce evidence of a qualified technician will normally suffice to establish the other two.
100Justice Roberts in R. v. Wu, supra, at para. 13, held:
13 I note that the Intoxilyzer 8000C was used both before s.320.31 (l) of the Criminal Code was enacted, and after. The enactment of s.320.31 does not change its inherent reliability, or what the Crown needs to prove in order to establish, at common law, that breath tests done using it are admissible and reliable. Section 320.31(1) simply changes the nature of the evidentiary short-cut that may be used to obviate the need for viva voce evidence. As the Crown explained, s. 258 of the Criminal Code used to provide for a presumption of accuracy where the pre-requisites of the section were met. Section 320.31(1) of the Criminal Code now provides for conclusive proof of accuracy where the pre-requisites of the section are met. But nothing has changed about the underlying "approved instrument". Or the proof required at common law to establish that breath tests taken using it are admissible and reliable.
101I agree with Justice Roberts analysis and adopt it in this case. Further, in R. v. Harding, [1994] O.J. No. 419 (C.A.), the Court of Appeal held that it is enough for a technician to testify that he or she tested the breathalyzer by means of an alcohol standard and found it to be in proper working order. Unless there is reason to question this, the breath technician need not testify about the suitability of the alcohol standard used.
102Consequently, I find the results of the breath samples obtained from Mr. James are admissible and reliable based on the evidence of the qualified breath technician.
Were the breath samples taken as soon as practicable pursuant to s. 254(3)?
103Section 254(3) reads as follows:
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person
(a) to provide, as soon as practicable,
(i) samples of breath,…
104This provision requires that a police officer make a timely demand for samples of the breath of a person who is believed to have committed either the offence of impaired driving or that of operating a motor vehicle with more than the permissible amount of alcohol in his or her blood.
105Section 254(3)(a) requires that the person provide these samples "as soon as practicable".
106Section 258(1)(c) provides:
258(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(i) [Repealed before coming into force, 2008, c. 20, s. 3]
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;
107Mr. Starkman asserted that the police failed to secure samples of the Mr. James' breath in compliance with this statutory obligation and accordingly, the Crown cannot rely on the presumption of identity in s. 258(1)(c) of the Criminal Code, which deems the breath readings to be proof of the defendant's blood alcohol concentration at the time of the alleged offence. A further Charter argument has been said to arise where the breath samples are not taken, pursuant to the requirement in s. 254(3) of the Criminal Code, "as soon as practicable" and the subsequent seizure of samples of a defendant's breath constitutes an unreasonable search and seizure, contrary to section 8 of the Charter, rendering Mr. James' detention for that purpose as arbitrary and in violation of section 9 of the Charter. However, Mr, Starkman advised in his written submissions he was not relying on that line of cases and the Crown has agreed there is binding caselaw allowing the issue to be dealt with as a non-Charter issue.
108Ms. Tait for the Crown submitted that the breath samples in issue were secured within "a reasonably prompt time" under consideration of all of the circumstances in issue in this case and consequently, are admissible.
109Courts of superior jurisdiction direct that the "as soon as practicable" consideration must be applied with reason. The prosecution is not required to explain every time period between the stop and arrest of a defendant and the securing of the breath test as long as the tests are taken "as soon as practicable" on consideration of the circumstances of the investigation in issue. In determining whether the "as soon as practicable" issue has been met with compliance, the court is required to assess whether the conduct of the police was reasonable in all the circumstances; see R. v. Van Derveen (1988), 1988 ABCA 277 (CanLII), 44 C.C.C. (3d) 38, (Alta. C.A.); R. v. Vanderbruggan (2006), 2006 CanLII 9039 (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.); R. v. Carter (1981), 59 C.C.C. (3d), 450 (Sask. C.A.); R. v. Payne (1990), 1990 CanLII 10931 (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.).
110The governing authority in Ontario is R. v. Vanderbruggan, supra, at paras. 12 and 13, where Justice Rosenberg held:
12 That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 1988 CanLII 198 (ON CA), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 1980 CanLII 2920 (ON CA), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286 (CanLII), 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 1990 CanLII 10931 (ON CA), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 1981 CanLII 2063 (SK CA), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277 (CanLII), 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, 1998 CanLII 5146 (ON CA), [1998] O.J. No. 4362 (C.A.).
13 In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 2000 CanLII 17024 (ON CA), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1982 CanLII 353 (BC CA), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7. [Emphasis added]
111The recent decisions in R. v. Singh, 2014 ONCA 293 (CanLII), [2014] O.J. No. 1858 (C.A.), at paras. 12-16, and R. v. Crewson, [2015] O.J. No. 1943 (C.A.), at para. 3, cited Justice Rosenberg's comments in Vanderbruggan with approval.
