ONTARIO COURT OF JUSTICE DATE: 2021 04 06 COURT FILE No.: Peel 19-31070
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Ryan BHIMLAL
Before Justice D.A. Harris
Heard on February 16 & 17, 2021
Reasons for Judgment released on April 6, 2021
Liron Taub............................................................................................ counsel for the Crown Chloe Zheng........................................................ counsel for the defendant Ryan Bhimlal
D.A. HARRIS J.:
[1] Ryan Bhimlal is charged with having a blood alcohol concentration equal to or greater than 80 milligrams of alcohol in 100 millilitres of blood within two hours of operating a conveyance. This is alleged to have occurred in Brampton on October 21, 2019.
[2] Crown counsel elected to proceed summarily.
[3] Mr. Bhimlal pled not guilty and a trial was held.
[4] He applied for an order that evidence be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.
[5] Counsel agreed that we should proceed with a “blended” hearing in which the evidence would be applicable to both the Charter application and to the trial.
[6] Peel Regional Police Constable Matheson testified for the Crown. Police Constable Boston was called by the defence.
[7] There is no issue that Mr. Bhimlal was driving his motor vehicle in Brampton on October 21, 2019 or that he provided two samples of his breath within two hours of that driving and both of these tests registered a blood alcohol concentration of 130 milligrams of alcohol per 100 millilitres of blood.
[8] The issues before me are: (1) Was there evidence that the Alcohol Standard Lot had been certified by an Analyst as required by section 320.31 of the Criminal Code, and (2) Whether the breath test results should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.
[9] More particularly with respect to the Charter application, counsel for Mr. Bhimlal argued that the evidence should be excluded on the basis that: (1) Constable Matheson did not inform Mr. Bhimlal promptly of the reasons for his detention and arrest as required by section 10(a) of the Charter; (2) Constable Matheson infringed his right to retain and instruct counsel without delay and to be informed of that right, as required by section 10(b) of the Charter; and (3) Mr. Bhimlal’s right to be secure against unreasonable search or seizure as guaranteed by section 8 of the Charter was infringed because the breath tests were not taken as soon as practicable.
[10] Counsel for Mr. Bhimlal conceded that Constable Matheson had the requisite grounds to stop Mr. Bhimlal, to make an ASD demand and to make an Intoxilyzer demand.
[11] I will address the Alcohol Standard issue first.
[12] The pertinent portion of Section 320.31 of the Criminal Code reads as follows: 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 ;
[13] Counsel argued that the Crown had not proven that the particular Lot of Standard Solution that was used in this case had been certified by an analyst.
[14] I found no merit in this argument.
[15] The section does not require reference to a specific Lot of the Standard Solution. It requires evidence that “the qualified technician conducted 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 ”.
[16] The Certificate of a Qualified Technician which was made an exhibit in this case provides that precise evidence. It states the following with respect to the taking of both samples: Before taking the sample I conducted a system blank test the result of which was 0 mg of alcohol in 100 mL of blood. Before taking the sample I conducted a system calibration check the result of which was 97 which is within 10% of the target value of an alcohol standard that was certified by an analyst.
[17] Section 320.32(1) of the Code states that a certificate of a qualified technician is evidence of the facts alleged in the certificate.
[18] I have added emphasis to the above passages to highlight how the evidence provided conforms precisely to the wording in section 320.31.
[19] Accordingly, I am satisfied that the Crown has met the prerequisites set out in that section.
[20] I will next deal with the Charter issues in the order set out above.
[21] Section 10(a) and (b) of the Canadian Charter of Rights and Freedoms provide that: 10. Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right.
[22] I note that Mr. Bhimlal bears the burden of persuading me on a balance of probabilities that his section 10 Charter rights were infringed.
[23] I will first address the law with respect to section 10(a).
[24] Constable Matheson testified that one of the very first things that he told Mr. Bhimlal was that he was investigating possible impaired driving.
