ONTARIO COURT OF JUSTICE DATE: 2021·01·12 NEWMARKET

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SERGEI KUZNETSOFF

JUDGMENT

Evidence and Submissions Heard: January 11, 2021. Delivered: January 12, 2021.

Counsel: Mr. Bradley Juriansz .............................................................................. counsel for the Crown Mr. Bruce Daley ................................................................................ counsel for the defendant

KENKEL J.:

Introduction

[1] Constable Saleh first saw Mr. Kuznetsoff’s Audi stopped at a red light on Highway 7. As the officer drove towards the intersection, he saw the Audi drive through the red light. The officer stopped Mr. Kuznetsoff for the traffic offence. When speaking with the accused, Constable Saleh detected an odour of alcohol coming from Mr. Kuznetsoff’s breath. He administered an Approved Screening Device (ASD) test. The test registered a Fail result indicating a blood alcohol concentration above the legal limit. Further breath tests at the station determined that Ms. Kuznetsoff’s blood alcohol concentration was 147 and 146 mgs/100ml. Mr. Kuznetsoff was charged with the offence now referred to as “80+”.

[2] The defence applies to exclude the breath test evidence as a remedy for violations of the accused’s rights under sections 8, 9 and 10 of the Charter. The defence submits that:

• The officer did not utter the ASD demand immediately upon forming his reasonable suspicion.
• The officer did not have reasonable grounds to make the Approved Instrument demand due to uncertainty regarding mouth alcohol.
• The officer did not provide right to counsel advice immediately upon arrest.
• The breaches are not trivial or technical. To permit the admission of the breath test evidence obtained in this manner would bring the administration of justice into disrepute.

[3] The Crown submits that the delay in the ASD demand does not breach s 8 where the officer is conducting a query of the driver’s information for officer safety. There was no evidence of mouth alcohol. The officer provided right to counsel advice in a timely way, but if there was a breach it had no impact on the accused’s Charter protected rights.

ASD Demand – Immediately

[4] Section 320.27(1)(b) provides that where an officer has a reasonable suspicion that a driver has alcohol in their body, the officer may require the person to provide breath samples into an Approved Screening Device (ASD). Roadside testing is the first part of the two-step regime described in R v Woods, 2005 SCC 42 at para 30 designed by Parliament to “combat the menace of impaired driving”. Section 320.27 requires that a driver respond “immediately” to a demand for a breath sample. They are not entitled to wait until a time of their choosing. The term “immediately” replaces the word “forthwith” in the English version of the predecessor section (254(2)).

[5] In R v Garland, 2020 NSPC 47, Judge McGrath compared the use of the term “immediately” in s 320.27(1)(a) to the term “forthwith” in section 254(2)(b). Her Honour noted that the Oxford Dictionary defines immediately as “without delay”. The Supreme Court of Canada held in Woods at para 13 that “forthwith” in this context meant immediately or without delay.

[6] I agree with Judge McGrath that the use of “immediately” instead of forthwith in the context of s 320.27 is simply a modernization of the language without any change in meaning. This view is supported by the use of the same term “immediately” ( fournir immédiatement) in the French version of s 254(2) and in the current section 320.27(1). [1]

[7] Section 320.27 does not include direction as to the timing of the demand itself. Courts have held that it is implicit in the roadside testing regime that the officer must make a prompt demand – Woods at para 44, R v Quansah, 2012 ONCA 123 at para 26. Officers must complete the test process with dispatch, keeping in mind that the accused is detained for that purpose without access to counsel.

[8] Courts have not required that an officer utter the ASD demand at the instant the officer forms a reasonable suspicion, but if there is any delay in the demand it must be “no more than is reasonably necessary to enable the officer to discharge his or her duty” – Quansah at paras 47 – 48.

[9] In this case Constable Salah returned to his vehicle to check the police computer for information regarding the driver. He wanted to know if there were any outstanding warrants or information that the accused may be aggressive or armed. He asked for a second officer to attend as this was his first 80+ investigation on his own, but he did not delay his investigation to wait for that officer.

[10] The traffic stop was at 12:02 am. There was conversation with the driver and PC Saleh obtained Mr. Kuznetsoff’s information. The officer returned to his vehicle and ran a query, then had Mr. Kuznetsoff step out of his vehicle at 12:06 am. The delay to run the query took a few minutes in between those two times.