112As indicated in the above-noted cases, I am required to assess the totality of the circumstances (see R. v. Crewson, [2015] O.J. No. 1943 (C.A.), at para. 3) and the "whole chain of events" (see R. v. Singh, supra, at para. 14). In this case the delay at the scene was caused by three circumstances: one unique to this case and the other two involved reading Mr. James his right to counsel, caution and breath demand and a circumstance created by the Ontario Highway Traffic Act's provisions impounding a detainee's motor vehicle when they are charged with impaired operation or over 80 charges. Further, P.C. Towler was not able to leave three young children in Mr. James' car and after reading Mr. James the breath demand pursuant to s. 254(3), Mr. James said he understood but asked the officer, "But my kids." This occurred at 10:14 p.m. after the arrest at 10:13 p.m. for exceed 80. After Mr. James' arrest, P.C. Towler read Mr. James his rights to counsel, caution and breath demand and then handcuffed Mr. James, performed a cursory pat down search and placed Mr. James into the rear of his police vehicle. P.C. Towler then obtained Mr. James' wife's phone number to arrange for her to come to the scene to look after the three young children. P.C. Towler also was required to search the vehicle incident to arrest, secure Mr. James' motor vehicle, which was to be impounded, and arrange for a tow. P.C. Towler spoke to Mr. James' wife at 10:18 p.m., advising her of what had taken place and requesting she attend the scene.
113P.C. Towler did not note the time when Mr. James' wife arrived at the scene to take control of her three young children, although he did have conversation with her as to what had transpired and the next steps for Mr. James. Mr. Starkman criticized P.C. Towler for not knowing when he searched Mr. James' car, although P.C. Towler testified he searched the car after Mr. James' wife arrived and she had taken the children out of the car. P.C. Towler did not note when the tow truck arrived or when custody of Mr. James' car was turned over to the operator but this did occur. All of these activities did take place and are part of the unique "chain of events" involved in this case. P.C. Towler was able to begin Mr. James' transport from the scene to 17 Division at 10:41 p.m. The total time elapsed between the arrest and P.C. Towler leaving for the police station was 28 minutes, which in my view is completely explained by the "whole chain of events" described above. In my view the evidence established P.C. Towler was not delaying bringing Mr. James to 17 Division, as all of the tasks he performed were necessary, proper and reasonable.
114Mr. Starkman queried why Sgt. Carroll could not wait for Mr. James' wife to attend the scene for the children, however, it is my view P.C. Towler's explanation was reasonable that this was not something Sgt. Carroll would or could become involved in, as he was the shift supervisor, who was responsible for overseeing the officers on his shift and this was an appropriate task for P.C. Towler to deal with, which he did.
115Once at the police station Mr. James was paraded before the officer in charge of the station. A call was placed to duty counsel and then there was the time it took for duty counsel to return the call. Mr. James then spoke to duty counsel. I heard evidence the qualified breath technician was working on general patrol and had to be called into 17 Division to perform the breath tests and he had to ready the approved instrument upon his arrival. Duty Counsel called back at 11:13 and Mr. James was placed in private room at 11:17 p.m. The call was completed at 11:26 p.m. Mr. James was turned over to the breath technician at 11:26 p.m.
116Having regard to the totality of the circumstances and the chain of events I find the first breath test was taken as soon as practicable. This is not a case where there is unexplained delay with no evidence as to what occurred during the 28 minutes, which occurred between the arrest and P.C. Towler leaving the scene. Of course, as indicated in Vanderbruggan, the Crown does not have to account for or provide a detailed explanation of what occurred for every minute Mr. James was in custody. In my view the breath tests were taken in a reasonably prompt time under the circumstances of this case and the police officers involved acted reasonably. Consequently, the defence argument that the breath samples were not obtained as soon as practicable must fail and it is dismissed given the time requirements of the tasks performed by P.C. Towler were reasonable. The Crown is not required to provide a detailed explanation of what occurred during every minute that the accused is detained in custody and as directed in Vanderbruggan a trial judge must keep in mind the Criminal Code permits the first test to be taken within two hours. The first breath sample in this case was completed at 11:38 p.m., which was within two hours of the traffic stop at 10 p.m. by P.C. Towler. It follows therefore that the Crown is entitled to rely upon the presumption of identity in s. 258(1)(c) of the Criminal Code.
117As a result of the dismissal of all of the Charter applications brought by the defence and my rejection of the "as soon as practicable" argument, the two breath samples of 221 mg of alcohol in 100 mL of blood and 216 mg of alcohol in 100 mL of blood, provided by Mr. James into the Intoxilyzer 8000C, are admissible.
Released: January 13, 2020
Signed: Justice Peter C. West