[25] I believed Constable Matheson.
[26] I recognize that he had not recorded this fact in his notes. That does not mean however that it did not happen.
[27] He had a clear recollection of doing this. Further, this was only his third drinking / driving investigation.
[28] I note that there was no evidence that he did not say this.
[29] Constable Boston testified that she did not recall exactly what Constable Matheson said or when he said it.
[30] Mr. Bhimlal did not testify.
[31] I recognize that he did not have to testify but I note again that the onus is on him to persuade me of any infringement of his section 10(a) rights on a balance of probabilities.
[32] He has failed to do so, and I am satisfied that Constable Matheson advised him promptly of the reason for his detention.
[33] Mr. Bhimlal has also failed to persuade me to the requisite degree with respect to the alleged infringement of his section 10 (b) rights.
[34] Counsel argued that the five minute delay between 9:22 a.m. (when Mr. Bhimlal registered a “Fail” on the ASD) and 9:27 a.m. (when Constable Matheson advised him of his right to counsel) constituted a failure to inform Mr. Bhimlal of his right to counsel without delay.
[35] As stated above, when an individual is arrested or detained, section 10 (b) guarantees the right to retain and instruct counsel "without delay" and to be informed of that right. Subject to concerns for officer or public safety, or limitations prescribed by law and justified under section 1 of the Charter, "without delay" means "immediately". [1]
[36] Specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. [2]
[37] However, concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel. [3]
[38] Any assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. [4]
[39] In this case, Mr. Bhimlal recorded a “Fail” on the ASD at 9:22 a.m.
[40] Constable Matheson arrested him at 9:25.
[41] He handcuffed Mr. Bhimlal, searched him and placed him in the police car.
[42] He began reading the right to counsel at 9:27.
[43] So any delay in this case is either two minutes or five minutes depending on which starting time I use.
[44] Counsel for Mr. Bhimlal provided me with a number of cases where seven minute delays were held to be an infringement of the accused person’s section 10 (b) rights.
[45] In R. v. Sandhu, 2017 ONCJ 226, Schreck J. found a breach where the seven minute delay occurred while the officer spoke to the arrestee's passengers. [5]
[46] In R. v. Simpson, [2017] O.J. No. 2594 OCJ, 2017 ONCJ 2594 Schreck J found a breach where the arresting officer delayed informing the impaired driving arrestee of his right to counsel for seven minutes while he retrieved the arrestee's wallet and some unspecified object from the center console of his vehicle. In this case, Crown counsel conceded that this was a violation of section 10 (b). [6]
[47] In R. v. Campbell, 2017 ONCJ 570, Felix J. found a breach where there was a seven minute delay while the officer determined his legal authority to tow the arrestee's vehicle from a private driveway, summoned another officer to assist with towing, counted money he had seized from the arrestee and secured open liquor. [7]
[48] Crown counsel referred me to cases going the other way.