[11] The defence points out that Mr. Kuznetsoff was not aggressive and did not pose an apparent safety issue when PC Saleh first spoke with him. While that is true, it doesn’t mean that a records query for officer safety is reasonable only in cases of apparent aggression. I agree with the Crown that an officer has no way of knowing whether there is a potential safety issue until they check the information provided by the driver. In my view an officer is entitled to make that query before taking any investigative step that might trigger a reaction from the driver.

[12] In 2011 York Region Constable Garrett Styles was killed during what appeared to be a routine traffic stop. In 2019 a York Region officer was shot at during a traffic stop by a driver who later barricaded himself inside a home in Richmond Hill. The tragic death of Sgt. Andrew Harnett of the Calgary Police Service just a few days ago is a further reminder that police officers face potential danger even in seemingly routine traffic stops.

[13] The immediacy requirement in s 320.27 is not so arbitrary or artificial that it is breached by anything other than an instant demand. It balances all of the rights engaged by that section by ensuring a prompt demand, a timely test and the immediate response by the driver. Conducting a check to ensure officer safety, even in the absence of any obvious threat, is necessary for an officer to properly discharge their duty. The few minutes such a query takes has a trivial impact on the accused’s sections 8 and 9 Charter rights in the context of the investigation.

[14] The most important requirement for an Approved Screening Device test is that the officer have a reasonable suspicion that the driver has alcohol in his body. Both parties agree the odour of alcohol on the accused’s breath provided this officer with the required suspicion. I find the Crown has proved that the breath demand was made promptly. In the alternative, if the brief delay in the demand was a breach of the accused’s section 8 and 9 Charter rights, it had only a minimal impact on the rights those sections protect.

ASD Test – Mouth Alcohol

[15] The second issue in relation to the ASD test flows from the evidence of the arresting officer. At one point he said he believed that the ASD itself had an ability to detect mouth alcohol. This was the officer’s first 80+ case and the evidence of the breath technician shows he was mistaken on this point. [2]

[16] PC Saleh tested the Approved Screening Device at the start of his shift. He conducted a self-test and received a 0 reading, consistent with the fact that he consumed no alcohol. He checked the calibration date and found that the device had just been calibrated days earlier. He confirmed that the device was in good working order.

[17] The officer turned his mind to the issue of mouth alcohol. There was no evidence before him that the driver had consumed alcohol recently. He specifically asked the driver about his drinking that evening, but Mr. Kuznetsoff denied consuming any alcohol. PC Saleh had no basis on which to delay the test to eliminate a theoretical possibility of mouth alcohol. If he had done so without reason the defence certainly would have been entitled to complain about the delay. While he did express an incorrect view regarding the ASD software, he did not rely on that misunderstanding but instead conducted his own inquiry on this point.

[18] I find the Crown has proved that the ASD was in proper working order and that the officer operated the device properly. He was entitled to rely on the Fail result as providing reasonable grounds for the Approved Instrument demand. There was no breach of sections 8 and 9 of the Charter.

Right to Counsel Advice – Immediately

[19] Mr. Kuznetsoff was arrested at 12:11 am. The officer read right to counsel advice later in the police car after searching the accused’s vehicle for the belongings he requested and after establishing vehicle ownership. The in-car video was not played, and the applicant did not establish the exact time right to counsel advice was provided. The officer’s best estimate in that regard was five minutes after arrest.

[20] In R v Suberu, 2009 SCC 33, the Supreme Court held that the right to retain and instruct counsel in s 10(b) of the Charter “without delay” imposes a duty on the police to inform a detainee of his or her right to retain and instruct counsel immediately upon detention.

[21] As my brother Justice McInnes explained in R v Turcotte, 2017 ONCJ 716, to understand the use of “immediately” in Suberu it’s important to remember the context. The Ontario Court of Appeal had held that despite the words “without delay” in s 10(b) of the Charter, right to counsel advice was not required during a “brief interlude … during which the officer makes a quick assessment of the situation…” R v Suberu, 2007 ONCA 60 at para 50. The holding in Suberu overruled that specific proposition, that right to counsel information could be suspended until after an investigative interview of the detainee – Turcotte at para 14.

[22] Justice McInnes reviewed decisions from a number of drinking and driving cases in the Ontario Court of Justice that involved similar delays ranging from five to nine minutes. Trial courts have differed on whether such delays amount to a breach of the Suberu requirement.