[49] In R. v. Singh, [2017] O.J. No. 3017 (O.C.J.), 2017 ONCJ 3017, Botham J. found no breach in a five minute delay for a pat-down search and to run the arrestee's name on the officer's in-car computer did not lead to a breach. [8]
[50] In R. v. Foster, 2017 ONCJ 624, Jaffe J. found no breach in a five minute delay while the officer conducted a pat-down search and lodged the arrestee in the back of the cruiser. [9]
[51] In R. v. Rossi, 2017 ONCJ 443, Henschel J. found no breach where the female arresting officer delayed for seven minutes so a male officer could search the arrestee incident to arrest and so she could retrieve his cell phone at his request and calm him down so he would be able to absorb what she was telling him about his right to counsel. [10]
[52] In R. v. Turcotte, [2017] O.J. No. 5607 (O.C.J.), 2017 ONCJ 5607, McInnes J found no breach in a five minute delay during which the police officer handcuffed the man, performed a pat-down search incident to arrest and stored the man's property. During this interaction he asked the defendant where his car keys were. The defendant replied he had left them on the ground near "the corner of the building" which was evidently a short distance from where his truck and the police cruiser were parked. The officer then moved his police cruiser close to the corner of the building to ensure nothing happened to the keys before he had the chance to search for them and he initiated arrangements for another officer and a tow truck to attend and he entered the defendant's particulars into his in-car computer system to determine if there were any outstanding warrants, charges or prior judicial interim release orders and the like. Taking these steps comported with the immediacy requirement. [11]
[53] In R. v. Agnihotri, [2019] O.J. No. 4133 (O.C.J.), 2019 ONCJ 4133, Rahman J. found no breach in a four minute delay. His reasons were as follows: 9 Further, the four-minute delay in advising the applicant of his right to counsel after he was arrested did not breach the immediacy requirement of s. 10 (b). The requirement to read a detained person his or her right to counsel immediately does not mean it must happen instantaneously after arrest. Context matters. The officer explained that he wanted to place the applicant in the cruiser where there was some peace and quiet. While it is true that he briefly called for assistance to have the car towed, one minute before advising the applicant of his right to counsel, that does not mean it was not done immediately. This is not a case where the officer did several non-urgent, administrative tasks before advising the applicant of his right to counsel. In the context of this arrest, the four-minute delay did not fall afoul of the immediacy requirement. There was no breach of s. 10(b) of the Charter . [12]
[54] In R v Fisk, [2020] O.J. No. 707 (O.C.J.), 2020 ONCJ 707, O’Marra J. held that the immediacy requirement dictated that the accused should have been provided with meaningful rights to counsel while he waited for the arrival of the ASD. Relevant to the present case however, he went on to state that: 51 In my view, the applicant did not prove on a balance of probabilities that there was a further section 10 (b) violation as a result of a delay of four (4) minutes between the time of the "fail" and the arrest, to the time that the right to counsel was provided to the applicant seated inside the cruiser. The right to counsel is to be provided 'immediately not instantaneously'. Police officers are not required to hand cuff the accused with one hand and with the other hand read the right to counsel from their notebooks. Besides, the police did not attempt to elicit any evidence from the applicant during this period that would have been admissible. (See: R. v. Culotta, 2018 ONCA 665, [2018] O.J. No. 3946 (Ont. C.A.) at para. 35 ) [13]
[55] I am satisfied that Constable Matheson did not infringe Mr. Bhimlal’s section 10 (b) rights in this case.
[56] Constable Matheson was a rather new police officer. He had investigated about two drinking driving cases before this one. It should not be surprising that he took a few minutes more to do things than an experienced officer might have.
[57] In this case he was unable to explain what, if anything, might have happened between 9:22 when Mr. Bhimlal registered a “Fail” on the ASD and 9:25 when Constable Matheson arrested him. He testified that he did not ask Mr. Bhimlal any questions during that time leading up to the arrest.
[58] In light of his inexperience, I see nothing wrong with him taking up to three minutes to recognize that he had reasonable grounds and to then arrest Mr. Bhimlal.
[59] He then handcuffed Mr. Bhimlal, searched him and placed him in the police car. He began reading the right to counsel at 9:27.
[60] Again I see nothing wrong with him taking two minutes to complete the arrest and secure Mr. Bhimlal in the police car before taking out his notebook and reading the rights to counsel to him.
[61] There was no infringement of Mr. Bhimlal’s section 10 (b) rights here.
[62] Recognizing that a reviewing judge may see this differently, I will do a section 24(2) analysis later, just in case.
[63] That leaves the section 8 argument.
[64] Section 8 of the Canadian Charter of Rights and Freedoms provides that: 8. Everyone has the right to be secure against unreasonable search or seizure.
[65] In most cases, an accused bears the burden of persuading the court on a balance of probabilities that his or her Charter rights have been infringed, but in the section 8 context, once the accused has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities that the search or a seizure was reasonable.
[66] In this case I find that the burden of persuasion is on the Crown on a balance of probabilities.
[67] There are two issues before me, one a question of law and the other mixed law and fact. These are: (1) Is a failure to take an accused's breath sample "as soon as practicable" a breach of section 8 of the Charter? and if so (2) Were the breath samples taken "as soon as practicable” in this case?
[68] My answer to the first question is “no”.
[69] My answer to the second question is “yes”.
[70] My reasons for these answers are as follows.
[71] Some cases have found that the failure to take samples as soon as practicable is a breach of section 8 . [14]
[72] Other cases have held that it does not. [15]
[73] The only case that is binding on me on this issue however is the Summary Conviction Appeal decision of Justice Andre in R. v. Mawad, 2016 ONSC 7589. [16]
[74] After reviewing all of these decisions, I am satisfied that the relevant provisions of the Criminal Code require that the police officer make a demand as soon as practicable and that the driver provide samples of breath as soon as practicable. There is no obligation on the police to take the samples as soon as practicable.
[75] In any event, I was also satisfied that the samples of Mr. Bhimlal’s breath were in fact taken as soon as practicable.
[76] In that regard the Ontario Court of Appeal has stated clearly that "as soon as practicable" does not mean as soon as possible. It means that the tests must be taken within a reasonably prompt time. [17]
[77] In deciding whether the tests are taken as soon as practicable I must look at the entire 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 reasonably. The Crown is obligated to demonstrate that in all the circumstances the breath samples were taken within a reasonably prompt time, but there is no requirement that the Crown provide a detailed examination of what occurred during every minute that the accused is in custody. [18]
[78] In this case both samples were taken within two hours of Mr. Bhimlal being detained.
[79] During that time, amongst other things, Constable Matheson conducted his initial investigation, retrieved an ASD from Constable Boston, read the ASD demand to Mr. Bhimlal, explained how the device worked, conducted a self test on it, received a suitable sample from Mr. Bhimlal, arrested him, read him right to counsel, and caution and demand and drove him to the police station where he called Duty Counsel and left a message, and put Mr. Bhimlal on the telephone with Duty Counsel when he called back.
[80] Counsel argued that there was an unexplained 13 minute delay between 9:29 when Constable Matheson finished reading the right to counsel and 9:43 when he left the scene to take Mr. Bhimlal to the police station.
[81] I note that some of that time was spent reading him the caution and the breath demand.
[82] After looking at the entire chain of events I am satisfied that the Crown demonstrated that in all the circumstances the breath samples were taken within a reasonably prompt time,
SECTION 24(2) ANALYSIS
[83] I am doing this just in case I erred in finding that the two to five minute delay in reading the rights to counsel to Mr. Bhimlal did not infringe his section 10 (b) rights.
[84] The test set out in R. v. Grant, 2009 SCC 32 [19] by the Supreme Court of Canada directs me to assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter -infringing state conduct, (2) the impact of the breach on the Charter -protected interests of the accused, (3) society's interest in the adjudication of the case on its merits.
[85] I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[86] In R. v. Grant, supra, the Court discusses the first factor, the seriousness of the Charter -infringing state conduct, as follows: The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. [20]
[87] The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes. [21]
[88] Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law. [22]
[89] Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct. [23]
[90] In this case the delay in reading rights to counsel to Mr. Bhimlal was between two to five minutes. Constable Matheson was a relatively inexperienced police officer who could not be expected to do things as quickly as an experienced officer might have. There is no suggestion of bad faith on his part.
[91] I am satisfied that if this constituted an infringement of Mr. Bhimlal’s rights, it was a minor infringement and does not weigh in favour of either exclusion or of inclusion of the breath results.
[92] With respect to the second factor, the impact of the breach on the Charter -protected interests of Mr. Bhimlal, I note the following.
[93] The breath tests were minimally intrusive both in terms of what took place and the evidence obtained.