[23] While I agree with Justice McInnes and others that “immediately” does not necessarily mean “instantaneously” in every case, ultimately the most important issue is not whether there was some delay in providing right to counsel advice, but whether the delay had any impact on the rights section 10(b) was enacted to protect.

[24] I agree with the defence that the new officer erred in describing the timing of right to counsel advice as “as soon as practicable”. I find that the delay in right to counsel advice while the officer searched the vehicle for the accused’s property and made inquiries related ownership and the towing of the car was a breach of s 10(b). The officer properly refrained from taking any investigative steps in relation to the accused during that period and he provided full right to counsel advice minutes later while still at the scene. He assisted Mr. Kuznetsoff in speaking with counsel at the station.

[25] The breach resulting from the delayed reading of right to counsel advice had no apparent impact on the accused’s s 10 Charter rights. Aside from the few minutes delay in reading that advice, it’s important to note that the officer otherwise fully complied with the s 10 Charter requirements.

Exclusion of Evidence s 24(2)

[26] The s 10(b) breach was not serious as the delay was brief and the officer properly refrained from taking any investigative steps before reading right to counsel advice. Part of the time was spent assisting the accused retrieving the property he requested from his vehicle. I disagree that the fact that a new police officer described the right to counsel immediacy requirement as “as soon as practicable” necessarily reflects a systemic problem.

[27] Under the test in R v Grant, 2009 SCC 32, the central criteria is the impact of the breach upon the accused’s Charter protected right. This is because the more serious the incursion, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute – Grant at para 77. In R v Thompson, 2020 ONCA 264 the Ontario Court of Appeal found that an 18 minute delay in right to counsel advice was a serious breach as there was extensive evidence of a chronic systemic problem in Peel with delayed advice. Nevertheless, the court agreed with the trial judge’s finding that the impact of that s 10(b) breach on the 24(2) analysis was minimal as the police did not try to question or investigate the accused – Thompson at para 100.

[28] In this case the delay of up to five minutes in reading right to counsel advice had no impact on the accused’s rights protected by s 10 of the Charter. Mr. Kuznetsoff failed the Approved Screening Device test and was arrested. He was fully aware of the reason he was being detained. After the brief delay, full right to counsel advice was provided at the scene. The officers took the proper steps at the station to implement the accused’s choice to speak to duty counsel.

[29] If the delay in the ASD demand was also found to be a breach, for similar reasons I find it would add little to the s 24(2) analysis. Mr. Kuznetsoff was by himself in his vehicle while waiting for those few minutes. He was not otherwise free to leave given the traffic offence investigation. The delay in reading the ASD demand to Mr. Kuznetsoff had no practical effect as there was no time to contact counsel. There was no other consequence of the alleged breach identified by the applicant.

[30] Society’s interest favours adjudication of the case on the merits. The truth-seeking function of the trial would plainly be better served by the admission of the breath test evidence that is essential to the Crown’s case.

[31] The exclusion of reliable and essential evidence to remedy minor Charter breaches that have little actual impact on an accused’s Charter rights was one of the problems cited by the Supreme Court in Grant at para 106 that led to the creation of the current s 24(2) test. I find that to exclude the breath test evidence in this case would bring the administration of justice into disrepute.

Conclusion

[32] I find that the Crown has proved the ASD test at the roadside was lawfully conducted based on a reasonable suspicion and properly administered. The fail in that test provided the officer with reasonable grounds to believe the accused had a blood alcohol level in excess of the legal limit. The Crown has proved the officer had subjectively and objectively reasonable grounds for the Approved Instrument demand. It is conceded that the Crown has otherwise proved the elements of the 80+ offence.

[33] I find the defendant/applicant has proved the s 10(b) breach alleged, but the application to exclude the breath test evidence under s 24(2) of the Charter must be dismissed. The same result would obtain even if the ASD demand delay were also found to be a Charter breach.

[34] Mr. Kuznetsoff is found guilty of having a blood alcohol level in excess of the legal limit within two hours of ceasing to operate a conveyance contrary to s 320.14(1)(b).

Delivered: 12 January, 2021.

Justice Joseph F. Kenkel

Footnotes

[1] See also : R v Oltman, 2020 ABPC 142 and R v Speers, 2020 SKQB 199.

[2] It appears the officer confused the ASD with an Approved Instrument such as the Intoxilyzer 8000C which has “slope detection” software that can detect a rapid rise in BAC reading caused by alcohol coming from the mouth as opposed to from a deep lung sample which the instrument is designed to test.