[94] In reaching that conclusion, I have noted the comments in R. v. Grant, supra that: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [24]
[95] Previously, it often seemed that any infringement of the rights of those accused of drinking and driving would result in the automatic exclusion of the breath results. This passage would appear to indicate that this will not always be the case now. [25]
[96] I also note the comments of the Ontario Court of Appeal in R. v. Jennings: Although…the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge. [26]
[97] The Court of Appeal rejected the approach taken in R. v. Au-Yeung, 2010 ONSC 2292 [27] where Ducharme J. held that a trial judge is to consider the impact of the entirety of the procedure faced by an accused after arrest including the initial detention, being placed in the back of a police cruiser and transported to a police station, and detention at the police station for a substantial period of time. [28]
[98] I also note that all of these things would have occurred here in any event. Mr. Bhimlal was properly arrested before being placed in the back of the police cruiser, transported to a police station, and detained there for some time.
[99] I also note that, although counsel for Mr. Bhimlal argued otherwise, I was satisfied that Constable Matheson did not attempt to question Mr. Bhimlal before reading him his right to counsel. Further, Mr. Bhimlal spoke to a lawyer before the breath tests took place. Accordingly, the impact of the slight delay in informing him of his rights was minimal. [29]
[100] After considering all of this I conclude that the second branch of Grant weighs in favour of inclusion of the results of the breath tests
[101] As for the third factor, the offence is recognized to be a serious one. The societal interest in having a trial on the merits would usually favour admission here.
[102] I must also consider the fact that the evidence which Mr. Bhimlal seeks to have excluded, is reliable. "Subject to other evidence in any given case, breath samples and their testing by ASDs and Intoxilyzers are generally considered reliable evidence." [30] The Intoxilyzer test results are certainly presumptively reliable by virtue of the Criminal Code provisions.
[103] I find then that the truth-seeking function would have been better served by the admission of the evidence than by its exclusion.
[104] As I stated above, I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[105] I must not give any one factor “an unjustified analytical pre-eminence” while doing this. [31]
[106] I do note however the comments of Fish J. in R. v. Morelli, 2010 SCC 8, where he stated, “justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices”. [32]
[107] In R. v. Beattie, [2009] O.J. No. 4121 (Ont. C.J.), 2009 ONCJ 4121, Duncan J. stated: Yet the focus must be long term, on the big picture. Viewed in that way, the balance shifts towards favouring exclusion in order to restore the intended public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights. I conclude, after much anguished consideration, that the long term interests of the administration of justice are better served by exclusion in this case. [33]
[108] In R. v. Mehta, [2012] O.J. No. 5587 (Ont. C.J.), 2012 ONCJ 5587, Lipson J. wrote: Yet it is also true that the overriding purpose of section 24(2) is to maintain the good repute of the administration of justice by both upholding the rule of law and Charter rights. The focus is both on the long-term and the prospective, not on the immediate reaction to admission or exclusion in a particular case. The purpose of section 24(2) is to further the long term interests of society and the justice system. [34]
[109] After considering all of the above, I would not have excluded the breath results from evidence even if I had found an infringement of Mr. Bhimlal’s section 10 (b) rights.
[110] I am therefore satisfied that the Crown has proven beyond a reasonable doubt that Mr. Bhimlal had a blood alcohol concentration equal to or greater than 80 milligrams of alcohol in 100 millilitres of blood within two hours of operating a conveyance in Brampton on October 21, 2019.
[111] I find him guilty of that offence.
A POSTSCRIPT
[112] I wish to point out that, yet again, much time and resources have been expended in a trial where the main issues involved were what was said by a police officer and when it was said. This would likely not have been necessary if the police officer had been wearing a body camera that recorded what was said and provided the relevant times. I am suggesting yet again that such body cameras be made available to police in the future. This could save a large amount of valuable court time.
Released: April 6, 2021 Signed: Justice D.A. Harris